origins

Michigan v. Mosley, 423 U.S. 96 (1975) (Brennan, J. dissenting)

[The Syllabus of the opinion stated:] Respondent, who had been arrested in connection with certain robberies and advised, in accordance with Miranda v. Arizona, [1966] that he was not obliged to answer any questions and that he could remain silent if he wished, and having made oral and written acknowledgment of the Miranda warnings, declined to discuss the robberies, whereupon the detective ceased the interrogation. More than two hours later, after giving Miranda warnings, another detective questioned respondent solely about an unrelated murder. Respondent made an inculpatory statement, which was later used in his trial for murder which resulted in his conviction. The appellate court reversed on the ground that Miranda mandated a cessation of all interrogation after respondent had declined to answer the first detective’s questions. Held: The admission in evidence of respondent’s incriminating statement did not violate Miranda principles. Respondent’s right to cut off questioning was scrupulously honored, the police having immediately ceased the robbery interrogation after respondent’s refusal to answer and having commenced questioning about the murder only after a significant time lapse and after a fresh set of warnings had been given respondent.

[Construing the facts in the light of the Miranda rule, the majority held:] we conclude that the admission in evidence of Mosley’s incriminating statement did not violate the principles of Miranda v. Arizona. Accordingly, the judgment of the Michigan Court of Appeals is vacated, and the case is remanded to that court for further proceedings not inconsistent with this opinion.

 

Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissenting.[Justice Brennan criticized the majority’s reading of Miranda, and concluded:] In light of today’s erosion of Miranda standards as a matter of federal constitutional law, it is appropriate to observe that no State is precluded by the decision from adhering to higher standards under state law. Each State has power to impose higher standards governing police practices under state law than is required by the Federal Constitution.

 

People v. Brisendine (1975), 13 Cal.3d 528

People v. Brisendine

13 Cal.3d 528, 119 Cal.Rptr. 315 (1975)

[Pursuant to an arrest for making an illegal campfire, police officers searched  Brisendine’s backpack and found marijuana and drugs.  The Court held the search illegal under the California Constitution, Art. I, § 13.  For that part of the opinion, see below XIII.C.]

MOSK, J.

The People contend that notwithstanding the invalidity of the search under California law, the recent United States Supreme Court cases of United States v. Robinson (1973) 414 U.S. 218, and Gustafson v. Florida (1973) 414 U.S. 260, should be dispositive of any question regarding the permissible scope of the search herein. We disagree. Whether or not the instant case is distinguishable from Robinson-Gustafson, as defendant claims, we note that those cases were decided under the [United States] Supreme Court’s view of the minimum standards required in order to satisfy the Fourth Amendment’s proscription of unreasonable searches. Our holding today is based exclusively on article I, section 13, of the California Constitution, which requires a more exacting standard for cases arising within this state. The [United States] Supreme Court has taken [facts similar to those in the present case] and reached a contrary result. In choosing between these irreconcilable rules we cannot accept the Robinson implication that “an individual lawfully subjected to a custodial arrest retains no significant Fourth Amendment interest in the privacy of his person.” Whatever may be the merit of that view when an individual is ultimately to be booked and incarcerated – a question not presented here – we find it inappropriate in the context of an arrestee who will never be subjected to that process.

There remains for consideration whether we should adhere to our precedential decisions on this point even though they impose a higher standard than is now required by Robinson. Our right to do so cannot be seriously questioned. In Cooper v. California (1967), the [United States] Supreme Court recognized this well-known principle: “Our holding, of course, does not affect the State’s power to impose higher standards on searches and seizures than required by the Federal Constitution if it chooses to do so.” Moreover, “even though a state court’s opinion relies on similar provisions in both the State and Federal Constitutions, the state constitutional provision has been held to provide an independent and adequate ground of decision depriving this Court of jurisdiction to review the state judgment.” (Jankovich v. Indiana Toll Road Comm’n (1965) 379 U.S. 487, 491-492 )

In short, the Supreme Court has clearly recognized that state courts are the ultimate arbiters of state law, even textually parallel provisions of state constitutions, unless such interpretations purport to restrict the liberties guaranteed the entire citizenry under the federal charter.

This court has always assumed the independent vitality of our state Constitution. In the search and seizure area our decisions have often comported with federal law, yet there has never been any question that this similarity was a matter of choice and not compulsion.

The . . . California Constitution is, and always has been, a document of independent force. Any other result would contradict not only the most fundamental principles of federalism, but also the historic bases of state charters. It is a fiction too long accepted that provisions in state constitutions textually identical to the Bill of Rights were intended to mirror their federal counterpart. The lesson of history is otherwise: the Bill of Rights was based upon the corresponding provisions of the first state constitutions, rather than the reverse.

The federal Constitution was designed to guard the states as sovereignties against potential abuses of centralized government; state charters, however, were conceived as the first and at one time the only line of protection of the individual against the excesses of local officials. Thus in determining that California citizens are entitled to greater protection under the California Constitution against unreasonable searches and seizures than that required by the United States Constitution, we are embarking on no revolutionary course. Rather we are simply reaffirming a basic principle of federalism – that the nation as a whole is composed of distinct geographical and political entities bound together by a fundamental federal law but nonetheless independently responsible for safeguarding the rights of their citizens.

The ultimate confirmation of our conclusion occurred, finally, when the people adopted article I, section 24, of the California Constitution at the November 1974 election, declaring that “Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.” Of course this declaration of constitutional independence did not originate at that recent election; indeed the voters were told the provision was a mere reaffirmation of existing law.

For all the foregoing reasons Robinson is not controlling here. Rather, we reaffirm and follow the decisions . . . which impose a higher standard of reasonableness under article I, section 13, of the California Constitution.

The judgment (order granting probation) is reversed.

BURKE, J. [dissenting, joined by Justices McComb and Clark]

Before Robinson and Gustafson this court held in People v. Superior Court (Simon) 7 Cal.3d 186, 208-211 that a full body search of a person arrested for an ordinary traffic violation could not be justified as an incident to the officer’s decision to take him into custody for transportation before a magistrate. Robinson and Gustafson are contrary to Simon, as the majority recognizes. The majority seeks to avoid the impact of those United States Supreme Court decisions by now declaring that Simon, which mentions only the Fourth Amendment of the federal Constitution, was in fact based on our state constitutional provision against unreasonable searches and seizures. Even if it be assumed that Simon was so based, it does not follow that we should continue to interpret that state constitutional provision, which is essentially identical in language to the Fourth Amendment, in a manner different from the United States Supreme Court’s interpretation of the Fourth Amendment.

Decisions of the United States Supreme Court as to the meaning of language in a federal constitutional provision are strongly persuasive as to what interpretation should be placed upon similar language in a state Constitution.  To have two sets of rules under essentially identical constitutional provisions would create confusion.

The majority notes that our state Constitution declares that “Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.” (Cal. Const., art. I, § 24.) That declaration, however, does not mean that provisions of our state Constitution should be given a different interpretation than that given by the United States Supreme Court to essentially identical provisions of the federal Constitution.

Although in interpreting our state Constitution we may not be bound by Robinson and Gustafson, those decisions are highly indicative that the above stated holding in Simon was not required by the considerations underlying the exclusionary rule. I would follow Robinson and Gustafson and overrule Simon and other California cases in accord with Simon insofar as they are contrary to Robinson and Gustafson.

 

People v. Disbrow (1976), 16 Cal.3d 101

[Defendant was convicted of murder in the second degree and voluntary manslaughter. After arrest, he made inculpatory statements to a police detective in violation of his Miranda rights, which were used at trial to impeach his claim of self-defense.]

[Opinion by Mosk, J.]

The People make no claim that defendant’s statements to Detective Yost at the hospital were other than the product of an illegal police interrogation. Miranda made explicit the rule that a suspect’s declaration of intention to remain silent and stand on his constitutional rights cannot thereafter be followed by additional questioning. [However,] in Harris v. New York (1971), the [United States] Supreme Court held that statements which were inadmissible as affirmative evidence because of a failure to comply with Miranda could nevertheless be used for impeachment purposes to attack the credibility of a defendant’s trial testimony, as long as the statements were not ‘coerced’ or ‘involuntary.’ The court dismissed language to the contrary in Miranda as dictum and concluded, ‘The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.’ In People v. Nudd (1974) a bare majority of this [California Supreme] court ‘adopted’ the Harris rationale as the law in California.

Our principal objection to the Harris-Nudd rule lies in the considerable potential that a jury, even with the benefit of a limiting instruction, will view prior inculpatory statements as substantive evidence of guilt rather than as merely reflecting on the declarant’s veracity. Furthermore, to permit admissibility leaves little or no incentive for police to comply with Miranda’s requirements. If an officer may falsify the warning concerning the admissibility of statements, as in the case at bar, other warnings may be similarly inverted or retracted.

We therefore hold that the privilege against self-incrimination of article I, section 15, of the California Constitution precludes use by the prosecution of any extrajudicial statement by the defendant, whether inculpatory or exculpatory, either as affirmative evidence or for purposes of impeachment, obtained during custodial interrogation in violation of the standards declared in Miranda and its California progeny. Accordingly, we overrule Nudd and declare that Harris is not persuasive authority in any state prosecution in California.

We pause finally to reaffirm the independent nature of the California Constitution and our responsibility to separately define and protect the rights of California citizens despite conflicting decisions of the United States Supreme Court interpreting the federal Constitution. Indeed, the United States Supreme Court has recently characterized this proposition as ‘good law’ in reviewing a sister state court’s application of Harris. Justice Brennan added in his dissent in Michigan v. Mosley (1975) that in light of recent ‘erosion of Miranda standards as a matter of federal constitutional law, it is appropriate to observe that no State is precluded by the decision from adhering to higher standards under state law. Each State has power to impose higher standards governing police practices under state law than is required by the Federal Constitution. In People v. Brisendine (1975), we conducted an extended analysis of the question and concluded that ‘the California Constitution is, and always has been, a document of independent force.’ We do not propose to repeat that discussion here except to note that we continue to adhere to the views expressed therein, and apply them in the case at bar.

The judgment is reversed.

 

William J. Brennan, Jr., “State Constitutions and the Protection of Individual Rights”

William J. Brennan, Jr , “State Constitutions And The Protection Of Individual Rights,”

90 Harv. L. Rev. 489 (1977)

Decisions over the past two decades gave full effect to the principle of Boyd v. United States,34 the case Mr. Justice Brandeis hailed as “a case that will be remembered so long as civil liberty lives in the United States.”35 That principle, stated by Mr. Justice Bradley, was “… constitutional provisions for the security of person and property should be liberally construed …. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.”36

The thread of this series of Bill of Rights holdings reflects a conclusion–arrived at only after a long series of decisions grappling with the pros and cons of the question–that there exists in modern America the necessity for protecting all of us from arbitrary action by governments more powerful and more pervasive than any in our ancestors’ time. Only if the amendments are construed to preserve their fundamental policies will they ensure the maintenance of our constitutional structure of government for a free society. For the genius of our Constitution resides not in any static meaning that it had in a world that is dead and gone, but in the adaptability of its great principles to cope with the problems of a developing America. A principle to be vital must be of wider application than the mischief that gave it birth. Constitutions are not ephemeral documents, designed to meet passing occasions. The future is their care, and therefore, in their application, our contemplation cannot be only of what has been but of what may be.

Of late, however, more and more state courts are construing state constitutional counterparts of provisions of the Bill of Rights as guaranteeing citizens of their states even more protection than the federal provisions, even those identically phrased. This is surely an important and highly significant development for our constitutional jurisprudence and for our concept of federalism. I suppose it was only natural that when during the 1960’s our rights and liberties were in the process of becoming increasingly federalized, state courts saw no reason to consider what protections, if any, were secured by state constitutions. It is not easy to pinpoint why state courts are now beginning to emphasize the protections of their states’ own bills of rights. It may not be wide of the mark, however, to suppose that these state courts discern, and disagree with, a trend in recent opinions of the United States Supreme Court to pull back from, or at least suspend for the time being, the enforcement of the Boyd principle with respect to application of the federal Bill of Rights and the restraints of the due process and equal protection clauses of the fourteenth amendment.

Under the equal protection clause, for example, the Court has found permissible laws that accord lesser protection to over half of the members of our society due to their susceptibility to the medical condition of pregnancy,37 as well as laws that impose special burdens on those of our citizens who are of illegitimate birth.38 The Court has also found uncompelling the claims of those barred from judicial forums due to their inability to pay access fees,39 and has further handicapped the indigent by limiting their right to free trial transcripts when challenging the legality of their imprisonment.40

Under the due process clause, the Supreme Court has found no liberty interest in the reputation of an individual–never tried and never convicted– who is publicly branded as a criminal by the police without benefit of notice, let alone a hearing.41 The Court has recently indicated that tenured public employees might not be entitled to any more process before deprivation of their employment than the government sees fit to give them.42 It has approved the termination of payments to disabled individuals who are completely dependent upon those payments, prior to an oral hearing, a form of hearing statistically shown to result in a huge rate of reversals of preliminary administrative determinations.43 And it has veered from its promise to recognize that prisoners, too, have liberty interests that cannot be ignored.44

The same trend is repeated in the category of the specific guarantees of the Bill of Rights. The Court has found the first amendment insufficiently flexible to guarantee access to essential public forums when in our evolving society those traditional forums are under private ownership in the form of suburban shopping centers;45 and at the same time has found the amendment’s prohibitions insufficient to invalidate a system of restrictions on motion picture theaters based upon the content of their presentations.46 It has found that the warrant requirement plainly appearing on the face of the fourth amendment does not require the police to obtain a warrant before arrest, however easy it might have been to get an arrest warrant.47 It has declined to read the fourth amendment to prohibit searches of an individual by police officers following a stop for a traffic violation, although there exists no probable cause to believe the individual has committed any other legal infraction.48 The Court has held permissible police searches grounded upon consent regardless of whether the consent was a knowing and intelligent one,49 and has found that none of us has a legitimate expectation of privacy in the contents of our bank records, thus permitting governmental seizure of those records without our knowledge or consent.50 Even when the Court has found searches to violate fourth amendment rights, it has–on occasion– declared exceptions to the exclusionary rule and allowed the use of such evidence.51

Moreover, the Court has held, contrary to Boyd v. United States, that we may not interpose the privilege against self-incrimination to bar government attempts to obtain our personal papers, no matter how private the nature of their contents.52 And the privilege, said the Court, is not violated when statements unconstitutionally obtained from an individual are used for purposes of impeaching his testimony,53 or securing his indictment by a grand jury.54

Also, a series of decisions has shaped the doctrines of jurisdiction, justiciability, and remedy, so as increasingly to bar the federal courthouse door in the absence of showings probably impossible to make.58 At the same time, the Younger doctrine has been extended to allow state officials to block federal court protection of constitutional rights simply by answering a plaintiff’s federal complaint with a state indictment.59 And the centuries-old remedy of habeas corpus was so circumscribed last Term as to weaken drastically its ability to safeguard individuals from invalid imprisonment.60

Some state decisions have indeed suggested a connection between these recent decisions of the United States Supreme Court and the state court’s reliance on the state’s bill of rights. For example, the California Supreme Court, in holding that statements taken from suspects before first giving them Miranda warnings are inadmissible in California courts to impeach an accused who testifies in his own defense, stated: “We … declare that [the decision to the contrary of the United States Supreme Court61] is not persuasive authority in any state prosecution in California. … We pause … to reaffirm the independent nature of the California Constitution and our responsibility to separately define and protect the rights of California citizens despite conflicting decisions of the United States Supreme Court interpreting the federal Constitution [citing People v. Disbrow (Cal. 1976)].”

And of course state courts that rest their decisions wholly or even partly on state law need not apply federal principles of standing and justiciability that deny litigants access to the courts. Moreover, the state decisions not only cannot be overturned by, they indeed are not even reviewable by, the Supreme Court of the United States. We are utterly without jurisdiction to review such state decisions.80 This was precisely the circumstance of Mr. Justice Hall’s now famous Mt. Laurel decision,81 which was grounded on the New Jersey Constitution and on state law. The review sought in that case in the United States Supreme Court was, therefore, completely precluded.

The essential point I am making, of course, is not that the United States Supreme Court is necessarily wrong in its interpretation of the federal Constitution, or that ultimate constitutional truths invariably come prepackaged in the dissents, including my own, from decisions of the Court. It is simply that the decisions of the Court are not, and should not be, dispositive of questions regarding rights guaranteed by counterpart provisions of state law.83 Accordingly, such decisions are not mechanically applicable to state law issues, and state court judges and the members of the bar seriously err if they so treat them. Rather, state court judges, and also practitioners, do well to scrutinize constitutional decisions by federal courts, for only if they are found to be logically persuasive and well-reasoned, paying due regard to precedent and the policies underlying specific constitutional guarantees, may they properly claim persuasive weight as guideposts when interpreting counterpart state guarantees. I suggest to the bar that, although in the past it might have been safe for counsel to raise only federal constitutional issues in state courts, plainly it would be most unwise these days not also to raise the state constitutional questions.

Yet, the very premise of the cases that foreclose federal remedies constitutes a clear call to state courts to step into the breach. With the federal locus of our double protections weakened, our liberties cannot survive if the states betray the trust the Court has put in them. And if that trust is, for the Court, strong enough to override the risk that some states may not live up to it, how much more strongly should we trust state courts whose manifest purpose is to expand constitutional protections. With federal scrutiny diminished, state courts must respond by increasing their own.

Moreover, it is not only state-granted rights that state courts can safeguard. If the Supreme Court insists on limiting the content of due process to the rights created by state law,88 state courts can breathe new life into the federal due process clause by interpreting their common law, statutes and constitutions to guarantee a “property” and “liberty” that even the federal courts must protect. Federalism need not be a mean-spirited doctrine that serves only to limit the scope of human liberty. Rather, it must necessarily be furthered significantly when state courts thrust themselves into a position of prominence in the struggle to protect the people of our nation from governmental intrusions on their freedoms.

 

William J. Brennan, Jr., “The Bill of Rights and the States”

William J. Brennan, Jr., “The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights,” 61 N.Y.U. L. Rev. 535 (1986)

Between 1962 and 1969, in a flurry of activity, the [United States Supreme] Court extended nine of the specific provisions of the Federal Bill to the states; these decisions have had a profound impact on American life, deeply involving state courts in the application of rights and protections formerly perceived as creatures solely of federal courts. This series of decisions transformed the basic structure of constitutional safeguards for individual political and civil liberties in the nation and profoundly altered the character of our federal system. The agenda of the national Court was radically altered by the nationalization of the first eight amendments. Only rarely in the nineteenth century did individuals challenge the exercise of federal authority. Now modern constitutional law revolves around questions of civil and political liberty. The Court’s reinvigorated construction of the Fourteenth Amendment, and particularly the nationalization of the Bill of Rights through the Due Process Clause, are the primary reasons for that development.

But today, although unmistakable inequities should disrupt any observer’s complacency, the Court is involved in a new curtailment of the Fourteenth Amendment’s scope. Although this nation so reveres the civil and political rights of the individual that they are sheltered from the power of the majority, these rights are treated as inferior to the ever-increasing demands of governmental authority. Although both economic and political power are more intensely concentrated in today’s urban industrialized society than ever before, threatening individual privacy and autonomy, we see an increasing tendency to insure control rather than to nurture individuality.

The issue of application of the Bill of Rights to the states involves two separate questions: whether the guarantee in question should apply to the states, and what its content should be when applied. For several years now, there has been an unmistakable trend in the Court to read the guarantees of individual liberty restrictively, which means that the content of the rights applied to the states is likewise diminished.

For a decade now, I have felt certain that the Court’s contraction of federal rights and remedies on grounds of federalism should be interpreted as a plain invitation to state courts to step into the breach. [But,]busy interpreting the onslaught of federal constitutional rulings in state criminal cases, the state courts fell silent on the subject of their own constitutions. Now, the diminution of federal scrutiny and protection out of purported deference to the states mandates the assumption of a more responsible state court role. And state courts have taken seriously their obligation as coequal guardians of civil rights and liberties.

As is well known, federal preservation of civil liberties is a minimum, which the states may surpass so long as there is no clash with federal law. Between 1970 and 1984, state courts, increasingly reluctant to follow the federal lead, have handed down over 250 published opinions holding that the constitutional minimums set by the United States Supreme Court were insufficient to satisfy the more stringent requirements of state constitutional law.77 When the United States Supreme Court cut back the reach of First Amendment protections, the California Supreme Court responded by interpreting its state constitution to protect freedom of speech in shopping centers and malls [citing Pruneyard].78Truly, the state courts have responded with marvelous enthusiasm to many not-so-subtle invitations to fill the constitutional gaps left by the decisions of the Supreme Court majority.84

The institutional position of the national Supreme Court may cause it to ‘underenforce’ constitutional rules.86 The national Court must remain highly sensitive to concerns of state and local autonomy, obviously less of a problem for state courts, which are local, accountable decisionmakers. It must further be remembered that the Federal Bill was enacted to place limits on the federal government while state bills are widely perceived as granting affirmative rights to citizens.

This rebirth of interest in state constitutional law should be greeted with equal enthusiasm by all those who support our federal system, liberals and conservatives alike. The development and protection of individual rights pursuant to state constitutions presents no threat to enforcement of national standards; state courts may not provide a level of protection less than that offered by the federal Constitution. Nor should these developments be greeted with dismay by conservatives; the state laboratories are once again open for business.

State experimentation cannot be excoriated simply because the experiments provide more rather than less protection for civil liberties and individual rights. While the Fourteenth Amendment does not permit a state to fall below a common national standard, above this level, our federalism permits diversity. As tempting as it may be to harmonize results under state and national constitutions, our federalism permits state courts to provide greater protection to individual civil rights and liberties if they wish to do so. The Supreme Court has no conceivable justification for interfering in a case plainly decided on independent and adequate state grounds.

 

theory

James A. Gardner, “State Constitutional Rights as Resistance to National Power”

James A. Gardner, “State Constitutional Rights as Resistance to National Power: Toward A Functional Theory of State Constitutions,” 91 Geo. L. J. 1003 (2003)

Individual rights in state constitutions, I argue, can in many circumstances restrain the exercise of national power. State constitutional rights do not, of course, constrain the national government as a matter of positive law; the Supremacy Clause of the U.S. Constitution subordinates state law to national law as a matter of positive political authority. Nevertheless, the identification and enforcement of state constitutional rights can serve as a mechanism by which state governments can resist and, to a degree, counteract abusive exercises of national power. State constitutional rights, that is to say, can be weapons of state resistance to national tyranny in a federal system of divided power.

Nation-states often relate to one another in a real-world approximation of the Lockean (or perhaps Hobbesian) state of nature, and national polities occasionally coalesce and create national governments in acts of more or less genuinely independent self-creation. The same model, however, does not apply equally well to subnational constitutions created by states or provinces that are subdivisions of more comprehensive nations. In the American setting, the Lockean model of independent political self-creation does not adequately describe state-level constitutional processes because it ignores the fact that American states are part of a nationwide federal system of dispersed power—a system created at the national level by, and to a considerable extent managed under the auspices of, the U.S. Constitution. Because states are in some ways cogs in a national apparatus, the purposes for which state power exists are not given exclusively by a state polity in the state’s constitution, but are also determined to some extent by the national polity in the national constitution. State power, in other words, exists not only to serve the state polity in the achievement of state goals, but also to serve the national polity in the achievement of national goals. States are part of an interlocking plan of federalism devised collectively by the people of the nation and maintained by them as part of a comprehensive plan designed to serve the overriding national purpose of protecting the liberty of all Americans. From this perspective, elaborated further below, it becomes possible to see that individual rights granted in state constitutions serve the purpose not only of protecting individuals against tyrannical acts of state governments, but also against tyrannical acts of the national government.

State judicial rejection of and divergence from purportedly incorrect or abusive Supreme Court precedents concerning the scope of individual rights helps to check national power in at least four ways. First, whenever a state court dissents from the reasoning of a U.S. Supreme Court decision, it offers a forceful and very public critique, which can in the long run influence the formation of public and, eventually, official opinion on the propriety of that federal ruling. Second, state constitutional rulings that depart from or criticize U.S. Supreme Court precedents can contribute to the establishment of a nationwide legal consensus at the state level, a factor that the Supreme Court sometimes considers in the course of its own constitutional decisionmaking. Third, generous state interpretations of individual rights can check national power more directly, by prohibiting state and local governments from exercising authority permitted them under the U.S. Constitution to suppress certain kinds of private behavior. In so doing, state courts create spaces in which otherwise prohibitable behavior may flourish. Finally, rights-protective rulings by state courts can help ameliorate the harm to liberty caused by narrow national rulings by providing protection for second-best alternatives to the types of behavior that such national rulings permit governments to suppress.

Contemporary jurisprudential thought about the interpretation of state constitutions tends to be mired in well-worn ruts that lead to two competing and unhelpfully rigid models of interpretation. [FN257] The first and most widely held model, often labeled the “primacy” approach, holds that state courts analyzing questions of state constitutional law should treat state constitutions as freestanding, wholly independent sources of positive constitutional law. [FN258] This means that state courts should interpret state constitutions by bringing to bear all the traditional tools of constitutional analysis: text, structure, history, controlling state precedent, and the values of the state polity. [FN259] This analysis should be performed, moreover, without any consideration whatsoever for analogous rulings by federal or other state courts except for the limited purpose of providing guidance; and courts must understand that the nature of this guidance is merely persuasive and never controlling, regardless of any similarities between the constitutional provisions under review and those construed in cases from other jurisdictions. [FN260]

The other main position, often called the “interstitial” or “supplemental” approach, holds that state courts should turn to the state constitution only after it becomes apparent that the U.S. Constitution provides inadequate protection for the civil liberties at issue. Upon making such a determination, the state court should then examine the state constitution to determine whether it provides any additional increment of protection for the right at issue. [FN261] This approach is usually associated with a methodology of state constitutional interpretation, often labeled the “criteria” approach, which directs state courts to compare the state constitutional provision at issue to its cognate provision in the federal Constitution, and to construe it to have a different meaning from its federal counterpart only if some objective indicium supports the divergent interpretation. [FN262] The indicia sufficient to support a divergent interpretation typically are said to include differences in the constitutional text, structure, or history; differences in controlling state precedent; and differences in the concerns or values of the local populace. [FN263]

Neither of these models is satisfactory either as a normative guide to or an accurate description of the judicial practice of interpreting state constitutions. [FN264] The functional approach I have sketched here, however, holds the promise of breaking this impasse and arriving at an account of contemporary state constitutional jurisprudence that is far more normatively attractive than the dominant approaches, as well as more descriptively accurate of actual judicial practice.

Although they differ in significant respects, both the primacy and interstitial approaches share a critical underlying assumption. Both jurisprudential philosophies begin from the premise that state courts may not construe state constitutional rights differently from the way federal courts construe national constitutional rights merely because they disagree with the federal decisions on the merits. [FN265] Indeed, the entire course of development of contemporary theories of state constitutional interpretation may usefully be understood as an attempt to shield state courts from charges that they have issued rights-expansive state constitutional rulings solely because they disagree with specific rulings of the Burger or Rehnquist Courts. [FN266]

This premise, I believe, is fundamentally false. The functional approach to state power I have sketched here suggests that state courts should be doing exactly what their critics accuse them of doing. That is to say, when state courts disagree with a Supreme Court decision construing the U.S. Constitution, they may interpret similar provisions in state constitutions differently precisely because they believe that the U.S. Supreme Court has misinterpreted the national document, thereby according insufficient protection to the legitimate rights and liberties of the American people—liberties that it is in part the function of state courts to protect.

The methodological errors of the primacy and interstitial approaches to interpretation can be explained, moreover, largely by their incorrect premises about the nature of state power within the structure of American federalism. The primacy approach conceives of state constitutional interpretation as a self-contained enterprise whose only point of reference is the state constitution itself. To interpret a state constitution, say the proponents of the primacy approach, one must treat it no differently than one would treat the national constitution: as an expression of the will of the people of the state. [FN270] This might be a valid approach if an American state were an independent nation, and the United States were nothing more than a league of independent sovereigns connected for a few common purposes by a treaty or compact. But the United States is not a compact of independent sovereigns; it is a nation—if the Civil War settled anything, it was that.

The interstitial approach veers too far in the opposite direction. By accepting interpretations of the U.S. Constitution as presumptively binding on state courts interpreting state constitutions, the interstitial approach treats state constitutions as having virtually no independent legal agency. State constitutional law, in this model, is treated not as an independent body of positive law authored by a distinct self-governing polity, but as a local and subordinate iteration of positive law established at the national level. This would perhaps be a valid approach if states were merely administrative subdivisions of the nation and thus had no legitimate authority to pursue and enact into law their own independent judgments concerning the structure and conditions of local self-governance. But, of course, states are more than administrative subdivisions of the nation. Although the principle of national supremacy circumscribes their independence, they nevertheless have considerable leeway to make independent decisions about how best to promote and protect the welfare and liberty of their citizens—decisions which they are able to back up because they possess a considerable amount of independent political power.

The truth, of course, lies somewhere in between the two models. States are neither independent sovereigns nor subordinate subdivisions. State polities govern themselves to some extent, but are also governed to some extent by decisions made at the national level. States are not free to maneuver wholly according to their independent judgment, yet they are expected to serve as independent checks on abuses of national power by the national government. State power is to be exercised in the service of goals established by the state polity, but it is also to be exercised in the service of goals established nationally. Neither the primacy nor the interstitial approach captures these complexities, and consequently each prescribes a methodology of constitutional interpretation that fails to accord with the reality that state judges routinely face when adjudicating questions of state constitutional law.

The functional approach sketched here, I hope, charts a course out of this impasse. By treating state power as having an essential function derived in part from the national structure of federalism, the functional approach recognizes that state power always exists in relation to national power and never in isolation from it. A state constitution is a document fundamentally ordering the exercise of state power. Consequently, a state constitution must generally be interpreted with one eye on the U.S. Constitution and on the actions of the national government taken in reliance on it. Only by monitoring the operation of the national government can any organ of state government fulfill its responsibility to discover and resist abuses of national power. Certainly, the national government will be watching the state. Federalism requires that this practice be reciprocal. Where individual rights are concerned, this means that state courts should always be prepared to exercise independent judgment about the propriety of U.S. Supreme Court rulings and, when appropriate, to resist and work to undermine those rulings of which they disapprove.

Conclusion

A state constitution is positive law enacted by the people of a state to order the exercise of state power. But state power exists in our system of government not only to pursue objectives established by the people of the individual states for the achievement of their own separate good. State power also plays an integral role in the American system of federalism by helping all Americans achieve their collective good, a function it performs when it is deployed to resist abuses of national power. State judicial power is not exempt from this dynamic. It has obvious uses internal to the state, but it may also play a role in the external deployment of state power for the purpose of resisting national tyranny, especially tyranny perpetrated by national courts.

Most accounts of the function and methodology of interpreting individual rights protected by state constitutions do not recognize this checking function of state courts. This oversight has caused courts and commentators to conceive of state constitutional rights solely in terms of the way in which such rights constrain abuses of power by state governments, and to ignore their potential role in checking abuses of power originating at the national level. But the vigilant protection by state courts of state constitutional rights can serve as a form of resistance to abusively narrow Supreme Court interpretations of federally protected individual rights through mechanisms of public dissent, consensus formation, and independent, state-level protection of identical or second-best liberties.

To discharge fully their responsibilities to monitor and check national power, state courts must incorporate into their state constitutional jurisprudence some recognition and independent evaluation of the content of corresponding federal constitutional law. While it is beyond the scope of this Article to lay out all the details of how this might be accomplished, such a reform requires, at a minimum, abandonment of the artificially constrained primacy and interstitial approaches to state constitutional interpretation. Both approaches begin from the incorrect assumption that state courts have no business evaluating and reacting to rulings made under the national constitution by national courts. In fact, that is just the function federalism requires state courts to undertake.

 

Paul W. Kahn, “interpretation and Authority in State Constitutionalism”

Paul W. Kahn ,“Interpretation and Authority in State Constitutionalism,” 106 Harv. L. Rev. 1147 (1993)

In 1977, Justice Brennan delivered his now famous plea for a renaissance in state constitutionalism. [FN1] As much as any judicial opinion he ever wrote, this plea has influenced the development of American constitutionalism. Since 1977, there has been an outpouring of scholarly work as well as a renewed interest by bench and bar in the possibilities of state constitutionalism.

This essay is in the same practical style, advocating a vigorous state constitutionalism. However, I abandon the central premise of most previous works, namely, that the interpretation of a state constitution must rely on unique state sources of law. Those sources include the text of the state constitution, the history of its adoption and application, and the unique, historically identifiable qualities of the state community. State constitutional law, it is assumed, can diverge from federal law only if the differences can be traced to one of these sources. This premise rests on an idea of state sovereignty that at best is a romantic longing for vibrant local communities and at worst misunderstands modern American constitutionalism.

The diversity of state courts is best understood as a diversity of interpretive bodies, not as a multiplicity of representatives of distinct sovereigns. The common object of state interpretive efforts is American constitutionalism. Each state court has the authority to put into place, within its community, its unique interpretation of that common object. Of course, state courts may not violate United States Supreme Court interpretations of federal law, but beyond this legal floor, federal courts have nothing to say about the way in which state courts exercise their authority to interpret state constitutionalism.

The problem with the federal bench today is not that a political agenda has displaced the rule of law. From the perspective of conservatives who have recently controlled the judicial appointment process, the corruption of law by politics had already occurred in the form of the rights-centered activism of the Supreme Court in the 1960s and 1970s. The conservative members of the Rehnquist Court have aimed to return to “law,” the sources of which, in their view, are decidedly narrower than those employed in the decisions of the previous era. [FN26]

The real problem is that the vision of law’s possibilities has become too homogeneous. Not only did Presidents Reagan and Bush appoint a majority of the Supreme Court, but they also appointed more than two-thirds of all sitting federal judges, including a majority on each of the thirteen circuit courts. [FN27] The appointees are overwhelmingly male, white, and well off. [FN28] More importantly, they share a common political orientation and beliefs about the framework within which constitutional adjudication should occur.

These judges view the judiciary as an undemocratic institution within a political order premised on the idea that governmental legitimacy is derived from the consent of the majority. To overcome this threat of illegitimacy, the courts must stick closely to the tangible products of the political process. In constitutional adjudication, this generally means the text and the original intent of those upon whose authority the legitimacy of the text rests. A court that moves beyond the formalism of text and the boundaries of original history has exited the objective domain of law and has entered the subjective enterprise of politics. When a non-textual constitutional right is of such longstanding recognition that it cannot be abandoned, the Court must base its interpretation on the narrowest possible reading of the relevant tradition.

When there is only a single view of the possibilities of law, the meaning of the constitutional order is impoverished. A democracy that does not debate the legal boundaries of its own political choices is already failing the constitutional project. [FN35] That all sides in this debate will claim to speak for law and against the politicization of the judicial process does not suggest that nothing more than rhetoric is at stake. That a debate has no final answer does not make it meaningless. Most ethical and political questions are not capable of a single, determinative resolution. The indeterminate character of their resolution does not make these questions less pressing. The nation’s commitment to a rule of law that protects certain principles and values against political interests presents each generation with a puzzle, not an answer.

To the extent that the interpretive debate within the federal bench has diminished, a new locus must be found for that discourse. . . . Another important locus is the state courts. To the degree that state judges’ voices are added to the debate, we should expect a reinvigoration of the discursive ground of a democratic order committed to the rule of law. These voices are likely to enrich the debate not just because they are different, but also because they operate under different institutional constraints. [FN37] State court judges often have long-term, but not life, appointments, and they are often subject to some sort of popular check. Their institutional position can be thought of as intermediate between that of federal judges and that of elected representatives. [FN38]

State constitutionalism should not become another vehicle for removing diverse voices from the national debate. Nor should it splinter the debate over the possibilities of the rule of law into a Babel of fifty different communities. That, however, is exactly the effect of the doctrine of unique state sources. At its best, state constitutional discourse can be an interpretive effort directed at the same principles of the rule of law that underlie federal constitutionalism. American constitutionalism is not simply an aggregate of distinct bodies of state and federal doctrine. Rather, American constitutionalism is the interpretive enterprise that seeks to understand the appropriate role for the rule of law in a democratic order.

I have made two arguments that now need to be brought together. First, I argued that state constitutionalism should free itself from the constitutionalism of the contemporary federal courts and especially from the doctrine of unique state sources. Second, I argued that constitutionalism is itself an interpretive enterprise that is not bound to a single truth. These arguments intersect at the point at which state constitutionalism is placed within the larger interpretive enterprise of American constitutionalism.

Neither judge nor commentator can escape the responsibility of interpretation. No source or set of sources will simply present an answer. The object of interpretation might, for example, be the meaning of the constitutional value of equality. Equality does not have a single, definite meaning in any community prior to the process of interpretation. It is not a thing waiting to be discovered by a judge. It only has an identifiable shape after the judge articulates the conclusion of an interpretive inquiry. Even that conclusion is only a momentary stopping point in an ongoing debate. In this debate, it is not possible for a judge – or anyone else – to consider the meaning of equality without drawing on a wealth of experiences, arguments, and values that range across local, national, and even international communities.

Of course, different courts can and will reach different conclusions about the meaning of such constitutional values. Agreement is no more to be expected of courts than of individuals. Conflict over the meaning of common values, however, does not imply that each community has hold of a unique or separate constitutional truth. There is not one equality in Connecticut and another in Texas, or even Utah. Differences reflect the rich possibilities of interpretation. These are differences that each state must engage and discuss – and not simply dismiss as arising from unique state sources. Abandonment of the doctrine of unique state sources hardly suggests homogeneity in the interpretive enterprise.

Conflicts of interpretation may reflect variations in state experience with respect to a particular value, just as differences in personal experience lead to different moral insights. Different state understandings of constitutional norms should similarly be seen as different insights into a common object of interpretation. No state’s experiences are so different as to reject the norms of equality, liberty, and due process as the ideals of the constitutional order. No state is so unique that it has neither anything to say to, or learn from, other states.

On my view, each state constitution represents, in large measure, an effort to realize within the bounds of a particular time and space a common ideal of American constitutionalism. The states share a common aspiration for constitutional governance. Although some states may have been founded to secure a place for difference from existing political communities, most states were founded not in order to be different, but to realize for their own communities the ideals that are the common heritage of the nation. Whatever the differences in historical origins, those differences are less and less relevant to today’s communities

The state constitutionalism I envision is a process of giving voice to the state court’s understanding of the values and principles of the national community. State court interpretations of federal sources of law are not simply dicta. These sources are an integral part of the decision; they support the holding. The authority of the holding, however, does not come from these sources. Authority never comes from interpretation. Interpretations of federal sources are neither dicta nor a binding rule of action for courts in other jurisdictions. Their status is somewhere in between – a status comprehended in the respect due an interpretation for which responsibility is taken.

If we free the state courts to place themselves in the tradition of American constitutionalism, instead of in the narrow parochialism of traditional federalism, then the meaning of American citizenship is enriched. It is enriched whenever new voices are added to the debate over the meaning of the rule of law within a democratic polity. It is especially enriched because fifty different courts will talk with each other, as well as with the federal courts, about the meaning of a common enterprise. In this way, constitutional federalism becomes a means of enriching all of the members of the national community and of binding each of the states to the others. This federalism can make of us a better national community. It need not divide us from each other.

Development

“Interpretation of State Constitutional Rights”

Anon., “Developments In The Law — The Interpretation Of State Constitutional Rights”, 95 Harv. L. Rev. 1324 (1982)

By the 1960’s, the relation of state bills of rights to federal guarantees had been turned on its head. Although federal law had once seemed to fill the interstices left open by state law,15 it was now the states’ role that seemed interstitial. This reversal of roles seemed particularly pronounced in the constitutional protection of individual rights. By imposing federal limits in areas previously left to state authority,16 the incorporation into the fourteenth amendment of most of the Bill of Rights obscured the functional independence of the original state and federal guarantees. The extension of federal protections was also accompanied by broad interpretations of the incorporated rights,17 interpretations that blurred the early resemblance of the federal guarantees to their state counterparts. Although the original American rights, both state and federal, had protected the people as a whole against government intrusion, federal rights now began to assume a unique responsibility for protecting specific politically powerless minorities.18 This revolution in the application and interpretation of federal constitutional law not only rendered ambiguous the level of protection the state bills of rights afforded, but also raised the question whether they still served a worthwhile purpose.19

During the 1970’s, the Supreme Court’s haphazard retreat from political activism sparked renewed interest in, and renewed controversy over, state bills of rights.20 Although it has become apparent that state bills of rights may once again assume a prominent role, there is little consensus on what that role should be. One group of commentators suggests that the revival of state guarantees will enable the states to resume their former responsibility as the primary protectors of individual rights. The substitution of state for federal constitutional doctrine is seen as a way to revitalize federalism.21 Other observers concede to the federal courts and Constitution the primary responsibility for protecting individuals, but argue that state guarantees may assume a new role in the expansion of protections beyond the scope of federal rights.22 From this perspective, state constitutional doctrine might supplement rather than replace federal law.

State constitutions do not exist in a vacuum. On the contrary, federal law largely determines their role as sources of civil rights and liberties. Stagnation and decline in the protection of constitutional rights by the Supreme Court have spurred an increase in state constitutional litigation.1 However, the rapid expansion of federal authority in recent decades2 has been a central constraint on the growth of state constitutional law.

The jurisdictional principles that guide the Supreme Court in deciding when to review state court decisions3 involving state law questions are the central determinants of state constitutional law’s independence from federal constraints.

• The Independence of State Constitutional Law
• The Classical Model. — The Supreme Court looks to two general principles, which can be labeled the autonomy principle and the supremacy principle, to determine when to review a decision of a state’s highest court.4 The autonomy principle licenses state courts as the final, independent arbiters of state law; the supremacy principle affirms the primacy of federal law over state law as a basic constraint on state autonomy.
• The Autonomy Principle. — Although the Supreme Court has statutory jurisdiction to review any decision of a state’s highest court in which a question of federal law is raised,5 the Court has long declined jurisdiction to review state court decisions that rest on an “independent and adequate state ground,” regardless of the state court’s alternate reliance on federal grounds.6

This doctrine derives from two basic limits on Supreme Court jurisdiction. First, the Court will not review state court interpretations of state law;7 when a state decision involves an interpretation of state law, any review by the Supreme Court is limited to the federal questions addressed in the decision. Second, the Court will not issue decisions that are merely advisory.8 Thus, if the state law ground sufficed to support the decision in the case, the Court would not even examine the federal questions, because its treatment of them would not affect the outcome and would therefore be merely advisory.

The bar against advisory opinions is constitutionally grounded in the case-or-controversy requirement of article III,9 but the basis for declining to review state law questions is more obscure. Article III jurisdiction covers cases involving federal questions, and such jurisdiction extends as well to state law questions raised within the same cases.10 The Judiciary Act of 178911 did limit Supreme Court review of state court decisions to the federal questions raised below, but this restriction was deleted in 1867.12 In Murdock v. City of Memphis, the Supreme Court considered the statutory revision and expressly invited and heard argument on the constitutionality of its review of state rulings on state law.13 The decision, however, explicitly avoided the constitutional question. Instead, Murdock simply interpreted the statute not to extend the Court’s jurisdiction to the review of state law determinations, a conclusion that has been regarded as settled ever since.14

(b) The Supremacy Principle. — Although the autonomy principle precludes Supreme Court review of state court decisions resting on state law, it does not protect interpretations of state law that conflict with federal law. The supremacy clause15 requires that any inconsistency be resolved in favor of federal law, and the Supreme Court, as final arbiter of federal questions, can review state court decisions that, relying on state law, arrive at results arguably in conflict with federal law.16 Moreover, because it is the federal courts’ reading of federal law that is decisive, the Supreme Court may also review and reverse state court decisions relying on interpretations of federal law that are more, or less, expansive than the Supreme Court’s.17

The supremacy of federal law is absolute. Any level of federal law, even an administrative regulation, overrides every form of state law, even a state constitution.18 In mandating federal review for consistency with federal law, the supremacy principle substantially undercuts the independence conceded to state law by the autonomy principle. The contours of state autonomy are ultimately determined by the contours of substantive federal law, contours that are shaped by the choices of the Supreme Court, Congress, and the federal executive branch.19

(c) The Model. — When a state court appeals to a state constitution to protect civil rights and liberties, the autonomy and supremacy principles interact in a relatively simple way to shape the Supreme Court’s response: state constitutions may always be used to supplement or expand federally guaranteed constitutional rights, but may never be used to undermine or infringe them. Federal law sets a minimum floor of rights below which state courts cannot slip.20 Likewise, if expansion of one party’s state constitutional right threatens another party’s federal right — as, for example, a state-recognized right to distribute literature on private property might threaten federally recognized property rights21 — federal law may also set a ceiling for the elaboration of state constitutional rights.22

a) The Sprawling Supremacy Principle. — The supremacy principle converts any expansion of the scope of federal law into a constriction of the horizons of state law. Thus, unless the Supreme Court begins to make allowances for the importance to the states of their freedom to elaborate state constitutional law, the rapid expansion of federal law threatens to stunt the development of independent state constitutional doctrine.

Expansion of federal law in recent decades — both constitutional and statutory — has dramatically transformed the federal-state relationship and undermined the former demarcation of distinct spheres of authority by introducing a federal presence into much of what was previously the state’s exclusive sphere.29 This expansion has inverted the classical relationship between state and federal law; in many areas, federal law has superseded state law as the primary determinant of the relationship between state and citizen and left the states to fill the gaps in the federal scheme. Federal incursions into traditional areas of state responsibility have taken a variety of forms, all with the capacity to impinge on state constitutional law: (1) expansion of the catalogue of federal constitutional rights enforceable against the states30 and of the procedures available for such enforcement,31 (2) federal legislation pressuring states to undertake certain projects,32 (3) imposition of detailed federal requirements as conditions on federal grants to the states,33 and (4) judicial deployment of preemption doctrine to extend the reach of exclusive federal authority.34

Judicial expansion of the rights incorporated in the fourteenth amendment constricts the scope of state autonomy in two different ways. First, any elevation of the applicable federal constitutional floors directly limits state constitutional improvisation by mandating results where the state court’s hands were previously free. Although such an elevation does not deprive state citizens of the rights in question — and may in fact stimulate further state constitutional elaboration beyond the new federal floor — it does shift courts’ attention from the state constitution to its federal counterpart. Substantive rights may actually be abridged in the second type of situation, when an expanded federal right lowers the ceiling that limits the scope of a competing state-recognized right.35

(b) The Empty Autonomy Principle. — As a result of the expansion of federal law, state court decisions have increasingly involved intertwined mixtures of state and federal law.44 This development has rendered problematic the autonomy principle’s stipulation that a state ground must be independent of federal law to preclude federal review. The Supreme Court’s response has been to rely on a formalistic test that determines the independence of a purported state law ground neither by the state ground’s place in an independent corpus of state law nor by the federal stake in the implicated federal law, but rather by the precision with which the state court language preserves the state law ground from federal taint.45 When a state court appends an unelaborated — and hence unentangled — state ground to a decision that rests predominantly on federal constitutional interpretation, the Supreme Court finds review precluded.46 But if the state court acknowledges the relevance of federal constitutional concerns to the evolution of the state ground, the insulation from federal review evaporates. The result is an autonomy principle focused on the formal independence, not the substantive legitimacy, of asserted state law grounds.

The State Constitution. — Despite their status as fundamental charters of governmental powers and private rights, state constitutions in several key respects resemble statutory law more than they resemble the aloof, unchanging federal Constitution. Both their susceptibility to revision in response to popular opinion and the wealth of content they characteristically encompass encourage a view of state constitutions as integral parts of the democratic state governmental processes, not as external constraints imposed on them.

Amendment of the federal Constitution requires approval not only by two-thirds of both houses of Congress, but also by representative bodies in three-fourths of the states;105 this process has produced only twenty-six amendments in almost 200 years. By contrast, amendment of state constitutions typically can be initiated easily and is consummated by simple majority vote in a referendum.106 In many states, the process for amending the constitution closely resembles the procedure for adopting or rejecting statutes by initiative or referendum.107 As a consequence of these permissive procedures, state constitutions are amended at a furious rate.108

In addition, fourteen state constitutions provide for popularly elected constitutional conventions to meet at regular intervals to consider major overhauls (or minor revisions). In most other states, constitutional conventions can be (and not infrequently are) convened by legislative act, popular initiative, or a combination of the two.109 Most states, in fact, have gone through several constitutions.110

The availability of such channels for popular revision of state constitutions has clear implications for the legitimacy of judicial review. The document that judges enforce is likely to reflect recent popular attitudes and goals,111 and if a court’s interpretation of the constitution deviates sufficiently from public sentiment, a majority vote can overrule the court’s reading.112 Although state bills of rights have been relatively immune from extensive revision, voters have on occasion been willing to tinker with constitutional protections of rights to reverse unpopular court rulings.113

B. Education Rights

The development of state constitutional rights to education, like the emergence of state law privacy rights, is closely connected to federal constitutional decision-making. In the early 1970’s, a group of academics developed a legal theory aimed at overturning the financing of public education by local property taxes.81 Viewing education as a “fundamental”’ right under the federal Constitution, these commentators argued that a state’s distribution of educational benefits according to property wealth should be viewed with strict, indeed fatal, scrutiny.82 In San Antonio Independent School District v. Rodriguez,83 the United States Supreme Court found education indistinguishable from welfare benefits and rejected the theory’s premise.84 Since Rodriguez, litigants seeking redress for denials of education benefits85 have relied extensively on education clauses in state constitutions.86

Litigation concerning educational entitlements under state constitutions has focused on two related issues. The first arises when the state attempts to shift education costs to the child’s family. The second issue — the focus of the Rodriguez litigation — is the validity of unequal distribution of the free benefits that a state provides.90 Plaintiffs in post-Rodriguez state litigation have refined the demand for “equal educational opportunity”’ and “fiscal neutrality.”’ In addition to requesting severance of the link between district property wealth and district educational expenditures, litigants frequently seek recognition of the relative inability of cities burdened with high service costs to raise revenues for education.91 At the same time, those who benefit from local property tax financing have invoked state constitutional education or taxation provisions in order to challenge legislative attempts to remedy interdistrict spending differences.92

Because education clauses are unique to state constitutions, one might expect state education litigation not only to pose “the best opportunity to develop a truly autonomous body of decisional law,”’93 but also to secure the education entitlements rejected by the Supreme Court. Every state constitution contains an education clause, and all but one affirmatively require the legislature to establish and maintain public schools.

However, the hope that state litigation would constitutionalize educational entitlements unavailable at the federal level has proved illusory. To be sure, education clauses have provided the basis for validating constitutional claims that would not be recognized under the federal Constitution.104 And state court litigation has provoked thoughtful inquiry into the separate “‘meaning”’ of the education clauses.105 But for nearly every claim vindicated, a similar claim in another state has been denied. In many states, state constitutional law provides no greater access to education benefits than does federal law.106 State courts attempting to remedy educational inequality have hardly revolutionized state taxation or education finance; for all the judicial effort to date, state constitutional law has at best moderately alleviated disparate distribution of education benefits.107

Even more significant, the promise of an “autonomous body”’ of state constitutional doctrine is rarely realized. In most cases, judges depend on federal constitutional doctrine to justify state constitutional rights to education. In extreme cases, this dependence reduces the education clauses to vehicles for relitigating federal equal protection questions.108 Thus, in both their results and their reasoning, judges elaborating state education rights have clung to federal apronstrings.109

 

Robin B. Johansen, “The New Federalism: Toward a Principled Interpretation of the State Constitution”

Robin B. Johansen, “The New Federalism: Toward a Principled Interpretation of the State Constitution,”

29 Stan. L. Rev. 297 (1977)

In recent years, state courts have begun to assert themselves as the final arbiters of their own state constitutions in the area of individual rights. Described as “the new federalism” by one commentator and “excessive bicentennial spirit” by another, this trend has sparked a debate about the proper role of state courts and state constitutions in determining the scope of such rights. Because United Sates Supreme Court decisions interpreting the Bill of Rights and the 14th amendment mark the minimum guarantees of individual rights, state courts that give truly independent force to their own constitutions generally reach decisions more protective of those rights than the Supreme Court. Thus, many litigants hoping to gain a more sympathetic hearing are taking their constitutional claims to state courts. The fact that they are succeeding, and that their victories are insulated from federal review, has resulted in charges that state courts are evading Supreme Court doctrine and engaging in unprincipled, result-oriented use of their state constitutions.

This Note adopts the position that state constitutions deserve their own independent interpretation and that state courts are obligated to provide it. The more difficult, and more important, questions concerns the manner in which state courts independently interpret their state constitutions. Using California as a case study, his Note examines some of the successes and failures of independent interpretation and identifies four factors a state supreme court should consider in making a principled interpretation of the state constitution.

II. INDEPENDENT INTERPRETATION IN CALIFORNIA

Independent interpretation is best considered in the light of actual state practice. Because the California Supreme Court is respected for the quality of its decisions and its leadership in many fields, and because it has been at the center of much of the independent interpretation debate, California is an ideal laboratory for studying the successes and failures of independent interpretation.

California has led the nation in the development of independent interpretation. In the criminal procedure area, for example, California adopted the exclusionary rule for illegal searches and seizures 6 years before the Supreme Court made it binding on the sates, and it is the only state to apply the rule vicariously. California invalidated the death penalty four months before the Furman decision by the United States Supreme Court. In the area of equal protection, the California court has declared education a fundamental interest and sex a suspect classification, steps the Supreme Court so far has refused to take.

At first, the California courts showed great deference to the Supreme Court, extrapolating their reasoning from Supreme Court opinions. Some of the early California decisions utilizing independent interpretation clearly were aimed at encouraging the Supreme Court to move toward a similar result. Then in August 1975, the California court unequivocally abandoned its deference to the Supreme Court and boldly declared its intent to exercise its independent right to interpret its own constitution.

B.The Contemporary Approach: Two Types of Independent Interpretation with Varying Degrees of Success

Beginning with People v. Anderson in 1972, the California Supreme Court more clearly established its independence from the United States Supreme Court in the interpretation of the California Constitution. Since then, it has employed two types of independent interpretation with varying degrees of success. [1] “Pure” independent interpretation occurs when the state court, either because of local conditions, the distinctive wording of the state constitution or both, arrives at its own construction of the state constitution. Although the state court may seek to influence the Supreme Court to follow its result, pure independent interpretation originates with the state court, rather than the Supreme Court. [2] “Supreme Court-oriented” or “reactive” interpretation, on the other hand, occurs when the state court faces a narrow interpretation of a particular provision by the Supreme Court and must decide whether to acquiesce in that interpretation.

The two types of independent interpretation place different demands on the state court for justification of the use of the state constitution. Pure independent interpretation generally requires only that the state court marshal convincing arguments in favor of applying the state constitution rather than federal. The second type, reactive independent interpretation, is more difficult, because the state court is under pressure to explain why it chooses not to follow the Supreme Court. The state court may be seeking to preserve a state precedent that was grounded originally in federal constitutional interpretation alone and logically would be over-ruled by a Supreme Court “retreat” from an earlier position. Or the state court may never have addressed the issue at all and thus may lack even a precedent on which to rely in explaining its disagreement with the Supreme Court. The California cases once again provide excellent examples of both types of independent interpretation.

c. People v. Disbrow: The California court dissents.

In People v. Disbrow, the California court faced yet a more difficult independent interpretation decision. It had for support neither its own precedent, as in Brisendine, nor a difference in the constitutional provision, as in Anderson. Rather, the court was in the embarrassing position in Disbrow of disagreeing with a Supreme Court doctrine that it previously had adopted. Thus, it had to explain not only its disagreement with the Supreme Court, but the reversal of its own recent decision that had followed the Supreme Court. To the California court’s credit, it did not try to distinguish its earlier decision but admitted the error and reversed.

The negative aspects of independent interpretation would largely disappear if the California Supreme Court would add to its insistence on the right to interpret the state constitution independently by a systematic body of constitutional law that is truly its own. The court has demonstrated its ability to do so in Anderson, and subsequent cases like Brinsendine and Disbrow offer ample policy reasoning for disagreement with the Supreme Court. However, the failure to link that reasoning to the language of the state constitutional provisions has made generalizable standards difficult to discern. Independent interpretation, therefore, has tended to be case-specific in California. While the narrow holdings of these cases are clear and well-defined, they do not permit inferences based on the constitutional language or history to related fact situations. In addition, they further the impression that the California court has taken a result-oriented approach to the state constitution. More consistent attention to the state constitution could help solve both problems. Thus, if the California Supreme Court routinely were to examine the state constitution in conjunction with the federal and make clear which cases diverge from United States Supreme Court doctrine and which do not, the problems of uncertainty, as well as the appearance of a result-oriented approach, would begin to disappear.

III. A Principled Interpretation of the State Constitution

A. The Suggested Analysis

The cases from Brisendine to Disbrow reveal that the initial decision to utilize independent interpretation is far less important than how it is done. One commentator has insisted that in making the latter, more difficult, decision the state courts always should turn first to their own constitutions. Professor Hans Linde argues that when the constitutionality of a state action or statute is challenged under both state and federal constitutions, the state court can nullify the action on the basis of the state constitution and avoid the federal question, since invalidation under the state constitution protects the federal rights asserted as well.

Beyond the neatness of its logic, Linde’s argument has much to recommend it. It not only insures that the basis of decision is clear, but discourages futile appeals to the Supreme Court. An important commitment of the Linde approach is that it obliges all parties involved to give independent attention to the state constitutional provision

Having decided to employ independent interpretation, a state court should consider four major factors in formulating an opinion.

1.The similarity of the state and federal provisions.

The state court should compare the wording of the state and federal provisions. If the wording differs, the inquiry should turn to legislative history and early case law interpreting the state provision before its federal counterpart became binding on the states through incorporation into the 14th amendment.

2.Existence of state precedents.

Even if the state court finds identically worded provisions and no legislative history in conflict with Supreme Court decisions, it is by no means finished with the state constitution. The state court should ask whether it has precedents of its own that would support a decision at odds with current federal doctrine, and, if so, how strong the commitment is to those decisions.

3.Unique local conditions.

The state court should ask whether some situation peculiar to the state exists that requires a result different from prevailing federal doctrine. This factor will be relatively rare in state constitutional adjudication.

4.The position taken by the United States Supreme Court.

A final consideration is whether the Supreme Court has spoken recently and definitively on the issue before the state court. Whatever the Supreme Court says will influence the legal community and the general populace; the court that disagrees must recognize that fact if it is at all concerned about the way in which its decision will be received. Certainly the age of the ruling, as well as the breadth of its holding, may make a difference, but no state court can ignore the persuasive influence of a Supreme Court opinion.

B.A Possible Application

Recently, the California Supreme Court decided a case that offered an excellent opportunity for close analysis of the state constitution. Once again, the court virtually ignored the constitutional provision, although it provided the clear basis for decision.

Crawford v. Board of Education involved the distinction between de jure and de facto racial segregation in public schools, a question that has not yet been addressed by a majority of the United States Supreme Court. The California court held that the California Constitution requires school boards to take “reasonably feasible steps to alleviate school segregation ‘regardless of its cause.’” The crucial phrase, “regardless of its cause,” stems from a 1963case, Jackson v. Pasadena City School District, [59 Cal.2d 876 (1963)] which made no mention of the state constitution. To all appearances, the Jackson decision was grounded solely in the Federal Constitution: The 14th amendment was the only constitutional provision specifically identified, and the only equal protection cases cited were from the federal courts. Not a shred of evidence indicates that the California Supreme Court meant for that case to rely on an independent state ground, much less to serve as an explication of the California equal protection provision. Yet, the Crawford opinion relied primarily on Jackson and on the cases that followed as the link to the California Constitution without ever examining the California equal protection provision itself.

Crawford was an ideal vehicle for application of the four part analysis described above. First, the wording of the California equal protection provision differs significantly from that of its federal counterpart, inviting comparison similar to that in Anderson. Second, the court had ample precedent of its own on which to base the decision, just as in Brisendine. Third, the de jure/de facto distinction originated in cases dealing with discrimination in the South and may be less applicable to states where racial discrimination primarily had been de facto rather than de jure. Finally, strong arguments against using the distinction as the basis for decision had been made by a highly respected member of the Supreme Court without winning acceptance by a majority on the Court.

The Crawford decision presents a disappointing example of superficial constitutional interpretation. Like Brisendine and Disbrow, it is tightly reasoned, but it relies on precedent and policy rather than the state constitution for its persuasive effect. Further, the opinion utilizes the Kirchner and Rios technique of manufacturing state constitutional doctrine from opinions that fail to mention the state provision. It is a strange result from a court aware of its obligation “to give independent meaning to our constitutionally guaranteed rights.” The Crawford opinion, like so many others produced by the California Supreme Court, will no doubt be a landmark; it deserves more than bootstrap application of the state constitution.

IV. Conclusion

The state court that routinely approaches cases involving parallel state and federal constitutional provisions according to the analysis suggested above will not only avoid charges of “constitution-shopping;” it will begin to develop a body of state constitutional law of its own. In doing so, the courts will afford litigants and lawyers some measure of predictability in asserting constitutional claims, while at the same time serving as an alternative forum for the development of constitutional doctrine.

The California Supreme Court has taken the first steps toward meeting these goals. Other state courts have begun to follow, but few have been as bold, and none have produced an opinion that equals Anderson’s careful constitutional analysis. Whether the recent interest in independent interpretation is simply a reaction to the conservatism of the Burger Court or a permanent revival of the state constitution is difficult to say. Regardless of its origins, independent interpretation should be applauded as a useful source of constitutional interpretation. That there is a value in pluralism and experimentation is clear, provided that it is done in a careful and principled way.

 

G. Alan Tarr, “The New Judicial Federalism in Perspective”

G. Alan Tarr, “The New Judicial Federalism In Perspective,”

72 Notre Dame L. Rev. 1097 (1997)

I. Introduction

According to a nineteenth century journalist, things were so quiet on the Wisconsin Supreme Court that you could hear the justices’ arteries clog. [FN1] Whether or not this depiction of the Wisconsin court (which I owe to a current member of the court, Chief Justice Shirley Abrahamson) was accurate then, it certainly does not describe the contemporary Wisconsin Supreme Court–or any other present-day state supreme court. [FN2] Things are not as they were, and the new judicial federalism–the increased reliance by state judges on state declarations of rights to secure rights unavailable under the United States Constitution–is one of the main reasons for the change. [FN3]

The new judicial federalism emerged during the early 1970s, following the appointment of Chief Justice Warren Burger to succeed Earl Warren on the U.S. Supreme Court, and was encouraged by Justice William Brennan, a stalwart of the Warren Court. [FN4] Thus, when state supreme courts began to rely on their state constitutions, critics charged that they were merely attempting to evade Burger Court rulings and safeguard the civil libertarian gains of the Warren Court. [FN5] This criticism lost force, however, as the new judicial federalism spread, and the supreme courts of almost every state announced rulings based on the rights guarantees of their state constitutions. [FN6] Now, when a state supreme court invokes the rights guarantees of its state constitution, it is hardly newsworthy. In fact, some state supreme courts have even indicated that they would address state constitutional claims first and consider federal constitutional claims only when cases could not be resolved on state grounds. [FN7] By the late 1990s, then, the new judicial federalism has become an established feature of American federalism.

The development of the new judicial federalism raises intriguing questions about the role played by state supreme courts and state constitutions in safeguarding rights and–more generally–about the character of contemporary American federalism. Does the new judicial federalism represent a return to an earlier federalism, or is it something new? Insofar as the new judicial federalism represents an innovation in constitutional law, why did state courts “discover” state constitutional guarantees only recently? How great a shift in responsibility for protecting rights has the new judicial federalism produced? Is it merely a response to a particular set of circumstances, or does it signify a fundamental shift in responsibility for protecting rights? Now that the new judicial federalism is no longer new, we are in a better position to answer these questions, and they provide the focus for this Article.

II. The Not-So-New Judicial Federalism?

A. The Standard Account: Three Eras of Rights Protection

The standard account of the new judicial federalism suggests that it is not really novel but rather involves a “rediscovery” of state constitutions and state declarations of rights. According to this account, the history of rights protection in United States falls into three distinct eras. [FN8] During the first era, which lasted roughly 140 years, state constitutions were necessarily the primary vehicle for protecting individual rights. Until the 1930s state governments were far more involved than the federal government in domestic policy; as a result, civil liberties litigation usually involved challenges to the actions of state governments. The federal Constitution offered few protections against state violations of rights because prior to incorporation, the U.S. Bill of Rights only restricted the federal government. [FN9] For protection against most state infringements on rights, therefore, claimants had to turn to state declarations of rights. This conjunction of more frequent state opportunities to invade rights and the absence of federal remedies for such invasions ensured (according to the standard account) that state courts and state law dominated the protection of rights during the first era.

During the second era, beginning in the 1930s and continuing into the 1970s, the federal government (and particularly the federal courts) assumed primary– indeed, almost exclusive–responsibility for protecting rights. This shift coincided with the expansion of the federal government’s involvement in domestic policy, which increased the potential for federal violations of constitutional rights and for litigation in federal courts to vindicate those rights. Even more important were the gradual incorporation of the federal Bill of Rights and the increased activism of federal courts in civil liberties cases. Once the U.S. Supreme Court pioneered in developing a civil liberties jurisprudence during the 1920s and 1930s, the Court’s activism attracted litigants who either brought their claims in federal court or, if that was impossible, based their claims in state court on federal constitutional law. Likewise important to civil liberties litigants were various procedural advantages, such as the familiarity of the Federal Rules of Civil Procedure, which encouraged them to file their claims in federal court. The arguments of litigants, together with the ease of relying on readily available federal precedent, encouraged state judges to ignore their declarations of rights and base their civil liberties rulings on federal guarantees. As a result, according to the standard account, civil liberties law during the second era became almost exclusively federal law.

According to the standard account, the third era, the era of the new judicial federalism, blends elements of the first and second eras. It resembles its immediate predecessor in that federal civil liberties law continues to predominate. However, it also harkens back to the first era, in that state supreme courts are interpreting state declarations of rights as independent sources of rights. Given this asserted continuity with the first era, state judges who base their rulings on state guarantees are not inaugurating a jurisprudential revolution; they are merely recovering a neglected tradition in state constitutional law.

But unfortunately for proponents of the new judicial federalism, the standard account of the first era is more edifying than accurate: the new judicial federalism is indeed new. Although the conditions may have seemed ripe for the development of state civil liberties law in the nineteenth and early twentieth centuries, no such development occurred. In fact, until the advent of the new judicial federalism, state courts’ contributions to developing constitutional protections for civil liberties were minimal.

C. The American Judicial Tradition and American Federalism

A more fruitful approach to understanding why the new judicial federalism emerged when it did is to view state constitutional interpretation as occurring in the context of–and being influenced by –a broader American judicial tradition. [FN52] In making this claim, we are not denying differences among states or among historical eras. Rather, we are suggesting that the standards of appropriate judicial practice–best understood as prescribing a range of legitimate behavior rather than rigid rules governing judicial practice–change over time. State judges, like their federal counterparts, participate in creating those standards and respond to them. Gradually, judges become educated as to the prevailing standards; that is, they learn how to approach and interpret their state constitutions by watching how other courts (both federal and state) interpret their own charters. [FN53] Litigants also ensure that appropriate claims and arguments, pioneered in other judicial arenas, are brought before them. Thus, it was not surprising that in the late eighteenth and early nineteenth centuries, state courts looked to extratextual sources in interpreting their state constitutions; other courts were doing likewise. [FN54] Nor was it surprising that in the late nineteenth century, state courts began to invalidate legislation that trespassed on economic liberty; they had such a course urged on them by influential legal treatises and authorized by the example of sister courts. [FN55] Similarly, it was not surprising that, in the 1970s, state courts began to emulate the Warren Court in giving broad reading to their states’ rights guarantees.

This, in turn, helps explain why the new judicial federalism did not develop until the 1970s. The existence of state constitutional guarantees and the absence of federal involvement appeared to afford an opportunity for judicial initiatives during the first era, but that was not enough. What was missing was a model of how state judges could develop a civil liberties jurisprudence. Because Americans had not yet come to rely on courts to vindicate civil liberties, state courts throughout the nineteenth and early twentieth centuries gained little experience in interpreting civil liberties guarantees. Nor could they look to federal courts for guidance in interpreting their constitutional protections. The federal courts also decided few civil liberties cases, and their rulings typically revealed little sympathy for rights claimants. [FN56] Only when circumstances brought a combination of state constitutional arguments, plus an example of how a court might develop constitutional guarantees, could a state civil liberties jurisprudence emerge. Put differently, when the Burger Court’s anticipated–and to some extent actual– retreat from Warren Court activism encouraged civil liberties litigants to look elsewhere for redress, the experience of the preceding decades had laid the foundation for the development of state civil liberties law.

Paradoxically, then, the activism of the Warren Court, which has often been portrayed as detrimental to federalism, was a necessary condition for the emergence of vigorous state involvement in protecting civil liberties. From a somewhat different perspective, the protection of civil liberties in the United States should not be viewed as a zero-sum game, in which increased activity by one judiciary necessitates decreased activity by the other. Rather, the relationship between federal and state judiciaries involves a sharing of responsibility and a process of mutual learning, such that a change in orientation by one set of courts is likely, over time, to be reflected in other courts.

IV. The Scope and Impact of the New Judicial Federalism

Writing in 1986, Justice William J. Brennan suggested that the “rediscovery by state supreme courts of the broader protections afforded their own citizens by their state constitutions . . . is probably the most important development in constitutional jurisprudence in our time.” [FN57] Although many legal scholars have echoed Brennan’s sentiments, his assessment should probably not be taken as conclusive. After all, Brennan was the intellectual godfather of the new judicial federalism, and his disagreement with the conservative majority on the U.S. Supreme Court gave him reason to encourage the development of state constitutional law. [FN58] We therefore must consider the actual impact of the new judicial federalism: how often litigants bring state constitutional claims before state courts, how often those courts base their rulings on state versus federal law, and to what extent their reliance on state constitutions results in broader protections for rights than are available under the federal Constitution.

A. The Scope of the New Judicial Federalism

During the past twenty-five years, there has clearly been an upsurge in state courts’ reliance on state declarations of rights in civil liberties cases. Legal scholars have identified major initiatives by state courts involving school finance, the rights of defendants, and the right to privacy, among other matters. [FN59] Quantitative analyses likewise confirm the greater attention to state guarantees. For example, Ronald Collins and Peter Galie found over three hundred cases from 1970 to 1986 in which state judges relied on their state guarantees to afford greater protection than was available under the federal Bill of Rights or the Fourteenth Amendment. [FN60] This contrasts with only ten such cases from 1950 to 1969. [FN61] Moreover, most of the rulings dated from 1977 onward, indicating an increasing propensity to rely on state guarantees. This coincides with the perception of state judges. A 1985 survey of state high court judges found that over seventy-five percent believed that litigants were raising state constitutional arguments more frequently than they had in the past, and twenty-five percent of the surveyed judges believed that the change was substantial. [FN62] The annual surveys of state constitutional cases in Rutgers Law Journal furnish more evidence of reliance on state guarantees. During 1990, for example, state supreme courts decided over 140 civil liberties cases based either exclusively on state protections of rights or on a combination of federal and state protections. [FN63] Yet despite these data, some recent studies have concluded that the new judicial federalism has had a rather limited impact on civil liberties litigation in state courts and on the development of constitutional law.

D. Greater Protection for Rights?

Justice Brennan assumed that reliance on state declarations of rights would result in greater protection for rights than is available under the federal Constitution. However, reliance on state grounds to decide cases does not necessarily translate into more rights-affirming decisions. Some state guarantees may afford less protection than the federal Constitution (although litigants would, in such circumstances, still enjoy the rights guaranteed by the federal provision). [FN74] More important, state judges may base their rulings on state constitutional provisions but interpret them as affording no greater protection than do the analogous federal guarantees. Although proponents of the new judicial federalism have decried the tendency toward “lockstep analysis,” it is hardly surprising that state judges take account of pertinent federal precedents in interpreting analogous state provisions and at times conform their interpretations to federal precedent.

V. Conclusion

When state judges turned to their state declarations of rights in the early 1970s, they were not recovering a tradition but creating one. Their unfamiliarity with state guarantees, the absence of a state constitutional jurisprudence, the easy availability of federal doctrine and precedent, and qualms about the legitimacy of judicial activism all worked against the development of state civil liberties law. Yet, with the intermittent encouragement of the U.S. Supreme Court and the example of a few pioneering state courts, state judges began to rely more frequently on state declarations of rights in deciding cases. [FN81]

In most states, however, this recurrence to state guarantees has remained intermittent. Most judges have not adopted the state-law-first approach championed by Hans Linde nor, typically, any principled basis for deciding when or whether to address state constitutional claims. [FN82] There is no indication that this will change soon. For most state supreme courts, federal constitutional law will remain the primary protection for rights and the primary source of constitutional doctrine. Occasional recurrence to state provisions, in turn, will make it difficult for these courts to develop a coherent body of state civil liberties law.

This is not to deny the importance of the new judicial federalism. Quantitative analyses may indicate that state judges often do not rely on state guarantees in civil liberties cases. However, while counting all cases equally may be necessary for quantitative analyses, it obscures the major impact of some state judicial initiatives. Among these are state constitutional rulings involving education and exclusionary zoning, rulings which occurred in part because of the U.S. Supreme Court’s refusal to grant relief and which would have been impossible without the new judicial federalism. [FN83] Moreover, even intermittent reliance on state guarantees represents a major shift in state judicial practice, and the reinvigoration of apparently obsolescent state constitutional provisions is itself a noteworthy development. Finally, the new judicial federalism has helped to spark a renewed interest in state constitutions, indicated most strikingly by campaigns to amend the constitutions either to extend or to curtail rights.

Ultimately, the new judicial federalism will most likely disappoint both its proponents and detractors. Most state judges will not embrace the state-law-first approach, thereby foregoing the discretion to choose between constitutional guarantees. Nor will state declarations of rights replace the federal Bill of Rights as the primary protection for individual rights. Nevertheless, having had the experience of interpreting state guarantees and having seen the creation of a body of precedent on which they can draw, neither are state judges likely to return to the second era’s neglect of state protections or thoughtlessly assume that federal and state guarantees offer equivalent protection. Although they may learn from the rulings of the U.S. Supreme Court, they will not slavishly imitate them. Moreover, at times the justices of the U.S. Supreme Court may learn from the initiatives of their sister courts in the “laboratories” of the states. The new judicial federalism may be new no longer, but there is reason to believe that it will not soon disappear.

 

Stanley Mosk, “State Constitutionalism: Both Liberal and Conservative”

Stanley Mosk, “State Constitutionalism: Both Liberal and Conservative,” 63 Tex. L. Rev. 1081 (1985)

[Justice Mosk put the Pruneyard sequence of cases in perspective.  For the Pruneyard cases, see below VIII.D.]

In this essay, I shall examine the recent re-emergence of state constitutional law in light of the tumultuous history of states’ rights. I intend to show that state constitutionalism has something to offer both liberals and conservatives. For the liberal, there is the prospect of continued expansion of individual rights and liberties; the work of the Warren Court can be carried on at the state level. For the conservative, state constitutionalism represents the triumph of federalism; crucial decisions about the apportionment of rights and benefits are decided by state courts responsive to local needs, rather than by a distant United States Supreme Court, perceived as insensitive. The future of state constitutionalism depends on whether liberals and conservatives can put aside their traditional differences and join in supporting a concept that provides mutual benefits.

Justice Brennan’s dissenting opinion in Michigan v. Mosley42 reminded the states that they could properly bestow on their citizens more individual rights that the federal charter requires.43 Justice Stevens has added his voice to Justice Brennan’s in calling on the state courts to develop their constitutions independent of the federal constitution.44 An increasing number of states have accepted this cordial invitation.45

At times it has appeared not only that Justices Brennan and Stevens accepted state supremacy in interpretation of state constitutions, but also that a clear majority of the Supreme Court agreed. The best example is a series of cases involving shopping centers.

Consider the situation in which a small, orderly group of citizens undertakes to pass out leaflets, or to solicit signature on petitions, in a privately owned shopping center. The shopping center owners, who may have different views on the issue involved, seek to prohibit that activity. Obviously there is a tension between two constitutional guarantees. On the one hand, the citizens assert their rights to speak freely and to petition their government for a redress of grievances. On the other hand, the shopping center owner asserts his right to possess and control his private property and to exclude all non-business related activity. Which right is to prevail? Several states and the United States Supreme Court have faced that dilemma.46

The Supreme Court of California held in 1970 in Diamond v. Bland47 that unless there is obstruction or undue interference with normal business operations, the bare title of the property owner does not outweigh the substantial interest of individuals and groups to engage in peaceful and orderly free speech activities on the premises of shopping centers open to the public.48 The shopping center owner sought certiorari and petitioned three times for rehearing from denial of cert; in each instance he was rebuffed by the Supreme Court.49 It appeared that Diamond was the law.

Two years later, however, the Supreme Court examined an identical case from Oregon—Lloyd Corp. v. Tanner50—and held that the owners had the rights to prohibit distribution of political handbills unrelated to the operation of the shopping center. Back to the California Supreme Court came the defendants in Diamond, asking to be relieved from the previous orders. A four-to-three majority of the court agreed it was bound by Lloyd.51

At this point a minority of the state court shifted gears. In the original opinion, the California court had relied on the first amendment to the United States Constitution and on such cases as Marsh v. Alabama52 and Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc.53 The second time around the three-judge minority urged the same result under ‘unmistakable independent non-federal grounds upon which our earlier opinion could have been based.’54 But for the moment, a majority of the California court retained consistency with federal law.

In 1979, the California court confronted another shopping center case. This time it adopted the view of the Diamond dissent. A new majority decided in Robins v. Pruneyard Shopping Center55 that the free speech provisions of the state constitution offer ‘greater protection than the First Amendment now seems to provide.’56 When the United States Supreme Court granted certiorari, one could sense doom to the theory of state constitutionalism. But to the considerable relief and pleasant surprise of those urging an expanded role for state constitutions, the Supreme Court unanimously upheld the California decision.57 Justice Rehnquist wrote the opinion that declared the reasoning in Lloyd ‘does not ex proprio vigore limit the authority of the State to exercise its police power or its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution.’58

In the wake of Robins, state courts turned more frequently than ever to their state constitutions. But if these courts believed that the Supreme Court would relax the ‘adequate and independent state ground’ doctrine60 to encourage development of state constitutional law, they were mistaken. In Michigan v. Long,61 Justice O’Connor made it clear that if a state decision is bottomed on both federal and state authority, the Court will not deem that a bar to a grant of certiorari. Indeed, the Court will consider that the state court meant to employ federal authority unless it declares ‘by a plain statement’ that the federal precedents were merely illustrative and did not compel the result reached.62

The Supreme Court is not alone in its distrust of state courts’ use of their constitutions as adequate and independent state grounds. Some commentators have described the increased use of state constitutions as a ploy by liberal justices and courts to evade the more conservative approach of the Supreme Court. In a number of states, initiative measures have been aimed at curbing the use of independent state grounds.65 The voters of California, for example, have adopted a measure entitled by its promoters the ‘victims’ bill of rights.’ It provides in effect that state courts shall strictly abide by Supreme Court decisions on constitutional issues.66 Thus, even as state constitutionalism enjoys a vitality it has not experienced since the early years of this nation, it faces threats from several quarters. Whether this body of law will survive depends upon the extent to which liberals and conservatives can unite to support it.

 

Robert F. Williams, “Introduction: The Third Stage of the New Judicial Federalism”

Robert F. Williams, “Introduction: The Third Stage of the New Judicial Federalism,” 59 New York University Annual Survey of American Law 211 (2003)

The New Judicial Federalism [FN2] dates from the early 1970s and, of course, cannot be described as “new” anymore. [FN3] Over the years, state judges in numerous cases have interpreted their state constitutional rights provisions to provide more protection than the national minimum standard guaranteed by the Federal Constitution. In addition, scholarly publications by state judges have helped develop the doctrines included within the New Judicial Federalism. [FN4]

These developments have made it very clear that, with respect to federal constitutional rights, decisions of the United States Supreme Court may be divided into two categories: (1) those that find in favor of rights claimants and therefore must be enforced throughout the country under the Supremacy Clause, and (2) those that find against rights claimants, determining that there are no enforceable federal constitutional rights, and effectively leaving the matter to the states. [FN5]

Next, we have come to recognize that state constitutional rights claims may be made either under provisions that are the same as, or similar to, federal constitutional rights guarantees or, rather, under state constitutional rights provisions that are quite different from federal constitutional rights guarantees (i.e., there is no “cognate” federal provision or federal “analog”). Often, in this latter situation, claims that may have been asserted under more familiar federal provisions may be repackaged under the less familiar state constitutional provisions. [FN6] Particularly under the first circumstance, where the state right is the same as, or similar to, the federal guarantee, legitimacy questions have been raised about state courts reaching results that are more liberal or protective of rights than those rendered under the Federal Constitution.

The First Two Stages of the New Judicial Federalism

A. The First Stage: The Thrill of Discovery

There were a number of factors contributing to the rise of the New Judicial Federalism. Probably the most important early case was People v. Anderson [FN8] in 1972, where the California Supreme Court declared the death penalty unconstitutional under its state constitutional prohibition against cruel or unusual punishment. [FN9] This decision stimulated a substantial academic response, [FN10] as well as the initial recognition that state courts could evade decisions of the United States Supreme Court by relying on their own state constitutions. [FN11] In 1973 the wave of litigation on equality and adequacy in school finance was launched in New Jersey, [FN12] and it is still going on today. [FN13] In 1980 the United States Supreme Court decided PruneYard Shopping Ctr. v. Robins upholding, against federal constitutional challenge, the California Supreme Court’s recognition of free speech rights under the California Constitution in privately owned shopping malls. [FN14] In this way the United States Supreme Court placed its “seal of approval” on the New Judicial Federalism. Justice William J. Brennan, Jr., is also credited with stimulating the reemergence of state constitutional law. [FN16] His 1977 Harvard Law Review article, State Constitutions and the Protection of Individual Rights, [FN17] has already taken its place among “the most frequently cited law review articles of modern times.”

Finally, during this first stage in 1983, questions of United States Supreme Court jurisdiction in mixed federal and state constitutional cases were ironed out with the Court’s adoption of the “plain statement” requirement for invoking the adequate and independent state ground doctrine in Michigan v. Long.

B. The Second Stage: Backlash

Beginning in the 1980s, but finding its roots in the reaction to the 1972 California decision in People v. Anderson, [FN24] a backlash against the New Judicial Federalism arose. Academics, government officials, and judges spoke out in various forums opposing state decisions “going beyond” the national minimum standards. Prosecutors were particularly critical of state constitutional criminal procedure decisions providing more protections than those required by the United States Supreme Court. [FN25] They argued that state court judges’ disagreement with the outcome of similar rights claims in the United States Supreme Court did not justify such judges’ substitution of their judgment for those federal outcomes at the state level.

Illustrating a different approach, after some expansive state judicial interpretations, Florida’s search and seizure clause was amended in 1982 to require the state courts to interpret the provision the same way as the United States Supreme Court interprets the federal clause. [FN28] This also happened in California to eliminate a line of state constitutional interpretations that went beyond the federal requirements in the area of school busing. [FN29] This Florida and California “lockstep” or “forced linkage” amendment approach can be seen as undesirable because it constitutes a blanket adoption, in futuro, of all interpretations of the United States Supreme Court, thereby abdicating a part of a state’s sovereignty and judicial autonomy. In a few states, notably California [FN30] and Oregon, [FN31] campaigns were mounted against judges associated with independent interpretation of the state constitution.

Another feature of this middle stage of the New Judicial Federalism was the attempt, in a number of states, to develop criteria to guide and limit state courts in their decision about whether to interpret their state constitutions to provide more rights than were guaranteed at the federal level.The California Supreme Court continues to assert the requirement that “there must be cogent reasons for a departure from a construction placed on a similar constitutional provision by the United States Supreme Court” [citing East Bay Asian Local Devt. Corp. v. State (2000).]

The Third Stage: The Long Hard Task

The most vitriolic reactions to the New Judicial Federalism now seem to have died down. More and more members of the public, lawyers, judges, academics and members of the media have learned that state constitutions may, in fact, be interpreted to provide more rights than the national minimum. This fact is no longer such a surprise to people as the maturation process of the New Judicial Federalism has continued. [FN46] Still, independent state constitutional interpretation can, as Justice Linde noted, be difficult work.

The move to overrule state constitutional rights decisions seems to have slowed down. This is a positive development. A constitutional ruling about people’s rights is really something quite special. We invented it here in the United States and it is now the envy of the world. Rights decisions should be seen as different from constitutional rulings about separation of powers, state-local relations or other matters of state constitutional interpretation. Such matters are extremely important but are qualitatively different from rights rulings.

Rulings about rights often protect unpopular people or groups who cannot gain a legislative or electoral majority. If a decision about constitutional rights becomes nothing more than the springboard for a proposed constitutional amendment to overrule it, we can damage our fundamental system of state constitutional rights. That system depends on independent courts for its operation.

Constitutional interpretation, especially in controversial rights cases based on older, generally worded clauses, is not an exact science. This is true despite the assertions of strict constructionists or originalists. Decisions based on similar clauses, which rule against the asserted rights, are not necessarily correct either. Either way, we should leave those decisions in the hands of independent judges.

Those who disagree with a controversial rights decision often argue that there is no constitutional underpinning for the decision and that the court was just implementing its policy preferences. These people often feel a particular decision cries out for a constitutional amendment to overrule it even though they may not feel that way about other controversial rights decisions in such areas as free speech, criminal procedure rights, and religious freedom. Those who feel strongly about the other decisions, however, may propose amendments to overrule them.

Conclusion

The New Judicial Federalism has been, and continues to be, an evolving phenomenon. It is here to stay, as a central feature of American federalism and promises to continue, with our help, through a number of additional stages in the future. Scholars of law, political science and history, as well as judges and lawyers, will define those stages.

 

a view from elsewhere

State v. Hunt, 91 N.J. 338 (1982)

SCHREIBER, J.

Merrell Hunt and Ralph Pirillo, Sr. were indicted for bookmaking, maintaining a place for gambling, conspiracy to commit bookmaking, and aiding and abetting bookmaking. After the defendants’ motions to suppress evidence because of allegedly unlawful searches and seizures by the police were denied, the defendants pursuant to a plea bargain pled guilty to conspiracy and bookmaking. We granted defendants’ joint petition for certification, primarily to consider the constitutionality of the warrantless search and seizure of defendants’ telephone toll billing records.

We must consider the application of the search and seizure safeguard in the New Jersey Constitution. This Court has seen fit to hold that the search and seizure provisions in the federal and New Jersey Constitutions are not always coterminous, despite the congruity of the language. Though notions of federalism may seem to justify this difference, enforcement of criminal laws in federal and state courts, sometimes involving the identical episodes, encourages application of uniform rules governing search and seizure. Divergent interpretations are unsatisfactory from the public perspective, particularly where the historical roots and purposes of the federal and state provisions are the same.

Sound policy reasons, however, may justify a departure. New Jersey has had an established policy of providing the utmost protection for telephonic communications.

The wrongfully acquired records do not justify suppression of the evidence procured pursuant to the search warrant. Defendants contend that all the evidence obtained after the police examined Hunt’s toll billing records must be suppressed under the familiar doctrine that all the fruit of the poisonous tree must fall. All evidence subsequently obtained, however, is not automatically inadmissible. If the subsequently obtained evidence was acquired from an independent source unrelated to the illegal search, or the causal connection between the illegal conduct and the discovery of the challenged evidence was “so attenuated” that the taint was dissipated, then such evidence is admissible.

The lawfully obtained information in the affidavits upon which the court orders and warrants were based justified their issuance. Thus the evidence taken was properly seized and is not subject to suppression.The judgments are affirmed.

HANDLER, J., concurring.

I agree with the result reached by the majority in this case and its decision to utilize the State Constitution to vindicate a right seemingly neglected by the federal Constitution. I write separately to expose the reasoning that I find implicit in our decision and to explain more fully the judicial principles which I believe underlie the salutary resort to state constitutions as a fountainhead of individual rights.

The United States Supreme Court has clearly recognized that each state has the “sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution.” With growing frequency, states are now availing themselves of this resource, finding in their own constitutions greater protections for citizens’ rights than those found to exist under parallel provisions in the federal Constitution. Our own courts have followed this same course, recognizing the New Jersey Constitution as an alternative and independent source of individual rights. We have expressed the firm belief that “state constitutions exist as a cognate source of individual freedoms and that state constitutional guarantees of these rights may indeed surpass the guarantees of the federal constitution.” State v. Schmid (1980). We have, therefore, felt free to extend the guarantees of our State Constitution to a panoply of rights deemed essential to both the quality of individual life and the preservation of personal liberty.

There is a danger, however, in state courts turning uncritically to their state constitutions for convenient solutions to problems not readily or obviously found elsewhere. The erosion or dilution of constitutional doctrine may be the eventual result of such an expedient approach. It would be unfortunate if our decision today were cast in that light. The majority recognizes that, as a matter of federal constitutional law, personal telephone records are not constitutionally protected. It then invokes the State charter to achieve a result unattainable under federal law.

There is surely no impropriety in state courts building an independent body of state constitutional law. Moreover, there is no mandate that a state court explain itself when it invokes the state charter to achieve a result unavailable under federal law. Indeed, the trend of state courts using their own constitutions to avoid restrictive federal rules on individual rights can be regarded as a sign of healthy federalism for which no justification is required, since federal and state systems are in many respects separate sovereigns, each free to act without regard to the wishes of the other.

Nevertheless, our national judicial history and traditions closely wed federal and state constitutional doctrine. It is not entirely realistic, sound or historically accurate to regard the separation between the federal and state systems as a schism. The states are not always free to act independently under their own constitutions. State constitutions may be used to supplement or expand federally guaranteed constitutional rights. However, they may never be used to undermine or circumscribe them. It is therefore appropriate, in my estimation, to identify and explain standards or criteria for determining when to invoke our State Constitution as an independent source for protecting individual rights. There are several considerations that are relevant and important in making that determination.

• Textual Language—A state constitution’s language may itself provide a basis for reaching a result different from that which could be obtained under federal law. Textual language can be relevant in either of two contexts. First, distinctive provisions of our State charter may recognize rights not identified in the federal Constitution. Second, the phrasing of a particular provision in our charter may be so significantly different from the language used to address the same subject in the federal Constitution that we can feel free to interpret our provision on an independent basis.
• Legislative History—Whether or not the textual language of a given provision is different from that found in the federal Constitution, legislative history may reveal an intention that will support reading the provision independently of federal law.
• Preexisting State Law—Previously established bodies of state law may also suggest distinctive state constitutional rights.

(4) Structural Differences—Differences in structure between the federal and state constitutions might also provide a basis for rejecting the constraints of federal doctrine at the state level. The United States Constitution is a grant of enumerated powers to the federal government. Our State Constitution, on the other hand, serves only to limit the sovereign power which inheres directly in the people and indirectly in their elected representatives. Hence, the explicit affirmation of fundamental rights in our Constitution can be seen as a guarantee of those rights and not as a restriction upon them.

(5) Matters of Particular State Interest or Local Concern—A state constitution may also be employed to address matters of peculiar state interest or local concern. When particular questions are local in character and do not appear to require a uniform national policy, they are ripe for decision under state law.

(6) State Traditions—A state’s history and traditions may also provide a basis for the independent application of its constitution.

(7) Public Attitudes—Distinctive attitudes of a state’s citizenry may also furnish grounds to expand constitutional rights under state charters. While we have never cited this criterion in our decisions, courts in other jurisdictions have pointed to public attitudes as a relevant factor in their deliberations.

The explication of standards such as these demonstrates that the discovery of unique individual rights in a state constitution does not spring from pure intuition but, rather, from a process that is reasonable and reasoned. This process does not require presumptive weight to be accorded the federal experience, just an intelligent awareness and assessment of that experience. The enumerated criteria, which are synthesized from a burgeoning body of authority, are essentially illustrative, rather than exhaustive. They share a common thread—that distinctive and identifiable attributes of a state government, its laws and its people justify recourse to the state constitution as an independent source for recognizing and protecting individual rights.

Applying these principles to this case, I am satisfied that adequate grounds exist for invoking the State Constitution. New Jersey’s long history of statutory and legal protection for telephonic communications makes independent resort to the State charter appropriate in the face of conflicting federal law.

PASHMAN, J., concurring.

I concur in all respects with the result reached by the Court in this case. I write for two specific reasons. First, I wish to underscore the importance of the privacy interests implicated here by pointing out the significant dangers to civil liberties that would be posed by unrestrained police access to personal telephone billing records. Second, and at least as important, I feel impelled to address the discussion in both the majority opinion and Justice Handler’s concurrence concerning the extent to which this Court should construe the New Jersey Constitution to offer greater protection of the fundamental rights and liberties of New Jersey citizens than that offered under the federal constitution as interpreted by United States Supreme Court. Because I believe that both opinions define too narrowly the circumstances under which New Jersey courts should independently construe the New Jersey Constitution, I offer my own analysis of the theoretical bases of state constitutional interpretation and its limitations.

For quite a few years, this Court, and other state courts across the country, have been construing state constitutions to extend a greater measure of protection for fundamental constitutional rights than the United States Constitution has been construed to afford. We have done so on the basis of provisions in our constitution not found in the federal constitution, or on the basis of provisions virtually identical to federal provisions. We have not hesitated to do this in the face of directly contrary United States Supreme Court decisions. In Robinson v. Cahill, we rejected the holding in San Antonio School District v. Rodriguez (1973), and here we essentially reject Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).

That this Court has the power to construe the New Jersey Constitution to reach results contrary to United States Supreme Court decisions construing the federal constitution is not controverted. Each state has the “sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution.” Of course, the State constitution cannot contravene a federally guaranteed constitutional right any more than a state statute can. Thus, the United States Constitution as construed by the United States Supreme Court establishes the minimum degree of protection a state must give to constitutional rights. At the same time, state constitutions may provide further protection for individual liberties by limiting state powers to a greater degree than they are limited by the federal constitution. In deciding the appropriate extent of this protection, this Court is the final arbiter of the meaning of the New Jersey Constitution.

Consequently, I applaud Justice Handler’s thoughtful effort to rationalize our cases in this area and to analyze when divergent state and federal constitutional interpretations are appropriate. However, I disagree with his analysis. In his view, this Court should adhere to the federal constitutional interpretation unless one of several factors is present showing that a different interpretation is of special concern to New Jersey. The factors listed include differences in the texts of the two constitutions, pre-existing state law and distinctive state traditions and public attitudes. Although the factors listed are potentially broad, they impose clear limits. At bottom, Justice Handler’s approach effectively entails a presumption against divergent interpretations of our constitution unless special reasons are shown for New Jersey to take a path different from that chosen at the federal level.

I would reverse the presumption. As a general rule, this Court should construe the New Jersey Constitution as it considers appropriate, taking into account the various factors that constitute sound constitutional analysis. United States Supreme Court opinions, both majority and dissenting opinions, can be valuable sources of wisdom for us. But this Court should not uncritically adopt federal constitutional interpretations for the New Jersey Constitution merely for the sake of consistency. Of course, there are certain situations and contexts that, for policy reasons, call for uniform national rules. In those circumstances, the need for uniformity should be weighed into the balance, with the possible result that we will conform to the federal rule when we would not otherwise have done so.

Stated succinctly, Justice Handler urges that we follow federal constitutional interpretation unless there are particular reasons to diverge from it. I believe there are several strong reasons why this Court should perform an independent constitutional analysis unless there are particular reasons to conform.

The simplest but perhaps most compelling reason for extending state constitutional rights beyond their federal counterparts is that it strengthens the constitutional safeguards of fundamental liberties

A second reason for extending state constitutional interpretation beyond the limits imposed at the federal level derives from the resultant diversity of constitutional analysis. The majority and Justice Handler assume without explanation that uniformity in constitutional law is an unqualified advantage. The path chosen by the United States Supreme Court is not necessarily the best, the most protective of our constitutional rights, or the most reflective of the intent of the Framers. State supreme courts, if not discouraged from independent constitutional analysis, can serve, in Justice Brandeis’ words, “as a laboratory” testing competing interpretations of constitutional concepts that may better serve the people of those states.

A third important reason for extending our interpretation of constitutional rights beyond that offered by the United States Supreme Court is that we do not share the strong limitations perceived by that Court in its ability to enforce constitutional protections aggressively. Those limitations arise from the structure of our federal system, the Court’s role as final arbiter of at least the minimum scope of constitutional rights for a vastly diverse nation, and the Court’s lack of familiarity with local conditions. These difficulties do not similarly limit state courts.

In our federal system, many important governmental roles and decisions are reserved for the states. It is believed therefore that unduly “activist” enforcement of constitutional rights by the federal courts impinges on important state prerogatives.

The United States Supreme Court has also been hesitant to impose on a national level far-reaching constitutional rules binding on each and every state. This reluctance derives, first, from the nationwide jurisdiction of the Court. Once it settles a rule, experimentation with different approaches is precluded. Further, the Supreme Court has adverted to its lack of familiarity with local problems and conditions as a reason for hesitance. Again, this applies with far less force at the state level.

For these various reasons, we should not be reluctant to engage in independent state constitutional analysis. None of our prior cases in this area has suggested hesitance, and there is no reason for it. Where this Court perceives that the federal constitution has been construed to protect the fundamental rights and liberties of our citizens inadequately, it cannot shrink from its duty to act. The New Jersey Constitution provides the citizens of this state with a fully independent source of protection of fundamental rights and liberties. It is our role alone to say what those rights are, and it is our solemn obligation to enforce them.

 

critique

George Deukmejian and Clifford K. Thompson, “All Sail and No Anchor”

 

Earl M. Maltz, “The Dark Side of State Court Activism”

Earl M. Maltz, “The Dark Side of State Court Activism,”

63 Texas L. Rev. 995 (1985)

I. Introduction

Discussions of state constitutional law too often focus on the relationship between the United States Supreme Court and its state counterparts. The arguments center on the question of whether the Court’s decisions of federal constitutional questions are in any sense binding on courts deciding analogous state constitutional issues. Proponents of state court activism have argued vigorously that in interpreting their own constitutions, state courts legitimately may diverge from the authoritative interpretations of analogous provisions of the federal constitution. [FN1] On this point activists are on firm ground; generally accepted legal conventions clearly establish the independence of state court judges on issues of state law. [FN2]

This conclusion, however, marks only the beginning of the inquiry. For merely establishing the independence of the state judiciary from the Supreme Court does not demonstrate that state court activism is desirable. To address the latter problem one must confront the basic structural issue that pervades any analysis of judicial review –the question of the proper relationship between state courts and the other branches of state government.

Even in an area governed entirely by statutes, the policy predilections of judges will have a strong influence. Admittedly, the passage of a statute triggers one of the strongest institutional forces in judicial decision-making– the principle that requires judges interpreting statutes to apply a group of interpretational conventions so as to divine what is generally referred to as “the intent of the legislature.” [FN14] Normally, these conventions are the only factors judges cite in statutory interpretation cases. In fact, as commentators have noted, [FN15]noninstitutional considerations of justice and fairness also affect statutory decisions. [FN16] These factors are no less real because they are often disguised by references to seemingly ambiguous legislative text and history.

The California Supreme Court’s treatment of the Unruh Civil Rights Act [FN17] illustrates this point. That statute states:

“All persons within [California] are free and equal, and no matter what their sex, race, color, religion, ancestry, or national origin are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. This section shall not be construed to confer any right or privilege on a person which is conditioned or limited by law or which is applicable alike to persons of every sex, color, race, religion, ancestry, or national origin.”

In re Cox [3 Cal. 3d 205, 474 P.2d 992, 90 Cal. Rptr. 24 (1970)] provided the first expansive judicial interpretation of this language. The defendant in Cox invoked the Unruh Act as a defense to a criminal prosecution for refusal to leave a business premises “after being notified by the person in charge thereof to remove therefrom.” [FN20] The order to leave was not motivated by any of the attributes cited in the Act. [FN21] Nonetheless, the court concluded that the Act was available as a defense, holding that “identification of particular bases of discrimination is illustrative rather than restrictive …. The Legislature intended to prohibit all arbitrary discrimination by business establishments.” [FN22]

The court began by discussing the case law that had developed under a predecessor statute guaranteeing “full and equal access” to certain public facilities. Even though the earlier statute [FN23] had not designated the specific classes to be protected from discrimination, [FN24] the court held that the earlier cases retained vitality under the more precisely worded statute. The court concluded: “We cannot infer from the 1959 amendment [to the Unruh Act] any legislative intent to deprive citizens in general of the rights declared by the [predecessor] statute and stanchioned by public policy. “Without the most cogent and convincing evidence, a court will never attribute to the Legislature the intent to disregard or overturn a sound rule of public policy.” Although we recognize that a Legislature that contemplated civil rights legislation in the late 1950’s or early 1960’s would have been particularly concerned with the plight of racial minorities … the prosecution has not presented one shred of legislative history which would suggest an intent to disregard the sound rule of public policy enunciated by this court in [earlier cases].”

The full implications of Cox became clear in Marina Point, Inc. v. Wolfson.[30 Cal. 3d 721, 640 P.2d 115, 180 Cal. Rptr. 496,cert. denied,459 U.S. 858 (1982)] The Wolfson plaintiff, relying in part on the Unruh Act, challenged an apartment complex’s policy of excluding children from its premises. Relying on Cox, the California Supreme Court held that the Act forbade a business enterprise from excluding an entire class of individuals because of a generalized prediction of misconduct. [FN27] Thus, the court would not permit the blanket exclusion of children, even assuming that children as a class are “noisier, rowdier and more boisterous than adults.” [FN28]

In both Cox and Wolfson, the court purported to be simply effectuating the intent of the state legislature. [FN29] But both cases explicitly rely on the judges’ perceptions of “good” public policy to buttress the court’s interpretation of the statute. The Cox court, for example, relied on the “sound rule of public policy” it had enunciated in earlier cases. [FN30] The impact of the judges’ policy preferences is even more apparent in the Wolfson opinion: “A society that sanctions wholesale discrimination against its children in obtaining housing engages in suspect activity. Even the most primitive society fosters the protection of its young; such a society would hardly discriminate against children in their need for shelter. Yet here the landlord would single out children as a class for exclusion from shelter although such discrimination against racial minorities or religious groups would be unquestionably illegal…. To permit such discrimination is to approve of widespread, and potentially universal, exclusion of children from housing. Neither statute nor interpretation of statute, however, sanctions the sacrifice of the well-being of children on the altar of a landlord’s profit, or possibly some tenants’ convenience.”

Although the results are rarely as obvious or dramatic as those in Cox and Wolfson, judges’ perceptions of justice and fairness do have a widespread effect on cases of statutory interpretation. [FN32] Of course, a sufficiently unambiguous response from the legislature could “correct” any interpretation based on policy perceptions. Indeed, there are clear examples of such corrections. [FN33] But the same factors that contribute to legislative inertia in the face of the common law [FN34] also protect statutory interpretations from legislative change. Thus, many deviations from “true” legislative intent will survive legislative scrutiny.

Legal rules are made through a complex interaction among the policy preferences of judges and legislators with each group constrained by important institutional factors. The introduction of constitution-based judicial review changes the dynamics of this interaction. When a judge finds that a statute is unconstitutional, he is freed from the most powerful constraint on his decision-the possibility that the legislature will overrule his decision. [FN35] Removal of this constraint inevitably increases the influence of courts at the expense of legislatures.

V. Conclusion

It is not surprising that law review articles typically endorse the concept of noninterpretive state court review enthusiastically. Commentators are usually law professors, who are members of a profession committed to the use of legal reasoning to resolve controversial issues, and judges, those to whom society looks when legal reasoning is the appropriate mode of inquiry into a problem. Therefore, commentators are likely to view the expansion of judicial authority sympathetically.

But the addition of another layer of noninterpretive review is of questionable value. For the most part, that layer will merely duplicate already existing federal review, while decreasing the ability of local legislatures to respond to changing conditions and increasing uncertainty about the scope of constitutional rights. Although independent state noninterpretive review could be of value in certain circumstances, such as when local morality differs substantially from the national morality, such cases are likely to be rare. Because the costs are likely to be so much greater than the benefits, the enthusiasm of the commentators seems unjustified; the case for noninterpretive state court review remains unconvincing.

 

State v. Hempele, 576 A.2d 793 (N.J. 1990)

[In Greenwood v. California, 486 U.S. 35 (1988), the United States Supreme Court held that a warrantless search of garbage that had been left at curbside for pickup did not violate the search-and-seizure provision of the Fourth Amendment of the United States Constitution. (The California Court of Appeals had held that it did violate both the federal and state constitutions, under the authority of People v. Krivda, 5 Cal.3d 357 (1971), which had held that warrantless trash searches violate both the Fourth Amendment and the California Constitution. Faced with a similar case in Hempele, the New Jersey Supreme Court declined to follow Greenwood as a guide to interpreting the search-and-seizure provision of the New Jersey Constitution.

Justice Robert Clifford, writing for the majority, wrote that “Our decision today does not follow the course set by the (United States) Supreme Court because we are persuaded that the equities so strongly favor protection of a person’s privacy interest that we should apply our own standard rather than defer to the federal provision.” He concluded that “Article I, paragraph 7(of the New Jersey Constitution) confers “as against the government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized men.” (citing Olmstead v. United States, (1927) (Brandeis, J., dissenting). Permitting the police to pick and poke their way through garbage bags to peruse without cause the vestiges of a person’s most private affairs would be repugnant to that ideal. A free and civilized society should comport itself with more decency.”

Justice Daniel O’Hern concurred in part and dissented in part because he disagreed with the majority’s repudiation of the United States Supreme Court’s values and its substitution of its own. He wrote:]

This case is not about garbage. This case is about the values of federalism. Were I a member of the United States Supreme Court, I might well have voted differently from the majority in California v. Greenwood. Justice Clifford’s painstaking analysis of the issues is quite persuasive and it convincingly demonstrates that the United States Supreme Court may have drawn the line a bit too far in that case.

But that is not the real issue in this case. The issue is the basis on which we shall depart from Supreme Court precedent in interpreting counterpart guarantees of our Constitution.

For me, it is not enough to say that because we disagree with a majority opinion of the [United States] Supreme Court, we should invoke our State Constitution to achieve a contrary result. It sounds plausible, but one of the unanticipated consequences of that supposedly benign doctrine of state-constitutional rights is an inevitable shadowing of the moral authority of the United States Supreme Court. Throughout our history, we have maintained a resolute trust in that Court as the guardian of our liberties.

The most distinct aspect of our free society under law is that all acts of government are subject to judicial review. Whether we have agreed with the Supreme Court or not, we have cherished most its right to make those judgments. In no other society does the principle of judicial review have the moral authority that it has here.

Respect for law flows from a belief in its objectivity. To the extent possible, we ought not personalize constitutional doctrine. When we do otherwise, we vindicate the worst fears of the critics of judicial activism. The fourth amendment is the fourth amendment. It ought not mean one thing in Trenton and another across the Delaware River in Morrisville, Pennsylvania.

In truth, the constitutional vision that we have shared as a people is not one of state-constitutional guarantees of freedom. Whether God-given or the result of social compact, the content of our freedom under law is drawn from the [federal] Bill of Rights. I rather doubt that most Americans think otherwise.

For good or ill, this unique American vision of freedom has been nurtured by the United States Supreme Court. There may come a time when the Supreme Court might abdicate its responsibility and we would have to act, but this is surely not it. Where that Court has drawn the line in this case does not significantly endanger our freedoms. I would abide by its judgment. If there is a New Jersey view on this issue, the Legislature can vindicate it in time.

Like most Americans, I don’t like people snooping around in my garbage and I doubt that most police officers will want to do that. But we certainly need more reason than this to discard the vision of one nation under law.