State Common Law and the Dual Enforcement of Constitutional Norms
This chapter addresses differences in how the U.S. Constitution and many individual state constitutions approach the state action requirement in enforcing constitutional rights. In contrast to the U.S. Constitution, which generally requires state action as a predicate to the adjudication of constitutional rights, many state constitutions do not require the same predicate for the evolution of constitutional norms. The chapter describes the practices by which state courts have extended constitutional protections to private conduct. It grounds this generally in a framework drawn from comparative constitutionalism, and elaborates on its implications for federalism, state courts, and state constitutionalism more generally. The way state courts have developed a convergence between private and public concepts in constitutional law has important implications for the distinct path of state constitutional rights adjudication in the United States, and this chapter provides a descriptive and conceptual grounding for the phenomenon.
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