Disfavored Constitution: State Fiscal Limits and State Constitutional Law
![handle is hein.journals/rutlj34 and id is 935 raw text is: FOREWORD: THE DISFAVORED CONSTITUTION: STATE
FISCAL LIMITS AND STATE CONSTITUTIONAL LAW
Richard Briffault*
I. INTRODUCTION
The dominant theme in the resurgent state constitutional jurisprudence
of the last quarter-century has been the effort of many scholars and jurists to
find in state constitutions a progressive alternative to the conservative turn
federal constitutional doctrine has taken in the Burger and Rehnquist eras.
Following the tone set by Justice William Brennan's path-breaking 1977
article in the Harvard Law Review,1 the state constitutional law literature
has sought a more expansive protection of civil liberties through state
constitutional provisions dealing with criminal law and procedure,2 freedom
of expression,3 and equality,4 and to ground positive rights to public services
in state constitutional measures dealing with such affirmative governmental
duties as education,5 welfare,6 and housing.7
* Vice-Dean and Joseph P. Chamberlain Professor of Legislation, Columbia Law
School; B.A. Columbia University, 1974; J.D. Harvard Law School, 1977. Earlier versions of
this Article were presented as the 2003 State Constitutional Law Lecture at Rutgers School of
Law--Camden and at a Columbia faculty lunch workshop. I have benefitted from audience
comments on both occasions, as well as from comments by Clayton Gillette, Laurie Reynolds,
and Stewark Sterk.
1. William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights,
90 HARv. L. REv. 489 (1977); see also William J. Brennan, Jr., The Bill of Rights and the
States: The Revival of State Constitutions as Guardians of Individual Rights, 61 N.Y.U. L.
REv. 535 (1986).
2. See Shirley S. Abrahamson, Criminal Law and State Constitutions: The Emergence
of State Constitutional Law, 63 TEX. L. REv. 1141 (1985); Robert M. Pitler, Independent
State Search and Seizure Constitutionalism: The New York State Court of Appeals' Quest for
Principled Decision-Making, 62 BRooK. L. REv. 1 (1996); Note, Developments in the Law -
The Interpretation of State Constitutional Rights, 95 HARv. L. REv. 1324, 1367-98 (1982)
[hereinafter Developments].
3. See, e.g., Developments, supra note 2, at 1398-1429.
4. See, e.g., Robert F. Williams, Equality Guarantees in State Constitutional Law, 63
TEx. L. REv. 1195 (1985).
5. See Developments, supra note 2, at 1444-59; Michael Heise, State Constitutions,
School Finance Litigation, and the Third Wave: From Equity to Adequacy, 68 TEMP. L.
REv. 1151 (1995); Allen W. Hubsch, The Emerging Right to Education Under State
Constitutional Law, 65 TEM. L. REv. 1325 (1992); Molly McUsic, The Use of Education
Clauses in School Finance Reform Litigation, 28 HARv. J. LEGis. 307 (1991); William E.
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Disfavored Constitution: State Fiscal Limits and State Constitutional Law
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