My Northwestern University Law Review Colloquy article on Danforth v. Minnesota is now available on SSRN. While this case hasn’t gotten as much attention as Heller and Boumediene, it does raise very important issues about federalism and remedies for violations of constitutional rights. Judicial protection of rights is of little help without remedies for their violation. Here’s an excerpt from the abstract:
Few doubt that states can provide greater protection for individual rights under state constitutions than is available under the Supreme Court’s interpretation of the federal Constitution. More difficult issues arise, however, when state courts seek to provide greater protection than the Court requires for federal constitutional rights. Can state courts impose remedies for violations of federal constitutional rights that are more generous than those required by the federal Supreme Court? That is the issue raised by the Court’s recent decision in Danforth v. Minnesota. By a 7-2 vote, the Court decided that state courts could indeed provide victims of constitutional rights violations broader remedies than those mandated by federal Supreme Court decisions. I contend that this outcome is correct, despite the seeming incongruity of allowing state courts to deviate from the Supreme Court’s interpretation of the federal Constitution. The Supreme Court should establish a floor for remedies below which states cannot fall. But there is no reason for it to also mandate a ceiling.
Although I wrote the article before Heller was issued, the two cases are potentially linked. Assuming that the Supreme Court eventually rules that the Second Amendment right to bear arms applies against state governments, federal courts will have to develop a jurisprudence on remedies for state violations of that right. Under Danforth, state courts will – at least in some instances – be able to impose stronger remedies than those required by the federal courts.