St. Mary's Law Journal
As federal courts have allowed individual rights to diminish, the Texas judiciary nurtures state constitutional jurisprudence. Texas has a unique history requiring special care in approaching the construction and presentation of arguments utilizing the Texas Constitution or Texas Bill of Rights. The state constitution evolved over six revisions resulting with the eventual ratification of the final version in 1876. A confluence of goals ultimately resulted in a document where the bill of rights appears in Article I and by specifically framing individual liberties as affirmative rights rather than restrictions of government power. Four modes of interpretation are typically employed when state courts address state bill of rights issues. The first, dual reliance, focuses on both federal and state constitutional guarantees separately with the federal guarantees receiving deference. The second, primacy, prioritizes state guarantees and explores federal guarantees only when the state does not offer protection. The third, supplemental, is like the primacy method yet in reverse order. First looking to federal guarantee of rights, then any state guarantees available if necessary. The fourth, federalism, approaches the state guarantee of rights first, then the federal guarantees. Judicious selection and use of the methods are necessary. In specific instances state rulings relying on federal analysis may be subject to reversal should the case reach federal appeal. Historical and textual analyses are also critical factors. Texas culture is diverse; presenting historical context distinct to Texas can prove persuasive when articulating legislative intent and meaning. Policy considerations require interpreting textual intent through the lens of contemporary legal needs of Texas. Especially when those needs may not have been contemplated by the original drafters. Principled arguments are necessary to aid the development of state jurisprudence.
St. Mary's University School of Law
James C. Harrington,
Framing a Texas Bill of Rights Argument.,
St. Mary's L.J.
Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol24/iss2/3
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