Eugene Volokh once again writes about the perils of federal court jurisdiction stripping in that it does not do anything regarding state courts who might aberrantly interpret the US federal Constitution and, in fact, makes such rulings essentially unappealable. The cure for this is state level legislation clarifying the jurisdiction of state courts with regard to the US Constitution as not to ever exceed federal court jurisdiction.
I can't imagine a functional legislative majority coalescing about the proposition that the state courts ever have a greater right to interpret the federal constitution than the federal courts do. Because of the division of powers, the US Congress is incapable of making such legislation. State legislators are not similarly restricted. All this objection means is that the federal legislation came first and now state legislation needs to follow up in killing the "state judge legislating from the bench" loophole (a problem that is in desperate need of a catchier label). Where the federal courts are silent because of Congressional restriction, the state courts should be too.
Posted by TMLutas at September 26, 2004 10:19 AM