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In Copyright


In the American legal order, constitutional rights are conventionally understood to apply to and restrain the level of government created by the constitution in which those rights appear. Thus, individual rights in a lower-order constitution are understood to apply solely to the lower level government and to have no relevance to the actions of any higher level of government. This article challenges the conventional understanding by arguing that individual rights appearing in state constitutions can in many circumstances play a meaningful role in restraining the exercise of national power. Specifically, the identification and enforcement of state constitutional rights can serve as a mechanism by which state governments can resist and, to a degree, counteract abusive exercises of national power. State constitutional rights, that is to say, can be weapons of state resistance to national tyranny in a federal system of divided power. This understanding flows straightforwardly from the federal structure of American government, which charges state governments with monitoring and, when necessary, resisting tyranny originating at the national level.

This view of state power and state constitutional rights goes some way toward providing a fuller and more satisfying account of state constitutional interpretation than do the models that currently dominate this now long-standing jurisprudential debate. The approach to state power developed here better captures the complex and ambiguous nature of state power within a federal system. In addition, the functional approach developed here leads to the conclusion that state courts may in some circumstances be fully justified in interpreting provisions of state constitutions primarily for the purpose of disagreeing with, undermining, and attempting actively to ameliorate any harm caused by decisions of the U.S. Supreme Court which, in the view of the state court, do not adequately protect rights secured by the national Constitution.

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Georgetown Law Journal

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