Abstract

http://ssrn.com/abstract=1669699
 


 



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


Richard J. Peltz-Steele


University of Massachusetts School of Law at Dartmouth

2006

Cleveland State Law Review, Vol. 53, No. 399, 2006

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

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Date posted: September 2, 2010  

Suggested Citation

Peltz-Steele, Richard J., 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 (2006). Cleveland State Law Review, Vol. 53, No. 399, 2006. Available at SSRN: http://ssrn.com/abstract=1669699

Contact Information

Richard J. Peltz-Steele (Contact Author)
University of Massachusetts School of Law at Dartmouth ( email )
333 Faunce Corner Road
North Dartmouth, MA 02747-1252
United States
15089851102 (Phone)
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