Monday, June 25, 2007
Mazzone on The Bill of Rights in the Early State Courts
Jason Mazzone, Brooklyn Law School, has posted a new article, The Bill of Rights in the Early State Courts. It is forthcoming in the Minnesota Law Review. Here's the abstract: The Bill of Rights originated as a constraint only on the federal government. However, early state courts regularly invoked and applied the provisions of the Bill of Rights in reviewing state law and state executive action. Although in 1833 in Barron v. Baltimore, the U.S. Supreme Court dismissed a Fifth Amendment takings claim brought against state government, state courts remained free to apply the Bill's protections against their own state legislatures and executives. Largely forgotten today, state court applications of the federal Bill of Rights against state government represented a vibrant body of constitutional law in the early Republic. Restoring this history of the federal Bill of Rights in the early state courts reveals some deficiencies of constitutional law in the modern era.