Abstract
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 in Virginia—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 distinct 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.
Recommended Citation
The Honorable Lisa M. Lorish, Alec Block & Amy Vanderveer,
Raising the Bar: Virginia Constitutional Interpretation Post-Vlaming,
60
U. Rich. L. Rev.
53
(2026).
Available at:
https://scholarship.richmond.edu/lawreview/vol60/iss5/5
