Part II Rights Guarantees under State Constitutions: the New Judicial Federalism, 5 The New Judicial Federalism

2009 ◽  
Author(s):  
Williams Robert F
Keyword(s):  
Review Literature ◽  
Federal Courts ◽  
Court Decisions ◽  
Constitutional Rights ◽  
High Court ◽  
State Constitutions ◽  
Minimum Standards ◽  
Judicial Federalism ◽  
Judicial Interpretations

This chapter discusses the evolution of the New Judicial Federalism, reflecting the realization that state constitutional rights provisions can provide, or be interpreted to provide, more rights than the federal Constitution's national minimum standards. It describes the wide variety of state constitutional rights provisions, together with the various stages of the New Judicial Federalism beginning in the 1970s. These developments consisted of state high court decisions, law review literature, including influential articles written by state judges as well as Justice William Brennan, Jr., and conferences. Also, the chapter describes the backlash against the New Judicial Federalism and the awareness that expansive judicial interpretations of state constitutions could be overturned by amendments to the texts of state constitutions. The chapter concludes with the suggestion that a true dialogue between state and federal courts concerning constitutional rights might be possible.

Workers’ Rights

2013 ◽  
Author(s):  
Emily Zackin
Keyword(s):  
Labor Movement ◽  
State Legislatures ◽  
Labor Rights ◽  
Court Decisions ◽  
Constitutional Rights ◽  
State Constitutions ◽  
Positive Rights ◽  
Negative Rights ◽  
Labor Leaders ◽  
Louis Hartz

This chapter examines the campaigns to add labor rights to state constitutions. The quintessential arguments about America's exceptional liberalism and its uniquely negative-rights culture have focused on the labor movement, which Louis Hartz has argued was a participant in—rather than a rival of—the dominant economic and ideological regime. The chapter first considers the labor provisions of state constitutions before discussing the ways that labor leaders and organizations influenced the drafting of new constitutions and amendments to existing constitutions. It then explains how labor rights were created not only to overturn particular court decisions, but also to preempt possible litigation. It also shows how labor organizations used constitutional rights to dictate state legislatures what they had to do while simultaneously telling courts what they could not do. The chapter demonstrates that, even in the area of labor regulation, Americans have successfully pursued the creation of positive rights.

Protecting a Federal Right to Educational Equality and Adequacy

2019 ◽  
pp. 303-326
Author(s):  
Joshua E. Weishart
Keyword(s):  
Due Process ◽  
School Funding ◽  
Court Decisions ◽  
Constitutional Rights ◽  
Educational Equality ◽  
Right To Education ◽  
State Constitutions ◽  
Substantive Due Process ◽  
Principles Of Justice ◽  
Equal Citizenship

In this chapter, Joshua E. Weishart notes that courts have resolved lawsuits invoking state constitutional rights in ways that have subdued the tension between two principles of justice: equality and liberty. The equality versus adequacy debate in school funding challenges at first stoked that tension until court decisions gradually demonstrated their potential interrelation. State constitutions, however, do not fix standards for the mutual enforcement of educational equality and adequacy, and thus, courts have struggled with remedies that serve both aims. Weishart contends that reconciliation ultimately must come through reconceptualizing children’s equality and liberty interests as an integral demand for equal liberty, one that treats differently situated children according to their needs so as to cultivate positive freedoms for equal citizenship. A federal right to education can elucidate this demand and facilitate its enforcement, aligning with the newly professed synergy between equal protection and substantive due process.

Part II Rights Guarantees under State Constitutions: the New Judicial Federalism, 7 Lockstepping State Constitutional Rights with Federal Constitutional Law

2009 ◽  
Author(s):  
Williams Robert F
Keyword(s):  
Constitutional Law ◽  
The State ◽  
State Courts ◽  
Equal Protection ◽  
Constitutional Rights ◽  
Equal Protection Clause ◽  
State Constitutions ◽  
Wide Range ◽  
Judicial Federalism ◽  
Federal Constitutional

This chapter discusses the practice — adopted by a number of state courts — of stating that state constitutional rights provisions will be interpreted identically to, or in “lockstep” with, similar or identical federal constitutional rights provision. State courts do this in a variety of ways, ranging from cases where they do not seem to acknowledge the possible difference between state and federal rights protections; to case-by-case adoption of federal constitutional interpretations; to “prospective lockstepping” where they announce that in the future the state and federal rights provisions will be interpreted identically or according to some other similar formulation. The chapter gives examples of these different approaches, as well as variations on them. It includes a specific focus on the wide range of state constitutional equality provisions, which, according to many state courts, are to be interpreted the same way as the federal Equal Protection Clause. These various forms of prospective lockstepping are criticized, on the grounds that they cannot actually represent “holdings” and are therefore not binding on future courts.

The Law of American State Constitutions

2009 ◽  
Author(s):  
Williams Robert F
Keyword(s):  
Constitutional Amendment ◽  
State Governments ◽  
Constitutional Rights ◽  
Judicial Interpretation ◽  
Federal Law ◽  
State Constitutions ◽  
Federal Constitution ◽  
Judicial Federalism ◽  
State Constitutional Law ◽  
American State

This book provides complete coverage of American State Constitutional Law. It contrasts the more familiar federal Constitution and explains the importance of the differences. The book then surveys the state constitutions put in place before the adoption of the federal Constitution, together with their influences on the development of the federal Constitution. Next, it describes the broad outlines of state constitutions' evolution over the centuries, as well as the limits placed on state constitutions by federal law. Next, the book covers the growth of the New Judicial Federalism (state constitutions providing, or being interpreted to provide, more protective rights than the federal Constitution). This includes a variety of methodology issues arising in cases raising both federal and state constitutional rights arguments, such as the sequencing of arguments and development of criteria for recognizing rights beyond the federal minimum standards. The technique of interpreting state constitutional rights in “lockstep” with federal rights is analyzed and criticized. State constitutional separation or distribution of powers is discussed and contrasted with the federal doctrines. The book then explains and illustrates the unique features of each of the three branches of state governments. The book analyzes the specialized techniques of judicial interpretation applied to state constitutions. Finally, it surveys the mechanisms of state constitutional amendment and revision, together with the extensive judicial involvement in these processes.

From Rogers to Rivers: The Rights of the Mentally Ill to Refuse Medication

1987 ◽  
Vol 13 (1) ◽  
pp. 7-52
Author(s):  
Ellen Wright Clayton
Keyword(s):  
Mental Illness ◽  
Psychotropic Drugs ◽  
Mentally Ill ◽  
United States Supreme Court ◽  
Federal Courts ◽  
State Courts ◽  
Court Decisions ◽  
Marked Contrast ◽  
Patients Rights ◽  
Treatment Refusals

AbstractMany individuals with mental illness wish to avoid psychotropic drugs, a type of treatment that may relieve their symptoms only at the risk of unpleasant, even permanent, side effects. In marked contrast to the widely-held view that most patients may refuse any treatment and that even patients with mental illness may reject other psychoactive interventions such as electroconvulsive therapy and psychosurgery, the courts and legislatures have been slow to recognize any right to refuse psychotropic drugs. This Article demonstrates that many of the justifications offered for forcing patients to take unwanted medications are inadequate and that unless treatment refusals are reviewed outside mental institutions, patients’ rights will rarely receive appropriate deference. The author analyzes the federal and state litigation to determine whether the courts have fashioned meaningful relief for the mentally ill. The Article concludes that two recent United States Supreme Court decisions have made it impossible for the federal courts to provide adequate protection. By contrast, several state courts have responded to the needs and rights of patients with mental illness.

Media Arbitration Schemes: Addressing the Backlog of Defamation Cases in Malaysia

2021 ◽  
pp. 1-22
Author(s):  
Imaduddin Suhaimi
Keyword(s):  
United Kingdom ◽  
Criminal Procedure ◽  
Court Decisions ◽  
Criminal Courts ◽  
High Court ◽  
The United Kingdom ◽  
Procedure Code ◽  
Alternative Proposal ◽  
Salient Features

Abstract The rise in defamation claims in Malaysia has placed an onerous workload on the courts to deal with such matters. Against this backdrop, Hamid Sultan Abu Backer JC (as his Lordship then was) (Hamid Sultan JC) suggested in two separate High Court decisions that to alleviate the courts’ burden, matters pertaining to libel and slander ought to be constrained to the criminal courts through appropriate statutory amendments, including to the Criminal Procedure Code (Malaysia). In this paper, the author cautions against the learned Hamid Sultan JC's recommendations and proffers an alternative proposal in the form of media arbitration schemes to handle the growing influx of defamation claims. In particular, the salient features of the IMPRESS and IPSO Schemes from the United Kingdom are scrutinised in detail and measured in terms of suitability for a potential arbitration scheme in the Malaysian jurisdiction.

scholarly journals The Narrative Model of Constitutional Implications: A Defence of Roach v Electoral Commissioner

2019 ◽  
Author(s):  
Jonathan Crowe
Keyword(s):  
Constitutional Law ◽  
Social Practices ◽  
Court Decisions ◽  
High Court ◽  
Fictional Narratives ◽  
Narrative Model ◽  
Way Of Thinking ◽  
Relationship Of ◽  
The Relationship

The role of implications in Australian constitutional law has long been debated. Jeffrey Goldsworthy has argued in a series of influential publications that legitimate constitutional implications must be derived in some way from authorial intentions. I call this the intentionalist model of constitutional implications. The intentionalist model has yielded a sceptical response to several recent High Court decisions, including the ruling in Roach v Electoral Commissioner that the Constitution enshrines an implied conditional guarantee of universal franchise. This article outlines an alternative way of thinking about constitutional implications, which I call the narrative model. I argue that at least some constitutional implications are best understood as arising from historically extended narratives about the relationship of the constitutional text to wider social practices and institutions. The article begins by discussing the limitations of the intentionalist model. It then considers the role of descriptive and normative implications in both factual and fictional narratives, before applying this analysis to the Australian Constitution. I argue that the narrative model offers a plausible basis for the High Court’s reasoning in Roach v Electoral Commissioner.

Who Decides?

2021 ◽  
Author(s):  
Jeffrey S. Sutton
Keyword(s):  
Constitutional Law ◽  
Local Governments ◽  
State Governments ◽  
Constitutional Rights ◽  
Individual Rights ◽  
Home Rule ◽  
Constitutional Protection ◽  
State Constitutions ◽  
Law And Politics ◽  
Federal Constitutional

The earlier book, 51 Imperfect Solutions, told stories about specific state and federal individual constitutional rights, and explained two benefits of American federalism: how two sources of constitutional protection for liberty and property rights could be valuable to individual freedom and how the state courts could be useful laboratories of innovation when it comes to the development of national constitutional rights. This book tells the other half of the story. Instead of focusing on state constitutional individual rights, it focuses on state constitutional structure. Everything in law and politics, including individual rights, eventually comes back to divisions of power and the evergreen question: Who decides? The goal of this book is to tell the structure side of the story and to identify the shifting balances of power revealed when one accounts for American constitutional law as opposed to just federal constitutional law. Who Decides? contains three main parts—one each on the judicial, executive, and legislative branches—as well as stand-alone chapters on home-rule issues raised by local governments and the benefits and burdens raised by the ease of amending state constitutions. A theme in the book is the increasingly stark divide between the ever-more-democratic nature of state governments and the ever-less-democratic nature of the federal government over time.

22. A Revolution by Due Process of Law?

2021 ◽  
pp. 613-648
Author(s):  
Ian Loveland
Keyword(s):  
European Union ◽  
Supreme Court ◽  
Due Process ◽  
Final Part ◽  
Court Decisions ◽  
The European Union ◽  
Legal Basis ◽  
High Court ◽  
The Supreme Court ◽  
Due Process Of Law

This chapter analyses the conduct and constitutional implications of the United Kingdom’s proposed withdrawal from the European Union. The chapter begins by examining the legal basis, conduct, and result of the withdrawal referendum. The chapter then assesses the High Court and Supreme Court decisions in the first of the two Miller judgments. It continues with a discussion on the extreme positions of ‘hard brexit’ and ‘soft brexit’ and the assesses the significance of the results of the unexpected 2017 general election. The chapter goes on to examine the European Union (Withdrawal) Act 2018 and the subsequent fall of the May government and its replacement by an administration led by Boris Johnson. In the final part of the chapter the Miller (No 2) and Cherry litigation and its political aftermath are discussed in full, with a particular focus laid on the controversial way in which the Supreme Court deployed the notion of ‘justiciability’ in its judgment in Miller (No 2).

Introduction: The Desegregation Dilemma

1995 ◽  
Author(s):  
David J. Armor
Keyword(s):  
School Districts ◽  
School Choice ◽  
Civil Rights ◽  
Civil Rights Movement ◽  
Federal Courts ◽  
State Court ◽  
Social Scientists ◽  
State Constitutions ◽  
Current Events ◽  
The City

Despite nearly four decades of controversy and debate over school segregation, the desegregation dilemma is still largely unresolved. The “busing” problem has received less national attention in recent years, and there are no riots, bus burnings, and school boycotts, as witnessed in earlier decades. Yet current events reveal the depth of a dilemma that has divided educators, parents, jurists, social scientists, and many other groups since the beginning of the civil rights movement. Indicators of the current desegregation dilemma are numerous. Hundreds of school districts throughout the country still impose busing for desegregation purposes, many under court orders that are now more than twenty years old. Although the types of desegregation plans have evolved to some extent, with increased emphasis on school choice, many plans still compel children to attend schools that their parents would not choose, solely for the purpose of racial “balance.” Further, after a period of quiescence, school desegregation was again the subject of several major Supreme Court decisions in 1991 and 1992. The decisions affected the length of time and the conditions under which a school district has to maintain a court-ordered busing plan. Although these decisions dispelled a common misconception that school systems have to maintain desegregation plans “in perpetuity,” it is still unclear how many school districts can or will end their busing plans. Finally, new desegregation litigation and controversies continue to surface. In 1989 a lawsuit was initiated in a Connecticut state court by the National Association for the Advancement of Colored People (NAACP) to compel desegregation between the city of Hartford and its suburban districts. A similar city suburbs desegregation strategy failed in the federal courts, but the Hartford lawsuit seeks to build on the success of school equal-finance cases under state constitutions. In 1991 the school board of La Crosse, Wisconsin, adopted a busing plan to equalize economic (rather than race) differences among schools. Reminiscent of the busing controversies of the 1970s, all board members who supported the busing plan were voted out of office in a regular and a recall election, reflecting the widespread community opposition to busing for the purpose of achieving socioeconomic balance in schools.

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