NCJ Number
121207
Journal
Judicature Volume: 73 Issue: 3 Dated: (October-November 1989) Pages: 146-154,170
Date Published
1989
Length
10 pages
Annotation
Developments in judicial federalism and the associated roles of Federal and State courts were examined at the 1989 annual meeting of the American Judicature Society.
Abstract
It is widely accepted that if both State and Federal constitutional issues are raised, State constitutional issues should be addressed first. This view is based on the reasoning that a Federal question recognizable under the Fourteenth Amendment's due process clause becomes an issue only if State law does not protect the right in question. A factor that sometimes inhibits State supreme court justices from addressing their own constitutions is an unarticulated but often real concern that it is somehow inappropriate to rely on State constitutional arguments. Law schools and judges, therefore, must educate lawyers about the importance of State constitutions and about principled ways in which to make State constitutional arguments. The relation between State and Federal constitutions and common law is important in judicial federalism, since the basic question in federalism is how power should be allocated between State and Federal governments. Every time common law is replaced by Federal constitutional rules, power shifts away from State law. Conversely, each refusal to apply constitutional standards to common law is a reaffirmation of State authority. Discussions of topics raised in the main meeting presentations on judicial federalism are included. 13 references.