Constitutional Partnership and the States
24 Pages Posted: 6 Mar 2010
Date Written: 2005
This essay is part of a book symposium that focuses upon two recent volumes: Lawrence Sager’s Justice in Plainclothes: A Theory of American Constitutional Practice (2004) and Larry D. Kramer’s The People Themselves: Popular Constitutionalism and Judicial Review (2004). Both volumes propose “theories of taking the [federal] Constitution seriously outside the courts.” This Essay reconsiders Sager’s and Kramer’s conclusions in light of judicial and extrajudicial interpretation of state constitutions. Sager’s argument that the United States Congress should enforce federal constitutional rights underenforced by federal courts applies with even more force to state legislators, executives and judges than to federal legislators. Sager’s account also suggests that state court judges have a duty to interpret their own state constitutions in a justice-seeking fashion. The Essay’s conclusion suggests that contemporary versions of Kramer’s popular constitutionalism are currently being played out over state constitutional provisions regarding family law and school finance.
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