Increasingly, Washington courts are being asked to consider our Declaration as an independent and effective source of protection for individual rights, including some rights not recognized or protected by the United States Supreme Court, and to give our state constitution a truly independent interpretation. No matter how sympathetic they may be to such requests, lawyers and judges face at least three major problems in making a truly independent interpretation of a state constitutional provision. First, they must justify departing from precedents laid down by the United States Supreme Court, a step which makes many people understandably uncomfortable until the differing histories of the federal and state acts are understood. Second, they must decide when and how to approach a state constitutional problem. Typical questions include whether the state or federal constitution should be raised or considered first; whether and how a state constitutional provision should be compared with the comparable federal provision, if any; how to weigh federal court precedents and state court dicta; how to avoid the danger of federal review and reversal of decisions that rest on independent state constitutional grounds; and, how to develop an independent framework for analyzing the state Declaration of Rights. Finally, they must decide how to analyze state constitutional provisions with few or no Washington Supreme Court precedents for guidance. Although most judges are familiar with the usual forms of textual analysis, many are unaccustomed to making the necessary in-depth inquiry into the intent of the people who wrote and ratified the Declaration, and few know what resources are available to aid them in discovering such intent. Furthermore, trial judges are generally reluctant to base their decisions even in part on their analysis of contemporary values and conditions, an analysis that is uniquely necessary to the continued existence and vitality of a modern constitution.
Justice Robert F. Utter, Freedom and Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights, 7 SEATTLE U. L. REV. 491 (1984).