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The “New Judicial Federalism” Before Its Time: A Comprehensive Review of Economic Substantive Due Process Under State Constitutional Law Since 1940 and the Reasons for Its Recent Decline

Authors
Publisher
bepress Legal Repository
Publication Date
Keywords
  • Substantive Due Process
  • Lochner
  • Roe V. Wade
  • Constitutional Law
  • State And Local Government Law
Disciplines
  • Law

Abstract

The â•œNew Judicial Federalismâ•š Before Its Time: A Comprehensive Review of Economic Substantive Due Process Under State Constitutional Law Since 1940 and the Reasons for Its Recent Decline THE “NEW JUDICIAL FEDERALISM” BEFORE ITS TIME: A COMPREHENSIVE REVIEW OF ECONOMIC SUBSTANTIVE DUE PROCESS UNDER STATE CONSTITUTIONAL LAW SINCE 1940 AND THE REASONS FOR ITS RECENT DELINE Anthony B. Sanders� INTRODUCTION Justice Brennan could not have been more wrong. In a famous 1977 article for the Harvard Law Review, Justice William J. Brennan exhorted state courts to pick up some of the protection of individual liberties that the United States Supreme Court had vigorously employed during the 1960s, but had lately retreated from in the 1970s.1 In his “call to arms” Justice Brennan emphasized a fundamental cornerstone of state constitutional law: that states may interpret their own constitutions to afford greater protection of individual liberties than the United States Constitution, even when the constitutional provisions in question are worded identically.2 Justice � Associate Attorney, Arnold & Kadjan, Chicago, Illinois. J.D., University of Minnesota Law School, 2004; M.A., University of Wisconsin-Madison, 2000; B.A. Hamline University, 1998. The views expressed in this Article are solely those of the Author and do not necessarily reflect those of Arnold & Kadjan or its clients. The Author wishes to thank David W. Asp, II, Jason Greenlee, and Marlee Jansen for their assistance in earlier drafts of this Article, and to Justice W. William Leaphart and the Justices of the Montana Supreme Court for instilling a life-long appreciation of the power and beauty of state constitutions. 1 See William J. Brennan, Jr., State Constitutions & the Protection of Individual Rights, 90 HARV. L. REV. 489, 495 (1977); see also G. Alan Tarr, The New Judicial Federalism in Perspective, 72 NOTRE DAME L. REV. 1097, 1112 (1997) (stating that Justice Brennan’s “disagreement

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