New Frontiers of State Constitutional Law Dual Enforcement of Norms

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  • Format: Hardcover
  • Copyright: 2010-12-14
  • Publisher: Oxford University Press

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New Frontiers of State Constitutional Law: Dual Enforcement of Norms , edited by James A. Gardner and Jim Rossi, projects a new vision for state constitutional law through a collection of essays that reflect a shift in legal thinking about the relationship between national and subnational systems of constitutional law. This work charts a new course that gives voice to a recent, rising chorus of dissent among scholars and judges, namely that national and subnational systems of constitutional law cannot be adequately understood in isolation from one another. To the contrary, they are linked in a web of jurisprudential, social, and pragmatic connections structured by the American system of federalism. Here, multiple layers of constitutional law function together in a complex, interdependent process in which constitutional norms are developed, articulated, and enforced. The essays illuminate the role that state constitutions must play in any theory of federalism, and exemplify a fresh approach to state constitutionalism by discussing a range of issues, including recent debates regarding state constitutional protections for same-sex marriage. The entire work embraces the struggle between state and national power for dominance in American law and places both on equal ground. It contends that constitutional meaning in a federal system is never static and that it evolves over time. In addition to covering methods of judicial review, it discusses the handling of constitutional claims by courts at the state and national level and closely examines the way that courts and constitutions protect individual rights in a federal system.

Author Biography

James A. Gardner is Vice Dean for Academic Affairs and Joseph W. Belluck and Laura L. Aswad Professor of Civil Justice at the University at Buffalo Law School, State University of New York, where he also directs the Edwin F. Jaeckle Center for State and Local Democracy. He is the author of: Of Interpreting State Constitutions: A Jurisprudence of Function in a Federal System (University of Chicago Press, 2005) and nearly two dozen articles and chapters on state constitutional law and subnational constitutionalism.

Jim Rossi is the Harry M. Walbosky Professor and Associate Dean for Research at Florida State University College of Law. He is author of numerous articles on state constitutional and administrative law, with a particular focus on state implementation of federal regulatory standards and programs. His books include Regulatory Bargaining and Public Law (Cambridge University Press, 2005) and a casebook, Energy, Economics and the Environment (Foundation Press, 3d ed. 2010) (with Fred Bosselman, Joel Eisen, David Spence and Jacqueline Lang Weaver).

Table of Contents

Acknowledgementsp. ix
Contributorsp. xi
Dual Enforcement of Constitutional Normsp. 1
Introductionp. 1
The Jurisprudence of American Subnational Constitutional Lawp. 2
States as Dynamic Subnational Institutions within a Federalism Frameworkp. 5
The Generation and Enforcement of Constitutional Norms in a Dual Agent Federalismp. 7
The Approach of This Volumep. 11
Cool Federalism and the Life Cycle of Moral Progressp. 15
Introduction: Hot and Cool Federalismp. 15
The Life Cycle of Moral Progress in American Politicsp. 16
What Regime of Federal Authority Follows?p. 19
Conclusion: Breathing Roomp. 23
ƓStates of the Same Natureƶ: Bounded Variation in Subfederal Constitutionalismp. 25
Introductionp. 25
Convergence and Divergence at the Foundingp. 27
How much Constitutional Variation?p. 30
How much Interpretive Variation?p. 33
Turnaboutp. 35
Conclusionp. 38
Why Federalism and Constitutional Positivism Don't Mixp. 39
Introductionp. 39
Constitutional Positivismp. 42
Federalism and Subnational Units: Whose Constitution Is It?p. 45
Implications for Interpretationp. 50
Complicationsp. 53
Conclusionp. 58
State Constitutionalism and the Scope of Judicial Reviewp. 61
Introductionp. 61
State Constitutions and the Dilemmas of Governancep. 62
Optimal (Optimizing?) Judicial Reviewp. 66
Scope of Constitutional Review Revisitedp. 70
Conclusionp. 80
Same-Sex Marriage and the New Judicial Federalism: Why State Courts Should Not Consider Out-of-State Backlashp. 81
Introductionp. 81
Positive Political Theory and the New Judicial Federalismp. 83
The New Judicial Federalism and Same-Sex Marriagep. 88
Conclusionp. 102
Interjurisdictional Enforcement of Rights in a Post-Erie Worldp. 103
Introductionp. 103
Federalism as Polyphonyp. 106
Intersystemic Adjudication in the United Statesp. 108
The Values and Counter-Values of Intersystemic Adjudicationp. 111
Legitimacy of Intersystemic Adjudicationp. 117
Rights and Remedies in an Imperfect Worldp. 123
Dual Constitutions and Constitutional Duelsp. 127
Introductionp. 127
Duels Between Federal Regulatory Goals and State Constitutions in Cooperative Federalism Programsp. 130
Interpretive Efforts to Retain the Relevance of State Constitutions against the Backdrop of Federal Programsp. 134
A Solution from within: Seeds for an Interpretive Theory of Separation of Powers for Systems of Dual Constitutionsp. 142
Conclusionp. 150
State Common Law and the Dual Enforcement of Constitutional Normsp. 151
Introductionp. 151
Framing the Extension of Constitutional Norms to Private Conductp. 153
Implications for Federalism, Sovereignty, and Judicial Practicep. 163
Common Law as a Modality for Constitutional Developmentp. 168
Conclusionp. 171
Indexp. 173
Table of Contents provided by Ingram. All Rights Reserved.

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