The State Court Perspective
For over two centuries America’s state courts have played a critical role in shaping the course of a nation. Unrestrained by the conventional conceptual limitations under which the courts of other nations in the eighteenth century operated, America’s early state judges sat not only as adjudicators of disputes but also as powerful symbols of governing authority and local lawmakers legitimizing many of the “first principles” of American constitutionalism that we now take for granted. It was arguably the state courts of America that created the space for the relatively peaceful emergence of its core governing institutions including, eventually, its federal institutions. In no other nation did the courts play such a vital role, using flexible concepts of judicial power, innovation, and sheer pragmatism to shape the course of governing power and the relationship between the government and the governed. Today we would refer to such flexible uses of judicial power as activism which indeed is part of a long tradition of innovation. The ability of state courts in particular to be important social problem solvers has encouraged others to push problems their way so much so that Alexis de Tocqueville noted that rarely does a question arise in America that does not eventually become a judicial question.
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