Dual Enforcement of Constitutional Norms
NEW FRONTIERS OF STATE CONSTITUTIONAL LAW, Oxford University Press, 2010
21 Pages Posted: 15 Oct 2009 Last revised: 16 Dec 2009
Date Written: October 14, 2009
Not so very long ago, the story of American constitutional law was easy to understand and even easier to relate. Constitutional law was a story written by two actors: the framers of the U.S. Constitution and the U.S. Supreme Court. The U.S. Constitution provided the content of constitutional law and a Supreme Court told us what it meant. Today, this master narrative has begun to unravel in favor of new one that treats constitutional law as both the object and the venue of a plural and often remarkably inclusive ongoing conversation about the norms by which we live and govern ourselves. The U.S. Supreme Court remains, to be sure, an important and in many ways preeminent voice in the formal pronunciation of American constitutional law. But increasingly the Court is understood to share the stage with a plurality of other voices that speak together - sometimes cooperatively, sometimes competitively - in a collective enterprise of generating, elaborating, and ultimately applying and enforcing constitutional norms.
This paper, which comprises the introductory chapter of Dual Enforcement of Constitutional Norms: New Frontiers of State Constitutional Law (James A. Gardner and Jim Rossi, eds., Oxford University Press, forthcoming 2010), lays out the book’s principal thesis. Rejecting both the old dual federalism and the newer judicial federalism models, the contributors to this volume understand the generation, development, interpretation, and enforcement of constitutional norms at the national and state levels to be best conceived as constituent activities of a single, collective enterprise conducted by many actors located in many sites scattered throughout the system. The chapters of Dual Enforcement thus present a conception of national and subnational constitutional law as complementary partners in a complex, collective enterprise of constitutional self-governance, and our aim for the book is to advance an understanding of state constitutions in the broader inter-institutional process of constitutional dialogue.
Keywords: federalism, state constitutions, state constitutional law, state courts, dialogic
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