Limited Powers in the Looking-Glass: Otiose Textualism, and an Empirical Analysis of Other Approaches, When Activists in Private Shopping Centers Claim State Constitutional Liberties

Abstract:     
This Article examines closely a narrow range of highly factually analogous cases, in which state constitutional rights are asserted despite a clear lack of entitlement to assert any federal constitutional claim. Specifically, the cases selected are those in which private persons assert a right to conduct expressive activity, including electoral activity, in private shopping centers during hours when the properties are held open to the general public. These cases may be referred to colloquially as “the mall cases.” Selected here are only those which were decided after the federal question became clear. The Article first inquires into the role of textualism in these cases. The Article then examines other interpretivist modes besides textualism, namely originalism, structuralism, and precedentialism, as well non-interpretivist public policy arguments. The purpose of this inquiry is to clarify the role of interpretivism in state courts’ decisions on whether to expand the scope of their state constitutional protections for individual rights.

Number of Pages in PDF File: 30

Keywords: state constitution, states, constitutional interpretation, interpretivism, textualism, originalism, precedentialism, shopping mall, free speech, freedom of expression, freedom of petition, First Amendment

JEL Classification: H10, H11, H19, H70, H77, H79, K19, K42, K49

Accepted Paper Series