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63 Tex. L. Rev. 1141 (1984-1985)
Criminal Law and State Constitutions: The Emergence of State Constitutional Law

handle is hein.journals/tlr63 and id is 1163 raw text is: Criminal Law and State Constitutions: The
Emergence of State Constitutional Law
Shirley S. Abrahamson*
I. Introduction: The States as Laboratories
The popular view is that our country tolerates-indeed fosters--di-
versity as a societal virtue, and that this tolerance extends to the field of
constitutional law. In 1932, Justice Brandeis urged that state legislatures
be allowed to experiment with social and economic legislation:
It is one of the happy incidents of the federal system that a single
courageous State may, if its citizens choose, serve as a laboratory;
and try novel social and economic experiments without risk to the
rest of the country.... If we would guide by the light of reason,
we must let our minds be bold.'
Since then, other United States Supreme Court Justices have applied
the Brandeis laboratory metaphor to state courts as well as to state legis-
latures, and to criminal law as well as to social and economic legislation.
The Justices do not always agree, however, whether the state's laboratory
should be more innovative, or less so, than the federal system. One Jus-
tice may encourage state experimentation by urging that not all criminal
procedural rights granted in federal courts apply with the same force in
state courts;2 other Justices may remind state courts that they are free to
* Justice, Wisconsin Supreme Court. This article is a revised and annotated version of the
Tom Sealy Lecture, delivered at the University of Texas School of Law on January 24, 1985, as part
of the Conference on the Emergence of State Constitutional Law. I want to thank Sharon Ruhly and
Diana Balio for their assistance in preparing this manuscript for publication.
1. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
2. See, e.g., Johnson v. Louisiana, 406 U.S. 356, 375-76 (1972) (Powell, J., concurring) (ques-
tioning the wisdom of rigidly applying federal standards to state jury procedures).
In Crist v. Bretz, 437 U.S. 28 (1978), Chief Justice Burger stated his objections to the Court's
constitutionalizing criminal procedure and emphasized his support of state experimentation:
We should be cautious about constitutionalizing every procedural device found useful in
federal courts, thereby foreclosing the States from experimentation with different ap-
proaches which are equally compatible with [federal] constitutional principles. All things
good or desirable are not mandated by the [federal] Constitution. States should re-
main free to have procedures attuned to the special problems of the criminal justice system
at the state and local levels. Principles of federalism should not so readily be compromised
for the sake of a uniformity finding sustenance perhaps in considerations of convenience
but certainly not in the [federal] Constitution. Countless times in the past 50 years this
Court has extolled the virtues of allowing the States to serve as laboratories to experi-
ment with procedures which differ from those followed in the federal courts. Yet we con-
tinue to press the States into a procrustean federal mold.
Id. at 39-40 (Burger, C.J., dissenting). Justice Burger's enthusiasm for the state laboratory, however,


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