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The Law of American State Constitutions$
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Robert F. Williams

Print publication date: 2009

Print ISBN-13: 9780195343083

Published to Oxford Scholarship Online: February 2010

DOI: 10.1093/acprof:oso/9780195343083.001.0001

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The New Judicial Federalism

The New Judicial Federalism

Chapter:
(p.113) 5 THE NEW JUDICIAL FEDERALISM
Source:
The Law of American State Constitutions
Author(s):

Robert F. Williams

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780195343083.003.0005

This chapter discusses the evolution of the New Judicial Federalism, reflecting the realization that state constitutional rights provisions can provide, or be interpreted to provide, more rights than the federal Constitution's national minimum standards. It describes the wide variety of state constitutional rights provisions, together with the various stages of the New Judicial Federalism beginning in the 1970s. These developments consisted of state high court decisions, law review literature, including influential articles written by state judges as well as Justice William Brennan, Jr., and conferences. Also, the chapter describes the backlash against the New Judicial Federalism and the awareness that expansive judicial interpretations of state constitutions could be overturned by amendments to the texts of state constitutions. The chapter concludes with the suggestion that a true dialogue between state and federal courts concerning constitutional rights might be possible.

Keywords:   New Judicial Federalism, state constitutional rights, Justice William Brennan Jr, judicial interpretation, state constitutional rights provisions, evasion cases, backlash

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