In 1951 a law professor wrote that “if our liberties are not protected in Des Moines the only hope is in Washington” (Paulsen, “State Constitutions, State Courts and First Amendment Freedoms,” Vanderbilt Law Review 4 [Apr. 1951]: 620, 642). In 1988 the quip was revised to read that “if our liberties are not protected in Washington, the only hope is in Des Moines” (Giudicessi, “Independent State Grounds for Freedom of Speech and of the Press: Article 1, Section 7 of the Iowa Constitution,” Drake Law Review 38 [1988–1989]: 9, 29). The past thirty years have witnessed a revival of state constitutional law in the area of individual rights. Some observers extol a “new judicial federalism” in which state and federal courts use state constitutions to protect the rights of individuals, subject, of course, to the Supremacy Clause of Article VI.
Although the Supreme Court is widely considered to be uniquely responsible for protecting individual rights through its interpretation of the federal Bill of Rights, the Court's role in guarding individual rights against encroachment by state action is of relatively recent origin. In 1789 Congress rejected a proposed constitutional amendment that would have barred the states from infringing the right of trial by jury in criminal cases, the right of conscience, and the freedom of speech and of the press. In 1833 the Supreme Court held that the federal Bill of Rights did not apply to the states (Barron v. Baltimore). Thus for more than a century after the adoption of the Bill of Rights, state bills of rights—not the federal Bill of Rights—protected individual liberties from encroachment by state governments. By way of illustration, the Wisconsin Supreme Court in 1859 interpreted the Wisconsin constitution as guaranteeing indigent felony defendants the right to counsel at public expense (Carpenter v. County of Dane). It was not until 104 years later that the U.S. Supreme Court enunciated a similar right to counsel in state felony cases under the Fourteenth Amendment to the United States Constitution (Gideon v. Wainwright, 1963).
The application of the Bill of Rights to state action followed the ratification of the Fourteenth Amendment in 1868. Beginning in 1925 the U.S. Supreme Court selectively incorporated many provisions of the first eight amendments into the Fourteenth Amendment and thus declared these provisions of the Bill of Rights applicable to the states (Gitlow v. New York). By the end of the 1960s, the Supreme Court was perceived as the preeminent court protecting individual rights against encroachment by the federal and state governments (see History of the Court: Rights Consciousness in Contemporary Society). The Court established a “floor” of protection, that is, minimum federally protected rights that states were bound to honor. For many states, the federal “floor” was above the state “ceiling” of protection. While a state may not provide a claimant less favorable treatment than the federal Constitution, a state may enforce a state‐granted right above the federal “floor” of protection unless the extended right bumps into the “floor” of protection of another federal right.
As federal constitutional guarantees expanded, the bench, bar, and public apparently came to regard state bills of rights as adding little to their federal counterpart, and state courts' reliance on state bills of rights diminished. The 1950s and 1960s saw an atrophy of the use of state constitutional protections for individual liberties. In the 1970s and 1980s the political winds shifted, bringing an emphasis on the states in the American federal system. Some believed that the Supreme Court was retreating from its rulings protecting individual rights. Others viewed procedural changes as limiting the ability of federal courts to hear federal constitutional claims against state action. At the end of the 1970s, many commentators, judges, and lawyers increasingly advocated reliance on state constitutional law, as well as federal constitutional law, to protect the rights of Americans.
When a judgment of a state court rests on a state ground independent of a federal ground and adequate to support the state court judgment and no federal question is in issue, the U.S. Supreme Court declines to review the state judgment. Thus the federal system recognizes the state as an independent legal entity capable of endowing persons within its jurisdiction with rights independent of federal law and insulated from federal judicial review (Michigan v. Long, 1983). Several state courts have followed this approach. In many other cases, however, state courts continue to ignore their state constitutions or cite them only in passing and rely instead on the federal Constitution.
Cases interpreting state constitutional rights may be divided into two broad categories. One category involves state courts' reliance on state constitutional provisions that have no federal analog. For example, while the Supreme Court finds a right to privacy implicit in the Bill of Rights and the Fourteenth Amendment (Griswold v. Connecticut, 1965), several state constitutions contain explicit guarantees of privacy. The Vermont Supreme Court ruled that the state constitution's Common Benefits clause prohibits the exclusion of same‐sex couples from the benefits and protections of marriage (Baker v. State, 1999). A few state constitutions protect environmental values or collective bargaining rights. Several provide for open courts and a remedy in law for all injuries or wrongs. State courts have applied state constitutional guarantees of the right of access to the courts, as well as other constitutional provisions, to statutory innovations in tort law, such as limiting compensatory damages, with a variety of results.
Although the states failed to ratify the proposed federal Equal Rights Amendment, by 1990 a significant number of state constitutions expressly provided for gender equality. Furthermore, even without an express equal protection guarantee, state courts have interpreted various state constitutional provisions as guaranteeing equal protection of the laws. Some commentators predict that state courts will depart from the standard the Supreme Court uses to scrutinize alleged violations of equal protection and will take a more expansive view of gender equality and equal protection guarantees.
All state constitutions contain provisions relating to education, and some state courts have viewed these as creating a fundamental right to education. States have divided on the question whether their educational‐funding statutes are unconstitutional under state education and equal protection provisions. In contrast, in San Antonio Independent School District v. Rodriguez (1973), the U.S. Supreme Court rejected arguments that education is a fundamental right and that financing schools through the property tax constitutes a classification based on poverty that is constitutionally suspect under the Fourteenth Amendment.
The second category of cases interpreting state constitutional rights involves state courts' reliance on state constitutional provisions that are similar or identical to provisions in the Bill of Rights. For example, many state constitutions contain criminal procedural protections similar to those in the Fourth, Fifth, Sixth, and Eighth Amendments, as well as guarantees of freedom of expression and religion comparable to those in the First Amendment. State courts frequently adopt the Supreme Court's analysis and interpretation of the federal Constitution as a guide to interpreting their own parallel state constitutional guarantees; these state courts move in “lock step” with the Supreme Court. Other state courts take a different interpretive approach to their constitutions. Some examine the federal constitutional issue first and turn to the state constitution only when the federal constitution does not protect the right. Under this “interstitial” method of analysis the state constitution serves as an additional or supplemental protection for individual rights. Other courts, using what is known as the “primacy approach” to interpretation, look first to their own constitution and refer to the federal constitution only when the right is not protected under state law.
As of the early twenty‐first century, state courts have declared in several hundred cases that state constitutional rights surpass the protections of the federal Constitution. In the area of criminal procedure, state courts are divided, for example, on accepting the good faith exception to the exclusionary rule recognized in United States v. Leon (1984), on accepting Supreme Court rulings on interrogation, confessions, and the right to counsel, and on accepting the test for evaluating search warrants established in Illinois v. Gates (1983) (see Search Warrant Rules, Exceptions to). State courts have similarly divided on whether a warrantless police roadblock to apprehend drunk drivers is unconstitutional and whether a right to counsel attaches prior to the administration of a breath test to a suspected drunk driver. Some state courts have invalidated laws allowing drug testing programs without probable cause and curtailed the power of law enforcement officers to conduct automobile searches.
The U.S. Supreme Court has concluded that a state may interpret its constitutional guarantee of free speech as limiting private as well as state action (Prune Yard Shopping Center v. Robins, 1980). A few state courts have read their state constitutional provisions of free speech (which often are worded more broadly than the First Amendment) as granting citizens free speech rights on the premises of private shopping malls and college campuses. Most state courts deciding this issue have, however, refused to extend their state constitutional free speech provisions to private property.
While the Supreme Court has held that obscenity is without federal constitutional protection (Miller v. California, 1973), state courts have divided on the question whether their state constitutions afford greater protection to obscenity than the federal courts afford under the First Amendment.
Some scholars and judges maintain that a state court may reject a Supreme Court interpretation of a federal guarantee of individual rights in interpreting a parallel state constitutional provision simply on the grounds that it lacks analytical soundness. Others assert that a state court's mere disagreement with a particular Supreme Court decision does not justify the court's interpreting the state constitution differently from the federal Constitution. They believe that only a “state‐specific” reason supports divergence. Some state courts have attempted to enunciate criteria for following or departing from Supreme Court decisions. These criteria commonly include the wording of the state constitution and the comparable federal provision, structural differences between the state and federal constitutions, state constitutional history, and local traditions. Thus, for example, several state judges have examined the history of their constitutions and determined that constitutional delegates intended their freedom of speech provisions, stated as an affirmative right rather than as a prohibition, to be broader than the First Amendment, and not to require state action.
The proponents of state courts' interpreting state constitutional provisions independently of the U.S. Supreme Court's interpretation of similar federal constitutional provisions assert that the “new judicial federalism” is a process‐oriented approach that comports with the historical relationship between the national and state governments and basic concepts of federalism. They claim that the approach offers diversity, the opportunity to experiment, and a dialogue among state courts and the federal courts.
Opponents view the renewed emphasis on state constitutional law as a result‐oriented liberal ploy, a way of getting around the Burger and Rehnquist Courts' retreat from the rights‐expanding decisions of the Warren Court. They contend that the “new judicial federalism” creates a confusing multiplicity of rules, subverts the idea of America as one nation, thwarts judicial review by the U.S. Supreme Court, and undermines the public's confidence in the Supreme Court and the rule of law.
Despite these criticisms, state constitutions have been and likely will continue to be, in the words of Justice William J. Brennan, Jr., “a font of individual liberties.” Nevertheless a cautionary note must be sounded. State constitutions are easier to amend than is the federal Constitution. Thus individual rights protected solely by state constitutions are more readily subject to change. In 1982, the voters of Florida amended their constitution to prohibit divergence from U.S. Supreme Court rulings on the exclusionary rule. Furthermore, many state judges, unlike the life‐tenured federal judiciary, are subject to popular election. In 1984 California voters ousted three state Supreme Court justices reputed to be willing to extend protections guaranteed by the state constitution beyond the scope of the federal Constitution.
These occurrences underscore the critical importance of the dual constitutional protection of individual rights in the American federal system. The federal Constitution is not the only American constitution. State constitutions cannot, however, substitute for the federal Constitution. The U.S. Supreme Court is not the only court protecting constitutional guarantees of individual rights against state encroachment. Rather, both the federal and state courts, through dialogue and disagreement, can best guard American liberties.
See also Federalism; Incorporation Doctrine; State Courts; State Sovereignty and States' Rights.
Bibliography
- Annual Issue on State Constitutional Law,
Rutgers Law Journal 20 et seq. (1989–present). Annual Issue on State Constitutional Commentary,Albany Law Review 59 et seq. (1996–present). - William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights,
Harvard Law Review 90 (Jan. 1977): 489–504. - Jennifer Friesen,
State Constitutional Law: Litigating Individual Rights, Claims and Defenses ,3d ed. , 2 vols. (2000). - Susan King, State Constitutional Law Bibliography, 1989–1999,
Rutgers Law Journal 31 (2000): 1623–1708. - Earl M. Maltz, Robert F. Williams, and Michael Araten, Selected Bibliography on State Constitutional Law, 1980–1989,
Rutgers Law Journal 20 (1989): 1093–1113
— Shirley S. Abrahamson and Charles G. Curtis, Jr.
