The Common Law as a Guide to State Constitutional Interpretation.

AuthorCoven, Mark S.
  1. Introduction

    The Roberts Court is continuing with its most recent predecessors, the Burger and Rehnquist Courts, in the erosion of constitutional protections of individual rights and liberties from state action. As the United States Supreme Court is becoming less protective of individual rights and liberties, it is left to the highest courts of the respective states to reinvigorate those protections. Each state constitution includes a declaration of rights that, similar to the federal Bill of Rights, serves to protect individual liberty from governmental intrusions. (1) An independent interpretation of state constitutional provisions is an important aspect of state power and independence, as well as a necessary counterpart of constitutional federalism designed to guarantee individual liberties. (2)

    Each state constitution provides for its own scheme of governance, including its commitments to the protection of individual rights and liberties. As the U.S. Supreme Court is responsible for the ultimate interpretation of federal constitutional provisions, it is left to each state's highest court to ultimately interpret its own state constitution. (3) In interpreting their own constitutions, state courts have the ability to rely on different grounds and distinguish their law in a way that expands upon the rights granted within the Constitution and Bill of Rights. (4)

    In the federal system of the United States, state constitutions provide "a font of individual liberties." (5) The protections offered by state constitutions implement "the independent protective force of state law," which is "neither subordinate to nor mere 'mirror [of] the federal Bill of Rights.'" (6) State constitutional rights provisions have independent force, the protections of which "often extend beyond those required by the Supreme Court's interpretation of federal law." (7) State constitutions must be recognized as independent documents. In their protection of individual rights and liberties, state courts must not be allowed to ignore their responsibilities in interpreting these documents' ultimate meanings. (8)

    Often, limits on government encroachment on individual rights may be made subservient to the affirmative responsibilities to provide certain governmental services. (9) A state's declaration of rights and its dual sovereignty, however, both "suggest that the protection of individual liberties is, in fact, a central responsibility of state governments, not a mere limit on their powers." (10) Protection of individual rights is not only a critical responsibility of both the federal and state governments, as indicated by the presence of state and federal bills of rights, but "is also one of the guiding purposes behind the division of powers and functions between state and national governments." (11) "When a state court appeals to a state constitution to protect civil rights and liberties ... state constitutions may always be used to supplement or expand federally guaranteed constitutional rights"; a state court, however, may never decrease those protections. (12) Thus, federal constitutional law serves as a floor below which state courts cannot fall. (13)

    Federalism recognizes that state constitutions are independent from the U.S. Constitution, "and that state courts may exercise this independence so as to read state constitutional rights more generously than their federal counterparts." (14) The practical consequence of this dual sovereignty is that federal standards for protecting individual rights under the Fourteenth Amendment as applied to the states provide a minimal level of protection--a "floor." States remain free to exceed the federal floor by providing protections for individual rights and liberties that exceed the federally mandated minimum. Again, states may provide for more protection of individual rights, but they cannot fall below those set by interpretations of the U.S. Constitution and the Fourteenth Amendment. (15)

    Language contained in decisions of the U.S. Supreme Court "that state courts may interpret their constitutions more expansively than the federal constitution are not the source of state power." (16) Instead, these opinions are acknowledging that state authority is controlling "in the absence of countervailing federal rights." (17) The Supremacy Clause of the U.S. Constitution prohibits states from enforcing laws that violate the Constitution; our constitutional system of dual sovereignty "permits serial, or at least dual, claims of unconstitutionality." (18) The United States system thus "provides a double source of protection for the rights of our citizens." (19)

    While state constitutions can be a source of individual liberty, state courts must read their own constitutional provisions to prohibit state laws or actions that abridge their citizens' individual rights or liberties, even where federal protections have been denied. As scholars have cautioned, "state constitutionalism presents a use-it-or-lose-it situation: either use the state constitution or lose the protections it provides." (20)

    This Article will argue that in the face of the Supreme Court's diminution of individual rights, it is imperative for states to intercede and provide additional protections for individual liberty through their own state constitutions. The common law of numerous states has evolved to protect and address liberty amidst contemporary problems, a trend that will likely need to continue under the current makeup of the Court. Part II will trace recent Supreme Court decisions emphasizing the erosion of individual rights and highlighting a reduction of individual protections under the Fourth, Eighth, First, and Fifth Amendments as well as efforts to undermine voting rights. (21) Part III will discuss the history of the dual primacy of federal and state constitutions, the Supreme Court's treatment of this duality, and methodologies of interpreting state constitutions vis-a-vis the U.S. Constitution. (22) Part III will also discuss factors state courts consider when interpreting provisions of their state constitutions which may depart from the federal constitution. (23) Part IV will discuss the fundamental principles of an evolving common law. (24) Part V will highlight significant areas and decisions where state common law has expanded individual rights including expansions of tort liability, contract protection, property rights, will invalidation, and individual privacy and self-determination. (25) Finally, Part VI will pose a framework for state courts to interpret their own state constitutions to be more protective of individual rights. (26)

  2. Diminishment of Individual Constitutional Protections Under the Roberts Court

    Recent decades of Supreme Court decisions have been marked by a diminution of individual rights in relation to state action. (27) This trend has continued in recent years, throughout the tenure of Chief Justice John Roberts. This retrenchment is most dramatically observed in a long line of five-to-four decisions, with the so-called liberal Justices dissenting from the more conservative Justices. (28) These decisions diluted the protections afforded by the Bill of Rights in a number of significant areas.

    1. The Fourth Amendment

      In Hudson v. Michigan, (29) Hudson claimed his Fourth Amendment rights were violated when the police procured a search warrant for drugs and weapons but failed to follow the "knock and announce" requirement before entering his home. (30) The police seized a gun and cocaine in the home, and the government charged him with unlawful drug and firearm possession. (31) Hudson sought the protection of the exclusionary rule because the police failed to follow proper procedures during the search. (32) The majority held the exclusionary rule did not apply to violations of the "knock and announce" requirement, as the nature of the rule was not to prevent police from conducting a search where supported by a valid search warrant. (33) The dissent noted that by condoning this violation, the majority weakened the Fourth Amendment prohibition of unreasonable searches and seizures. (34)

      Similarly, in Herring v. United States, (35) police stopped Herring based on an outstanding arrest warrant in their database. (36) After searching Herring's car, police seized drugs and a gun. (37) Herring claimed the evidence was obtained illegally because the arrest warrant, which justified the search, was invalid; the warrant had been recalled months earlier but the database was never updated. (38) The majority held that even though Herring's Fourth Amendment rights were violated, the circumstances did not require exclusion of the evidence because the error was the result of mere negligence. (39) The dissent argued that the majority's ruling would allow police to make careless mistakes with little accountability for their unlawful actions. (40)

      In the search for Fourth Amendment protections against unreasonable search and seizure, the Court has held that the exclusionary rule does not apply to every Fourth Amendment violation, which leaves no remedy for a constitutional wrong. (41) In each case there was a serious infringement on the individual's privacy rights; yet, the Court has limited the reach of the exclusionary rule, leaving no remedy for the constitutional violations. The dissents in both Herring and Hudson offer the notion that the Fourth Amendment and the exclusionary rule go hand in hand, so that when the Fourth Amendment is violated, the automatic remedy must be the suppression of what was seized due to the illegal search. (42)

      In Florence v. Board of Chosen Freeholders, (43) Florence was arrested for an outstanding warrant after a traffic stop and was strip searched at two jails; both searches occurred when he was entering the jail. (44) He claimed his Fourth Amendment rights were violated when he was strip searched without any reasonable suspicion, arguing that persons arrested for minor...

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