Why Federalism and Constitutional Positivism Don't Mix

This chapter places the book's approach in its interpretational context by linking the federal structure of constitutional norm production to the everpresent problem of interpretational methodology. It begins by arguing that previous approaches to the interpretation of subnational constitutions have failed because they improperly attempted to apply the dominant jurisprudence of national constitutional interpretation-constitutional positivism-to the constitutions of the states. Yet constitutional positivism as a technique only makes sense where subnational units are autonomous, as independent nations are. However, states in a federal system like ours are far from the kind of autonomous sovereigns contemplated by prevailing theories of national constitutional interpretation. Indeed, a state constitution is the product of processes that transcend the state, and in which both the state and national polities participate. As a result, the interpretation of state constitutions inevitably will require at least some resort to national norms and sources of constitutional meaning.