Equality and Liberty in the Golden Age of State Constitutional Law

by Shaman, Jeffrey M

• ISBN13: 9780195334340
• ISBN10: 0195334345
• Format: Hardcover
• Copyright: 2008-04-14
• Publisher: Oxford University Press

Summary

The rise of the New Judicial Federalism movement in the 1970s marked a sea-change in the history of state constitutional law by shifting the focus of power away from the central government in ways that had not occurred since the Equal Protection Clause was enacted in 1868. With New Judicial Federalism, many states rediscovered that they were empowered to enact their own constitutions and to interpret them as they saw fit, which enabled states to recognize civil rights and liberties beyond those recognized under the Federal Constitution. Equality and Liberty in the Golden Age of State Constitutional Law closely examines the evolution of the rights of liberty and equality under state constitutions from both a historical and jurisprudential perspective. In it, Professor Jeffrey M. Shaman explains that as New Judicial Federalism gained ground, state constitutional law became an important source for the protection of individual rights and liberties. States have since expanded the right of the citizen well beyond the limits of federal law by striking down laws that led to de facto segregation in public schools, discriminated against women, or allocated public benefits inequitably. State courts were the first to recognize a right of intimate association, spurring the U.S. Supreme Court to follow suit. Equality and Liberty in the Golden Age of State Constitutional Law is essential reading for anyone interested in this manifestation of law that has developed beyond the purview of national attention and in the resulting evolution of power in U.S. constitutional law.

Author Biography

Jeffrey M. Shaman is Vincent de Paul Professor of Law at DePaul University where he has been a member of the faculty since 1973. Professor Shaman teaches constitutional law, state constitutional law, and a senior research seminar on freedom of speech. He also has taught courses on judicial ethics, federal courts, civil procedure, and psychiatry and law.

Table of Contents

Preface	p. xi
Introduction: The New Judicial Federalism	p. xiii
Equality	p. 1
The Federal Model of Equality	p. 8
The State Conception of Equality	p. 15
Special Privileges or Immunities	p. 28
Equal Protection of the Laws	p. 38
Conclusion	p. 42
Classifications	p. 45
Racial Classifications	p. 46
Gender Classifications	p. 53
Classifications Based on Sexual Orientation	p. 61
Classifications Based on Age	p. 70
Conclusion	p. 76
Rights and Privileges	p. 79
Educational Financing	p. 79
Economic Rights	p. 86
Tax Laws	p. 88
Damage Caps	p. 93
Allocation of Economic Benefits	p. 96
Regulatory Legislation	p. 101
Special Entitlements	p. 106
Criminal Law	p. 107
Disparate Penalties	p. 108
Prosecutorial Discretion	p. 113
Disparate Treatment of Men and Women	p. 115
Juvenile Offenders	p. 116
Conclusion	p. 119
The Right of Privacy	p. 121
The Federal Model of Privacy	p. 125
The State Conception of Privacy	p. 136
The Right to Be Let Alone	p. 138
The Millian Principle	p. 143
The Inherent and Unalienable Cornerstone of Liberty	p. 148
Penumbrae Redux	p. 153
Spatial Privacy: The Home as Sanctuary	p. 155
Constitutional Situs and Methodology	p. 158
Conclusion	p. 160
Family Rights	p. 163
Reproductive Freedom	p. 163
Public Funding of Abortions	p. 163
Abortion Rights of Minors	p. 168
Informed Consent and Waiting Periods	p. 171
Family Relations	p. 174
Parental Rights	p. 174
Adoption	p. 176
Cohabitation as a Family	p. 181
Civil Unions and Marriage	p. 185
The Right of Intimate Association	p. 211
Sexual Relations Between Consenting Adults (Married or Not)	p. 211
Gay and Lesbian Sexual Relations	p. 215
Public Health	p. 222
Social Morality	p. 224
Other State Interests	p. 225
Conclusion	p. 226
The Right of Bodily Integrity	p. 229
The Right to Refuse Medical Treatment and the Right to Die	p. 229
The Right to Ingest Food, Beverages, or Other Substances	p. 235
Backlash and Advancement	p. 243
Table of Cases	p. 255
Index	p. 267
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