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Published as Chapter 4 in New Frontiers of State Constitutional Law: Dual Enforcement of Norms, James A. Gardner & Jim Rossi, eds.

This chapter places the book's approach in its interpretational context by linking the federal structure of constitutional norm production to the ever-present problem of interpretational methodology. It begins by arguing that previous approaches to the interpretation of subnational constitutions have failed because they improperly attempted to apply the dominant jurisprudence of national constitutional interpretation—constitutional positivism—to the constitutions of the states. Yet constitutional positivism as a technique only makes sense where subnational units are autonomous, as independent nations are. However, states in a federal system like ours are far from the kind of autonomous sovereigns contemplated by prevailing theories of national constitutional interpretation. Indeed, a state constitution is the product of processes that transcend the state, and in which both the state and national polities participate. As a result, the interpretation of state constitutions inevitably will require at least some resort to national norms and sources of constitutional meaning.

Rights

In Copyright

Publication Date

2010

Publisher

Oxford University Press

City

New York

ISBN

9780195368321

First Page

39

Last Page

60

Keywords

state constitutions, federal system, state courts, constitutional norms, constitutional interpretation, constitutional positivism, interpretational methodology

Disciplines

Constitutional Law | Law

Required Text

New Frontiers of State Constitutional Law: Dual Enforcement of Norms edited by James A. Gardner, and Jim Rossi, 2010, reproduced by permission of Oxford University Press, 10.1093/acprof:oso/9780195368321.003.0004.

Why Federalism and Constitutional Positivism Don't Mix

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