Judicial Federalism and Individual Rights and Liberties: School Vouchers and the Separation of Church and State
Caldwell-McMillan, Lucas Foster
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As a result of the federal government's decline in protecting rights, a need for state courts to do so has emerged. State Courts can expand individual rights and liberties using their own state constitutional provisions. This expansion will be done through a form of judicial federalism. Judicial federalism is simply the interactions between the two levels of judiciaries, the federal and state level. In this case this means the expansion of right and liberties through state courts and the state judicial independence allowed by the US. Supreme Court. This type of judicial federalism involves two actors; the U.S. Supreme Court and state courts. To predict the degree of success judicial federalism will have in expanding rights, one must examine each actor's role and disposition for judicial federalism. The US. Supreme Court's role must be examined for its precedent and case history towards judicial federalism. State courts must be examined for their desire to expand individual rights and liberties as well as examining the documents they will use: state constitutions. School vouchers are an issue in which state courts can use unique constitutional language to protect state citizens. In particular, the Florida school voucher court case, Bush v. Holmes, shows the obstacles to judicial federalism. However, the case also shows how state constitutions can provide adequate grounds to protect individual rights and liberties.