Volume 69, Issue 4


Volume 69, Summer 2017, Issue 4


State Constitutionalism and the Limits of Judicial Power

Hon. Jack L. Landau

It is easy to think of state justiciability doctrine as an especially abstract topic, the subject of “technical, legalistic wrangling” that is perhaps of interest to scholars, but few, if any, others not suffering from insomnia. In fact, it appears to be of little interest even to scholars. As is so often the case, academic analysis and commentary tend to focus on federal – not state – law. So even when the subject of state justiciability theory arises, it usually does so in the limited context of determining what justiciability limitations exist when state courts address matters of federal law.


Interpreting State Fiscal Constitutions: A Modest Proposal

Darien Shanske

How should a state supreme court interpret provisions of state constitutions that govern fiscal matters? For example, many state constitutions provide that if a local government imposes a fee that is more than a “reasonable” amount, then the fee is really a tax, and taxes are subject to special limitations. We understand the gist of these provisions’ concerns. If my city charges me an enormous amount for water service and then uses the extra money it raises for other governmental purposes, then the charge I paid for water is tantamount to a general tax. However, assuming there is no diversion of funds to some other use, how high is too high such that a charge for a government service becomes a tax?

Judicial Accountability in a Time of Tumult: New Hampshire’s Impeachment Crisis of 2000

David C. Steelman & John Cerullo

In recent years, constitutional jurisprudence emerging from state courts has assumed increasing importance. The assertiveness of state courts, however, has generated considerable backlash, most often involving adverse reactions to particular court rulings, and commonly expressed in efforts to out the judges responsible through the electoral or appointive processes by which judges in most states maintain their positions. In New Hampshire, there was a backlash involving a deeper challenge to the legitimacy of the entire judicial branch of government, driven by concerns about judicial accountability to citizens and officials in the elected branches. This Article looks at the impeachment of Chief Justice David Brock in 2000, in terns of its antecedents and its aftermath. The authors place the impeachment in the context of legislative-judicial relations over the course of the state’s history and examine steps taken since the impeachment to help restore stability in those relations.

The Evolution of State and Federal Constitutional Rights in New Jersey

Robert F. Williams

The current picture concerning constitutional rights in New Jersey reflects a complex interrelationship of federal and state guaranteed rights: a “double security.” This twenty-first century constitutional rights landscape has evolved over the more than centuries since Independence. There were, in fact, important Pre-Independence colonial rights as well. Julian Boyd, a leading scholar of colonial New Jersey, noted that New Jersey’s colonial documents included the concepts of limited government and peoples’ rights that could be traced through English legal history to Magna Carta. The 1665 “Concessions and Agreement of Lords Proprietors of the Province of New Caesarea and Agreement of the Lords Proprietors of the Province of New Caesarea or New-Jersey’ . . . began three centuries of fundamental law in New Jersey.”

Book Review

Upon the Shores of an Unknown Sea

Paul E. Herron

Amy Bridges has written an outstanding book on the founding of the western states that should be read by all scholars of state constitutions, American constitutionalism, and American political development. Historians who focus their studies on the West will find her account to be a valuable new resource for understanding the region.

State Constitutional Law

State Constitutional Law – Minimally Adequate Education – Qualitative Education Standards in the South Carolina Constitution – Abbeville County School District v. State, 767 S.E.2d 157 (S.C. 2014)

Kayla Louis

In Abbeville County School District v. State, the South Carolina Supreme Court was tasked with deciding whether the State’s education funding scheme was constitutional pursuant to the education clause of the South Carolina Constitution. First, to make this determination, the Supreme Court held that the question presented was a justiciable one. It then held that the education-funding scheme was unconstitutional because it failed to provide children with “the opportunity for a minimally adequate education.” Although the court decided that judicial intervention was appropriate, it declined to mandate a specific solution to the constitutional violation and instead directed the parties to reappear and present a plan to address the violations.