Protecting Constitutional Freedoms: A Role for Federal Courts

By Daan Braveman; Paul L. Murphy | Go to book overview

Chapter 7 Institutional Character

The developments examined in this book highlight an underlying theme in the Supreme Court's recent jurisprudence: a preference for state court adjudication of federal constitutional challenges to state conduct. To be sure, claims that state or local officials are violating the federal constitution continue to be brought in federal court. Nevertheless, in recent years the Supreme Court has used the various doctrines discussed in earlier chapters to clear the federal court dockets of cases against state and local officials. The Court has embraced the notion that litigants should rely on state courts when they seek to attack the constitutionality of state or local practices. Under this scheme for protecting rights the lower federal courts play a limited role and, as in the pre-Reconstruction days, the state courts once again become the primary protectors of federal constitutional rights.

The critical issue--one that has provoked much debate--is whether it really makes any difference if a state, rather than a federal, court hears these cases.1 Before examining that issue, it is imporant to mention that this question and the surrounding debate are distinct from the important question of whether rights are better protected by a court or a legislative body.2 So too, they can be considered independent of the current interest in using state constitutions to protect rights.3 Whatever the resolution of

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Protecting Constitutional Freedoms: A Role for Federal Courts
Table of contents

Table of contents

  • Recent Titles in Contributions in Legal Studies ii
  • Title Page iii
  • Copyright Acknowledgments v
  • Contents ix
  • Preface xi
  • Chapter 1- Introduction 1
  • Notes 9
  • Chapter 2- Openmig the Federal Courthouse Doors 11
  • Notes 49
  • Chapter 3- Crossing the Threshold 57
  • Notes 75
  • Chapter 4- Our Federalism And Injunctions 79
  • Notes 98
  • Chapter 5- Damages 101
  • Notes 131
  • Chapter 6- Rules of Preclusion 135
  • Notes 157
  • Chapter 7- Institutional Character 165
  • Notes 188
  • Bibliography 193
  • Index 201
  • About the Author 207
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