The State Court Perspective
Elgar Monographs in Constitutional and Administrative Law series
Chapter 6: State constitutions, legislative policymaking and state judicial power
With the exception of popular elections as the primary judicial selection process for state judges, the most significant dissimilarities in the exercise of judicial power between the federal and state courts emerge in its relationship to legislative policymaking. Unlike the federal courts, state courts often find themselves immersed not only in substantive aspects of lawmaking but also its procedural aspects given the design of many state constitutions and their often very specific, regulatory-like directives to the legislature on the use of its powers. From a functional perspective, this unique relationship between state judicial power and legislative policymaking is framed by two considerations absent in the federal context: (1) the plenary nature of state legislative authority; and (2) specific constitutional limitations and directions on its use. As discussed in Chapter 1, state legislative authority is plenary in nature. It is not “sourced” in specific enumeration and thus state legislatures enjoy broad powers to enact laws that promote the public health, safety and welfare of a state’s residents. Given this fact, most state constitutions are anything but models of brevity.
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