Traditional state interests and constitutional norms: impressive cases in conventional settings.

AuthorFriedelbaum, Stanley H.
PositionState courts and judicial federalism
  1. AN INTRODUCTORY NOTE

    Contemporary judicial federalism has passed through several phases, revealing its remarkable pliancy and adaptability. In a few states, developments during the 1970s and the early 1980s centered almost exclusively around a defense of civil rights and civil liberties, in many respects paralleling the course followed at the national level during the preceding Warren Court era.(1) A resort to independent state grounds(2) prepared the way for a stage of state judicial ascendancy--one predicated on achievements beyond the confines of a cautious Burger Court.(3) State judges, in such "pioneering" states as California, New Jersey, New York, and Oregon, seemed intent upon taking steps to counter the moderate conservatism that the United States Supreme Court had embraced.(4) Increasingly, too, the revival of activism focused upon an expanded egalitarianism as well as upon old-style libertarian values.(5)

    Initially, state courts were encouraged to turn haltingly inward and eventually they began to espouse a newfound provincialism that insulated their findings from the inquiries of federal judges.(6) The range of activism remained narrow at first, restricted largely to liberal causes and a few selective issues; however, a conscious effort appeared to have been made to stress not only a claimed flexibility but also a willingness to adapt to new motifs.(7) Lost in the excitement over the rediscovery of legal doctrines, so ardently depicted and so boldly enlarged, was the tractability that, at least in part, characterized the transitional years. Subsequently, there was cause for concern that rigidity was setting in and that untoward artifices might control and confound the revitalization process.(8)

    Less attractive in their appeal and even given to what may appear to be a type of ennui in their coverage are cases relating to the traditional functions and goals of state government.(9) A turn to these areas, often neglected and not often linked to the "new" judicial federalism, may profitably be essayed. It is fatuous to assume that the customary concerns of state government have taken on an unimaginative mien, shorn of vitality and almost torpid in their effects.(10) Indeed, the spirit of the new judicial federalism, if not its explicit embodiment, is evident in recent cases, coupled with glimmers of a soundness and depth sometimes missing in the glamorous products of the 1970s and 1980s.

    If state courts have come to exhibit less of the assertiveness previously found, the opinions in traditional cases have displayed a maturity of purpose and, at times, a more carefully reasoned format than earlier judgments. No longer does the notion persist that activist state courts must premise the crafting of novel precedents on actual or contrived federal-state clashes to ensure the primacy of state charters. Less in evidence is an exaggerated dedication to provincial pride, at times accompanied by an unremitting chauvinism.(11) Nonetheless, state constitutionalism has displayed no signs of a reversion to the passivity of the first half of the twentieth century.(12) Instead, state courts, in their treatment of traditional subjects, have drawn upon an abundance of models and have shown a sense of mutual interdependence and circumspection.(13) Significant parallels abound as a confrontational jurisprudence continues to recede into the outer reaches of what, on occasion, has been an unmistakably adversarial recent past.(14)

  2. TOWARD A NEWFOUND ACTIVISM: A SELECTIVE REVIEW OF "CONVENTIONAL" CASES

    1. The Preamble Imbroglio

      From beginnings in the Declaration of Independence and early state charters to the Preamble to the United States Constitution,(15) the Founders sought to promote a basic philosophy of government and of living by language included in the several texts.(16) The theory of popular sovereignty was generally recognized, abetted by implementing principles to assure its preservation and advancement.(17) While emphasis was placed on exemplary lifestyles to encourage the perpetuation of good government in a free society, the right of the people to alter or to change that government was universally acknowledged.(18) To ensure continuing attention to the conditions necessary for the maintenance of liberty, citizens were exhorted to be ever vigilant and wary of transgressions.(19) If the Lockean triad underlay the fundamental framework, a peculiarly American version persisted in the emphasis on the pursuit of and even the right to secure happiness.(20)

      Despite the lofty rhetoric and stately aspirations, it has been unavailing to assign any probative value to the objectives and formulas set out by the constitution-makers. The two centuries, since the founding of the Republic, have witnessed few, if any, successful efforts to predicate claims on the amorphous wording of the Preambles.(21) Courts have found the introductory matter to be unenforceable--wording beyond the ken of judicial cognizance.(22) A workable source of legal rights seems to be missing from the recurrent phraseology, often a model of grace and idealism, but not a reliable fount in a litigious society.(23)

      A Vermont case, Benning v. State,(24) presented a departure in a state court's dependence on the opening article of a state constitution. The plaintiffs cited the language of chapter 1, article 1 of the Vermont Constitution, its preamble, as the basis for their challenge to the state law that required operators and passengers of motorcycles driven on a public highway to wear protective headgear.(25) An earlier case, sustaining the statute, had been decided mainly on Federal Constitutional grounds.(26) Benning, by contrast, focused on the state constitution.(27) Of particular interest was the attention directed to general principles of government that were said to furnish support for more specific rights found elsewhere in the instrument.(28) But guarantees of "`natural, inherent, and unalienable rights'" failed to provide any basis for setting aside the headgear law.(29) Neither the defense of life and liberty, the protection of property, nor the pursuit of happiness and safety sufficed to bring about a negative ruling.(30) Within the vague and limited parameters noted, the preamble offered no viable means of accomplishing the ends sought.(31)

      Equally futile was language in the text that affirmed the freedom and independence of all persons. There was little in this general avowal that served as a basis for judicial maneuvers and, more significantly, for practical legal results.(32) Yet the complainant in this case made use of the right to enjoy liberty by asserting that it acts as a restraint on state regulatory activities and a license for persons who elected to ride without helmets(33) Central to the argument advanced were claims, posed in theoretical, sociological, and historical terms, that Vermont's adherence to liberty and autonomy exceeded that of other states.(34) The court rejected such pretensions and added a rejoinder that "if there was a heightened concern for personal liberty, there is no evidence of it in the text of the [Vermont] Constitution"(35) In fact, the protections in the preamble of the Vermont Constitution were held to be no more extensive in their reach and scope than those found in the Fourteenth Amendment.(36)

      Critical to the arguments set out was a largely unstated balance that had to be weighed between the exercise of the state's police power and the liberty interests being suppressed. As the court viewed the presumption of constitutionality attaching to the statute, it became clear that the preservation of public health and safety must prevail.(37) Preventive measures were justified to minimize health care costs that were expected to fall upon society.(38) The failure to heed the headgear requirement ranged well beyond the motorcycle operator by imposing obligations on the public.(39) The level of injuries needed to be reduced to avoid shifting financial liability to others, especially state and local employees and governmental units.(40) It was reasonable for the burden to be placed on those who received the benefits.(41) Nor did the court find any equal protection violations by the legislature's designation of motorcyclists for special safety treatment while not extending similar directives to those who used mopeds.(42) The response was a time-honored one: "a statute need not regulate the whole of a field to pass constitutional muster."(43) The state's police power prevailed, not libertarian claims that failed to compensate for compelling public safety concerns.

      Had the court decided to set aside the act on the basis of a literal and strained reading of the constitutional text, it is uncertain how the precedent set might have fared in subsequent cases. Doubtless the tone and nature of a constitution are derived, in some measure, from the introductory declamation supplied by the framers. Courts need not construe the language in material terms. Nonetheless, it may be feasible to tie the nebulous phraseology to substantive constitutional provisions and to maintain that a nexus in kind exists. In doing so, the groundwork may be prepared for a doubly reinforced source. But future assignments remain problematic since it is not always likely that the wording of a preamble will be widely utilized even if sporadic applications are made to appear promising.

      What are the factors that militate against a major reliance on a preamble as the basis for judicial discourse and assiduity? The lack of usable precedents is a self-limiting element that discourages efforts whether premised on the particular state constitution under review or, on a broader scale, on language drawn from the Federal Constitution. In fact, the Benning court acknowledged that it had treated the protections found in the introductory segment as "coextensive with those of the Fourteenth Amendment."(44) Consequently, there appeared to be little...

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