Robert S. Claiborne Jr. has posted Commonwealth and Constitution (University of Richmond Law Review, Vol. 48, No. 1, 2013) on SSRN. Here is the abstract:
Virginia has greatly influenced our federal government and Federal Bill of Rights; however, her history and law are distinct from those of the several states and, necessarily, the United States. A distinct people settled Virginia, brought with them law and settled traditions, broke from the Crown, and established their own constitution and laws before joining the several states under the Articles of Confederation and, then, the Federal Constitution. Virginians are citizens of these two sovereigns, the Commonwealth and the United States, and each sovereign’s constitution sets forth its fundamental law. Yet Virginia courts interpret several provisions of the Virginia Constitution as coextensive with the Federal Constitution. In these instances, the courts do not rely on federal precedent as persuasive authority but as binding precedent for construing protections under the Virginia Constitution.
Coextension’s criticism is not new in Virginia, but this comment supplements the prior discussion from a practical approach. It offers new criticisms and provides some concrete analysis that may assist a return to the Virginia Constitution’s independent interpretation. In Part I, this comment exposes coextension’s tenuous origins. It examines foundational errors in its precedent and questions the curious role coextension has come to serve as an exception to established rules of constitutional interpretation in Virginia. Part II discusses the differing rules of constitutional interpretation in Virginia and federal courts as well as the substantive, textual differences between the two constitutions. It further interprets and distinguishes the coextensive provisions’ textual meaning and compares the Virginia Constitution’s plain textual meaning with the federal courts’ construction of similar federal protections. Part III addresses the practical implications for constitutional litigation in Virginia, examining independent interpretation’s potential effects. It addresses the Virginia Constitution’s interaction with the Supremacy Clause and federal protections that have been selectively incorporated against the Commonwealth, independent interpretation’s present and prospective effects on Virginia litigation, independent interpretation’s interaction with the federal courts’ comity jurisprudence and jurisdiction to review state courts’ decisions, and federalism implications that stem from the application of those doctrines. This comment concludes that coextension’s faults warrant its abandonment.