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

In 1985 state supreme courts issued the largest number of decisionsto date in which protections of individual rights were basedupon provisions of state constitutions. With increasing frequency,state high courts have held that certain constitutional minimumsof rights protection set by U.S. Supreme Court interpretationsof the U.S. Constitution do not satisfy more demanding preceptsof state constitutional law. Although much of this activityremains reactive rather than systematic, there has been a slightmove toward greater systematic analysis. Furthermore, statecourt decisionmaking can be understood in terms of five modelsthat reflect judicial perceptions of varying degrees of equivalenceor nonequivalence between rights provisions in the U.S. Constitutionand state constitutions. At the same time, however, the U.S.Supreme Court has clearly indicated an interest in monitoringthe individual rights decisions of state high courts, whilelower federal courts have begun to place greater reliance onstate constitutional law to preclude U.S. Supreme Court review.     

Justice George Sutherland and Commerce-Clause Federalism Before the New Deal

The jurisprudence of Justice George Sutherland illustrates howthe U.S. Supreme Court justified commerce-clause federalismbetween the end of the Civil War and the ascendancy of the NewDeal. Sutherland presented a constitutional and political defenseof federalism grounded in American natural-rights theory. Thisdefense presents arguments that federalism's skeptics and defendershave not considered sufficiently. Skeptics tend to argue thatis impossible to maintain a federalist constitutional arrangement;Sutherland's defense shows how to do so. Federalism's supporterstend to defend the commerce clause on negative grounds, thatit limits government power by forcing the states to competewith each other and Congress to compete with them all. Sutherland,however, drew on a tradition of political theory which stressedthat commerce-clause federalism offered positive benefits bykeeping the federal government lean and mean. It barred Congressfrom regulating on subjects about which it was less informedand competent than state legislators and regulators. By focusingthe federal government on truly national objects like interstatetrade, it left most regulation where citizens could see it-locally.According to this tradition, the commerce clause played a criticalrole in making the national government energetic and effective,and it also ordered local political processes so as to makecitizens self-reliant and fit for republican self-government.     

State Sovereignty and the Eleventh Amendment in the U.S. Supreme Court: The 1988 Term

During its 1988 term, the U.S. Supreme Court addressed two importantaspects of the Eleventh Amendment, which generally protectsstates from being sued in federal courts. First, the Court heldthat the Congress has power to abrogate states' immunity fromsuit—to subject states to suits in federal courts fordamages—under Congress' expansive commerce-clause power.Second, the Court made clear that such abrogation would be foundonly where the text of the statute itself, as distinct fromits legislative history, clearly and specifically so provided.This article describes these decisions, and analyzes some oftheir implications for judicial federalism.     

Foreign-Trade Agreements: A New Federal Partner?

The North American Free Trade Agreement (NAFTA) and the GeneralAgreement on Tariffs and Trade (GATT) shift power away fromstate and local government in the federal system. They imposenew rules on the exercise of state and local powers over procurementand the regulation of food, environmental, health, product andservice standards, investments, services, financial services,economic development, and land transportation. States will haveto comply with various reporting and registration requirements,and may be subject to stricter nondiscrimination obligationstoward imported goods and services than under the commerce clauseof the U.S. Constitution. State and local governments will bejudged by international panels, whose judgments the United Statesmust enforce or suffer trade sanctions from aggrieved tradingpartners. Yet, states have not strongly opposed NAFTA and GATT.The greatest state opposition has been to automatic preemption,which the Clinton administration promised to avoid as much aspossible. Nevertheless, increased power over federalism hasmoved to the executive branch, business, and trade-dispute panels,with less power for state and local governments.     

The Past and Future of the New Judicial Federalism

This article argues that the new judicial federalism, the increasedreliance by state judges on state declarations of rights tosecure rights unavailable under the U.S. Constitution, representsnot a return to an earlier federalism but rather something new.Although the basis for a state civil liberties jurisprudencehad long existed, the "discovery’ of state constitutionalguarantees did not occur until the Warren Court pioneered anapproach to civil liberties that state courts could emulate.This "discovery" has led to only intermittent reliance on stateguarantees. Nonetheless, it is unlikely that state judges willreturn to the total deference to federal rulings in civil libertiescases that characterized preceding decades.     

Homogeneity and Democracy in Austrian Federalism: The Constitutional Court's Ruling on Direct Democracy in Vorarlberg

This article seeks to analyze how homogeneity between the federationand the constituent Lander is provided by the Austrian federalConstitution in general. Focus is then put on a recent judgmentof the Austrian Constitutional Court, which has been one ofthe most outstanding cases of the Court's "homogeneity jurisdiction."The Court held a provision of a Land constitution to be in breachof the federal Constitution and therefore repealed it. The reasongiven was that the provision, which had obliged the Land parliamentto pass a law if this was demanded by a people's petition andsupported by the Land people in a referendum, endangered thesystem of representative democracy as provided by the federalConstitution. This narrow understanding of democratic homogeneityand the negligence of the principle of federalism are criticallyviewed in the article.     

New State Equality: The Ambiguous History of a Constitutional Principle

In Coyle v. Smith (1911), the U.S. Supreme Court ruled thatCongress could not impose admissions conditions on new statesthat detracted from their equal standing in the union. Previously,the Court had deferred to Congress' authority over federal territoryand over its own membership. Before the Civil War, federal interestsin new states—particularly with respect to public lands—weresecured through admissions conditions. Later, however, admissions"compacts" became increasingly redundant; the Court groundedfederal property claims in the new states on the "rules andregulations" provision of the Constitution. Meanwhile, in aseries of decisions, the Court began to uphold the "municipalsovereignty" of the territories against congressional interference.Congress' authority in the territories was progressively limitedto that of acting as "trustee" for future states. These doctrinaldevelopments culminated in Coyle. The Court challenged Congress'right to set invidious admission conditions and asserted itsown jurisdiction over the state-making process. The new stateequality principle thus became "constitutional" as the Courtextended its authority. I wish to thank Herman Belz, University of Maryland, for helpfulcriticism.     

The Legal Order and the Administration of Federal and State Courts

The Nigerian Constitution of 1989 establishes a system of federaland state courts, but within a structure of unified federal-statejurisdiction from the federal and state high courts, to thefederal Court of Appeal, and to the national Supreme Court.Thus, both sets of courts exercise jurisdiction with respectto federal and state laws. Although this system mitigates certainfederal-state jurisdictional conflicts, it does not eliminatesuch conflicts. At the same time, however, the Constitutionalso provides for Sharia courts of appeal under Moslem law andfor customary-law courts of appeal, thus establishing a tripartitesystem of justice. Although this system seeks to accommodateNigeria's ethnic and religious diversity, it does raise problemsfor national unity, judicial uniformity, and equity in the administrationof civil and criminal justice.     

The U.S. Supreme Court's Federalism Jurisprudence: Alden v. Maine and the Enhancement of State Sovereignty

In recent years, the U.S. Supreme Court's federalism jurisprudencehas shielded states from certain aspects of Congress's policymakingand enforcement authority. Through its interpretations of theinterstate commerce clause and of the Tenth and Eleventh Amendments,the Court has reminded Congress that its power to govern haslimits. This article presents the major federalism cases ofthe 1990s, focusing on Alden v. Maine, the most important federalismdecision of the 1998–1999 term. It concludes that theCourt's interpretation of the Eleventh Amendment and the sovereign-immunitydoctrine, which has constrained the federal government's powerto authorize private suits against states for violations offederal law, poses a threat to a fundamental principle of therule of law: "where there is a right, there is a remedy."     

Limiting State Involvement in Foreign Policy: The Governors and the National Guard in Perpich v. Defense

The National Guard is a largely successful intergovernmentalinstitution in the United States. In September 1989, however,the governor of Minnesota asked the U.S. Supreme Court to strikedown federal legislation that gives the Department of Defenseauthority to assign state National Guard units to active-dutyoverseas training without the consent of the governor. In Perpich(1990), the Supreme Court upheld the Montgomery Amendment allowingthe president to order members of a state's Guard to activeduty for training outside the United States even during peacetimewithout either the consent of the governor or the declarationof a national emergency. The Court did not address the factthat the president has ample authority under other statutesfor calling up the National Guard. The decision dealt only withthe authority for calling Guard units for two weeks of active-dutytraining. The practical effect of this interpretation of themilitia clauses of the U.S. Constitution is to reduce the states'authority for training to, at best, a ministerial function,even when Guard units are called up by the secretary of defenseonly for the purpose of training.     

Judicial Review and the Supreme Court of Washington, 1890-1986

The literature on judicial review by state supreme courts suggeststhat from the beginnings of the republic until today, statejudicial review has shifted generally from what can be calleda restraintist departmentalism to an activist "new federalism."Since statehood in 1889, the Supreme Court of Washington hasreacted to constitutional challenges in much the same manneras the high courts of other states. Recently, however, Washington'sjurists have forged an independent course by applying the morerestrictive aspects of the state constitution to private andgovernmental intrusions into personal lives rather than relyingon the guidelines provided by the federal Constitution and theU.S. Supreme Court. The nature of this second "Golden Age" ofstate judicial review, because of its effect on federalism ratherthan the separation of powers, requires appraisal from a newperspective.     

The Rehnquist Court and Federal Preemption: In Search of a Theory

In the 1980s, the U. S. Supreme Court was expected to becomemore solicitous of "states' rights" and to reconsider doctrinesof federal preemption of state and local laws. Those expectationswere built on the Court's ruling in National League of Citiesv. Usery and reinforced by the Reagan administration's rhetoricand Court appointments. The record ofthe Rehnquist Court, however,demonstrates that it has backed away from vigorously enforcingthe Tenth Amendment and has erected only minor constitutionalbarriers, as in New York v. United States, to the Congress'power over the states. Moreover, the Court has not retreatedfrom finding implied statutory preemptions or from imposingits own dormant-commerce clause power on the states. The articleconcludes by considering a number of explanations for the Court'srecord and rulings on federal preemption.     

Intergovernmental relations in Nigeria: Local government and the 1979 Nigerian Constitution

This paper examines the intergovernmental relations prescribed by the Nigerian Constitution of 1979. In particular it discusses the elevated constitutional status of local government, tracing the origins of this to the 1976 local government reform. The question of how to interpret the provisions of the Constitution on the restructuring of local government and whether this is solely a State responsibility or a joint State/Federal responsibility is analysed. The article argues that the States have political and administrative responsibility for local government whereas the Federal responsibility concerns the regulation of the amount of money to be distributed to local government from the Federal Account. The Lagos State High Court judgement which supports the view that States have political and administrative responsibility for local government, but nullified the State's legislation, is extensively reported and analysed. Also discussed is the Allocation of Revenue (Federation Account, etc.) Act 1981 which both reflects and supports the view that the federal relationship to local government is defined by finance. The paper also probes the intention of the Constituent Assembly by analysing its report. The paper complements that by Smith and Owojaiye in the previous number.     

Constitutional and Human Rights Disturbances: Australia’s Privative Clauses Created Both in an Immigration Context

With the arrival of another wave of “boat people” to Australian waters in late 2009, issues of human rights of asylum seekers and refugees once again became a major feature of the political landscape. Claims of “queue jumping” were made, particularly by some sections of the media, and they may seem populist, but they are also ironic, given the protracted efforts on the part of the federal government to stymie any orderly appeals process, largely through resort to “privative clauses”. Such clauses demonstrate the many ways in which human rights of those seeking asylum in far-off lands and are potential future immigrants, who often lack much-touted needed papers, yet who are for the most part genuine refugees, are subject to the slings and arrows of political fortune (and misfortune). Approaching the courts if treated unfairly or seeking a further decision as to your fate would seem one of the fundamental premises of human rights. Yet privative clauses—or attempts to ouster the jurisdiction of the courts and to insulate decisions from appeal—have become an increasingly frequent feature of the Australian migration legislation. With a seemingly watertight federal constitutional power set in stone since 1901, to deal with migration and aliens, and without the tempered contemporary update of a federal Bill of Rights, the Australian federal government has been able to narrow the grounds of judicial review in those contexts. We argue that the concerted efforts to deny such fundamental rights of appeal to those most in need of the full armoury of the protection of the law in a modern, affluent democracy, constitutes both a breach of their human rights and a breach of core constitutional principles such as separation of powers. Those principles may not be formally articulated in the text of the Australian Constitution, but in our view they are implicit in the constitutional arrangements, and hence we can conclude with the arguments of former Justice of the High Court of Australia, Michael Kirby, who asked—to whom does sovereignty truly belong?     

THE RISE AND DEMISE OF COERCIVE FEDERALISM*

Abstract: The question of how a fiscal balance might be maintained between the Commonwealth and the States exercised the minds of the framers of the Constitution before 1901 and has been of concern ever since. Centralization of financial power in the Commonwealth has resulted from decisions of the High Court of Australia especially the two Uniform Tax Cases which in 1942 established, and in 1957 reinforced, the Commonwealth's hegemony in the revenue field. This hegemony enabled the Commonwealth to influence, if not dictate, State policy initiatives by the making of conditional grants for a wide range of specific purposes under Section 96 of the Constitution. The practice of making specific purpose grants as an element in what has been called “coercive federalism” was adopted in varying degree by the Commonwealth during the years between 1943 and 1975. The “new federalism” policies of the present government have as their objective the reversal of this practice and in its place the restoration of State automomy in the expenditure of a pre-determined share of income tax revenues. Some of the problems entailed in the withdrawal of specific purpose grants are outlined, and the paper also suggests an institutional mechanism to maintain a proper fiscal balance between Commonwealth and States as part of the “new federalism”.     

Madison on the Meaning of the "General Welfare," the "Purpose" of Enumerated Powers, and the "Definition" of Constitutional Government

According to James Madison, "the most important and fundamentalquestion" he ever addressed was the meaning of and relationbetween the general welfare clause and the enumeration of particularpowers. This question is the most "fundamental" because theanswer determines the very "idea" or "nature" of the U.S. Constitution.Commentators virtually agree on the answer Madison proposedand defended in Federalist 41, namely, that the general welfareclause is neither a statement of ends nor a substantive grantof power. It is a mere "synonym" for the enumeration of particularpowers, which are limited and wholly define its content. Fromthis answer, it follows that the primary meaning of the nationaldimension of the federal Constitution is limited government,understood as a government with a limited number of powers ormeans. The thesis of this essay, however, is that, contraryto the commentators' claims, Madison argued that the clausewas a substantive grant of power for the generally stated endand that the primary purpose of the ensuing enumeration wasto define more particularly the ends alluded to by the phrase"general welfare." Hence, the meaning of the general constitutionalgovernment in the American federal system is a government orientedto a limited number of limited ends.     

The Burger Court and Younger Abstention: Enhancing the Role of State Courts in Constitutional Adjudication

An important determinant of federal balance is the degree ofstate court authority to decide federal constitutional issues.This study traces the development of the Younger abstentiondoctrine, one of the primary vehicles by which the Burger Courtrestricted federal court jurisdiction and enhanced the authorityof state courts in constitutional adjudication. The Youngerdoctrine was adopted by the Supreme Court in 1971 for reasonsof comity and equitable restraint. Throughout the Burger Courtyears, Younger was expanded from an initial denial of jurisdictionto litigants seeking injunctive relief in state criminal proceedings,to litigants in cases "akin" to criminal proceedings, and thento litigants in cases "important to state interests." By relyingon Younger abstention, the Burger Court has reduced the roleof the federal courts as the primary enforcement of U.S. constitutionalrights.     

Who Preempted the Massachusetts Burma Law? Federalism and Political Accountability Under Global Trade Rules

With its "Burma law, " Massachusetts joined a procurement boycottof companies doing business in Burma. In Crosby v. NFTC, theU.S. Supreme Court held that Congress preempted the Massachusettslaw, even though Congress was silent on preemption. The Courtrelied on actions by executive-branch, foreign, and corporateactors to find that the state law was an obstacle to impliedobjectives of federal Burma sanctions. In doing so, the Courtdiffused congressional accountability for preemption and constrainedthe "constituent diplomacy" by which states and local governmentsuse their purchasing power to influence national policy andmultinational corporations. Crosby shifted the burden to Congressto express its intent not to preempt such measures. Congresshas several opportunities to meet this burden if it wants topreserve the diversity and balance that constituent diplomacybrings to the federal system.     

Harmonizing national law with inter-American human rights law: Evidence from Mexico

Conventionality review is a recent Latin American doctrine seeking that states which had ratified the American Convention of Human Rights verify the conformity of their national laws to norms of the Convention. In Mexico, several changes have placed the country in a better position to follow this inter-American doctrine: 1) a 2011 human rights constitutional amendment; and 2) an interpretation handed down by the Mexican Supreme Court after its appraisal of the Rosendo Radilla-Pacheco case. These events allow all judges in the country (federal and local) to disregard national laws if they contravene norms established in the Convention or the Constitution. How then are these changes operating in practice? This article explores the extent to which conventionality review is being used by intermediate level court's judges and defenders in the states of Jalisco, Nuevo Leon, and Oaxaca.     

Introduction: Dimensions of Interstate Relations

By dividing political power between the national governmentand multiple constituent governments, a federal system automaticallyproduces relations among the constituent governments. This articledescribes six provisions of the U.S. Constitution for handlingrelations between the states: (1) federal judicial settlementof interstate disputes, (2) cooperative action by states, (3)privileges and immunities within each state for out-of-statecitizens of the United States, (4) full faith and credit forthe public acts, records, and judicial proceedings of each state,(5) interstate rendition, and (6) free interchange of commerceamong the states.