The Kansas Bill of Rights: Glittering Generalities or Legal Authority

Publication year2000
Kansas Bar Journals
Volume 69.


Journal of the Kansas Bar Association
Vol. 69, September, 2000


By Kirk Redmond and David Miller


One of the most significant political developments of the past decade has been the re-emergence of the federalist ideal. Recognizing that states are often in a better position to meet the problems confronting their citizens, our federal government has recently relinquished a great deal of its political authority. Important decisions on topics from agriculture to welfare are now made locally instead of nationally. While progress on this front has sometimes been uneven and its results have been mixed, the federalist ideal now seems firmly entrenched.

Curiously absent from this federalist movement, however, is the Kansas legal system. While our legislative and executive branches have assumed greater decision making power, our state bar and bench often march in lock step with the United States Supreme Court on important questions concerning the rights of Kansas citizens. At times, the Kansas courts have expended a great deal of effort evaluating the proper application of our state Constitution. More often than not, however, constitutional questions are raised and decided without reference to our state's founding document. Thus, although the Kansas Supreme Court recognizes its power to interpret our state Constitution differently than the federal model, it has "traditionally. . . not done so."(fn1)

The federal Supreme Court has itself criticized this anti-federalist jurisprudence. Justice Stevens has noted that, when considering a constitutional claim, the "proper sequence is to analyze the state's law, including its constitutional law, before reaching a federal constitutional claim."(fn2) The Court's rationale is that the states can and should "serve as experimental laboratories" in deciding constitutional questions.(fn3) Thus, the Court has regularly invited states to rely on their own law in settling rights controversies, as long as the minimum requirements of the federal Constitution are not diminished.(fn4) Many states have accepted the Supreme Court's invitation, and regularly resolve rights controversies by reference to their own constitutions. The Kansas bar and bench, however, rarely venture outside the familiar confines of federal constitutional law.

This article will explore the reasons why state constitutional litigation has atrophied, and will recommend potential avenues for revitalizing its practice. The Kansas Constitution may have been neglected, but its disuse has not diminished its potential as a source of legal authority. Drawing from the experience of those attorneys who have advocated reliance upon our state Constitution and the reaction of the Kansas courts to those arguments, this article will attempt to outline a blueprint for winning cases without reliance on federal authority.

We will proceed in two parts: a discussion of the unique history of our state Constitution, and an examination of when and why claims made under the Kansas Constitution succeed. Our conclusion is that to make a successful claim under the state Constitution, two elements must be present. First, there must be a substantial textual difference between the state and federal Constitutions. The Kansas Supreme Court has indicated that it will not deviate from the rules of federal constitutional law when the language of our state Constitution does not differ from the federal model in any significant way. Second, and equally important, is the role of history. Many sections of the Kansas Bill of Rights are framed in very general terms. To supply precise content to these constitutional provisions, we must evaluate their intended purpose. A historical inquiry is the best available tool for defining the more ambiguous provisions of our state Constitution.

Doubtless, these constraints somewhat limit the potential for litigation under the state Constitution. Some provisions of our state Constitution mirror the Federal Bill of Rights. Other sections, while textually distinguishable, traditionally have not been interpreted with independent force. These limitations, however, do not mean that the Kansas Constitution has lost its battle for relevance. In several notable cases, the Kansas courts have predicated their holdings upon our state Constitution. These cases demonstrate that the unique origins and subsequent construction of our state's organic document provide an excellent opportunity, in the right case, to make a successful claim under the state Constitution.

The Constitution's History

The framers of the Kansas Constitution would likely be surprised to discover that their work product is often consigned to a footnote or a string citation. The substance, structure, and purpose of our state Constitution all indicate that its framers never envisioned that it would play second fiddle to its federal counterpart. Instead, they intended the Kansas Constitution to be the primary instrument for the regulation of governmental power. In one of the first significant cases interpreting our state Constitution, the Kansas Supreme Court derided the notion that the state constitution was merely a compilation of "glittering generalities". Instead, the Court found that:

"Many of its sections are clear, precise, and definite limitations upon the powers of the legislature, and every other officer and agency of the people . . . The meaning and extent of these are clear. They limit the power of the legislature, and no act of that body may be sustained which conflicts with them. Indeed, all of them may be considered, generally speaking, as conditions and limitations upon legislative action; and no law can be sustained which trenches upon the rights guarantied by them, or which conflicts with any limitation expressed in them."(fn5)

Of course, the explosion of federal litigation attending the incorporation of the federal Bill of Rights has alleviated the need to rely solely on the Kansas Bill of Rights for protection from government excess. The expansion of federal rights, however, was never intended to make state constitutions obsolete. The federal Supreme Court has always 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."(fn6) In several important respects, the framers of our state Constitution struck a different balance between individual rights and governmental power than the framers of the federal Constitution. These differences are evident in the substance and structure of the Kansas Constitution.

First, the Kansas Constitution and the Kansas Bill of Rights were not based upon federal precedent. The Constitution of Kansas has a lineage that can be traced through prior state constitutions to the English Bill of Rights and the provisions of the Magna Carta. When the delegates met at the Wyandotte Constitutional Convention in July, 1859, they voted to make the Ohio Constitution of 1851 the model upon which the Kansas Constitution would be based. With some slight variations, the Kansas Bill of Rights follows the wording and structure of the Ohio Constitution. The Ohio Constitution was primarily founded upon the Constitution of New York, which in turn found its precedent in provisions of the English Bill of Rights of 1688 and the Magna Carta of 1215. Section 18 of the Kansas Bill of Rights, for example, states:

Justice without delay. All persons for injuries suffered to person, reputation or property, shall have remedy by due course of law, and justice administered without delay.

The language of this section is nearly identical to Chapter 40 of the Magna Carta signed by King John in 1215. When introducing the Bill of the Rights on the Convention floor on July 15, 1859, Mr. Hutchinson traced the historical development of a declaration of rights from the Magna Carta through the Declaration of Independence to the constitutions of every state since 1776. He remarked that the Bill of Rights would constitute, "the timbers of the building - the superstructure upon which the edifice of the State must be erected."(fn7) The source of that superstructure was not the federal Constitution, but the state constitution of Ohio, whose lineage can be traced to the provisions of the charter of liberties signed at Runnymeade in 1215.

The genius of the Kansas Constitution was that it drew together many of the progressive ideas of the time into one document. Sections 1, 2, and 5, for example, politically enfranchised African-Americans to a far greater extent than the federal Constitution or federal law. Section 6 of the Bill of Rights prohibited slavery in Kansas six years before the 13th Amendment of the United States Constitution was ratified. Section 5 of the Bill of Rights, which provided that the right to jury trial shall remain inviolate, also provoked considerable debate at the Wyandotte Convention because the pro-slavery faction argued the right of jury trial would be extended to fugitive slaves - a right denied them by the federal Fugitive Slave Law of 1850. Although Section 5 was amended by the Convention, there are indications that a majority of the delegates wanted to extend the right of jury trial to fugitive slaves. This clearly provided...

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