State Constitutional Text and Policy Convergence in the New Judicial Federalism.

When interpreting individual rights protections in their state constitutions, state supreme courts mostly follow the U.S. Supreme Court's interpretation of analogous protections in the Bill of Rights, although they are free to recognize broader rights under their state constitutions. Scholars have attempted to explain this policy convergence in a variety of ways, including ideological similarities between the state and federal justices, the rules and structures under which the state court operates, the environment in which the decision is made, and the state court's recognition of the U.S. Supreme Court as a policy exemplar. However, little scholarship has centered on the extent to which differences between state and federal constitutional language add to or interact with these explanations and, specifically, how these differences may constrain state constitutional convergence with federal constitutional doctrines. This paper will address this question through a multi-state study of state supreme court decision-making under state establishment clauses. Unlike the federal establishment clause, numerous state clauses expressly prohibit the use of public funds to aid religious schools or institutions. Commonly referred to as "Blaine Amendments," parties have raised these restrictions when challenging state programs that otherwise would be constitutional under the U.S. Supreme Court's federal establishment clause jurisprudence. This paper will investigate and explain the extent to which these Blaine Amendments constrain state adoption of federal constitutional doctrines, providing a deeper understanding of legal constraints on policy convergence in our federal system as well as a greater insight into the impact of these much-criticized provisions. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]