scholarly journals The Roberts Court, State Courts, and State Constitutions: Judicial Role Shopping

2022 ◽  
Author(s):  
Ariel L. Bendor ◽  
Joshua Segev
Keyword(s):  
State Courts ◽  
State Constitutions ◽  
Roberts Court ◽  
Judicial Role

State Constitutional Law in 1929–1930

1930 ◽  
Vol 24 (3) ◽  
pp. 666-686 ◽  
Author(s):  
Oliver P. Field
Keyword(s):  
Constitutional Law ◽  
State Courts ◽  
State Constitutions ◽  
Course Of Action ◽  
The Subject ◽  
State Constitutional Law

State courts determine, in the absence of constitutional provision to the contrary, whether amendments to state constitutions have been proposed and adopted in the manner provided for these constitutions. Not every minor deviation from the course of action marked out in the constitution for its amendment is deemed sufficient to justify the court in declaring that the amendment has been “unconstitutionally adopted,” but whether these deviations are serious enough to warrant such a declaration is a question to be determined by the courts themselves. Statutes supplementing constitutional provisions on the subject of amendment are valid if not in conflict with the constitutional provisions themselves, and substantial compliance with these rules is also required by the courts. Sometimes the provisions regulating the subject of publication of proposed amendments are constitutional; at other times they are statutory. In either case, publication in the manner provided for, and for the period of time provided for, is necessary to the validity of the amendment. Publication for two weeks, when the period should have been four weeks, was deemed sufficient by the Nebraska court to invalidate the amendment involved.

Judicial Review

2021 ◽  
pp. 31-68
Author(s):  
Jeffrey S. Sutton
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
The State ◽  
State Courts ◽  
Court Case ◽  
State Laws ◽  
State Constitutions ◽  
The Us ◽  
Us Supreme Court ◽  
Us Constitution

The conventional account of judicial review starts with a US Supreme Court case, Marbury v. Madison. But judicial review in truth starts with the state courts and the state constitutions, not the US Supreme Court and the US Constitution. Before the US Constitution existed, the state courts established American judicial review and were the first courts to wrestle with the complexities of exercising it. Judicial review also is foremost a structural story, not an individual-rights story. The delegation of power to the judiciary to decide the meaning of our constitutions laid the groundwork for the growth in power of American courts—especially the federal courts, which have become the go-to answer for so many who-decides questions in American government over the last seventy-five years. This chapter begins a search for insights in resolving the dilemma of judicial review by looking at how the state courts innovated the concept and the ways they initially practiced it. It shows that the early state courts were deferential to the democratic branches of government. They rarely invalidated state laws and did so only when these laws violated a clear constitutional rule. That approach offers lessons for federal and state courts alike.

Part IV Unique Interpretation Issues in State Constitutional Law, 12 Interpreting State Constitutions

2009 ◽  
Author(s):  
Williams Robert F
Keyword(s):  
State Legislature ◽  
State Courts ◽  
Constitutional History ◽  
State Constitutions ◽  
Federal Constitution ◽  
The People ◽  
Unique Interpretation ◽  
Origin Function ◽  
The Voice ◽  
State Constitutional Law

This chapter discusses a wide variety of judicial interpretation techniques that state courts apply to state constitutions. Many of these techniques arise from the unique characteristics of state constitutions, including their origin, function, form, and quality, all of which are different from the federal Constitution. The chapter analyzes many of these differing approaches, including the question whether a state constitutional provision is self-executing; possible negative implications arising from grants of authority to the state legislature; interpretation based on the “voice of the people,” arising from the fact that state constitutional provisions are ratified by the electorate; the much wider availability of state constitutional history materials, some of it quite recent; and the possibility of a different view of the doctrine of precedent concerning judicial interpretations of state constitutions. The chapter discusses canons, maxims, and other approaches to state constitutional interpretation, such as contemporaneous construction.

Part II Rights Guarantees under State Constitutions: the New Judicial Federalism, 7 Lockstepping State Constitutional Rights with Federal Constitutional Law

2009 ◽  
Author(s):  
Williams Robert F
Keyword(s):  
Constitutional Law ◽  
The State ◽  
State Courts ◽  
Equal Protection ◽  
Constitutional Rights ◽  
Equal Protection Clause ◽  
State Constitutions ◽  
Wide Range ◽  
Judicial Federalism ◽  
Federal Constitutional

This chapter discusses the practice — adopted by a number of state courts — of stating that state constitutional rights provisions will be interpreted identically to, or in “lockstep” with, similar or identical federal constitutional rights provision. State courts do this in a variety of ways, ranging from cases where they do not seem to acknowledge the possible difference between state and federal rights protections; to case-by-case adoption of federal constitutional interpretations; to “prospective lockstepping” where they announce that in the future the state and federal rights provisions will be interpreted identically or according to some other similar formulation. The chapter gives examples of these different approaches, as well as variations on them. It includes a specific focus on the wide range of state constitutional equality provisions, which, according to many state courts, are to be interpreted the same way as the federal Equal Protection Clause. These various forms of prospective lockstepping are criticized, on the grounds that they cannot actually represent “holdings” and are therefore not binding on future courts.

Closing Achievement Gaps through Socioeconomic Integration

2019 ◽  
Author(s):  
Derek W. Black
Keyword(s):  
Low Income ◽  
Educational Opportunities ◽  
State Courts ◽  
Federal Law ◽  
Supreme Courts ◽  
Middle Income ◽  
State Constitutions ◽  
Socioeconomic Integration ◽  
Socioeconomic Segregation

Social science demonstrates that racial and socioeconomic segregation undermine the quality of education students receive in a number of different ways. Yet, in the absence of intentional racial segregation, federal law provides no obvious remedy. In fact, federal law may even limit the options schools can voluntarily pursue in addressing the problem. State constitutional law provides a solution. State constitutions guarantee students access to adequate and equal educational opportunities. If socioeconomic segregation is a causal factor in depriving students of those guaranteed opportunities, state courts can afford students a remedy. Plaintiffs need not show intentional racial or socioeconomic segregation. Two state supreme courts have already explicitly recognized as much, and analogous claims are pending in other states. This chapter argues that one key to expanding these claims is changing how courts and educators think about student assignment policies. Students—just like money, teachers, and facilities—are a key resource that school districts distribute. When districts segregate middle-income and low-income students, they are, consciously or otherwise, making decisions about the quality of the learning environment that will exist in individual schools. Those decisions, too often, create unequal access to adequate educational opportunities.

State Constitutions and the Press: Historical Context and Resurgence of a Libertarian Tradition

1992 ◽  
Vol 69 (1) ◽  
pp. 105-123 ◽  
Author(s):  
James R. Parramore
Keyword(s):  
18Th Century ◽  
Historical Context ◽  
The United States ◽  
State Courts ◽  
Press Freedom ◽  
State Court ◽  
State Constitutions ◽  
The Past ◽  
The Press ◽  
Speculative Discussion

The first section of this essay is a textual analysis of 18th century state press clauses. Section 2 is a speculative discussion of the contemporary significance of these first state constitutional attempts to protect press freedom in the new republic, the United States. Section 3 briefly examines the legal doctrines and conceptual frameworks developed and shaped over the past 200 years, which have led to increased reliance recently by state courts on state constitutional press clauses. In section 4, specific issues of press freedom affected by these modern state court decisions are discussed, with examples. This analysis reveals the relevance of continued historical and neoteric research on state constitutions and state press provisions, and how we, perhaps, have not lost our early libertarian roots.

scholarly journals The Varieties of Constitutional Change

2018 ◽  
Author(s):  
Lawrence Friedman
Keyword(s):  
New England ◽  
Constitutional Law ◽  
State Courts ◽  
Constitutional Change ◽  
Judicial Interpretation ◽  
Constitutional Development ◽  
State Constitutions ◽  
Federal Constitutional ◽  
The Relationship ◽  
Robert Williams

New England Law Review. Vol. 51(3)(2018). While federal constitutional law has changed over the two hundred plus years since the framing, relatively little of that development was the result of the formal amendment process prescribed by Article V. Rather, significantly more change to our understanding of numerous constitutional provisions has come about through litigation over the meaning of the text. Regardless of the source of constitutional alteration, we regard the result as valid constitutional law. But that difference in source has fueled a great many efforts to legitimize judicial interpretation as a mode of constitutional change—to legitimize, that is, constitutional development by the least representative, least accountable department of the federal government. State constitutions, on the other hand, tell a different story. In the state constitutional context, the tension between litigation-driven change and amendment-driven change is diminished by the fact that formal amendment is a more realistic proposition that it is under the U.S. Constitution. This piece is an introduction to a Symposium on the relationship between state courts and constitutional change under state constitutions. The Symposium focuses on Jonathan Marshfield’s article, “Courts and Informal Constitutional Change in the States,” and includes responsive essays by Massachusetts Supreme Judicial Court Associate Justice Scott Kafker, Justin Long, James Gardner, Yaniv Roznai, and Robert Williams.

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