Title: Path Dependence and the External Constraints on Independent State Constitutionalism
Abstract: The promise of “the New Judicial Federalism”—of the independent interpretation by state courts of state constitutional corollaries to the federal Bill of Rights—has gone largely unfulfilled. In terms of doctrinal development, the project of independent state constitutionalism, launched in earnest decades ago with the publication of United States Supreme Court Justice William Brennan’s call to arms in the pages of the Harvard Law Review, 1 is today more an aspiration than a practice. State courts often do not engage in the difficult task of trying to establish doctrinal tests that do not flow from federal precedent. Still, this does not mean that state courts cannot make valuable contributions to constitutional discourse—to the ongoing discussion among judges, advocates, commentators and citizens about constitutional meaning. Despite the constraints on the ability of these courts to innovate
Publication Year: 2011
Publication Date: 2011-01-01
Language: en
Type: article
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