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State Constitutions

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Should The Dead Bind The Living? Perhaps Ask The People: An Examination Of The Debates Over Constitutional Convention Referendums In State Constitutional Conventions, John J. Liolos Jul 2021

Should The Dead Bind The Living? Perhaps Ask The People: An Examination Of The Debates Over Constitutional Convention Referendums In State Constitutional Conventions, John J. Liolos

Akron Law Review

Should the United States of America have a constitutional convention? Thomas Jefferson would maintain that one is long overdue; James Madison would argue the contrary. These two luminaries of American constitutional thought took sides in a stirring debate on a fundamental question in constitutionalism: should the dead bind the living? Jefferson advocated for recurrent recourse to the people by holding constitutional conventions in each generation. James Madison disagreed, arguing that stability and constitutional veneration, among other factors, were paramount. Most recall Madison as having won the debate. But at least 18 states throughout American history have adopted a Jeffersonian model ...


State Constitutional Protection For Defendants In Criminal Prosecutions, Paul Marcus Sep 2019

State Constitutional Protection For Defendants In Criminal Prosecutions, Paul Marcus

Paul Marcus

No abstract provided.


How State Supreme Courts Take Consequences Into Account: Toward A State-Centered Understanding Of State Constitutionalism, Neal Devins Sep 2019

How State Supreme Courts Take Consequences Into Account: Toward A State-Centered Understanding Of State Constitutionalism, Neal Devins

Neal E. Devins

No abstract provided.


State Constitutionalism In The Age Of Party Polarization, Neal Devins Jul 2019

State Constitutionalism In The Age Of Party Polarization, Neal Devins

Faculty Publications

No abstract provided.


God And State Preambles, Peter J. Smith, Robert W. Tuttle Jan 2017

God And State Preambles, Peter J. Smith, Robert W. Tuttle

Marquette Law Review

Those who question the permissibility of official acknowledgements of God might be surprised to learn that the preambles of forty-five of the fifty state constitutions expressly invoke God. The practice is common in both liberal and conservative states and is equally prevalent in all regions of the country. Virtually all of those preambles give thanks to God, and many also seek God's blessing n the state's endeavors. Yet there has been no detailed assessment of the preambles' history or significance. This paper seeks to remedy that gap.

The preambles complicate the claim that official acknowledgements of God are ...


Marriage Equality In State And Nation, Anthony Michael Kreis Mar 2014

Marriage Equality In State And Nation, Anthony Michael Kreis

William & Mary Bill of Rights Journal

No abstract provided.


State Constitutions And The Basic Structure Doctrine, Manoj Mate Dec 2013

State Constitutions And The Basic Structure Doctrine, Manoj Mate

Manoj S. Mate

cross the United States, voters in many states have enacted initiative constitutional amendments that abrogate protections for equality and fundamental rights. In most cases, state supreme courts have upheld the validity of these amendments, undermining protections for fundamental rights at the state level. This Article proposes a novel solution to this problem: it argues for the application of the basic structure doctrine in the review of constitutional amendments by state supreme courts. Under this doctrine, the Supreme Court of India (like constitutional courts in other nations) asserted the power to invalidate amendments that abrogate "basic features" of the Indian Constitution ...


Intermittent State Constitutionalism, Justin Long Mar 2012

Intermittent State Constitutionalism, Justin Long

Pepperdine Law Review

No abstract provided.


How State Supreme Courts Take Consequences Into Account: Toward A State-Centered Understanding Of State Constitutionalism, Neal Devins Jan 2010

How State Supreme Courts Take Consequences Into Account: Toward A State-Centered Understanding Of State Constitutionalism, Neal Devins

Faculty Publications

No abstract provided.


Judicial Elections As Popular Constitutionalism, David E. Pozen Jan 2010

Judicial Elections As Popular Constitutionalism, David E. Pozen

Faculty Scholarship

One of the most important recent developments in American legal theory is the burgeoning interest in "popular constitutionalism." One of the most important features of the American legal system is the selection of state judges – judges who resolve thousands of state and federal constitutional questions each year – by popular election. Although a large literature addresses each of these subjects, scholarship has rarely bridged the two. Hardly anyone has evaluated judicial elections in light of popular constitutionalism, or vice versa.

This Article undertakes that thought experiment. Conceptualizing judicial elections as instruments of popular constitutionalism, the Article aims to show, can enrich ...


The Game Is Afoot: Constitutionalizing The Right To Hunt And Fish In The Tennessee Constitution, Jeffrey Omar Usman Jan 2009

The Game Is Afoot: Constitutionalizing The Right To Hunt And Fish In The Tennessee Constitution, Jeffrey Omar Usman

Law Faculty Scholarship

The normative role of state constitutions, which are simultaneously paramount state law and inferior to the whims of even the most minor federal regulation, is a matter of some uncertainty. In recent years, state constitutions have been significantly affected by another wave of popular constitutionalism. As part of this movement, since 1996, seven states have adopted constitutional provisions guaranteeing a right to hunt and fish. This article explores the constitutionalization of hunting and fishing rights under state constitutions. It begins by tracing hunting and fishing rights through western legal history with a special emphasis on Ancient Rome, England, and the ...


Judicial Elections As Popular Constitutionalism, David Pozen Jan 2009

Judicial Elections As Popular Constitutionalism, David Pozen

Faculty Scholarship

One of the most important recent developments in American legal theory is the burgeoning interest in "popular constitutionalism." One of the most important features of the American legal system is the selection of state judges – judges who resolve thousands of state and federal constitutional questions each year – by popular election. Although a large literature addresses each of these subjects, scholarship has rarely bridged the two. Hardly anyone has evaluated judicial elections in light of popular constitutionalism, or vice versa.

This Article undertakes that thought experiment. Conceptualizing judicial elections as instruments of popular constitutionalism, the Article aims to show, can enrich ...


St. George Tucker And The Limits Of States' Rights Constitutionalism: Understanding The Federal Compact In The Early Republic, David Thomas Konig Feb 2006

St. George Tucker And The Limits Of States' Rights Constitutionalism: Understanding The Federal Compact In The Early Republic, David Thomas Konig

William & Mary Law Review

No abstract provided.


Implications Of Incorporating State Created Rights Into The Federal Constitution Through The Ninth Amendment, Esteban A. Aguilar Jr. Jun 2005

Implications Of Incorporating State Created Rights Into The Federal Constitution Through The Ninth Amendment, Esteban A. Aguilar Jr.

Student Thesis Honors (1996-2008)

Professor Gregory Allen in Ninth Amendment and State Constitutional Rights suggested a hypothetical conflict that could arise between state and federal courts when a state constitution provides for greater protection against governmental abuse of power than the federal constitution. One possible safeguard of autonomy for those states choosing to grant their citizens greater state law protections than the federal government is the Ninth Amendment. The Ninth Amendment protects unenumerated rights' that are retained by the people of the states. In theory, applying the Ninth Amendment would essentially federalize state law protections contained in state constitutions and guard that state from ...


Thus Far And No Further: The New Mexico Supreme Court's Failure To Expand The Rights Of The Criminally Accused Beyond Search And Seizure Under The State Constitution, Ryan Villa Jun 2005

Thus Far And No Further: The New Mexico Supreme Court's Failure To Expand The Rights Of The Criminally Accused Beyond Search And Seizure Under The State Constitution, Ryan Villa

Student Thesis Honors (1996-2008)

The New Mexico Supreme Court has at once been both proactive and conservative in expanding the rights of the accused under the State Constitution. In the field of search and seizure, the Court has been extremely active in heeding Justice Brennan's call to the states to expand liberties under state constitutions. Interestingly, at the same time, the court has failed to expand other rights of the accused with few exceptions. This paper seeks to explore some of the reasons why this dichotomy has occurred and offers a few strategies to argue for expansion in three other areas. These include ...


Whose Constitution Is It? Why Federalism And Constitutional Positivism Don't Mix, James A. Gardner Feb 2005

Whose Constitution Is It? Why Federalism And Constitutional Positivism Don't Mix, James A. Gardner

William & Mary Law Review

No abstract provided.


In A Federal Case, Is The State Constitution Something Important Or Just Another Piece Of Paper?, Randall T. Shepard Feb 2005

In A Federal Case, Is The State Constitution Something Important Or Just Another Piece Of Paper?, Randall T. Shepard

William & Mary Law Review

No abstract provided.


State Courts As Agents Of Federalism: Power And Interpretation In State Constitutional Law, James A. Gardner Mar 2003

State Courts As Agents Of Federalism: Power And Interpretation In State Constitutional Law, James A. Gardner

William & Mary Law Review

In the American constitutional tradition, federalism is commonly understood as a mechanism designed to institutionalize a kind of permanent struggle between state and national power. The same American constitutional tradition also holds that courts are basically passive institutions whose mission is to apply the law impartially while avoiding inherently political power struggles. These two commonplace understandings conflict on their face. The conflict may be dissolved for federal courts by conceiving their resistance to state authority as the impartial consequence of limitations on state power imposed by the United States Constitution. This reconciliation, however, is unavailable for state courts, which, by ...


In Search Of The Deliberative Initiative: A Proposal For A New Method Of Constitutional Change, Arne R. Leonard Apr 1996

In Search Of The Deliberative Initiative: A Proposal For A New Method Of Constitutional Change, Arne R. Leonard

Student Thesis Honors (1996-2008)

The use of citizen's initiatives to amend state constitutions reached record high levels in the 1992-93 biennium. Proponents of the initiative argue that it provides a healthy means of turning a voter's distrust into much-needed governmental reform. Yet critics are quick to point out that correcting the abuses of representative government is not the only objective of the initiative campaigns of the 1990s. The initiative also has been used to denigrate the rights of minorities. In addition to threatening the rights of minorities, some critics argue this weapon may undermine the federal guarantee that each state shall have ...


Litigating State Constitutional Rights To Happiness And Safety: A Strategy For Ensuring The Provision Of Basic Needs To The Poor, Bert B. Lockwood, R. Collins Owens, Grace A. Severyn May 1993

Litigating State Constitutional Rights To Happiness And Safety: A Strategy For Ensuring The Provision Of Basic Needs To The Poor, Bert B. Lockwood, R. Collins Owens, Grace A. Severyn

William & Mary Bill of Rights Journal

No abstract provided.


“Thirty Pieces Of Silver” For The Rights Of Your People: Irresistible Offers Reconsidered As A Matter Of State Constitutional Law, William W. Van Alstyne Apr 1993

“Thirty Pieces Of Silver” For The Rights Of Your People: Irresistible Offers Reconsidered As A Matter Of State Constitutional Law, William W. Van Alstyne

Faculty Publications

No abstract provided.


Challenging Sodomy Statutes: State Constitutional Protections For Sexual Privacy, Julie A. Morris Apr 1991

Challenging Sodomy Statutes: State Constitutional Protections For Sexual Privacy, Julie A. Morris

Indiana Law Journal

No abstract provided.


Is Abandoning State Action Asking Too Much Of The Constitution, Scott E. Sundby Jan 1989

Is Abandoning State Action Asking Too Much Of The Constitution, Scott E. Sundby

Articles

No abstract provided.


State Constitutional Protection For Defendants In Criminal Prosecutions, Paul Marcus Apr 1988

State Constitutional Protection For Defendants In Criminal Prosecutions, Paul Marcus

Faculty Publications

No abstract provided.


Dialectical Federalism: A Tribute To The West Virginia Supreme Court Of Appeals, Gene R. Nichol Oct 1987

Dialectical Federalism: A Tribute To The West Virginia Supreme Court Of Appeals, Gene R. Nichol

Faculty Publications

No abstract provided.


"No Pass, No Play": Equal Protection Analysis Under The Federal And State Constitutions, David J. Shannon Jan 1987

"No Pass, No Play": Equal Protection Analysis Under The Federal And State Constitutions, David J. Shannon

Indiana Law Journal

No abstract provided.


Minimum Standards Of Constitutional Justice: Federal Floor And State Ceiling, William F. Swindler Jan 1984

Minimum Standards Of Constitutional Justice: Federal Floor And State Ceiling, William F. Swindler

Faculty Publications

No abstract provided.


State Constitutional Law Processes, Robert F. Williams Feb 1983

State Constitutional Law Processes, Robert F. Williams

William & Mary Law Review

No abstract provided.


The Right To Arms: Does The Constitution Or The Predilection Of Judges Reign, Robert Dowlut Jan 1983

The Right To Arms: Does The Constitution Or The Predilection Of Judges Reign, Robert Dowlut

Oklahoma Law Review

No abstract provided.


The Elementary And Secondary Education Act Of 1965 And The First Amendment Jan 1966

The Elementary And Secondary Education Act Of 1965 And The First Amendment

Indiana Law Journal

No abstract provided.