Taking Economic Equality Off the Table

Nichol considers Pres Clinton\u27s Administration\u27s record on issues of economic equality, including California Gov Pete Wilson\u27s plan to discriminate against newly arrived California welfare recipients. The Clinton Administration has not been alone in taking economic fairness off the political agenda, but they have clearly done their part

Constitutional Perils—Real and Otherwise

Review of: Our Endangerd Rights—The ACLU Report on Civil Liberties Today. Edited with an Introduction by Norman Dorsen. Pantheon Books, New York, N.Y., 1984

Children of Distant Fathers: Sketching an Ethos of Constitutional Liberty

In this article, Professor Gene R. Nichol argues for a constitutional right to self-governance that legitimizes the court\u27s inquiry into the nature of fundamental personal rights. He locates this right in the ninth amendment, which affords protection to unlisted liberties. The clearest statement of the American commitment to selfgovernance, he argues, is found in Thomas Jefferson\u27s Declaration of Independence, and in the philosophy of Jeffersonian individualism. Drawing on the writing of Jefferson and Lincoln, Professor Nichol asserts that our society has committed itself to the progressive unfolding of individual sovereignty. Critics of the United States Supreme Court\u27s decisions that give constitutional protection to personal privacy interests have never suffered from a lack of ammunition. The Court has failed to locate unambiguously the textual source of rights identified in cases such as Griswold v. Connecticut and Roe v. Wade. Nor has it been able to construct a general theory that might explain why some rights have been found fundamental while others have not. The result has been uncertainty about future decisions, and protests that the Court\u27s actions in this area are an illegitimate usurpation of power. Professor Nichol argues that only by recognizing and explicitly incorporating our societal dedication to self-governance into constitutional discourse can a principled jurisprudence that mediates between personal autonomy and state interests be constructed

Dialectical Federalism: A Tribute to the West Virginia Supreme Court of Appeals

Over the course of the past decade, the West Virginia Supreme Court of Appeals has become something of a controversial institution. Allegedly seeking to mold state government in its own image, \u27 the court has issued decisions restructuring the state property tax assessment and appraisal scheme, overseeing the funding of public education, invalidating a gubernatorial veto, expanding tort claims beyond the umbrella of workers compensation, and ordering emergency care for the homeless. As a result, the high court has, perhaps deservedly, attained a reputation for dramatic intervention in public policy disputes.” As individual exercises of judicial authority, the court\u27s determinations have received ample attention. Institutional and political conservatives have claimed that the justices have stepped beyond their allotted powers, trumped the prerogatives of other organs of governments, thwarted commercial development, and fostered bad policies in the process. Liberals and activists, perhaps less frequently, have complained that the court\u27s efforts have been tempered by the political winds and thus fall short of the egalitarian goals occasionally suggested in its opinions. It is not my purpose here to enter that debate. Instead, this brief comment will consider the work of the court from another direction. My focus will be the contribution to the development of American constitutional decisionmaking resulting from the West Virginia Supreme Court of Appeals\u27 efforts to interpret its own constitution. It is, as Justice Brandeis claimed, one of the happy incidents of the federal system that a single courageous State may ... serve as a laboratory for the formulation of governmental policy. As the result of an increasing reticence by the United States Supreme Court and a heightened sensitivity to civil liberties issues by state jurists, the cast of players molding our constitutional structure has been substantially expanded. The resulting dialogue, spurred by both state and federal interpretive ventures, has bolstered the legitimacy and the precision of constitutional decisionmaking. The rulings of the West Virginia Supreme Court of Appeals which construe the provisions of the state constitution, therefore, have special significance not only in the lives of West Virginians but in the development of a national constitutional jurisprudence. My task is to examine a handful of cases in which the West Virginia court has read its own constitution as more demanding than the federal counterpart. Along the way, I think something can be learned about the constitutional issues which should be particularly appealing to state tribunals, and about the role that state judiciaries, if inclined, can play in our constitutional process. Before turning to the West Virginia decisions, however, some perspective is helpful