University of Chicago Press, Spring 2005
Posted: 8 Jun 2005
"Interpreting State Constitutions: A Jurisprudence of Function in a Federal System" is the first book-length treatment of a topic central to contemporary debates over the enforcement of civil liberties: how ought courts, government officials and lawyers to go about interpreting the constitutions of the American states?
Following the Supreme Court's retreat from the aggressive protection of individual rights, state courts have begun to take up the slack by construing state constitutions to provide broader protection for liberties than does the federal Constitution. This development has reversed the polarity of constitutional politics: liberals have become partisans of unimpeded state power, while conservatives find themselves arguing for state subordination to a nationalized constitutional law controlled centrally by the Supreme Court.
Although it is imperative in this environment for courts, government officials and lawyers to know how properly to interpret state constitutions, the field has been riven by disagreement. "Interpreting State Constitutions" cuts through these disputes by laying out the first fully developed theory of subnational constitutional interpretation.
The book's central contribution is to ground state constitutional interpretation in a functional conception of federalism. It argues that states are integral components of a national system of overlapping and mutually checking authority; that the purpose of this system is to protect liberty; that resisting national tyranny is one of the most important goals to which state power may be directed; and that state courts may appropriately take this goal of state power into account when deciding how to construe state constitutional provisions.
The resulting account is not only descriptively superior to prevailing models of state constitutional interpretation, but also provides valuable prescriptive advice to state courts designed to show them how to fulfill their responsibilities to the federal system in a way that strengthens American constitutional discourse and improves the protection of American liberty.
Keywords: State constitutions, federalism, constitutional interpretation
Suggested Citation: Suggested Citation
Gardner, James A., Interpreting State Constitutions: A Jurisprudence of Function in a Federal System. University of Chicago Press, Spring 2005. Available at SSRN: https://ssrn.com/abstract=735623