Whose federalism? Or, why "conservative" states should develop their state constitutional law.

• Author: Latzer, Barry
• Position: State Constitutional Commentary

As the 1996-1997 Term of the United States Supreme Court drew to a close, it became clear that the big winner was, once again, federalism. The Court held that there is no national constitutional right to die.(1) Consequently, the issue of doctor-assisted suicide is going to continue to be a matter for state lawmakers rather than federal judges. Nor, the Court said, may Congress create (religious) rights and impose them on the states under the guise of merely enforcing the Fourteenth Amendment.(2) That is, the states will be bound by the Supreme Court's interpretation of the Bill of Rights, not Congress's enlargement of it.(3) And, most forthrightly of all with respect to federalism, the central government, we are told in Printz v. United States,(4) cannot commandeer state law enforcers to implement federal gun control law.(5) The Brady Law thus runs afoul of the Tenth Amendment.

The Tenth Amendment! That mere "truism"(6) has once again become a potent restriction on federal authority. As liberals nervously ponder a future with a revived Tenth Amendment,(7) they have forgotten their darling, itself a product of that same Amendment: the "New Judicial Federalism."(8) Isn't it the Tenth Amendment that empowers and protects state courts when they broaden rights on state law grounds?(9) Doesn't the same principle of federalism that undid the Brady Law also enable Hawaii to recognize same-sex marriage,(10) Kentucky to strike down a ban on anal intercourse,(11) and a host of states to find a right to equal school funding that does not exist in the Federal Constitution?(12) Ah, but perhaps that is someone else's federalism.

In this Article, I wish to explore the implications for state courts of the continued development of Tenth Amendment principles. What if decentralization--the restoration of state authority--were to extend to the more bloated aspects of federal constitutional law? What if the Supreme Court were to say that only truly fundamental rights and those procedures essential to their maintenance are required by the Fourteenth Amendment, and that the Tenth Amendment leaves to state discretion all other procedural matters? In other words, what if the Court were to disincorporate some of the rotting planks (perhaps overly rigid planks is the better metaphor) of the federal floor? What if it were to overturn Miranda v. Arizona,(13) for instance, since it has said unambiguously that the famed warnings are not constitutional mandates?(14) Would the state courts be ready to develop, on their own, a responsible body of state criminal procedure law?

In one sense, the answer is surely "yes." The state courts have now demonstrated beyond peradventure that they are sensitive enough to individual rights to be trusted to protect them where they need to be protected, and to narrow them in an appropriate manner where they need to be narrowed.(15) They have already developed a body of state constitutional law much larger than is generally appreciated. Though most of this law mimics Supreme Court doctrine, a significant chunk of it establishes broader rights.(16) There is also compelling evidence--in the low number of federal court reversals (on habeas corpus petitions to the lower federal courts, and both habeas and direct appeals to the Supreme Court(17))--that the state courts do an admirable job protecting federal constitutional rights.

Unfortunately, however, not all states are comfortable with state constitutional law. Some state courts would be caught fiat-footed by disincorporation. They would have to begin taking state law much more seriously. Once some of the federal floor is eliminated, state law will have to move to the forefront because state law will be the only game in town. State law, in other words, will not just be an option, it will be a necessity. The states least prepared for disincorporation will be those that have resisted the development of state constitutional law. It is to these state courts--presumably among the most "conservative" state tribunals--that this Article is addressed.(18)

Over a decade ago, California Supreme Court Justice Stanley Mosk wrote an article with the intriguing title, State Constitutionalism: Both Liberal and Conservative.(19) Justice Mosk made the point that states' rights have had dramatic ups and downs throughout American history, and that in its then current incarnation (circa early 1980s), state constitutionalism was in jeopardy because it was the product of a shaky liberal-conservative coalition.(20) He described the benefits of state constitutionalism to the members of this tentative alliance as follows:

For the liberal, there is the prospect of continued expansion

of individual rights and liberties; the work of the Warren

Court can be carried on at the state level. For the conservative,

state constitutionalism represents the triumph of federalism;

crucial decisions about the apportionment of rights

and benefits are decided by state courts responsive to local

needs, rather than by a distant United States Supreme

Court, perceived as insensitive.(21)

Is it any wonder that conservatives didn't think much of this deal? Liberals get the rights-expansion policy near and dear to their hearts, and conservatives get ... a process that perpetuates liberal policies. Of course, we all know what conservatives in Justice Mosk's own state thought of the arrangement, but we do not need to rehash that here.(22) My point is that state judges in a considerable number of (conservative) states evidently saw (and continue to see) no great attraction in developing their state constitutional jurisprudence. Who can blame them? It appears that all that they would get for their efforts is more work, as new state law issues appear on the dockets, and even settled federal constitutional issues are opened to relitigation on state grounds. These state judges would also get pressured by defense attorneys and civil libertarians to expand rights, which may be the last thing they think their state needs. And they could get embroiled in controversy by highlighting their responsibility for the development of the law, without being able to put the blame on the U.S. Supreme Court.(23) Plus, these judges probably view the whole state bill of rights enterprise as some trendy legal fad which will soon blow over. Who needs it?

I wish to suggest that Justice Mosk was at least partially correct, and that nonetheless, contrary to the preceding paragraph, conservative state courts do have a stake in developing state constitutional law. Justice Mosk correctly pointed to the benefit of local control. He might well have added that state decisionmaking offers greater opportunity for policy flexibility and social experimentation, for more political accountability, and even for greater efficiency.(24) These features of state constitutionalism are, or at least ought to be, appealing to conservatives. He was also right (and candid) to acknowledge the liberal policy biases of the New Judicial Federalism. Certainly, the state law movement has always been associated with the broadening of rights on state law grounds. Indeed, it is precisely this association that has discouraged conservative state courts from participating. It is the notion that there is an inexorable nexus between state constitutionalism and rights-expansion that I wish to challenge here.

This nexus is built on two false premises. First, it is falsely assumed that state law cannot "go below the federal floor."(25) That is, state constitutionalism, it is widely believed, is a one-way street: fights may only be expanded beyond the federal minima, never contracted. Second, it is assumed that the federal floor is immutable, or at least, that none of the rights that are "in" due process are ever likely to be taken "out." Thus, even if a state could, contrary to the first premise, contract rights on state grounds, there would be little point in doing so as the federal floor will not change. It is, so to speak, a concrete floor.

The first premise clearly is wrong, as I will demonstrate in the immediately following paragraphs. The second premise may or may not be wrong, depending on the boldness of the Supreme Court in developing Tenth Amendment principles. If the Court were to continue its tentative steps toward the restoration of state autonomy (if, one might say, the narrow Rehnquist majority holds firm), the day may come when it will re-examine its own incursions on state authority and begin the process of disincorporation.

As for the initial misguided premise, it is simply not correct to say that state law may not go below the federal floor. In fact, state constitutions may be construed more narrowly than the federal constitution.(26) Here is a vivid example. In 1914, the U.S. Supreme Court declared that there is a Fourth Amendment exclusionary rule.(27) For many years thereafter, from two-thirds to just under one-half of the states acknowledged no such rule.(28) The constitutions of these non-exclusionary states were obviously less protective. Ah, you might object, the exclusionary rule was not a mandate on the states until 1961, when Mapp v. Ohio(29) created a federal floor. In other words, before Mapp, there was no exclusionary rule plank in the federal floor. True enough. But what exactly was the effect of adding the Mapp plank? Did incorporation of the suppression rule into the Fourteenth Amendment, by some clever alchemy, transform the constitutions of the non-exclusionary rule states? Of course not.(30) Mapp created no state constitutional suppression doctrine. The U.S. Supreme Court has no authority to independently interpret, much less modify or amend, state law, and it would be quite revolutionary to contend that it does. Mapp established a federal constitutional suppression doctrine in the Due Process Clause of the Fourteenth Amendment which, by dint of the Supremacy Clause, had to be enforced by state judges, notwithstanding the lack...