New Frontiers of State Constitutional Law

New Frontiers of State Constitutional Law: Dual Enforcement of Norms , edited by James A. Gardner and Jim Rossi, projects a new vision for state constitutional law through a collection of essays that reflect a shift in legal thinking about the relationship between national and subnational systems of constitutional law. This work charts a new course that gives voice to a recent, rising chorus of dissent among scholars and judges, namely that national and subnational systems of constitutional law cannot be adequately understood in isolation from one another. To the contrary, they are linked in a web of jurisprudential, social, and pragmatic connections structured by the American system of federalism. Here, multiple layers of constitutional law function together in a complex, interdependent process in which constitutional norms are developed, articulated, and enforced. The essays illuminate the role that state constitutions must play in any theory of federalism, and exemplify a fresh approach to state constitutionalism by discussing a range of issues, including recent debates regarding state constitutional protections for same-sex marriage. The entire work embraces the struggle between state and national power for dominance in American law and places both on equal ground. It contends that constitutional meaning in a federal system is never static and that it evolves over time. In addition to covering methods of judicial review, it discusses the handling of constitutional claims by courts at the state and national level and closely examines the way that courts and constitutions protect individual rights in a federal system.

James A. Gardner is Vice Dean for Academic Affairs and Joseph W. Belluck and Laura L. Aswad Professor of Civil Justice at the University at Buffalo Law School, State University of New York, where he also directs the Edwin F. Jaeckle Center for State and Local Democracy. He is the author of: Of Interpreting State Constitutions: A Jurisprudence of Function in a Federal System (University of Chicago Press, 2005) and nearly two dozen articles and chapters on state constitutional law and subnational constitutionalism.

Jim Rossi is the Harry M. Walbosky Professor and Associate Dean for Research at Florida State University College of Law. He is author of numerous articles on state constitutional and administrative law, with a particular focus on state implementation of federal regulatory standards and programs. His books include Regulatory Bargaining and Public Law (Cambridge University Press, 2005) and a casebook, Energy, Economics and the Environment (Foundation Press, 3d ed. 2010) (with Fred Bosselman, Joel Eisen, David Spence and Jacqueline Lang Weaver).

Acknowledgements	p. ix
Contributors	p. xi
Dual Enforcement of Constitutional Norms	p. 1
Introduction	p. 1
The Jurisprudence of American Subnational Constitutional Law	p. 2
States as Dynamic Subnational Institutions within a Federalism Framework	p. 5
The Generation and Enforcement of Constitutional Norms in a Dual Agent Federalism	p. 7
The Approach of This Volume	p. 11
Cool Federalism and the Life Cycle of Moral Progress	p. 15
Introduction: Hot and Cool Federalism	p. 15
The Life Cycle of Moral Progress in American Politics	p. 16
What Regime of Federal Authority Follows?	p. 19
Conclusion: Breathing Room	p. 23
ôStates of the Same Natureö: Bounded Variation in Subfederal Constitutionalism	p. 25
Introduction	p. 25
Convergence and Divergence at the Founding	p. 27
How much Constitutional Variation?	p. 30
How much Interpretive Variation?	p. 33
Turnabout	p. 35
Conclusion	p. 38
Why Federalism and Constitutional Positivism Don't Mix	p. 39
Introduction	p. 39
Constitutional Positivism	p. 42
Federalism and Subnational Units: Whose Constitution Is It?	p. 45
Implications for Interpretation	p. 50
Complications	p. 53
Conclusion	p. 58
State Constitutionalism and the Scope of Judicial Review	p. 61
Introduction	p. 61
State Constitutions and the Dilemmas of Governance	p. 62
Optimal (Optimizing?) Judicial Review	p. 66
Scope of Constitutional Review Revisited	p. 70
Conclusion	p. 80
Same-Sex Marriage and the New Judicial Federalism: Why State Courts Should Not Consider Out-of-State Backlash	p. 81
Introduction	p. 81
Positive Political Theory and the New Judicial Federalism	p. 83
The New Judicial Federalism and Same-Sex Marriage	p. 88
Conclusion	p. 102
Interjurisdictional Enforcement of Rights in a Post-Erie World	p. 103
Introduction	p. 103
Federalism as Polyphony	p. 106
Intersystemic Adjudication in the United States	p. 108
The Values and Counter-Values of Intersystemic Adjudication	p. 111
Legitimacy of Intersystemic Adjudication	p. 117
Rights and Remedies in an Imperfect World	p. 123
Dual Constitutions and Constitutional Duels	p. 127
Introduction	p. 127
Duels Between Federal Regulatory Goals and State Constitutions in Cooperative Federalism Programs	p. 130
Interpretive Efforts to Retain the Relevance of State Constitutions against the Backdrop of Federal Programs	p. 134
A Solution from within: Seeds for an Interpretive Theory of Separation of Powers for Systems of Dual Constitutions	p. 142
Conclusion	p. 150
State Common Law and the Dual Enforcement of Constitutional Norms	p. 151
Introduction	p. 151
Framing the Extension of Constitutional Norms to Private Conduct	p. 153
Implications for Federalism, Sovereignty, and Judicial Practice	p. 163
Common Law as a Modality for Constitutional Development	p. 168
Conclusion	p. 171
Index	p. 173
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New Frontiers of State Constitutional Law Dual Enforcement of Norms

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