West Virginia Law Review

Article Title

Dialectical Federalism: A Tribute to the West Virginia Supreme Court of Appeals


Over the course of the past decade, the West Virginia Supreme Court of Appeals has become something of a controversial institution. Allegedly seeking to "mold state government in its own image,"' the court has issued decisions restructuring the state property tax assessment and appraisal scheme, overseeing the funding of public education, invalidating a gubernatorial veto, expanding tort claims beyond the umbrella of workers compensation, and ordering emergency care for the homeless. As a result, the high court has, perhaps deservedly, "attained a reputation for dramatic intervention in public policy disputes.” As individual exercises of judicial authority, the court's determinations have received ample attention. Institutional and political conservatives have claimed that the justices have stepped beyond their allotted powers, trumped the prerogatives of other organs of governments, thwarted commercial development, and fostered bad policies in the process. Liberals and activists, perhaps less frequently, have complained that the court's efforts have been tempered by the political winds and thus fall short of the egalitarian goals occasionally suggested in its opinions. It is not my purpose here to enter that debate. Instead, this brief comment will consider the work of the court from another direction. My focus will be the contribution to the development of American constitutional decisionmaking resulting from the West Virginia Supreme Court of Appeals' efforts to interpret its own constitution. It is, as Justice Brandeis claimed, "one of the happy incidents of the federal system that a single courageous State may ... serve as a laboratory" for the formulation of governmental policy. As the result of an increasing reticence by the United States Supreme Court and a heightened sensitivity to civil liberties issues by state jurists, the cast of players molding our constitutional structure has been substantially expanded. The resulting dialogue, spurred by both state and federal interpretive ventures, has bolstered the legitimacy and the precision of constitutional decisionmaking. The rulings of the West Virginia Supreme Court of Appeals which construe the provisions of the state constitution, therefore, have special significance not only in the lives of West Virginians but in the development of a national constitutional jurisprudence. My task is to examine a handful of cases in which the West Virginia court has read its own constitution as more demanding than the federal counterpart. Along the way, I think something can be learned about the constitutional issues which should be particularly appealing to state tribunals, and about the role that state judiciaries, if inclined, can play in our constitutional process. Before turning to the West Virginia decisions, however, some perspective is helpful.