[DOWNLOAD] "Counting States (Twenty-Seventh Annual National Federalist Society Student Symposium)" by Harvard Journal of Law & Public Policy ~ Book PDF Kindle ePub Free

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eBook details

• Title: Counting States (Twenty-Seventh Annual National Federalist Society Student Symposium)
• Author : Harvard Journal of Law & Public Policy
• Release Date : January 01, 2009
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 274 KB

Description

The United States Supreme Court frequently bases federal constitutional doctrine on state law, (1) often doing so by counting states' laws in a variety of doctrinal contexts to determine the legislative consensus among the States. For instance, state counting is used to determine the "evolving standards of decency" that define the meaning of "cruel and unusual punishment" under the Eighth and Fourteenth Amendments, (2) to determine whether some method of conducting jury trials is consistent with the Sixth and Fourteenth Amendments, (3) and to decide whether a state practice is consistent with traditions of ordered liberty implied by substantive due process. (4) But across this doctrinal variety, state counting involves two common elements: judicial use of state law to inform the content of federal constitutional doctrine, and judicial evaluation of states' laws collectively rather than singly to determine a state "consensus." When counting states, the Court treats the States as one large decision-making body whose members reach a single consensus. The oddity of treating the States as a single collective decision maker has not been lost on scholars. At least one has argued that such use of state law actually undermines the purposes of federalism, which she identifies as permitting states to express the diverse preferences of their respective residents. (5) This criticism of state counting is mistaken. To understand why and how state counting might be valuable, it is important first to draw a distinction between two different ways in which the Court could be counting states. First, the Court could be using the state legislatures' consensus as a source of national law. Alternatively, the Court could be using the state legislatures' consensus as a limit on national law. In the first case, the Court would count the States' laws to determine the States" consensus position on an issue and then enforce that position against outlier states. In the second case, the Court would determine the States' consensus to place an outside limit on the judiciary's enforcement of its own view of the constitutional norm. In effect, the second version of state counting uses the States' consensus as a sort of collective veto over judicial review, not as an independent source of federal constitutional norms.

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