Professor Lani Guinier and others have recently developed a theory called "demosprudence" that explains the democracy-enhancing potential of certain types of US. Supreme Court dissents. Separately, state constitutionalists have described state constitutions' capacity to offer a base of resistance against the U.S. Supreme Court's narrow conception of individual rights. Applying these two seemingly unrelated theories to school desegregation litigation in Connecticut and to same-sex marriage litigation in Iowa, this Essay suggests that certain state constitutional decisions might function like U.S. Supreme Court dissents to enhance democratic activism. In this way, interactive federalism might usefully serve as a category of demosprudence.
Constitutional Law | State and Local Government Law | Supreme Court of the United States
Justin R. Long, Demosprudence, Interactive Federalism, and Twenty Years of Sheff v. O'Neill, 42 Conn. L. Rev. 585 (2009).