Foreword: Reliance on State Constitutions-beyond the "new Federalism"

Publication year1984
CitationVol. 8 No. 02

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 8, No. 2WINTER 1985

Foreword: Reliance on State Constitutions-Beyond the "New Federalism"

Ronald K. L. Collins(fn*)

[S]tate Bills, of Rights should be preserved with the expectation that we may yet see the day when state constitutional adjudication will drastically limit the occasions for the Supreme Court to test state action by the Fourteenth Amendment.

Vern Countryman Washington (1970)(fn1)

The "new federalism" isn't new anymore.

It's been over a decade since the "new federalism"(fn2) appeared on the American constitutional scene. What New Jersey did in Mount Laurel,(fn3) Hawaii in State v. Kaluna(fn4) California in Sailer Inn,(fn5) and Alaska in Baker v. City of Fairbanks(fn6) today hardly merits the appellation "new." In the era following the Watergate Tapes Case, Earl Warren's death, America's gasoline shortage, and Hank Aaron's 715th home run,(fn7) courts and commentators have certainly "discovered" state bills of rights as founts of liberty. Since 1974, when the Kremlin expelled the dissident novelist Aleksandr Solzhenitsyn, state high courts have handed down over 200 published opinions holding that the constitutional minimums announced by the national Supreme Court interpreting the federal Constitution are insufficient to satisfy the more stringent requirements of state law.(fn8) In the flurry of this activity it is all too easy to forget exactly how much things have changed, how much the novel has become the normal.

During the 1970s, the focal point of the "new federalism" debate was the legitimacy of state court reliance on state law to secure rights not otherwise protected under federal law. The issue was batted around in the literature(fn9) and in the courts.(fn10) After all, "independent" decision-making in the individual rights area was virtually unthinkable to the generation of state judges living in the shadow of the Warren Court.(fn11) As interest in state charters burgeoned, the Burger Court responded by tightening the reins on the "adequate and independent state grounds" doctrine. In the span of time between Justice White's opinion in Delaware v. Prouse(fn12) and Justice O'Connor's declaration in Michigan v. Long,(fn13) the rule was recast to suit the present Court's penchant for dominancy over matters traditionally thought to be beyond its jurisdiction. The majority's constitutional handiwork in Long evidences just how widespread the "new federalism movement" had become by the 1980s.(fn14)

The once "new federalism" found its chief judicial defenders in the persons of Justices Brennan,(fn15) Mosk,(fn16) and Charles Douglas.(fn17) The Reagan decade brought with it new champions of the now old and slightly modified federalism. The second generation of "new federalists" includes the likes of Justices Stevens,(fn18) Abrahamson,(fn19) Carson,(fn20) Hennessey,(fn21) Hill,(fn22) Pollock,(fn23) and Utter, among others.(fn24) And then there is Hans Linde, who today, as in 1970,(fn25) continues to address the "premises" that give rise to the notion that federalism can be understood as "a touchstone for theory."(fn26) Generally speaking, the debate between the judicial defenders and the judicial critics of the "new federalism" now has less to do with process than with prudence. That is, the question is no longer whether the state constitution should be invoked, but rather how it should be applied as a separate source of law.(fn27) Admittedly, there are a handful of jurisdictions, such as Illinois,(fn28) that subscribe to the notion that even differently worded criminal justice state guarantees should be interpreted in all cases in a manner consistent with the national Supreme Court's interpretations of the federal Bill of Rights. Nevertheless, this wholesale approach to criminal justice decision-making is at present not likely to extend too far beyond that area of the law.

The current trend among state judges is, by comparison, to take a more judicious look at state provisions. Considerations of history, text, structure, and analytical soundness are more regularly taken into account in judging whether in each case to embrace the federal view of the law.(fn29) Thus, for example, state jurists, mindful of the independent character of state law, may not elect to limit the focus of their inquiry in a double jeopardy case to what the Court said in Oregon v. Kennedy.(fn30) Instead, they may take their cue from what Arizona's high court said in Pool v. Superior Court.(fn31) The central point, be it a criminal or creche case,(fn32) is that we have arrived at that stage in the history of the "new federalism" where state judges are no longer prone simply to ignore their own bills of rights or defend what is even more troubling-the wholesale alignment of state and federal constitutional doctrine. Certainly, on this point of contention the judicial defenders of the "new federalism" have triumphed.

Another sign of how old the "new federalism" has become is the counter-response that it has received by way of constitutional amendments and judicial elections. Popular initiatives, like the ones that revived the death penalty in California,(fn33) Massachusetts,(fn34) and Oregon,(fn35) have added a new twist to the federalism and individual rights debate. The kind of constitutionally crude tampering we have witnessed in Florida with its amended state search and seizure guarantee(fn36) presents a special challenge to the advocates of the "new federalism." The constitutional tug of war has now shifted from courtrooms to voters' booths.(fn37) Where in the early 1970s the future of the "new federalism" turned largely on what lawyers wrote in legal briefs, in the 1980s its fate hinges as much on a ballot title(fn38) or voters' pamphlet and, of course, on political campaigning.(fn39) The "new federalism" has returned popular constitutionalism to the American stage. Thus, popular consensus directly rivals the institution of judicial review in the constitutional arena. The challenge is even more direct when one considers what the "new federalism" has meant for state judges facing re-election. One of the greatest achievements of the "new federalism" has been the public's expression of confidence in those state judges who have kept state bills and declarations alive in the face of ardent political attacks.(fn40) Whether state law and its interpreters can continue to survive the political pressures of majoritarian will depends on the extent to which enlightened constitutionalism can be fused with modern democracy. For the time being, the "new federalism" has, on the whole, shown that the two can coexist.

The other side of the "popular constitutionalism" has been the progress made, largely between 1970 and 1980, in enacting state constitutional provisions that buttress the individual rights edifice. For example, the era of the "new federalism" has been one during which gender equality became the constituted supreme law of many states,(fn41) despite the failure of the proposed twenty-seventh amendment to win voter approval. Similarly, legal progressivism is nowhere more evident in written charters of liberties than in the amended declarations of rights approved in the 1970s by the citizens of Montana(fn42) and Louisiana.(fn43) This public appreciation of state constitutionally secured rights continues in states like Georgia,(fn44) Utah,(fn45) and North Dakota.(fn46) So while the "new federalism" has drawn a counter-response by way of rights-reducing measures, it has also brought with it a social consciousness that recognizes the importance of measures that reinforce rights.

Finally, the "new federalism" has already greatly altered the way in which the bench and bar litigate individual rights cases. Back in the early days of State v. Santiago(fn47) and Darrin v. Gould(fn48) -both decided before Justice Brennan(fn49) and Professor Howard(fn50) published what have almost become articles of faith-raising a state constitutional claim was considered to be something akin to an academic exercise. By the time the word got out to practitioners that state law could be of practical value, state judges were wondering what to do with the forgotten guarantees for which decisional precedent was scarce. These and other problems diminished during the 1980s, due in part to continuing legal education programs,(fn51) increased academic commentary,(fn52) and a comparative approach to state law decision-making.(fn53) The Williamsburg Conference of 1984(fn54) proved to be a milestone in the history of the "new federalism," if only because of the added legitimacy it gave to principled attempts to discern the meaning of state law affecting individual rights. During the remainder of this decade, it will be considered malpractice-particularly in light of Michigan v. Long-to overlook that body of law that only ten years ago was thought to be the sole province of the scholastic specialist.

What then lies beyond the "new federalism"? First, and as outlined above, we are already beyond that point. Second, we can expect considerably more independent decision-making outside of the criminal justice area.(fn55) The next tide of cases will probably involve questions of the constitutionally proper relationship between religion and the state. Depending on economic circumstances, we may also experience considerably more state law-based litigation related to the...

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