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State Constitutional Interpretation And Methodology, Rachel A. Van Cleave

Publications

The question of constitutional theory in state courts often results in a comparative analysis of the state and federal constitutions. Typically where a comparative analysis is used, the purpose is to support the authority of the state court to interpret the state document independently and to justify an interpretation and result that diverge from federal precedent. While this approach may add to the persuasiveness of the opinion, it does little to advance the role of state courts in the dialogue of constitutionalism. The critical tension in state constitutionalism is between the need to persuade critics that the state court is …

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The Contradictions Of Mainstream Constitutional Theory, Kimberlé W. Crenshaw, Gary Peller

Faculty Scholarship

For the last four decades, some form of "process" theory has dominated conventional constitutional theory, on the bench and in the academy. The organizing, usually implicit, background assumption is that the exercise of governmental power – whether by legislatures or courts – is to be tested for normative legitimacy against a set of procedures. Writing as critics of the basic framework of process theory, Professors Kimberli Crenshaw and Gary Peller discuss the contributions and constraints of a proceduralist constitutional law discourse. In light of direct democracy initiatives claiming the power of legislation, and a substantively conservative judiciary defining the "law," …

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