This chapter discusses methodology problems arising in cases where similar federal and state constitutional rights claims are raised. Most federal constitutional rights have been incorporated into the federal Constitution's 14th Amendment so as to be applicable to the states. United States Supreme Court interpretations of federal constitutional rights are not binding on state court interpretation of identical or similar state constitutional rights, but state court divergence under these circumstances can raise questions about its legitimacy. A number of questions arise in this context, including for example the proper sequence of arguments, which constitution's rights guarantees should be argued first by counsel, and analyzed first by the state court. The most substantial methodology issue is whether state courts should develop criteria to guide them in deciding whether to interpret identical or similar state constitutional rights to be more protective than the federal analog. The criteria approach is analyzed in some depth, utilizing examples of the use of this methodology in a number of states. The chapter criticizes the use of the criteria approach based on a number of factors that make state court enforcement of state constitutional rights different from the United States Supreme Court's enforcement of the federal bill of rights. The United States Supreme Court's interpretation of federal constitutional rights guarantees is therefore not presumptively correct for the interpretation of state constitutions. The chapter also discusses briefly several other methodological problems, including the direct right of action for money damages under state constitutions, state action, and substantive due process and economic regulation.
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