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State Constitutional Interpretation and Methodology

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Title: State Constitutional Interpretation and Methodology
Author: Van Cleave, Rachel A.
Abstract: This paper first discusses the significance of state constitutional law, which is important background and support for the rest of the paper. Second, the paper traces some of the history of state constitutional interpretation, centering on the question of when a state court should engage in independent analysis, and discussing some examples of courts stating expressly which method it will follow, and others illustrating a troubled history of attempting to answer this question. Next, the focus shifts to address the question of how independent interpretation has been carried out, and some of the problems involved and the pressures faced by state courts. In addition, this paper makes suggestions as to how to better enrich and enhance the process of independent interpretation by state courts in a way which furthers the development of constitutional jurisprudence of the state court and contributes to constitutionalism in general. For example, one practical suggestion calls for the amendment of a state's Rules of Court to require counsel to raise and brief issues under the state constitution and to require courts to address the state constitutional questions before resolving any federal constitutional claims.
Related Resources: Click to follow Hein Online link Click to follow Lexis link Click to follow Westlaw link
Date: 1998

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