Hugh D. Spitzer


This Article studies the problem of choosing constitutions-particularly the choice between applying the national Bill of Rights or a state constitution's declaration of rights. Many others have presented arguments for and against the independent application of a state's rights guarantees' or have classified and analyzed the various theories of state constitutionalism in the shadow of the United States Supreme Court. This examination focuses on practice rather than theory: specifically, how the Washington State Supreme Court has applied its formal doctrine on the role of the State's Declaration of Rights' and how that court has characterized and applied six criteria it prescribed in State v. Gunwall to assist Washington lawyers and judges in briefing and interpreting Washington's Declaration of Rights when the national Bill of Rights also applies. After briefly reviewing the history of state constitutionalism, this Article analyzes 108 Washington Supreme Court opinions that referred to Gunwall during the 11 years after that case was decided. It suggests that a surprising divergence between theory and practice has occurred and recommends simple steps to make the Washington court's application more consistent with its doctrine.