Prophylactic rules and state constitutionalism.

• Author: Leavens, Arthur
• Position: The Massachusetts Constitution of 1780

1. INTRODUCTION

   For well over thirty years the phenomenon of "judicial federalism"--a state court interpreting a state constitutional provision to provide broader protections than those afforded by the analogous federal constitutional provision--has become a fixture of American jurisprudence. (2) This development, no doubt prompted by the post-Warren Supreme Court retrenchment regarding the protection of individual rights, has given rise to a rich debate concerning the legitimacy and interpretive methodology of such state constitutionalism. (3) Boiled down, the question is, on what basis does a state court interpret a state constitutional provision, couched in virtually the same language and often with the same history as that of its federal counterpart, and decide that the state provision provides greater protection?

   In this article, I examine that question in the context of so-called prophylactic rules--those relatively concrete constitutional rules announced by the Supreme Court to guide lower courts in applying the Constitution's more open-ended standards. Such rules abound, particularly in criminal procedure. To take a familiar example, Miranda's warnings-and-waiver rule constitutes the means by which the Fifth Amendment's self-incrimination protection is implemented in the context of police interrogation. Less familiar, at least as a prophylactic rule, is the Aguilar-Spinelli two-pronged test meant to guide application of the Fourth Amendment's requirement that a neutral magistrate determine probable cause in issuing a warrant.

   While I am among those who think a state court should ordinarily defer to the Supreme Court on the meaning of a provision common to the federal and state constitutions, (4) I take a different view regarding the breadth of constitutional prophylactic rules. I will argue here that there is no theoretical impediment to a state's unilateral expansion of federal prophylactic rules. However, this interpretive latitude does not mean that a state's courts should necessarily enjoy that prerogative. I will argue that expansion of at least some of these rules, as a matter of institutional competence and political legitimacy, should be the province of the state's legislature rather than its courts.

   My argument accepts the following premises: first, prophylactic rules such as Miranda's warnings-and-waiver construct and Aguilar-Spinelli's two-pronged test tend to over-enforce the constitutional principles that justify their existence (5); second, such rules nevertheless have constitutional status; third, provisions common to the federal and a state's constitution ought presumptively to mean the same thing; and fourth, the Supreme Court is the presumptive arbiter of what that meaning is. (6)

   Why should a state, presumptively bound by the Supreme Court's interpretation of a constitutional provision, nevertheless be free to expand the reach of a prophylactic rule such as Miranda's warning-and-waiver requirement or Aguilar-Spinelli's two-pronged test? The answer lies in the nature of prophylactic rules and their relation to the underlying constitutional standards they implement. Unlike a Supreme Court decision laying out the meaning or scope of a constitutional provision--its "operative proposition" in the words of Mitchell Berman (7)--prophylactic rules (8) are relatively specific, often bright-line rules meant principally to guide lower courts in implementing less determinate constitutional principles such as the Fourth Amendment's requirement that a neutral and detached magistrate determine probable cause in issuing a warrant. How is that requirement supposed to work when the police seek a warrant based on information provided by an informant whose identity is undisclosed? The Aguilar-Spinelli two-pronged test was crafted to provide the answer.

   Given their pragmatic, instrumental purpose, such prophylactic rules-though surely constitutional--are, of necessity, more mutable than the operative propositions they implement. I will argue that as such, prophylactic rules are properly subject to unilateral state adjustment based on the state's experience with the rule. Because such adjustments often reflect a policy judgment founded at least in part on a cost-benefit, empiricism-based analysis, in some cases the legislature is better equipped than the courts to undertake that analysis and has more legitimacy to impose the resulting policy judgment.

   This article will examine these issues concretely, examining the Massachusetts Supreme Judicial Court's (SJC) restoration of the Aguilar-Spinelli test under Article XIV of the Massachusetts Declaration of Rights (9) following the Supreme Court's rejection of that test under the Fourth Amendment, (10) and the SJC's expansion of three Miranda protections following the Supreme Court's rejection of those protections under the Fifth Amendment. (11) In the first part of this article, adopting Mitchell Berman's terminology, I will review the distinction between constitutional operative propositions and constitutional decision rules (of which prophylactic rules are a subset), and show that Aguilar-Spinelli's two-pronged test as well as Miranda's warning-and-waiver construct (12) fall into the latter category.

   In the second part of the article, I will argue that these concededly federal prophylactic rules are properly subject to review and enhancement under state law. Massachusetts provides a particularly interesting lens through which to examine this point for two reasons. First, despite the SJC's occasional rhetoric to the contrary, the Supreme Court and the SJC agree on the meaning and scope of the constitutional provisions in question (the Fourth Amendment and Article XIV; the Fifth Amendment and Article XII). With one possible exception, which I will discuss, the federal and state constitutional operative propositions at issue here are essentially identical. Second, the SJC has expressly declined to adopt Miranda's warning-and-waiver construct as a requirement under the state Constitution, regarding it as exclusively a creature of federal law. Nevertheless, I will argue that it is conceptually legitimate for the state to consider expanding that federal decision rule under state law.

   In the final part of the article, I turn to the question of which among a state's three constitutional branches should decide whether to expand these prophylactic rules. As I will develop, several factors should be considered to determine whether the courts or legislatures should make this decision. First, the closer the connection between the rule and its underlying operative proposition, the more it should be the courts' prerogative to determine its reach. Second, the closer the focus of the rule's impact is to the judicial function, the more appropriate it is for the courts to define that impact. Third, to the extent that either the legislature or the courts have a comparative advantage in measuring the costs and benefits of expanding a decision rule and in imposing such a rule, it is more appropriate for that branch to be the constitutional arbiter. Of course these factors, when weighed, may not yield a clear answer. In such a case, a court might decide the issue provisionally, in a way that--either expressly or as a practical matter--allows the legislature to reconsider the matter and perhaps reach a different decision. That is, the court could decide the issue as constitutional common law, not in the unalterable script of a constitutional command. If the legislature subsequently adopts a different view, the courts might then be called upon to determine whether the decision should be within its constitutional bailiwick. (13)

   I now turn to the arguments, first laying their foundations and then developing them with reference to the Massachusetts experience.

2. OPERATIVE PROPOSITIONS AND DECISION RULES

   Courts and commentators have long recognized that constitutional jurisprudence comprises a broad spectrum of decision-making, ranging from decisions that couch the meaning of constitutional provisions in terms of expansive, often value-laden principles, to decisions that set out specific rules to guide the application of such indeterminate standards. (14) Over thirty years ago, Henry Monaghan made this point in his influential argument that the Court's constitutional jurisprudence should be separated into those decisions that have what he called constitutional status (i.e., have their basis in the interpretation of constitutional provisions) and those that could more productively and realistically be seen as constitutional common law designed to advance particular constitutional interests but that could be overridden by congressional action. (15) Other scholars have since recognized differential constitutional decision making, arguing that constitutional jurisprudence necessarily includes doctrinal rules--often bright-line generalizations--that may reach beyond core constitutional meaning but that nevertheless have constitutional status. (16) Coining terminology that has become accepted in this discourse, Mitchell Berman distinguished between "constitutional operative propositions," which he describes as "constitutional doctrines that represent the judiciary's understanding of the proper meaning of a constitutional power, right, duty," and "constitutional decision rules," which he terms "doctrines that direct courts how to decide whether a constitutional operative proposition is satisfied." (17)

   The Court's decision in Miranda epitomizes this dichotomy. On one hand, the Court expanded the reach of the Fifth Amendment privilege against compelled self-incrimination, holding that the privilege applied not only to testimony in formal proceedings but also to police interrogation of suspects in police custody. (18) However, the Court also went on to announce what it characterized as "concrete constitutional guidelines for law enforcement agencies and courts to follow" in...