The virtues of uncertainty.

AuthorFriedman, Lawrence M.
PositionPerspectives: Notable Dissents in State Constitutional Cases

Part I, Article 14 of the Massachusetts Constitution, like the Fourth Amendment to the United States Constitution, protects individuals from unreasonable searches and seizures. (1) In Guiney v. Police Commissioner of Boston, (2) the plaintiff relied on Part I, Article 14 to challenge the validity of a Boston Police Department rule authorizing the random drug testing of officers. (3) The court agreed that the state constitution prohibits such searches absent a "strong factual showing that a substantial public need exists for the imposition of such a process applicable to all police officers"--a showing that the government had failed to make. (4) This standard differs from the applicable standard under the Fourth Amendment, which requires the government to demonstrate only that the public interest in a suspicionless search outweighs the individual's privacy interest. (5)

In dissent, Justice Joseph R. Nolan criticized the court's analysis and its conclusion. "Once again," he wrote, "a majority of [the] court has found some hidden meaning within article 14 of the Massachusetts Declaration of Rights to deviate from a decision of the United States Supreme Court in a question concerning the Fourth Amendment to the United States Constitution." (6) Justice Nolan maintained that, absent a compelling reason to disagree with the U.S. Supreme Court's interpretation of the Fourth Amendment, the court should not engage in an independent examination of the reach of the parallel provision of the Massachusetts Constitution. (7)

The Guiney court did not undertake a particularly thorough analysis of the meaning of Article 14 as it might apply to suspicionless searches. But the court tacitly embraced the premise of independent state constitutionalism--the principle that a state court should not view as dispositive the U.S. Supreme Court's interpretation of an individual rights provision when addressing the meaning of that provision's state constitutional equivalent. (8) Justice Nolan's presumption that federal standards should apply under the state constitution eschews independent analysis in favor of the promise--or at least the appearance--of certainty of constitutional meaning. By certainty, I mean the expectation that the scope and reach of a state constitutional individual rights provision will be predictably limited--on Justice Nolan's view, by federal decisions interpreting the U.S. Constitution. (9) In this essay I examine the argument that a concern for predictability should guide state constitutional decision-making and trump the other values, such as discourse and dissent, that independent state constitutionalism promotes.

Consider the process of independent state constitutional decision-making from the state court judge's perspective. Counsel for the defendant in a criminal case argues that the state constitution's protection against unreasonable searches and seizures does not permit random drug testing. The judge faced with this claim has two choices. Much like a federal trial court, she could rely upon the U.S. Supreme Court's interpretation of the Fourth Amendment and apply to the issue at hand the federal doctrinal framework and cases governing suspicionless searches. In the alternative, she could seek to interpret the state constitutional search and seizure provision as she would any provision of the state constitution that lacked a federal counterpart. In other words, rather than transplanting the federal framework into the state constitution, she could endeavor to determine for herself what standards should control application of the state constitution. She might do so by employing the traditional methodologies associated with constitutional interpretation--by examining the text, structure, and history of the protection against unreasonable searches and seizures, as well as relevant state and federal precedents, in light of the background values of the American constitutional design, such as respect for the separation of...

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