A House Divided: When State and Lower Federal Courts Disagree on Federal Constitutional Rights

Despite their many differences, Americans have long been bound by a shared sense of federal constitutional commonality. As this article demonstrates, however, federal constitutional rights do in fact often differ — even within individual states — as a result of state and lower federal court concurrent authority to interpret the Constitution and the lack of any requirement that they defer to one another’s positions. The article provides the first in-depth examination of intra-state, state-federal court conflicts on federal constitutional law and the problems that they create. Focusing on criminal procedure doctrine in particular, with its unique impact on individual liberty and privacy, the article highlights multiple instances in which state and lower federal courts disagree. As the article makes clear, creation of a “crazy quilt” of conflicting federal rights, which Justice Scalia has inveighed against more generally, generates an array of distinct and quite significant difficulties when localized. To date, however, the conflicts and their consequences have largely evaded the attention of commentators and, more importantly, often go unaddressed by the Supreme Court, which appears content to maintain its historically small plenary docket. In response, the article urges that Congress amend the federal certification provision, which since 1802 has allowed federal but not state courts to certify disputed questions to the Court for resolution. Allocating certification authority to state and federal courts alike will not only help ensure that the Court fulfills its role as arbiter of federal constitutional disputes. It will also help elevate state courts to their rightful place in the nation's constitutional order and allow for greater engagement with the nation’s “one supreme Court,” charged with overseeing the work of state and lower federal courts and ensuring federal constitutional consistency.