Wednesday, February 11, 2004
http://www.law.com/jsp/nj/editorials.jsp
Article about aclu-nj suit to restore felon's voting rights, based on an equal protection claim.
What's right about this is that the plaintiffs understand you can't rely just on the first amendment in voting cases; that state constitutions are a source of rights.
What's wrong about this is that it's a loser of a case: equal protection gives way to a specific clause that allows felon disenfranchisement.
It is important to bring only winnable cases at first, to establish clear precedents, before taking on the harder cases.
(The goal might be to lose in court in order to win in the legislature, risky in the long term.)
update: this post today by jake levy at volokh.com is on point:
In the American understanding of federalism, states have their own legal systems, their own legal traditions, and their own constitutions. Even when a state constitution uses the same words as the federal constitution (e.g. in a free speech or equal protection clause), the words may mean something legally different in the state context-- because of a different body of precedent, a different overall constitutional structure in whose light the clause must be interpreted, and so on. The state legal systems have boundaries set by the Constitution, federal law, and the supremacy clause that they may not transgress. But their internal meaning and development is not set federally--
Article about aclu-nj suit to restore felon's voting rights, based on an equal protection claim.
What's right about this is that the plaintiffs understand you can't rely just on the first amendment in voting cases; that state constitutions are a source of rights.
What's wrong about this is that it's a loser of a case: equal protection gives way to a specific clause that allows felon disenfranchisement.
It is important to bring only winnable cases at first, to establish clear precedents, before taking on the harder cases.
(The goal might be to lose in court in order to win in the legislature, risky in the long term.)
update: this post today by jake levy at volokh.com is on point:
In the American understanding of federalism, states have their own legal systems, their own legal traditions, and their own constitutions. Even when a state constitution uses the same words as the federal constitution (e.g. in a free speech or equal protection clause), the words may mean something legally different in the state context-- because of a different body of precedent, a different overall constitutional structure in whose light the clause must be interpreted, and so on. The state legal systems have boundaries set by the Constitution, federal law, and the supremacy clause that they may not transgress. But their internal meaning and development is not set federally--
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