Models of Post-Incorporation Judicial Review: 1985 Survey of State Constitutional Individual Rights Decisions

• Published in: Publius 1986-07, Vol.16 (3), p.111-140
• Main Authors: Collins, Ronald K. L., Galie, Peter J.
• Format: Article
• Language: English
• Subjects: Civil rights; Constitution; Constitutional rights; Equal protection; Federal law; Federalism; HUMAN RIGHTS, DECLARATIONS OF HUMAN RIGHTS, AND HUMAN RIGHTS COMMISSIONS (OFFICIAL ORGANIZATIONS); Judicial review; Modeling; Natural rights; State courts; STATE GOVERNMENT; State law; Statutory interpretation; SUPREME COURT (ALL NATIONS); Surveys; United States constitutional law; UNITED STATES, 1945 TO PRESENT
• ISSN: 0048-5950; 1747-7107; 1747-7107
• DOI: 10.1093/oxfordjournals.pubjof.a037600

In 1985 state supreme courts issued the largest number of decisions to date in which protections of individual rights were based upon provisions of state constitutions. With increasing frequency, state high courts have held that certain constitutional minimums of rights protection set by U.S. Supreme Court interpretations of the U.S. Constitution do not satisfy more demanding precepts of state constitutional law. Although much of this activity remains reactive rather than systematic, there has been a slight move toward greater systematic analysis. Furthermore, state court decisionmaking can be understood in terms of five models that reflect judicial perceptions of varying degrees of equivalence or nonequivalence between rights provisions in the U.S. Constitution and state constitutions. At the same time, however, the U.S. Supreme Court has clearly indicated an interest in monitoring the individual rights decisions of state high courts, while lower federal courts have begun to place greater reliance on state constitutional law to preclude U.S. Supreme Court review.