Human Rights in the States: New Directions in Constitutional Policymaking

Human Rights in the States: New Directions in Constitutional Policymaking

Human Rights in the States: New Directions in Constitutional Policymaking

Human Rights in the States: New Directions in Constitutional Policymaking

Synopsis

"A timely contribution to the analysis of the American Constitution. . . . Edited by Stanley Friedelbaum, it consists of essays written predominantly by political scientists with expertise in constitutional law. The underlying theme is twofold: an exploration of the constitutional norm of federalism, and of the nature and meaning of the Bill of Rights. . . . Highly recommended for advanced undergraduate and graduate students." Choice

Excerpt

The past two decades have witnessed a remarkable revival of interest in the work of the state courts. As the U.S. Supreme Court continued to retreat from the unusual activism of the Warren years, so judges in a number of states moved beyond federal guarantees by creating significant bodies of law independently derived. This is not to say that state constitutional provisions have generally diverged from the federal text. To the contrary, a linguistic identity suggested parallel lines of reasoning looking toward the attainment of similar results. Yet the end products did not undeviatingly convey like meanings; and, in fact, a number of state courts came to assert an autonomy that served to shield their findings from federal review.

Such an effort to preclude Supreme Court intervention would hardly have been persuasive during the 1960s when the prevailing majority, with Justice Hugo Black serving as its principal architect, achieved an almost complete "nationalization" of the Bill of Rights. the assumption was that nothing less than the extension of the full panoply of federal constitutional safeguards would be effective as a deterrent against state abuses. By contrast, recent opinions, representing a broad cross-section of views, acknowledge the desirability of state participation in expanding the scope of human rights. This new-found recognition has not led the Court to relinquish its role as an ultimate preserving agency responsible for the establishment and maintenance of minimal requirements. What has changed is the notion of national exclusivity and its replacement by . . .

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