Law Commons^™

Why Federalism And Constitutional Positivism Don't Mix, James A. Gardner

Contributions to Books

Published as Chapter 4 in New Frontiers of State Constitutional Law: Dual Enforcement of Norms, James A. Gardner & Jim Rossi, eds.

This chapter places the book's approach in its interpretational context by linking the federal structure of constitutional norm production to the ever-present problem of interpretational methodology. It begins by arguing that previous approaches to the interpretation of subnational constitutions have failed because they improperly attempted to apply the dominant jurisprudence of national constitutional interpretation—constitutional positivism—to the constitutions of the states. Yet constitutional positivism as a technique only makes sense where subnational units are autonomous, as independent nations are. …