In a federal case, is the state constitution something important or just another piece of paper?

• Author: Shepard, Randall T.
• Position: Dual Enforcement of Constitutional Norms

Many sources feed the current development in state constitutional law, but the federal judiciary is not among them. Contemplating the role of the federal courts in the enforcement of state constitutional norms prompts recollection of Gandhi's reply when asked what he thought about western civilization: "That would be a good idea." (1)

Only a lull in the federalization of "rights" law has made the recent development possible. Litigants who found the federal courts less willing to embrace their claims than the same courts were during the Warren Court era have taken to heart Justice Brennan's famous entreaty that state courts should look to their own constitutions for civil rights protection. (2) This hunt for a more favorable forum has been a driving force in the expansion of state constitutional litigation. The laboring oars have thus naturally been held by state judges, not by law teachers or federal judges.

Part I of this Article discusses the value of state constitutions in federal civil cases. Part II explains why state constitutional rights should be respected in federal criminal proceedings. Finally, Part III explores certified questions as a means by which federal courts can support the independent value of state constitutions.

1. THE STATE CONSTITUTION SHOULD BE WORTH SOMETHING IN FEDERAL CIVIL CASES

   Traditional doctrines of state and local government law, principles of comity and federalism, and the Guarantee Clause all suggest that state constitutions should be respected by federal courts deciding civil cases. The opinion that Justice Byron White wrote for five justices in Missouri v. Jenkins (3) lamentably brushed aside all such considerations.

   Jenkins involved a desegregation order in which the U.S. District Court approved a plan submitted by the Kansas City Metropolitan School District (KCMSD). (4) The plan suggested a novel approach for maintaining racial balance in a large, inner-city school system: turn the entire school district into a massive "magnet school" that would draw in white families from outside the district. (5) Predictably, this proposal was a costly one, initially estimated to require additional operating funds of $143 million, as well as $53 million for capital improvements. (6) Those amounts eventually proved inadequate, and the court later added $187 million for additional capital spending. (7)

   After concluding that "'even with Court help it would be very difficult for the KCMSD to fund more than 25% of the costs of the entire remedial plan,'" (8) the district court determined that "the State and KCMSD were 75% and 25% at fault, respectively, and ordered them to share the cost of the desegregation remedy in that proportion." (9) The board submitted its need for higher taxes to the voters, as required by the Missouri Constitution. (10) Notwithstanding that the improvements in the local schools would be financed by the state government on a three-to-one basis, the voters refused to sanction paying their proposed share. (11) The court then "ordered the KCMSD property tax levy raised from $2.05 to $4.00 per $100 of assessed valuation through the 1991-1992 fiscal year" (12) and "imposed a 1.5% surcharge on the state income tax levied within the KCMSD." (13)

   The Eighth Circuit Court of Appeals generally approved the district court's approach but required that, in the future, the district court simply authorize KCMSD to submit a levy to the state tax collection authorities and enjoin the operation of state laws that might prevent KCMSD from adequately financing the remedy, instead of setting the property tax rate itself. (14) Justice White characterized the decision of the circuit court by saying: "The Court of Appeals reasoned that permitting the school board to set the levy itself would minimize disruption of state laws and processes and would ensure maximum consideration of the views of state and local officials." (15)

   Writing the majority opinion for the Court, Justice White said:

   The District Court believed that it had no alternative to imposing a tax increase. But there was an alternative, the very one outlined by the Court of Appeals: it could have authorized or required KCMSD to levy property taxes at a rate adequate to fund the desegregation remedy and could have enjoined the operation of state laws that would have prevented KCMSD from exercising this power. The difference between the two approaches is far more than a matter of form. Authorizing and directing local government institutions to devise and implement remedies not only protects the function of those institutions but, to the extent possible, also places the responsibility for solutions to the problems of segregation upon those who have themselves created the problems. (16) Justice White's embrace of the Court of Appeals' approach for the declared purpose of protecting the function of state institutions--casually enjoining the operation of state laws that would interfere with the judicially imposed remedy--is reminiscent of the famous Vietnam declaration: "We had to destroy the village in order to save it." (17)

   Justice White later categorized state statutes and constitutional provisions as things that potentially "hinder the process" of implementing a remedy. (18) That a Justice writing a landmark decision, laboring over every turn of phrase, would select the word "hinder" suggests a dismissiveness of the states' constitutions that belies the professed concern over state and local institutions.

   There are several reasons to object to Justice White's denigration of state constitutions and laws as mere obstacles to federal remedies. Speaking for the dissenters, Justice Kennedy wrote: "Today's casual embrace of taxation imposed by the unelected, life-tenured Federal Judiciary disregards fundamental precepts for the democratic control of public institutions." (19) He identified a flaw in the very foundation of the majority's opinion:

   The premise of the Court's analysis, I submit, is infirm. Any purported distinction between direct imposition of a tax by the federal court and an order commanding the school district to impose the tax is but a convenient formalism where the court's action is predicated on elimination of state-law limitations on the school district's taxing authority. As the Court describes it, the local KCMSD possesses plenary taxing powers, which allow it to impose any tax it chooses if not "hinder[ed]" by the Missouri Constitution and state statutes. (20) Disagreeing with the majority's characterization, Justice Kennedy said, "[l]ocal government bodies in Missouri, as elsewhere, must derive their power from a sovereign, and that sovereign is the State of Missouri." (21) He reasoned that because the Missouri Constitution states that "'[p]roperty taxes and other local taxes ... may not be increased above the limitations specified herein without direct voter approval as provided by this constitution,'" (22) KCMSD did not have the power to impose the tax, regardless of its willingness to do so. Justice Kennedy was, of course, describing the universal doctrine of state and local government law that municipalities and special districts possess only the powers conferred upon them by the state.

   At a minimum, a state's organic document should not be lightly cast aside because a federal judge finds it inconvenient to a particular remedy. As Justice Kennedy noted: "It cannot be contended that interdistrict comparability, which was the ultimate goal of the District Court's orders, is itself a constitutional command. We have long since determined that 'unequal expenditures between children who happen to reside in different districts' do not violate the Equal Protection Clause." (23) Kennedy might just as well have cited Pennsylvania v. Union Gas Co., (24) in which the Court observed: "The Fourteenth Amendment does not purport to expand or even change the scope of Article III," (25) which would be to say here that the power to fashion a remedy does not exceed the bounds of the constitutional violation. It does not ask too much to suggest that, at least when a federal court is deploying its remedial power, the state constitution should not be subsumed by the Fourteenth Amendment and ought to be treated as a matter entitled to separate weight.

   Principles of federalism and comity also suggest the need for better treatment. As the State of Missouri argued in Jenkins:

   These so-called "structural injunctions" have permitted federal courts, by a gradual process of accretion, to extend their powers at the expense of elected officials. Beginning with the primary power to declare legislative acts void, the courts have moved from enjoining officials to cease unconstitutional behavior to requiring affirmative relief in order to achieve compliance with the Constitution. Now, building upon the exercise of that last power, the courts claim the power to order any necessary funding for its orders by mandating direct taxation. The problem is not that assumption of one power does not follow logically from the one before, but that, measured solely by each incremental step, the evolution seems to have no foreseeable stopping point. If the power to order higher state taxes is not beyond the reach of the judiciary, what rationally would be? (26) As the State duly noted, this argument echoes Justice Frankfurter's concern in Youngstown Sheet & Tube Co. v. Sawyer: '"The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.'" (27) Justice Frankfurter was talking about Harry Truman's dramatic seizure of the steel mills, but the same danger adheres with regard to "[t]he wide range of 'judgment calls' that meet constitutional and statutory requirements [that] are confided to officials outside of the Judicial Branch of...