
Contents
-
-
-
-
-
-
-
-
-
-
i The power of united states supreme court decisions: the mistaken premise i The power of united states supreme court decisions: the mistaken premise
-
ii Legitimacy ii Legitimacy
-
iii State constitutional methodologies: teaching and sequence iii State constitutional methodologies: teaching and sequence
-
iv The criteria approach: looking for factors to justify divergence iv The criteria approach: looking for factors to justify divergence
-
v State experience with the criteria approach v State experience with the criteria approach
-
Washington Washington
-
New Jersey New Jersey
-
Pennsylvania Pennsylvania
-
Illinois Illinois
-
Connecticut Connecticut
-
-
vi Case study of criteria in action: the new jersey and washington garbage search cases vi Case study of criteria in action: the new jersey and washington garbage search cases
-
vii Critique of the criteria approach vii Critique of the criteria approach
-
viii Continuing legitimacy and methodology debates viii Continuing legitimacy and methodology debates
-
ix Other procedural issues of the new judicial federalism ix Other procedural issues of the new judicial federalism
-
Direct Right of Action for Money Damages Direct Right of Action for Money Damages
-
State Action State Action
-
-
x Substantive due process and economic regulation x Substantive due process and economic regulation
-
xi Conclusion xi Conclusion
-
-
-
-
-
-
-
-
-
-
-
6 Methodology in State Constitutional Rights Interpretation
Get access-
Published:September 2009
Cite
Abstract
This chapter discusses methodology problems arising in cases where similar federal and state constitutional rights claims are raised. Most federal constitutional rights have been incorporated into the federal Constitution's 14th Amendment so as to be applicable to the states. United States Supreme Court interpretations of federal constitutional rights are not binding on state court interpretation of identical or similar state constitutional rights, but state court divergence under these circumstances can raise questions about its legitimacy. A number of questions arise in this context, including for example the proper sequence of arguments, which constitution's rights guarantees should be argued first by counsel, and analyzed first by the state court. The most substantial methodology issue is whether state courts should develop criteria to guide them in deciding whether to interpret identical or similar state constitutional rights to be more protective than the federal analog. The criteria approach is analyzed in some depth, utilizing examples of the use of this methodology in a number of states. The chapter criticizes the use of the criteria approach based on a number of factors that make state court enforcement of state constitutional rights different from the United States Supreme Court's enforcement of the federal bill of rights. The United States Supreme Court's interpretation of federal constitutional rights guarantees is therefore not presumptively correct for the interpretation of state constitutions. The chapter also discusses briefly several other methodological problems, including the direct right of action for money damages under state constitutions, state action, and substantive due process and economic regulation.
Sign in
Personal account
- Sign in with email/username & password
- Get email alerts
- Save searches
- Purchase content
- Activate your purchase/trial code
- Add your ORCID iD
Purchase
Our books are available by subscription or purchase to libraries and institutions.
Purchasing informationMonth: | Total Views: |
---|---|
October 2022 | 7 |
November 2022 | 47 |
December 2022 | 6 |
January 2023 | 7 |
February 2023 | 5 |
March 2023 | 12 |
April 2023 | 2 |
May 2023 | 2 |
June 2023 | 3 |
July 2023 | 1 |
August 2023 | 2 |
September 2023 | 4 |
October 2023 | 1 |
November 2023 | 1 |
December 2023 | 4 |
January 2024 | 2 |
February 2024 | 2 |
June 2024 | 5 |
August 2024 | 6 |
September 2024 | 4 |
October 2024 | 3 |
January 2025 | 4 |
March 2025 | 4 |
April 2025 | 4 |
May 2025 | 2 |
Get help with access
Institutional access
Access to content on Oxford Academic is often provided through institutional subscriptions and purchases. If you are a member of an institution with an active account, you may be able to access content in one of the following ways:
IP based access
Typically, access is provided across an institutional network to a range of IP addresses. This authentication occurs automatically, and it is not possible to sign out of an IP authenticated account.
Sign in through your institution
Choose this option to get remote access when outside your institution. Shibboleth/Open Athens technology is used to provide single sign-on between your institution’s website and Oxford Academic.
If your institution is not listed or you cannot sign in to your institution’s website, please contact your librarian or administrator.
Sign in with a library card
Enter your library card number to sign in. If you cannot sign in, please contact your librarian.
Society Members
Society member access to a journal is achieved in one of the following ways:
Sign in through society site
Many societies offer single sign-on between the society website and Oxford Academic. If you see ‘Sign in through society site’ in the sign in pane within a journal:
If you do not have a society account or have forgotten your username or password, please contact your society.
Sign in using a personal account
Some societies use Oxford Academic personal accounts to provide access to their members. See below.
Personal account
A personal account can be used to get email alerts, save searches, purchase content, and activate subscriptions.
Some societies use Oxford Academic personal accounts to provide access to their members.
Viewing your signed in accounts
Click the account icon in the top right to:
Signed in but can't access content
Oxford Academic is home to a wide variety of products. The institutional subscription may not cover the content that you are trying to access. If you believe you should have access to that content, please contact your librarian.
Institutional account management
For librarians and administrators, your personal account also provides access to institutional account management. Here you will find options to view and activate subscriptions, manage institutional settings and access options, access usage statistics, and more.