The Monarchy,the State and Religion: Modernising the Relationships

Aspects of contemporary monarchy and government in relation to religion are out of step with contemporary society and require systematic reform. The removal of religious and gender discrimination in the arrangements for succession to the monarchy would be in conformity with modern anti‐discrimination attitudes. The monarchy should also consider stepping back from its religious role. The monarch has an official role as Supreme Governor of the Church of England but less than a quarter of the population identify as Anglican and in its current attempts to be inclusive the monarchy seeks to respect and support other religions whose beliefs and practices are at variance with those of the C of E and the general population. In Scotland a new settlement could be promoted by the disestablishment of the Church of Scotland (comparable to the situation in Wales and Northern Ireland) and the ending of separate Roman Catholic state education.     

Scottish Independence,State Religion and the Monarchy

The plans of the Scottish Executive/Government for the independence of Scotland, which are very sketchy, are explored in relation to desire to retain the monarchy. The Scottish Parliament has expressed support for the removal of religious discrimination from succession to the throne and instituted an alternative state religion—measures which suggest an alternative relationship between religion and the monarchy will be required in an independent Scotland. Repealing the Act of Union will require decisions as to whether the monarchy remains as Christian, Protestant and Presbyterian in Scotland or whether some alternative religious or secular arrangements will be developed. Accepting the existing religious settlement of the monarchy, or varying it, will generate challenging issues for a Scottish administration that is seeking to be more religiously inclusive.     

State Sovereignty in the Federal System: Constitutional Protections Under the Tenth and Eleventh Amendments

The U.S. Supreme Court has held that state sovereignty is protectedby principles of common law rather than explicit constitutionalguarantees under the Tenth and Eleventh Amendments. The Courthas also cautioned that congressional actions, even under delegatedpowers, may not threaten the integrity of states as sovereignentities in the federal system. The National League of Citiesdecision in 1976 appeared to reverse this doctrine by implyingthe existence of Tenth Amendment protections of state actionsin traditional functional areas. However, the federal courtsdiscounted the NLC ruling as a compelling precedent in subsequentfederalism cases because of its vagueness and its fundamentalinconsistency with established doctrine. In 1985, the SupremeCourt overturned the ruling in Garcia v. San Antonio, reaffirmingthe common law nature of state sovereignty and arguing thatconstitutional protection of state interests lies primarilyin the representative structure of the federal system ratherthan in specific constitutional guarantees.     

Religion and the State: The Case of Faith–based Schools

It is always misleading, and sometimes dangerous, to suppose that the current problems represent no more than a recapitulation of earlier and intractable difficulties. An inhibiting sense of déjà vu numbs the mind and distracts attention from the essential novelty of deceptively familiar issues. The contemporary interaction of religion and politics in Western societies is as different from nineteenth–century contests between traditional faiths and their critics as it is distant from medieval versions of the church and state question. These truisms are well illustrated by the attempt made in this article to apply some of the harder lessons of historical and of cross–national studies to current debates on changing relations between organised religion and public education.     

Constitutional Dimensions of State and Local Tax Deductibility

President Reagan's proposal to eliminate the deduction of stateand local taxes for the purpose of assessing federal incometaxes will vastly enlarge the scope of the federal government,unduly burden state and local governments, and greatly harmthe federal system. The essence of the federal idea is thatthere are arenas of government that must not be invaded by othergovernments. Yet the Treasury Department would have us believethat the most fundamental activities of state and local governmentsare in some significant sense paid for by the federal governmentthrough "subsidies" provided by the federal tax code.     

State Constitutional Limits on Legislative Procedure: Legislative Compliance and Judicial Enforcement

Most state constitutions contain detailed restrictions on thelegislative process. Violations of some of these restrictions(e.g., single-subject requirements) are reflected on the faceof a final enactment. Other violations (e.g., alteration ofa bill to change its original purpose) are not evident in thefinal enactment, but require investigation of the legislativeprocess. State courts have developed a variety of approachesto these second types of violations, from excluding all evidencebeyond the enactment to permitting any evidence of constitutionalviolations. The Pennsylvania Abortion Control Act was passedin apparent violation of both types of constitutional restrictions.The legislative debates reflected legislators' attitudes aboutsuch restrictions, but the Pennsylvania courts refuse to enforcethem. After surveying other judicial approaches, the articlediscusses the legislative and executive obligation to followconstitutional restrictions, regardless of judicial enforcement.The article then advocates increased judicial enforcement, whilemaintaining proper deference to the legislature.     

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.     

Effects of Constitutional and Political Controls on State Expenditures

State governments have employed various statutory and constitutionaldevices to limit government spending. Many of these devicesare intended to increase executive control over expenditures.The research design employed here suggests that such effortsare ineffective or counterproductive. However, this researchindicates that state legislatures controlled by a single partyare more likely than divided legislatures to limit governmentspending and minimize debt. Thus, political and electoral influencesappear to explain state expenditures belter than legal restrictionson the appropriations process. This study adds to the literatureby simultaneously analyzing multiple restraints on state governmentspending and debt.     

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 Auditing of Public Policy and the Politics of Auditing: The U.S. GAO and Israel's State Comptroller

A purist conception of audit independence appears to be obsolete. A survey of audit activities of the U.S. General Accounting Office (GAO) and Israel's State Comptroller describes pressures on audit bodies to examine sensitive policy issues and to enter partisan and personal squabbles between elected officials. The critique of the GAO by the National Academy of Public Administration recommends that legislators refrain from asking the audit body to deal with politically sensitive issues. In order to salvage something from the principle of audit independence, it appears more realistic to urge diligence on the part of the supreme auditor.     

Constitutional Theories and Constitutional Rights: Federalist Considerations

This article examines the contemporary controversy over constitutionalinterpretation and the differing understandings of constitutionalrights that underlie it. We first consider the character andbasis for interpretivism, that is, a jurisprudence that delineatesrights by reference to the intent of the founders and to theconstitutional text. Next, we review the non-interpretivistalternative, focusing on Ronald Dworkin's influential accountof constitutional rights. We conclude that despite its strengths,Dworkin's position does justice neither to the constitutionaltext nor to the connection between structure and rights in theUnited States Constitution. Finally, considering constitutionaltheory from the broader perspective of state constitutionalism,we conclude that its insights are limited to the U.S. Constitutionand offer some suggestions for a more adequate constitutionaltheory.     

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.     

The New Progressive Federalism: Common Benefits,State Constitutional Rights,and Democratic Political Action

In 1776, a group of political outsiders in Pennsylvania seized control of the convention and drafting process to create a robustly democratic and class-conscious state constitution. These commoners believed governments upheld and extended social and political privilege, serving primarily the interests of wealthy and powerful citizens. They tried to reverse these oligarchic tendencies, particularly through a “common benefits clause”: here the social contract prioritized the whole community and instituted a more horizontal form of equality among citizens. Ultimately, the short-lived Pennsylvania constitution of 1776 left a powerful legacy, largely forgotten but useful to remember. Today, in a broad “new progressive federalist” movement, democratic political action is rising up from city, state, and local governments to interrupt and counteract the oligarchic tendencies of the national government under the Trump administration. This paper shows how common benefit and equal privilege clauses, still on the books in many states, can inspire and inform this movement.     

The State Constitutional Pedigree of the U.S. Bill of Rights

A direct comparison between the U.S. Bill of Rights and prominentEnglish common law documents shows that the first ten amendmentsto the U.S. Constitution have only a limited relationship toEnglish antecedents. Nor were the amendment proposals by thestate ratifying conventions the primary source of the U.S. Billof Rights. Instead, this famous addition to the federal Constitutionwas a summary of the common core found in the seven existingstate bills of rights. James Madison's use of this source restedupon colonial developments in rights theory, contrasting notionsof rights in England and America, competing notions of libertyin America in the 1780s, and the political exigencies surroundingthe ratification of the U.S. Constitution.     

Simulation of a Constitutional Spending Limit for a Conservative State: With Dynamic Adjustment and Sensitivity Analysis

Longstanding concern about the rate of state and local government spending growth, strengthened by “Great Recession” economic and fiscal conditions, sustains advocacy of constitutional amendments to cap the growth of state and local taxes or spending. For some states, interest recently changed to necessity, and current constitutional limits—most notably the California experience with the Gann Spending limit (1979–1990) and the Colorado experience with its Taxpayer Bill of Rights (1992‐present)—contain numerous valuable lessons for fiscal restraint proponents. We use those lessons, and others, to develop a constitutional spending limit (CSL) for Utah, and describe a CSL simulation for the state for 1990–2009. In contrast to what an “Institutional Irrelevance Perspective” suggests for a politically conservative state such as Utah, we find that Utah would have seen large and robust CSL impacts from setting the spending growth rate at school‐age population plus inflation for K‐12 education funding, and at population plus inflation for remaining nonexempt state spending.¹ Those impacts include a reduced tax burden, sizable reserves to cope with emergencies, elimination of fiscal crises, and expanded personal income. Extensive sensitivity analysis identifies the key underlying factors and demonstrates the robustness of those findings. We compare the Utah results to a 1990–2009 CSL simulation for California, and a 1995–2009 CSL simulation for Ohio.