Presumed innocent: the legitimacy of independent state constitutional interpretation.

Author:Heiple, James D.
Position:State Constitutional Commentary

    Our republic consists of a national government and fifty state governments. Each has its own constitution as well as separate legislative, executive, and judicial branches. The powers and limitations of each government are established and defined by its constitution. Concomitantly, the judicial branch of each government is charged with interpreting its constitution as required in particular cases.

    These fundamental principles are central to any discussion of the propriety of "independent state constitutional interpretation," such as that found in the current issue of this law review. In light of these principles, it would seem self-evident that the judicial branch of each government should apply its own constitution and not that of another state in resolving cases with which it is presented.

    The logic of these simple propositions requires anyone who would question the propriety of a state court basing its decisions on its own constitution to initiate debate by first advancing arguments against such an enterprise. If each state government has a constitution and a judicial branch, why shouldn't a state court rely on its own constitution in deciding cases? Contrary to the criminal law maxim, the burden of proof in this instance is decidedly not on the state.

    Beginning from the premise that independent state constitutional interpretation is presumptively valid, this Article analyzes the major objections to such interpretation which have been raised by recent commentators. After presenting and critiquing each of these attacks, this Article concludes that the legitimacy of state constitutional jurisprudence emerges unscathed from the fracas.


    Critics of independent state constitutional interpretation frequently charge that state courts rely on state, rather than federal, constitutional analysis merely because prevailing federal law does not dictate the results state courts desire to reach in particular cases.(1) To take a simple example, the U.S. Supreme Court ruled in 1988 that the Fourth Amendment to the U.S. Constitution does not prohibit police from inspecting the contents of trash bags left on the curb outside a person's home.(2) Two years later, the Washington Supreme Court and the New Jersey Supreme Court, after duly noting the U.S. Supreme Court's contrary ruling under the Federal Constitution, both held that their respective state constitutions prohibited this police activity,(3) Critics argue that such decisions by state judges represent non-neutral interpretations of state constitutions, that are partisan reactions to federal constitutional rulings with which the judges disagree.(4)

    This criticism springs from an obvious source. In the late 1970s, Supreme Court Justice William J. Brennan Jr., disappointed with what he viewed as the Court's refusal to expand further its protection of individual rights under the Federal Constitution, called on "state courts to step into the breach" by safeguarding civil rights and liberties through interpretation of their own state constitutions.(5) More than two decades later, it is apparent that many state courts have accepted Brennan's invitation. State courts have now rendered hundreds of decisions which grant greater protection to individual rights under state constitutions than the Supreme Court has been willing to afford under the Federal Constitution.(6) It is no wonder, then, that many critics of state constitutional interpretation see in this trend nothing more than an effort to achieve through state law certain liberal political results which federal law does not compel.?

    In order to respond adequately to this criticism, it is important to review the process by which the U.S. Supreme Court became the nation's premier guardian of individual rights. The Constitution's Bill of Rights originally did not constrain the actions of state governments, but rather, operated only against the national sovereign.(8) For the first century of the nation's existence, then, the Supreme Court essentially was powerless to prevent state encroachments on individual liberties. The adoption of the Fourteenth Amendment following the Civil War, however, laid the groundwork for a revolution in American jurisprudence. Early in the twentieth century, the Supreme Court began to interpret the Fourteenth Amendment to prohibit state governments from engaging in conduct that the Bill of Rights previously forbade only of the national government.(9) By 1970, all of the major Bill of Rights guarantees had been interpreted by the Supreme Court to constrain state, as well as federal, action.(10)

    An important consequence of this extension of the Federal Bill of Rights to the states is that the Federal Constitution now establishes a basic level of protection that must be afforded to U.S. citizens across the country in nearly all important areas of individual rights.(11) Conservative opponents of state constitutional interpretation claim that state courts use their constitutions only to expand civil liberties protections.(12) Current Supreme Court doctrines will allow states to do nothing else. The conservative complaint represents the anti-civil libertarian response to the question of whether individual freedoms should be expanded or curtailed. That, however, is not the question at issue in the debate over the propriety of independent state constitutional interpretation.

    A further response to the criticism that state constitutional interpretation is a partisan enterprise concerned only with expanding rights is that such an enterprise can produce results supported by either end of the political spectrum. A state court can interpret its constitution to protect the economic and property rights traditionally favored by conservatives as easily as it can protect the civil rights and liberties customarily championed by liberals.(13) For example, the Illinois Supreme Court recently held that a premium tax imposed by the state only on insurance companies incorporated outside of Illinois violated the state constitution's mandate that taxes be imposed uniformly.(14) To the extent, then, that the critics' argument faults state constitutional interpretation for producing only liberal results, the argument is unpersuasive.

    A final, and more general, response to the charge that state constitutional interpretation is result-oriented is that all constitutional interpretation, state and federal, and all work performed by courts at any level, is influenced to some degree by the policy preferences of judges. Although there are certainly exceptions in particular cases, it is undeniable that as a general rule, judges tend to render decisions consistent with their political sympathies or affiliations.(15) Given this unavoidable fact, one might ask whether the influence of judges' policy preferences on court decisions is of greater concern in federal or state constitutional interpretation. Because all of the significant Bill of Rights guarantees now constrain state and local governments,(16) a ruling by the Supreme Court that a particular governmental action violates the Federal Constitution applies to all political subdivisions in the nation, regardless of the prevailing ideology of each. By contrast, a state court's decision applies only within a single state, and because it is based on that state's laws and judicial precedents, is more likely to comport with the views of the citizens it affects.(17) Thus, the political nature of constitutional interpretation is actually an argument which favors state over federal constitutional jurisprudence.


    A second argument advanced by critics of independent state constitutional interpretation begins with the observation that many individual rights provisions in state constitutions are similar or identical to certain clauses in the Federal Constitution.(18) These critics contend that, absent a clear reason for departure, state courts should give such provisions the same interpretation which the Supreme Court gives the corresponding federal provisions.(19) Only when there is a demonstrably significant difference in constitutional language or...

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