Vol. 59 Online | University of Richmond Law Review

The Emerging Virginia Constitution: Open Questions of Interpretation, and How Their Resolution May Impact Unenumerated Rights

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Although there is a Federal Constitution, of which we are all familiar, there are also 50 separately crafted state constitutions designed to respond to the unique circumstances of the territories they govern. These state constitutions contain analogues of our federal constitution, often including a bill of rights or other declaration of individual rights. Despite the distinctive history, nature, structure, and text of each state constitution, for decades if an individual invoked a claim involving a state constitutional right a state court would determine the scope of that state constitutional right in “lockstep” with federal Supreme Court. That approach has fractured.

Last December, the Constitution of Virginia reemerged into the spotlight after more than a century on the sidelines when the Supreme Court of Virginia announced in Vlaming v. West Point School Board that the Constitution of Virginia includes new and sweeping protections for religious freedom, exceeding the rights protected by the Federal Constitution. This decision is important not only for its outcome, but also for the novel questions it raises regarding interpretation of the Constitution of Virginia.

This article attempts to frame but a few of the questions now facing state supreme courts who have reached similar conclusions and then applies them specifically to Virginia, where the recent decision on religious liberties has left them ripe for development.

The Honorable Lisa M. Lorish *

Elizabeth Putfark **

* The Honorable Lisa M. Lorish is a Judge on the Virginia Court of Appeals. Thanks to
Tyler Demetriou, A.E. Dick Howard, Antonella Nicholas, Diane Philips, Lawrence Solum,
and Brian Warren for helpful comments and conversation. A special thanks as well to Connor Johnson, Jami-Reese Robertson and the other wonderful editors at the Richmond Law
Review for their diligent work on this piece. The views expressed in this article represent
strictly the personal views of the authors.

** Elizabeth Putfark is an associate attorney with the Southern Environmental Law
Center and former judicial extern to the Honorable Lisa M. Lorish.

Improving Law Reviews

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Legal academia’s system of utilizing student-run journals for publication has its downsides. Professors and students both have shared frustrations in the editing process. While editorial processes differ by journal, often there are issues with lack of mutual understanding in the scope of what should be edited, the role of the student in the editing process, and what level of deference should be provided to author discretion.

To remedy these downsides, this article proposes a framework which is borrowed from the world of appellate procedure, based on the proposition that the relationship between trial judges and appellate judges resembles the relationship between authors and student editors. Specifically, this article suggests that student editors should use standards of review, similar to those used by appellate judges when reviewing trial judges’ decisions, to guide their editorial decisions. Implementing additional tools—specifically, burdens of proof and reasoned explanations—could further improve the editorial process by guiding student editors to fewer but more helpful edits.

Dora W. Klein *

* Professor of Law, St. Mary’s University School of Law.