Beyond the Reemergence - 'Inverse Incorporation' and Other Prospects for State Constitutional Law

Abstract:     
This article advocates and cautiously foresees a more mature, confident, consistent, less reactive, and more truly independent state constitutional adjudication at the state high courts as they become more familiar and comfortable with some oft-misunderstood truisms about federalism, e.g., Supreme Court interpretations of the federal constitution are not interpretations of state constitutions, and state courts are bound only to avoid violating the federal constitution.

On the federal side of federalism, Professor Bonventre advances inverse incorporation. He argues that the federal constitution, and particularly the 9th and 10th Amendments, require that the federal government honor state constitutional rights. At the least, the federal government has no federal constitutional authority to violate state constitutional rights with impunity.

Number of Pages in PDF File: 16

Keywords: state constitutional law, judicial federalism, federalism, ninth amendment, tenth amendment,inverse incorporation, state supreme courts

Accepted Paper Series