The Emerging Virginia Constitution: Open questions of interpretation, and how their resolution may impact unenumerated rights 

Abstract

With federal liberty protections in flux, state constitutions are of renewed interest. This interest converges with disruption of the long-held norm whereby state courts interpreted their constitutional rights in “lockstep” with Federal counterparts. Previously, these courts ignored differences in time, language, and ratifier intent—items of particular interest to jurists applying originalist and textualist methods of interpretation. Recently, the Supreme Court of Virginia joined courts abandoning the habit of lockstep for independent interpretation of their state constitutions, and it did so on originalist and textualist grounds.

But while these tools helped break the norm, the application of originalism, in particular, to state constitutions gives rise to a host to of new and serious questions—questions that have been unnecessary to resolve in the last half century of originalist scholarship. This paper takes up two. First, how should courts approach interpretation in states which have had many constitutions, either partially or wholly reenacted over the course of the state’s history? If meaning must “fix” at a specific time, what happens to text carried over from a prior iteration of a state’s constitution that is then reenacted or readopted by the public at a later date? Second, how might various independent rights in a state constitution, added at different times, interact outside of the shadow of the federal constitution? After considering these questions in theory, we conclude by providing a framework for how future litigants and jurists may approach their application in the context of unenumerated rights under the Virginia Constitution.

Keywords: state constitutions, state constitutionalism, constitutional law, unenumerated rights, Virginia constitution, interconstitutionalism, state courts