State Constitutionalism in New York: A Non-Reactive Tradition
Emerging Issues in State Constitutional Law, Vol. 2, 1989
30 Pages Posted: 23 Jun 2008
Date Written: 1989
This article traces the independent state-law based protection of individual rights and liberties by the New York Court of Appeals, the state's highest court, since its earliest years in the mid-nineteenth century. The practice of developing a body of state law and relying on it to decide issues concerning the rights of the accused, civil rights and civil liberties is as old as the court itself. This practice is not simply a modern mode of decision-making adopted by New York's high court in reaction to the conservative retrenchment of the Supreme Court in the Burger and Rehnquist eras. The New York court has been erratic in the development and reliance on non-federal, independent state-law grounds for its decisions in recent years. But such independent state-based decision-making in the protection of rights and liberties is, nonetheless, a longstanding tradition of the court.
Keywords: New York Court of Appeals, state constitutional law, judicial federalism, Cardozo, Judith Kaye, Burger Court, Rehnquist Court
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