December 13, 2008
Saturday Evening Review - state constitutional classic
State constitutional issues have been prominent lately, witness the attention to Proposition 8 in California (blogged here) and Gubernatorial removal in Illinois (below here). It's also the season for roasting chestnuts (at least in North America) and grading exams (at most law schools and universities). So, I found myself wanting to reread that old chestnut of an article (and a brief one, at that!), by William Brennan on state constitutions. Here's the abstract:
During the 1960's, as the Supreme Court expanded the measure of federal protection for individual rights, there was little need for litigants to rest their claims, or judges their decisions, on state constitutional grounds. In this Article, Mr. Justice Brennan argues that the trend of recent Supreme Court civil liberties decisions should prompt a reappraisal of that strategy. He particularly notes the numerous state courts which have already extended to their citizens, via state constitutions, greater protections than the Supreme Court has held are applicable under the federal Bill of Rights. Finally, he discusses, and applauds, the implications of this new state court activism for the structure of American federalism.
Brennan published the piece in 1977, but it still resonates.
"Federalism, Brennan wrote, "need not be a mean-spirited doctrine that serves only to limit the scope of human liberty. Rather, it must necessarily be furthered significantly when state courts thrust themselves into a position of prominence in the struggle to protect the people of our nation from governmental intrusions on their freedoms."
The article is William J. Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977), and is worth rereading on a winter chestnut-roasting evening as ConLawProfs contemplate grading exams.
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