Arguing Gunwall: Can a State Supreme Court Force its Lawyers to Argue State Constitutional Claims?

This paper examines the role of lawyers in the development of state constitutional law. The failure of lawyers to regularly offer state constitutional claims undermines the ability of state courts to engage in state constitutional rights activism. Utilizing a study of rights arguments made to the Washington Supreme Court, 1978-2000, I demonstrate how the clear expression of a state constitutional theory leads lawyers to make state constitutional arguments that are more clearly independent of federal law. Lawyers are less likely to simply present state high courts with invitations to evade newly restrictive federal law. This suggests that state high courts may be able to induce a support structure for state constitutional law that otherwise would not have existed and thus give the state court more support for independent constitutional doctrine.