Equality and Liberty in the Golden Age of State Constitutional Law
The rise of the New Judicial Federalism movement in the 1970s marked a sea-change in the history of state constitutional law by shifting the focus of power away from the central government in ways that had not occurred since the Equal Protection Clause was enacted in 1868. With New Judicial Federalism, many states rediscovered that they were empowered to enact their own constitutions and to interpret them as they saw fit, which enabled states to recognize civil rights and liberties beyond...
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The rise of the New Judicial Federalism movement in the 1970s marked a sea-change in the history of state constitutional law by shifting the focus of power away from the central government in ways that had not occurred since the Equal Protection Clause was enacted in 1868. With New Judicial Federalism, many states rediscovered that they were empowered to enact their own constitutions and to interpret them as they saw fit, which enabled states to recognize civil rights and liberties beyond those recognized under the Federal Constitution.Equality and Liberty in the Golden Age of State Constitutional Law closely examines the evolution of the rights of liberty and equality under state constitutions from both a historical and jurisprudential perspective. In it, Professor Jeffrey M. Shaman explains that as New Judicial Federalism gained ground, state constitutional law became an important source for the protection of individual rights and liberties. States have since expanded the right of the citizen well beyond the limits of federal law by striking down laws that led to de facto segregation in public schools, discriminated against women, or allocated public benefits inequitably. State courts were the first to recognize a right of intimate association, spurring the U.S. Supreme Court to follow suit. Equality and Liberty in the Golden Age of State Constitutional Law is essential reading for anyone interested in this manifestation of law that has developed beyond the purview of national attention and in the resulting evolution of power in U.S. constitutional law.
Preface xiIntroduction: The New Judicial Federalism xiiiEquality 1The Federal Model of Equality 8The State Conception of Equality 15Special Privileges or Immunities 28Equal Protection of the Laws 38Conclusion 42Classifications 45Racial Classifications 46Gender Classifications 53Classifications Based on Sexual Orientation 61Classifications Based on Age 70Conclusion 76Rights and Privileges 79Educational Financing 79Economic Rights 86Tax Laws 88Damage Caps 93Allocation of Economic Benefits 96Regulatory Legislation 101Special Entitlements 106Criminal Law 107Disparate Penalties 108Prosecutorial Discretion 113Disparate Treatment of Men and Women 115Juvenile Offenders 116Conclusion 119The Right of Privacy 121The Federal Model of Privacy 125The State Conception of Privacy 136The Right to Be Let Alone 138The Millian Principle 143The Inherent and Unalienable Cornerstone of Liberty 148Penumbrae Redux 153Spatial Privacy: The Home as Sanctuary 155Constitutional Situs and Methodology 158Conclusion 160Family Rights 163Reproductive Freedom 163Public Funding of Abortions 163Abortion Rights of Minors 168Informed Consent and Waiting Periods 171Family Relations 174Parental Rights 174Adoption 176Cohabitation as a Family 181Civil Unions and Marriage 185The Right of Intimate Association 211Sexual Relations Between Consenting Adults (Married or Not) 211Gay and Lesbian Sexual Relations 215Public Health 222Social Morality 224Other State Interests 225Conclusion 226The Right of Bodily Integrity 229The Right to Refuse Medical Treatment and the Right to Die 229The Right to Ingest Food, Beverages, or Other Substances 235Backlash and Advancement 243Table of Cases 255Index 267
