State Constitutional Law in 1935–36

1936 ◽  
Vol 30 (4) ◽  
pp. 692-712
Author(s):  
J. A. C. Grant
Keyword(s):  
Constitutional Law ◽  
Common Law ◽  
Constitutional Development ◽  
State Constitutions ◽  
Chief Justice ◽  
Fundamental Law ◽  
Law Courts ◽  
National Constitution ◽  
State Constitutional Law ◽  
American State

There is a kernel of truth in Chief Justice Hughes' remark that “we are under a Constitution, but the Constitution is what the judges say it is.” To realize its full significance, “constitution” must be written in the plural. We have forty-nine courts of last resort, each interpreting the fundamental law of its own jurisdiction. The essential similarity of our state constitutions, and of our state bills of rights to that of the national constitution, together with the tendency of common law courts to follow each other's decisions, lend an element of stability to American state constitutional law that otherwise would be lacking. At the same time, even within so short a period as a year, the interplay of personalities may be seen moulding new doctrines in particular jurisdictions, which doctrines take on added significance because of the realization that they may, in time, serve as a basis for redirecting the course of constitutional development in other jurisdictions as well.

State Constitutional Law in 1929–1930

1930 ◽  
Vol 24 (3) ◽  
pp. 666-686 ◽  
Author(s):  
Oliver P. Field
Keyword(s):  
Constitutional Law ◽  
State Courts ◽  
State Constitutions ◽  
Course Of Action ◽  
The Subject ◽  
State Constitutional Law

State courts determine, in the absence of constitutional provision to the contrary, whether amendments to state constitutions have been proposed and adopted in the manner provided for these constitutions. Not every minor deviation from the course of action marked out in the constitution for its amendment is deemed sufficient to justify the court in declaring that the amendment has been “unconstitutionally adopted,” but whether these deviations are serious enough to warrant such a declaration is a question to be determined by the courts themselves. Statutes supplementing constitutional provisions on the subject of amendment are valid if not in conflict with the constitutional provisions themselves, and substantial compliance with these rules is also required by the courts. Sometimes the provisions regulating the subject of publication of proposed amendments are constitutional; at other times they are statutory. In either case, publication in the manner provided for, and for the period of time provided for, is necessary to the validity of the amendment. Publication for two weeks, when the period should have been four weeks, was deemed sufficient by the Nebraska court to invalidate the amendment involved.

State Constitutional Law in 1932–33

1933 ◽  
Vol 27 (4) ◽  
pp. 577-596
Author(s):  
Charles G. Haines
Keyword(s):  
United States ◽  
Constitutional Law ◽  
The United States ◽  
Federal Courts ◽  
State Constitutions ◽  
State Constitutional Law ◽  
Unusual Stress ◽  
Emergency Measures

One of the best known members of the bench in the United States raised the query whether constitutional law was not becoming so textual and so formal in its applications that it was losing touch with the realities of life. For the operations of government to be “cabined and confined” under ordinary circumstances raises difficulties not readily surmounted; but in times of unusual stress, either constitutional limitations unduly restrict urgent and necessary action or they must be ignored to permit emergency measures. A resumé of the decisions of state and federal courts affecting state constitutions for the year 1932–33 indicates the tendency both toward undue formality in interpretation and toward the warping of the constitutional mold to sanction ways and means of dealing with extraordinary conditions. Law, like life, is a matter of growth, and, as Lord Bryce long since observed, under written constitutions ways of growth must be found either within or without the provisions of fundamental laws.

Fundamental Law and the Processes of Constitutional Change in Australia

1978 ◽  
Vol 9 (2) ◽  
pp. 148-184 ◽  
Author(s):  
R. D. Lumb
Keyword(s):  
Legal System ◽  
Constitutional Law ◽  
Constitutional Change ◽  
State Constitutions ◽  
Special Place ◽  
Fundamental Law

This article explores the concept of “fundamental law” as it relates to the Australian legal system. Concentrating in particular on constitutional law and the special place in that body of law of the doctrines relating to amendment of the Federal and State constitutions, Dr Lumb examines the source of the power to amend the constitution, the limitations on that power and the aspects of our legal system which may be beyond the power to amend. It attempts to discover those elements of our constitutional systems which are so fundamental that they may not be materially altered by any form or process of constitutional alteration.

The New Prussian Constitution

1922 ◽  
Vol 16 (4) ◽  
pp. 661-665
Author(s):  
Walter James Shepard
Keyword(s):  
Constitutional Law ◽  
Sharp Contrast ◽  
Bill Of Rights ◽  
German Empire ◽  
State Constitutions ◽  
Comparative Constitutional Law ◽  
Frame Work ◽  
Moderate Length ◽  
American State

To the student of comparative constitutional law the new Prussian constitution of November 30, 1920, is of scarcely less interest than that of the reconstituted German Empire itself. In sharp contrast to American state constitutions, the instrument is of moderate length, about four thousand words, and is limited to the bare outlines of a frame-work of government. All doctrinaire elements are lacking. There is even no bill of rights.

Why Write New Rights?

2013 ◽  
Author(s):  
Emily Zackin
Keyword(s):  
Social Movements ◽  
Social Change ◽  
Constitutional Law ◽  
Constitutional Development ◽  
State Constitutions ◽  
Positive Rights ◽  
The Creation

This chapter considers the variety of political calculations that drove activists, organizations, and social movements to pursue the creation of positive rights. It first explains the classic idea of constitutions as constraints before discussing the main assumptions of entrenchment theories. It then considers the distinctions among the concepts of entrenchment, judicialization, and constitutional development. It also offers additional accounts of constitutional development and highlights several unique features of constitutional law, other than its (widely recognized) capacity to entrench established policies by allowing courts to protect them. The chapter contends that we should view state constitutions' responsiveness to social change as a feature that allows us to expand the existing understanding of constitutional development.

scholarly journals The Varieties of Constitutional Change

2018 ◽  
Author(s):  
Lawrence Friedman
Keyword(s):  
New England ◽  
Constitutional Law ◽  
State Courts ◽  
Constitutional Change ◽  
Judicial Interpretation ◽  
Constitutional Development ◽  
State Constitutions ◽  
Federal Constitutional ◽  
The Relationship ◽  
Robert Williams

New England Law Review. Vol. 51(3)(2018). While federal constitutional law has changed over the two hundred plus years since the framing, relatively little of that development was the result of the formal amendment process prescribed by Article V. Rather, significantly more change to our understanding of numerous constitutional provisions has come about through litigation over the meaning of the text. Regardless of the source of constitutional alteration, we regard the result as valid constitutional law. But that difference in source has fueled a great many efforts to legitimize judicial interpretation as a mode of constitutional change—to legitimize, that is, constitutional development by the least representative, least accountable department of the federal government. State constitutions, on the other hand, tell a different story. In the state constitutional context, the tension between litigation-driven change and amendment-driven change is diminished by the fact that formal amendment is a more realistic proposition that it is under the U.S. Constitution. This piece is an introduction to a Symposium on the relationship between state courts and constitutional change under state constitutions. The Symposium focuses on Jonathan Marshfield’s article, “Courts and Informal Constitutional Change in the States,” and includes responsive essays by Massachusetts Supreme Judicial Court Associate Justice Scott Kafker, Justin Long, James Gardner, Yaniv Roznai, and Robert Williams.

Introduction

2009 ◽  
Author(s):  
Williams Robert F
Keyword(s):  
Constitutional Law ◽  
State Constitutions ◽  
State Constitutional Law

This introductory chapter surveys the rise in importance of state constitutional law, the evolving recognition of state constitutions by scholars, lawyers, and judges, and the importance of the book at this point in time. The objectives of the book are outlined, and its methodology is explained.

scholarly journals State Constitutional Law: Federalism in the Common Law Tradition

1986 ◽  
Vol 84 (4/5) ◽  
pp. 583 ◽  
Author(s):  
Ellen A. Peters ◽  
Bradley D. McGraw
Keyword(s):  
Constitutional Law ◽  
Common Law ◽  
The Common ◽  
State Constitutional Law

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.

General Tendencies in State Constitutions

1907 ◽  
Vol 1 (2) ◽  
pp. 200-212
Author(s):  
James Quayle Dealey
Keyword(s):  
American Revolution ◽  
The United States ◽  
Governmental Organization ◽  
State Constitutions ◽  
Flexible System ◽  
The Supreme Court ◽  
Fundamental Law ◽  
National Constitution ◽  
Revolutionary Period ◽  
Modern Form

Throughout classical and medieval philosophizing runs a theory of a paramount or fundamental law, permanent in kind, because fixed in nature. This theory in its modern form, after voicing itself for a time in the Cromwellian period, came to the front in the American Revolution and found its proper expression in the written constitution. In our federal system, owing to the rigidity of the national Constitution, the development of that document must be traced in the varying decisions of the Supreme Court of the United States. In the Commonwealths a more flexible system of amendment prevails, and for that reason changes in what the States consider to be their fundamental law, may be traced more easily in the constitutions themselves, subject as they are to frequent revision and amendment.In the Revolutionary period these constitutions were few in number, small in size, and contained a mere framework of governmental organization. Since that time some two hundred State constitutions have been made or revised. The forty-five now in force average in length over fifteen thousand words, the longest, that of Louisiana, having about forty-five thousand. In place of fundamentals only, they are filled with details, so petty in many instances, as hardly worthy even to be dignified as statutory.

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