Interpreting State Constitutions
A Jurisprudence of Function in a Federal System
312 pages
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6 x 9
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© 2005
Interpreting State Constitutions examines and proposes a solution to a problem central to contemporary debates over the enforcement of civil liberties: how courts, government officials, and lawyers should go about interpreting the constitutions of the American states.
With the Supreme Court's retreat from the aggressive protection of individual rights, state courts have begun to interpret state constitutions to provide broader protection of liberties. This development has reversed the polarity of constitutional politics, as liberals advocate unimpeded state power while conservatives lobby for state subordination to a constitutional law controlled centrally by the Supreme Court.
James A. Gardner here lays out the first fully developed theory of subnational constitutional interpretation. He argues that states are integral components of a national system of overlapping and mutually checking authority and that the purpose of this system is to protect liberty and defend against federal domination. The resulting account provides valuable prescriptive advice to state courts, showing them how to fulfill their responsibilities to the federal system in a way that strengthens American constitutional discourse.
With the Supreme Court's retreat from the aggressive protection of individual rights, state courts have begun to interpret state constitutions to provide broader protection of liberties. This development has reversed the polarity of constitutional politics, as liberals advocate unimpeded state power while conservatives lobby for state subordination to a constitutional law controlled centrally by the Supreme Court.
James A. Gardner here lays out the first fully developed theory of subnational constitutional interpretation. He argues that states are integral components of a national system of overlapping and mutually checking authority and that the purpose of this system is to protect liberty and defend against federal domination. The resulting account provides valuable prescriptive advice to state courts, showing them how to fulfill their responsibilities to the federal system in a way that strengthens American constitutional discourse.
"Interpreting State Constitutions is an important and original effort to provide an overall theory of how state constitutions should be interpreted. The idea of placing state constitutional interpretation within an understanding of federalism is extremely significant, and James Gardner executes the project with great skill."--Robert A. Schapiro, Emory University
"Provocative and engaging, Interpreting State Constitutions offers a serious and scholarly account of state constitutions and the role that they play in federal governance. James Gardner's functional approach, which he presents with clarity and conviction, constitutes an important contribution to constitutional discussion."--Helen Hershkoff, New York University School of Law
"Interpreting State Constitutions challenges a number of assumptions about state constitutions, and presents a bold new vision for the function of state courts and state constitutions. James Gardner has reconceptualized state constitutions as neither independent from, nor dependent on, the federal constitution. Rather, he portrays state constitutions as part of an interdependent or interrelated American federal constitutional structure, with each sphere of government functioning to check the other."--Robert Williams, Rutgers School of Law
"Gardner’s clearly argued analysis places states and state constitutions in a significantly more important role than that considered by most legal and judicial scholars. His analytically sound prescriptions to state judges and state courts provide avenues and responsibilities for their defining civil liberties in the national environment. Gardner’s thought-provoking analysis requires reconsideration of U.S. federalism as applied to relationships between state and national courts."--Law and Politics Book Review
“[Gardner] has written a masterful, deeply intelligent book that offers new insights into how state constitutions should and do function. Slim, timely, and fluidly readable, it is an excellent first book on state constitutional law for those new to the subject; but it intends to be, and is, a meaningful contribution to the field. . . . The book is a meaningful contribution not just to the reading of state constitutions, but also to reflection on constitutions in general, and to the unfolding relationships between and among bodies of organic law that keep our many-layered republic alive. The University of Chicago Press has made the book exceptionally appealing to the eye . . . and has given Gardner’s important and original ideas a splendid home.”
"Critical reading for constitutional litigators and scholars. . . . The book is well crafted in style and depth of research. The most impressive feature is its structure, with the author laying out the framework of his theory, followed by the careful interweaving of particular facts to bolster his contentions. . . . It is an admirable achievement and would be invaluable to aspiring academics and authors as a model of theoretical writing."
"A major addition to the growing and increasingly important literature on state constitutions. . . . Gardner's innovative and clearly argued book lays out a bold new path for scholars and state courts as they position subnational constitutions within the larger federalism project. He has given us the leading account to date of the interpretation of state constitutions. Any scholar or judge interested in state constitutions, state or local government, or federalism must take his framework and questions seriously."—Jim Rossi, Buffalo Law Review
Contents
Preface
Introduction - The Problem of State Constitutional Interpretation
1. The Emergence of the Modern Debate
2. The Dead End of Romantic Subnationalism
3. The Mechanics of Federalism
4. State Constitutions in the Federal Scheme
5. Patterns of Distrust
6. A Functional Account of State Judicial Power
7. An Approach to State Constitutional Interpretation
Afterword - Function and Interpretation
Appendix
Bibliography
Index
Introduction - The Problem of State Constitutional Interpretation
1. The Emergence of the Modern Debate
2. The Dead End of Romantic Subnationalism
3. The Mechanics of Federalism
4. State Constitutions in the Federal Scheme
5. Patterns of Distrust
6. A Functional Account of State Judicial Power
7. An Approach to State Constitutional Interpretation
Afterword - Function and Interpretation
Appendix
Bibliography
Index
For more information, or to order this book, please visit http://www.press.uchicago.edu
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