Why can't a state constitution incorporate any law that it wants, so long as it doesn't go below the U.S. Constitution's floor? The U.S. Constitution has been held to incorporate a certain amount of English law from the time of the framing; there are undoubtedly other examples that don't immediately come to mind; the concept is not new.Good question, o reader. The key here is that much of U.S. constitutional law applies to the states of its own force. That's true, for example, of the underlying right in Danforth: the requirement that in criminal cases, the accused be afforded the opportunity to confront his accuser. This right is contained in the 6th Amendment, which, the Supreme Court has held, is made applicable to the states via the Fourteenth Amendment.
Federal law that applies to states of its own force stands on a different footing from federal law (or, for that matter, English law or Finnish law) that the state, of its own volition, chooses to incorporate. Where federal law applies of its own force, the dissenters argue in Danforth and I agree in my column, the question of whether that law applies retroactively should also be a federal question. By contrast, if a state decided, in an area in which it was not bound by federal law, to voluntarily incorporate some federal doctrine---the Seventh Amendment civil jury trial right, say---the state would then also be free to incorporate that federal doctrine only partially. The state could give greater or less retroactive effect to U.S. Supreme Court rulings on the meaning of the Seventh Amendment because the state, having voluntarily decided to make federal law its own, can decide to incorporate a "distorted" version of the federal law.
As I noted in another recent blog post, I have written a law review article on the phenomenon of Dynamic Incorporation of Foreign Law. That article, which will appear in the University of Pennsylvania Law Review in the fall, addresses many aspects of state decisions voluntarily to incorporate foreign (including, for these purposes, federal) law, but does not take up this particular aspect of the problem: what we might call "partial" incorporation. Perhaps I'll tackle this issue in a future law review article---or perhaps one of you, blog readers, will do so, and give credit to this blog post and the reader (a gentleman named Bob Moss) who posed the question above.
Posted by Mike Dorf