A house divided: when state and lower federal courts disagree on federal constitutional rights.

Author:Logan, Wayne A.

"The operation of a double system of conflicting laws in the same state is plainly hostile to the reign of law. Janus was not a god of justice." (1)

Despite our many differences, "We the People" (2) take as a given that rights contained in our Federal Constitution will apply with equal force throughout the land. As John Jay put it in The Federalist No. 22, "we have uniformly been one people; each individual citizen everywhere enjoying the same national rights, privileges, and protection." (3) To better ensure federal rights uniformity, the Framers included the Supremacy Clause in the Constitution (4) and ordained that there be "one supreme Court" (5) to harmonize what Justice Joseph Story termed "jarring and discordant judgments" (6) of lower courts, giving rise to "public mischiefs." (7)

Federal constitutional rights, however, have never applied in uniform fashion nationwide, and rights uniformity has long numbered among the legal myths de Tocqueville recognized as central to American governance. (8) In a recent article, I chronicled how federal rights disuniformity plays out in the context of the nation's twelve regional federal circuit courts of appeal. (9) Focusing on Fourth Amendment doctrine in particular, the article highlighted the existence of over three dozen circuit splits, many concerning quite common and basic search and seizure issues. (10)

The variation underscored the challenge entailed in realizing the Supreme Court's expectation that the Fourth Amendment is "enforceable in the same manner and to like effect" nationwide. (11) The article also surveyed the many practical and theoretical ramifications of what Justice Scalia recently condemned as a "crazy quilt" of federal constitutional rights, (12) generated by a single sovereign's judicial system--the nation's federal circuit courts.

This Article shifts focus, examining state court contributions to federal constitutional diversity. Typically operating out of the public and scholarly limelight, state courts have long shared a concurrent obligation with lower federal courts to interpret the U.S. Constitution (13) and protect the rights contained in it. (14) Critically important as well, state courts do so independently of their federal counterparts. They need not defer to the constitutional positions adopted by federal circuit courts, (15) including those in which they are geographically situated, (16) which lack direct appellate review authority over them. (17) As a consequence, on all issues other than the comparatively narrow range of questions expressly addressed by the Supreme Court, (18) state and lower federal courts are free to disagree, creating conditions ripe for the constitutional conflict feared by the Framers.

This Article provides the first in-depth examination of state-federal concurrent constitutional authority and does so by focusing on a context in which its consequences are most problematic: within individual states. While a handful of articles over the years have examined state court power vis-a-vis federal constitutional questions more generally, (19) no systematic effort has been undertaken to examine intrastate, state-federal conflict on federal constitutional questions. (20) This Article redresses this deficit, using as its doctrinal locus federal constitutional criminal procedure, with its unique impact on government power and individual liberty and privacy.

The Article proceeds as follows: Part I begins by providing an overview of the growing power of state courts to interpret and apply federal constitutional provisions, and then considers the important benefits of state court involvement. State court decisions, much like state legislative enactments extolled by Justice Brandeis, (21) provide a basis for real-world experiments to gauge the effects of doctrine, cabined (unlike the decisions of federal circuits) to individual states. The decisions themselves, moreover, originate in a context that is in many ways distinct from that of federal courts. State courts process a massively greater number of criminal cases, affording them corresponding greater experience with criminal procedure matters; they also function in a decidedly different institutional environment, including having to stand for election. Over the years this latter distinction has fueled the expectation that state courts will reflexively endorse pro-government positions on civil liberty questions, (22) an expectation belied by the results of a survey reported on here of state court decisions coming before the Roberts Court.

Part II examines how state courts go about operationalizing their federal constitutional interpretive power alongside the federal circuits. Despite some lingering scholarly doubt on the question, (23) and resistance from the Ninth Circuit in particular, (24) today the vast majority of state courts address federal constitutional questions free of any felt need to defer to federal circuits, including their own. (25)

The power-sharing arrangement gives rise to doctrinal conflicts on multiple important constitutional criminal procedure questions. For instance, the California Supreme Court and the Ninth Circuit disagree on whether the "community caretaking" doctrine can justify the warrantless entry of a home by police, (26) as do the Wisconsin Supreme Court and the Seventh Circuit. (27) State and federal circuits differ on any number of other search and seizure questions, including whether police can perform a protective "frisk" for weapons in the absence of reasonable suspicion that the individual targeted is engaged in criminal wrongdoing. (28) Similar conflicts exist in the Fifth and Sixth Amendment contexts with respect to confessions. (29)

The conflicts create an array of significant difficulties. Perhaps most notably, basic rule of law expectations are undercut when national constitutional law is permitted to depend on the uniform worn by law enforcement agents or the court in which a criminal case is filed. While state constitutional norms can and do vary, here the divergent doctrinal positions emanate from the same legal source, the U.S. Constitution, which controls regardless of the government actor or court (30) and which citizens accept as the national civic norm. (31) When this occurs, individual rights and the scope of government power are left to happenstance, calling into question basic expectations of governmental consistency and even-handedness. The variable rights regime, in turn, creates the risk of forum shopping as prosecutors strategically gravitate toward more prosecution-friendly doctrines.

Conflicts also affect civil rights litigation. For instance, when a state court and its coordinate federal circuit court disagree on whether a particular law enforcement actor (e.g., a county sheriff) qualifies as a state agent, triggering Eleventh Amendment immunity, the forum-filing decisions of plaintiffs (not prosecutors) are affected. By the same token, when a court adopts a more rights-restrictive position, law enforcement will enjoy qualified immunity, resulting in a right recognized by the other court going unenforced.

Ultimately, the conflicts themselves, in the wake of very significant limits placed on the scope of federal habeas corpus review, (32) can only be mediated by the nation's "one supreme Court." (33) While lower courts beseech the Supreme Court to resolve issues, (34) multiple intrastate conflicts exist as the Court contents itself with resolving only eighty or so cases a Term, (35) a vastly diminished docket by historical standards. (36) This is so despite the fact that the Justices continue to insist upon the importance of uniformity, (37) and the reality that the Court's own rules provide that state-federal conflict qualifies as a "compelling reason[]" to grant certiorari. (38) Meanwhile, in the handful of cases that it agrees to hear, the Court blithely elides the reality of intrastate conflicts, electing instead to note only the existence of federal circuit splits or discord on a question more generally. (39)

Part III canvasses the reform proposals advanced to date designed to mediate state-federal constitutional conflict. Finding each wanting, Part IV offers an alternative, one hiding in plain view: amendment of the federal certification provision. (40) Although federal courts have enjoyed authority since 1802 to certify disputed questions to the Supreme Court for resolution, Congress has never extended such authority to state courts. Expanding certification to include state and federal courts alike would have several important benefits. In addition to ensuring the speedy resolution of intrastate constitutional conflicts, and curing the serious problems that they create, the expansion will elevate state courts to their rightful place in federal constitutional discourse. It will also help pave the way for a more engaged relationship between state and lower federal courts and the Supreme Court charged with overseeing their work and ensuring federal constitutional consistency.


    1. Historical Evolution

      State courts have long played a role in federal constitutional litigation. Their authority to decide federal constitutional questions, however, arises chiefly on an inferential basis: Article III speaks only of "one supreme Court," and fails to require creation of lower federal courts, (41) leaving state courts by default as decisionmakers. (42) Lower federal courts, created by Congress shortly after the nation's founding, (43) did not come to enjoy general federal question jurisdiction until 1875. (44)

      Even though the Judiciary Act of 1789 signaled a degree of mistrust of state courts, (45) and despite concerns expressed over their skill and trustworthiness, (46) state courts figured centrally in the nation's early constitutional life. (47) While Barron v. Baltimore made clear that state and local governments were not subject to the Federal Bill of...

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