LOCKSTEPPING STRUCTURE

The new judicial federalism is now entering its early middle age. As it has matured-moving from rights to structure-it has become more complicated in its application. For if one were to take arguments about state experimentation and interpretive flexibility to their logical conclusion, there is no reason state legislative, executive, and judicial powers should stay in lanes demarcated by federal constitutional law. Easily amended state constitutions and elected judges support theories of judicial function more akin to statewide legislative policymakers than passive judicial magistrates. Positive rights in state constitutions would seem to demand recalibration of the rules of standing and the ranking of first- and second-order rights. The very fact that state constitutions often specify the creation, maintenance, and entrenchment of an administrative state seems to counsel a completely different theory of administrative discretion, executive power, and judicial deference than the one currently supplied by federal separation-of-powers jurisprudence. Nevertheless, many state courts continue to reflexively cite federal constitutional principles in construing the structure of their state constitutions. This Essay looks at the phenomenon of lockstepping state constitutional law to federal precedent once the question turns from rights to structure.