Justice David Souter letter to Randy Holland re Delaware Constitution book: January 22, 2003

Supreme Court of the United States Washington, D. C. 20543


January 22, 2003

Dear Randy:

Many thanks for your kindness in sending me your book on the Delaware constitution and for the inscription to me. Although I’m in no position to appreciate the details of your scholarship, I think I am able to understand the significance of what you’ve done in producing the book, and I can only applaud, loudly.

I became an appellate judge about twenty years ago, when there was a great deal of drum-beating in favor of Justice Brennan’s view that the state judges should use the state con- stitutions to counteract the era of reticence or retreat that he saw then opening up through this Court’s reading of the national Constitution. I recall that Stuart Pollock of the Supreme Court of New Jersey was travelling around the country as rather an evangelist for state supreme court activism under the state charters. After seeing how this activism tended to work out in practice, however, I was left a cynic, as were my colleagues on the other northern New England supreme courts. We reflected once at a get-together that the state constitutionalism advocated before as seemed to boil down to this: cite a state provision more or less like the federal provision that would otherwise have been invoked, ignore the state text and history, then throw out a lot of marginally relevant federal cites. Appeals of intersection collision cases were better argued than the state constitutional revival.

That said, I will admit that a lawyer who was out to do a good job faced some digging in those days. None of the northern New England states, at least, had much by way of textual material or published studies, and the earlier cases were frequently on state provisions no longer to the fore. New Hampshire was crying out for its Holland in those days (and I gather from looking at the list of titles published in your series, it is still crying). But Delaware has got its Holland, and the differences between the Delaware Constitution and the federal, to which Norm referred in his preface, ought to get a fair shake from advocates with the benefit of your book.

The profession has a lot to thank you for.

Yours sincerely,

The Honorable Randy J. Holland
Supreme Court of Delaware
Post Office Box 369
Georgetown, Delaware 19947

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