Raising the Bar: Virginia Constitutional Interpretation Post-Vlaming
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Across the United States, dozens of state supreme courts choose to interpret their state constitutions as co-extensive, or in “lockstep” with analogous provisions of the Constitution of the United States.Yet since the Supreme Court overruled or changed its interpretation in a number of rights-based cases, state constitutions are receiving new attention. In Virginia, several years before Dobbs sparked this new focus, the Supreme Court of Virginia departed from the Supreme Court of the United States’ interpretation of its Free Exercise Clause analogue and adopted a new standard providing increased protection. In doing so, the Court signaled its willingness to consider arguments rooted in the Commonwealth’s unique text and history.
This Essay begins an important task for litigants and scholars inVirginia—exploring the under-analyzed text, history, and context that comprise the Constitution for the Commonwealth of Virginia. This Essay contributes to this important area of scholarship by positing two more candidates for increased protection: Virginia’s Fourth Amendment and Establishment Clause analogues. With an introduction written by Virginia Court of Appeals Judge Lisa Lorish, this Essay proceeds in two main parts. The first Part considers Virginia’s Fourth Amendment analogue and argues that the dis-tinct text and history of the provision merit heightened protection against modern-day reverse warrants. The second Part analyzes Virginia’s establishment provisions and unique disestablishment history, arguing that the Supreme Court of Virginia’s reasoning providing increased protection to free exercise applies in equal part to the establishment provisions.
The Honorable Lisa M. Lorish *
Alec Block **
Amy Vanderveer ***
* The Honorable Lisa M. Lorish is a Judge on the Virginia Court of Appeals and taught State Constitutionalism at the University of Virginia School of Law.
** J.D., University of Virginia School of Law, 2026. Author of Part I.
*** J.D., University of Virginia School of Law, 2025 Author of Part II. Both authors would like to thank Judge Lorish for her excellent instruction, gracious feedback, and sup-port of this project. And many thanks to the editors of the University of Richmond LawReview, especially Grace Condello.