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Interpreting State Constitutions

A Jurisprudence of Function in a Federal System

Interpreting State Constitutions examines and proposes a solution to a problem central to contemporary debates over the enforcement of civil liberties: how courts, government officials, and lawyers should go about interpreting the constitutions of the American states.

With the Supreme Court’s retreat from the aggressive protection of individual rights, state courts have begun to interpret state constitutions to provide broader protection of liberties. This development has reversed the polarity of constitutional politics, as liberals advocate unimpeded state power while conservatives lobby for state subordination to a constitutional law controlled centrally by the Supreme Court.

James A. Gardner here lays out the first fully developed theory of subnational constitutional interpretation. He argues that states are integral components of a national system of overlapping and mutually checking authority and that the purpose of this system is to protect liberty and defend against federal domination. The resulting account provides valuable prescriptive advice to state courts, showing them how to fulfill their responsibilities to the federal system in a way that strengthens American constitutional discourse.

312 pages | 6 x 9 | © 2005

Law and Legal Studies: General Legal Studies, Law and Economics, Law and Society, Legal History, Legal Thought

Reviews

"Interpreting State Constitutions is an important and original effort to provide an overall theory of how state constitutions should be interpreted. The idea of placing state constitutional interpretation within an understanding of federalism is extremely significant, and James Gardner executes the project with great skill."

Robert A. Schapiro | Robert A, Schapiro

"Provocative and engaging, Interpreting State Constitutions offers a serious and scholarly account of state constitutions and the role that they play in federal governance. James Gardner’s functional approach, which he presents with clarity and conviction, constitutes an important contribution to constitutional discussion."

Helen Hershkoff | Helen Hershkoff

"Interpreting State Constitutions challenges a number of assumptions about state constitutions, and presents a bold new vision for the function of state courts and state constitutions. James Gardner has reconceptualized state constitutions as neither independent from, nor dependent on, the federal constitution. Rather, he portrays state constitutions as part of an interdependent or interrelated American federal constitutional structure, with each sphere of government functioning to check the other."

Robert Williams | Robert Williams

"Gardner’s clearly argued analysis places states and state constitutions in a significantly more important role than that considered by most legal and judicial scholars. His analytically sound prescriptions to state judges and state courts provide avenues and responsibilities for their defining civil liberties in the national environment. Gardner’s thought-provoking analysis requires reconsideration of U.S. federalism as applied to relationships between state and national courts."

Steven Puro | Law and Politics Book Review

Table of Contents

Preface
Introduction - The Problem of State Constitutional Interpretation
1. The Emergence of the Modern Debate
2. The Dead End of Romantic Subnationalism
3. The Mechanics of Federalism
4. State Constitutions in the Federal Scheme
5. Patterns of Distrust
6. A Functional Account of State Judicial Power
7. An Approach to State Constitutional Interpretation
Afterword - Function and Interpretation
Appendix
Bibliography
Index

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