A decision tree takes root in the land of 10,000 lakes: Minnesota's approach to protecting individual rights under both the United States and Minnesota Constitutions.

AuthorAnderson, Paul H.

Elmer and Ethel are a retired farm couple living in west central Minnesota. They have recently turned the operation of their farm over to their children. It is Saturday afternoon, they are driving their pickup into town where they will get some groceries and perhaps stop at the local cafe for coffee and dessert. Elmer is behind the steering wheel; Ethel is seated next to the passenger door. They see a red convertible with the top down coming from the other direction. The man and the woman in the car are seated so close to one another that you could not fit a blade of straw between them. Ethel looks at the young couple and with a nostalgic tone she says, "You know Elmer, we used to sit like that." Elmer responds, "Well, Ethel, I haven't moved, I'm still sitting where I used to sit."


This is a story Minnesota Supreme Court Justice Paul H. Anderson will sometimes tell to illustrate when the Minnesota Supreme Court may be willing to look to the Minnesota Constitution when responding to the court's duty to protect the individual rights of Minnesota citizens. In essence, if the United States Supreme Court changes position and moves too close to the passenger door, the Minnesota court is willing to look to its state constitution to ascertain if there is a way to stay where the Minnesota court has been sitting comfortably for some time. Perhaps a more apt metaphor might be that the United States Supreme Court is driving, but the Minnesota court is sitting in the passenger seat in a car equipped with a side brake. At most times while the Supreme Court is driving, the Minnesota court will be comfortable with the ride. But if the Supreme Court makes a sharp or radical departure from the well-traveled road, i.e., federal precedent, the Minnesota court will utilize the brake. Under these circumstances, the Minnesota Supreme Court will fulfill its "duty" and "solemn obligation" by following a state constitutional route that provides greater protection for its citizens' individual rights. (1)


    In a 2005 voting rights case, Kahn v. Griffin, (2) the Minnesota Supreme Court in essence developed a decision-tree (3) approach to decide issues of individual rights. This Article will examine Minnesota's approach to individual rights when those rights are protected under both the federal and state constitutions. It is timely that we examine this approach in 2007, the sesquicentennial of the adoption of the Minnesota Constitution.

    Minnesotans have traditionally prided themselves on being progressive, but practical and predictable. (4) Minnesota's decision-tree approach directs litigants to ask several questions, and follow the path dictated by the answers. More particularly, Minnesota's approach requires litigants and the court to ask a number of questions, each of which leads to a particular path dictated by either a "yes" or "no" answer. The path taken will determine if the Minnesota Supreme Court will (1) interpret its state constitution to be in conformity with the Federal Constitution and federal precedent; or (2) interpret its state constitution in a manner independent of federal precedent. The diagram below illustrates Minnesota's approach:


    In essence, the Minnesota Supreme Court will independently interpret and apply the state constitution if either: (1) the state constitution protects a right that does not have an identical or substantially similar federal counterpart; or (2) there is an identical or substantially similar federal counterpart, but either the United States Supreme Court has made a sharp and radical departure from its precedent or federal precedent provides insufficient protection for Minnesota citizens' basic rights and liberties and the Minnesota court does not find a persuasive reason to follow that federal precedent. (5)

    Part II of this Article provides a historical overview of judicial federalism, describes the four approaches states have traditionally taken to federal/state constitutional interpretation--lockstep, interstitial, dual sovereignty, and primacy--and reviews the critiques of these four approaches. Part III gives a brief history of judicial federalism in Minnesota, focusing on the state constitution and Minnesota Supreme Court decisions. Part IV considers Kahn v. Griffin, the 2005 voting rights case that provided the vehicle for the Minnesota Supreme Court to develop its decision-tree approach. Part V describes the decision-tree approach and analyzes the guidelines the Minnesota court gives to aid litigants in answering questions required by it. Part VI discusses the advantages and potential critiques of the approach. Finally, this Article concludes that Minnesota's decision tree could serve as a model for other state courts seeking a practical and predictable, middle-ground approach that promotes uniformity and harmony between the federal and state courts.


    State courts (6) deciding individual rights issues are faced with a solemn task. If properly pleaded, a claim will often assert violations of both federal and state constitutional rights. (7) State courts must then analyze the individual rights issue to determine if a right has been violated. This process can require the state court to interpret and apply the Federal Constitution, the state constitution, or both. Section A of this Part discusses how the American federal system provides dual constitutional protection for citizens and allows each state to offer greater protection to its own citizens based on its state constitution. Section B of this Part discusses the four traditional approaches state courts have taken when analyzing federal/state constitutional issues of individual rights and describes the major critiques of each of the four approaches.

    1. The American Federal System Provides Dual Constitutional Protection for Citizens and Allows Each State to Offer Greater Protection to Its Own Citizens Based on Its State Constitution

      One of America's enduring legacies is its long and rich history of constitutionalism. The federal government and each state have written constitutions. (8) America's federal system offers dual protection to American citizens under the federal and state constitutions. The Federal Constitution protects all citizens, and its protections must be enforced by the states. However, a state can offer greater protection to its citizens based on that state's constitution. A state court's interpretation of its constitution is not reviewable by the United States Supreme Court. (9) The ability of states to offer greater protection based on their own constitutions, and certain states' recognition of this ability, provided the impetus for the renaissance of judicial federalism that began in the early 1970s and continues today.

      1. America's Constitutional Tradition Includes Written Constitutions That Are Subject to Various Interpretations

        Written constitutions have been essential in America for the federal government and each state. (10) Political Science Professor Martin Edelman notes:

        Modern constitutionalism was born in the United States. The founders of the American Republic believed that a written constitution would be their lasting contribution to the science of politics. Time has proven them right.... The appeal of written constitutions is not simply a trendy convention. It is grounded on historical experience.... If human beings are by nature both self-serving and social animals, there is a need for an umpire, the State, to guarantee the essentials of human existence--the respect for life, the respect for mutual obligations, etc. Every society needs stable, ordered behavioral patterns that only a State can uphold. We have also come to recognize the need to protect against the State itself becoming the chief violator of the vital human concerns for which it was created.... Constitutions are, in Madison's language, a principal auxiliary precaution. (11) Constitutions establish the rule of law that ensures the government is bound in its actions by rules that are announced beforehand. (12)

        In the American tradition, constitutions are written documents that require interpretation. As a result of this tradition, the United States has developed a rich history of debate over the correct interpretation of both the federal and state constitutions. Such debate is inevitable because constitutional interpretation implicates human nature and our most deeply held beliefs. Moreover, society is in a constant state of flux, language usage changes over time, and constitutions often fail to specify the relative importance of the values they seek to protect. (13) The complexity inherent in the process of constitutional interpretation generates many approaches that are not easily categorized. As Professor Edelman notes:

        The history of American arguments about construing the Constitution indicates that all interpreters are both strict and Loose constructionists who sometimes advocate judicial self-restraint and sometimes judicial activism. They--we--are all interpretivists, they--we--are all non-interpretivists. Interpretive methodologies are not selected randomly or arbitrarily. Rather, they are selected deliberately in terms of the larger purposes of written constitutions. If written constitutions perform an architectonic function for government and society, then it is natural that the interpreter's vision of the good society will determine the tools he or she utilizes in shaping that society. (14) Even though interpretations vary, some interpretations have greater weight. The interpretation of the judges charged with enforcing the constitutions controls. (15)

      2. The American Federal System Offers Citizens Dual Protection

        Every American citizen is protected by two separate constitutions: the United States Constitution and the constitution of the citizen's state. (16) Federal and state governments coexist under our federal system...

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