Wednesday, October 7, 2009
Wayne A. Logan (Florida State University College of Law) has posted Contingent Constitutionalism: State and Local Criminal Laws and the Applicability of Federal Constitutional Rights (William and Mary Law Review, Vol. 51, 2009) on SSRN. Here is the abstract:
Americans have long been bound by a shared sense of constitutional commonality, and the Supreme Court has repeatedly condemned the notion that federal constitutional rights should be allowed to depend on distinct state and local legal norms. In reality, however, federal rights do indeed vary, and they do so as a result of their contingent relationship to the diversity of state and local laws on which they rely. Focusing on criminal procedure rights in particular, this Article examines the benefits and detriments of constitutional contingency, and casts in new light many enduring understandings of American constitutionalism, including the effects of incorporation doctrine and the nation’s mythic sense of shared constitutional commitment.