Extending rights: A model of state constitutional policymaking under the new judicial federalism

摘要

A number of scholars assert that state and federal courts are in a new relationship, labeled the "new judicial federalism," that began when the Burger Court started in the 1970s to retreat from and limit the Warren Court's expansive interpretations of federal civil liberties protections. Under this relationship, state courts have begun to develop a body of state constitutional law independent of federal constitutional law. In developing this body of law, state courts often times engage in "state constitutional policymaking," interpreting provisions of their state constitutions more broadly than the U.S. Supreme Court's interpretation of analogous provisions of the U.S. Constitution.;Relying on 592 state high court decisions collected from twenty-five states since 1970 in which the courts interpreted provisions in their state bills of rights, I construct a model seeking an "internal determinants" explanation for state constitutional policymaking. The developed model include variables addressing attributes and institutional characteristics of state high courts, environmental characteristics of the states and differences in the wording of state and federal constitutional guarantees.;The results show that two environmental factors--population and citizen ideology--provide a partial explanation for the extension of rights over the 25-year period of the study. In addition, I find that the effect of internal characteristics of states on the exercise of state constitutional policymaking has varied over time. While partisan make-up of the state high court, population and difference between state and federal constitutional language have explanatory power during the early period of the "new judicial federalism," during more modern times, internal conditions provide no explanation for the extension of rights. This suggests that internal characteristics help drive early innovations by courts.;Through the models presented in the dissertation as well as an investigation of the extension of rights across states, across issues and over time, I also address the past and future of state constitutional policymaking. In addition, I discuss how the findings add to our understanding of judicial innovation, judicial impact, and decision-making on state high courts.