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STATE CONSTITUTIONAL LAW

American constitutionalism is more than the United States Constitution as interpreted by the United States Supreme Court. Each of the fifty states has its own constitution, which is the chief charter of government and of limitations on government in that state. State constitutions offer contrasts to common assumptions, based only on the United States Constitution, concerning both government and constitutional law.

state constitutions preceded the Constitution of the United States. State governments had to be formed when colonial governments were displaced in the move to American independence. The continental congress called upon each colony to establish its own government, but the Congress decided not to propose a single model for all. Eleven of the original thirteen states adopted written constitutions between 1776 and 1780; Connecticut and Rhode Island established their governing institutions without adopting constitutions until well into the nineteenth century. The generation that drafted the United States Constitution and the bill of rights first applied many of its political theories to forming the state constitutions.

One tradition dating from the early state constitutions is to place the declaration of rights at the beginning of the document. The rights so declared differed among the states, but together they covered virtually all of the guarantees later added to the United States Constitution. As to the structure of government, all states except Pennsylvania adopted bicameral legislatures (today only Nebraska's is unicameral), but they diverged on how and by whom representatives were elected. The theory of a separation of legislative, executive, and judicial powers was widely approved and expressly incorporated in Virginia's and other constitutional texts, but the legislatures were dominant in most states, electing governors, other executive officers, and judges.

By 1800 most of the original state constitutions had been replaced by revised documents. Nineteenth-century constitutions reflected the changing political concerns of old and new states as the nation expanded westward. Jeffersonian and Jacksonian views of democracy and equality broadened political participation and extended popular election from legislative to virtually all executive, administrative, and judicial offices. By mid-century, legislative profligacy with public credit in pursuit of economic development led to constitutional restraints on taxing and borrowing, on "lending the state's credit" or granting special privileges or immunities to private persons, and on individual incorporation acts or other special or local laws. New governmental programs such as public education and regulation of banks, railroads, and public utilities were not left to ordinary legislation but were added to state constitutions, often to be administered by separately elected officials. State constitutions address such social problems as alcoholic beverages, gambling, and lotteries. The movement toward populist government reached its climax at the beginning of the twentieth century when many states provided for referenda on legislation and constitutional amendments upon petition by the requisite numbers of voters. Eventually many states had constitutions resembling haphazard legal codes.

After world war ii a number of states adopted substantially new or modernized constitutions, including Missouri (1945), New Jersey (1947), Hawaii and Alaska (1959), Michigan (1960), Connecticut (1965), Florida and Pennsylvania (1968), Illinois and Virginia (1970), Montana (1972), Louisiana (1974), California (1976), and Georgia (1982). Others retain their original constitutions as revised by individual amendments. Altogether the fifty states have had a total of nearly 150 constitutions, with corresponding diversity among the states.

Although guarantees of individual rights dominate judicial and public attention, the primary function of constitutions is the organization and allocation of governmental authority. When this is done in a written constitution, the legitimacy of actions even by the highest elected officials depends upon compliance with the constitution and can be challenged for failure to comply. A comparison shows that in a number of respects the constitutional law of state government is more complex than that of the United States, although in one respect it is not.

The authority of states as such is not derived from their constitutions, as the early examples of Connecticut and Rhode Island show; unless limited, state authority is as plenary as that of the British Parliament. State constitutions therefore have no need for lists of legislative "powers" like those granted Congress in the United States Constitution. The great residue of the common law concerning private transactions and property is state law. Although elected officials of local governments exercise lawmaking, taxing, and executive powers, their relation to the state is the reverse of that between the state and the federal government insofar as local governments have only the powers defined in state law. The "home rule" provisions found in many state constitutions, however, introduce one complexity comparable to the constitutional problems of federalism.

There are other contrasts. Federal executive officers are appointed by the President and must trace their actions to some act of Congress except for those powers given the President directly by the Constitution. Although the typical state constitution refers to an executive department of government, many executive officials, such as state treasurers, attorneys general, superintendents of public instruction and prosecutors, are separately elected to carry out functions described in the constitution. In fiscal matters many state constitutions, unlike the United States Constitution, require a balanced budget and allow the governor an item veto. Constitutional issues arise from provisions governing uniformity and limits on taxes and procedures for issuing bonds. Others arise in the administration of the election laws, especially the popular initiative and referendum. They result in a body of constitutional law that has no federal parallel.

When parallels do exist, experience under state constitutional law often provides a test for conceptions assumed at the national level or accepted by the United States Supreme Court, for instance, in questions of executive power and privileges. The Alaska court in State v. A.L.I.V.E. (1980) invalidated the legislative veto device before the United States Supreme Court did so in immigration and naturalization service v. chadha (1983).

The role of state judges in reviewing acts of government developed early and was generally accepted. New York's first constitution included judges in a Council of Revision that exercised the power to veto legislation. Under seven state constitutions the judges of the highest courts may be called upon to render advisory opinions.

Constitutional entrenchment of individual rights began with the earliest state constitutions in 1776 and is universal throughout the states, though the statements of rights differ. The common tradition includes procedural guarantees such as speedy and public trial by jury upon known charges, the right to call and to confront witnesses, freedom from warrantless and unreasonable searches and seizures and from compelled self-incrimination, as well as guarantees of property rights and freedom of expression, assembly, and petition. Many constitutions prescribed the law governing libel actions. The equality posited in the declaration of independence was not translated into general state constitutional doctrine, being denied to slaves, women, and unpropertied citizens. But hereditary inequality was proscribed, as were, in the words of the Virginia Bill of Rights (1776), "exclusive or separate emoluments or privileges from the community, but in consideration of public services."

Differences among state provisions were not accidental. The status of religion varied among the early states, some favoring Protestant denominations or Christianity generally. Different views of punishment resulted in different provisions on that subject. Some states limited the right to bear arms to public defense; others extended it to self-defense. Conventions debated such issues as the role of grand juries. New states adopting constitutions throughout the nineteenth century drew their models not from the United States Constitution but from earlier states.

In the catalogue of guaranteed rights, too, many state provisions have no federal parallel. They may command open court proceedings, a result that the United States Supreme Court has strained to develop indirectly from freedom of the press. Many guarantee legal remedies for private injuries, a subject not generally within the powers granted to Congress. Some prescribe humane treatment of prisoners. In modern times some states have added guarantees of workers' rights, environmental values, rights of privacy, and equal rights of men and women. Constitutional rights, in the sense of rights guaranteed by constitutions rather than other law, are by no means identical throughout the United States.

State constitutions have provided almost the only guarantees against the states' laws through most of the nation's history. The United States Constitution denied the states authority to enact bills of attainder, ex post facto laws, and laws impairing the obligation of contracts, but the first ten amendments that are commonly called the Bill of Rights were addressed only to the federal government. When a Maryland property owner in 1833 sought to invoke the just compensation clause of the Fifth Amendment against the City of Baltimore, Chief Justice john marshall wrote in barron v. baltimore (1833) that adoption of these amendments "could never have occurred to any human being, as a mode of doing that which might be effected by the state itself"; Congress would not engage in "the extraordinary occupation of improving the constitutions of the several states, by affording the people additional protection from the exercise of power by their own governments, in matters which concerned themselves alone."

After the civil war, Congress began a process of constitutional amendments that did afford new protections to people who were excluded from political power in their own states. The thirteenth amendment ended slavery, and the fourteenth amendment defined citizenship and restrained states from denying their own residents as well as other persons national privileges and immunities, due process, or the equal protection of the laws. Thereafter, the fifteenth, Nineteenth, Twenty-Fourth, and twenty-sixth amendments, respectively, forbade all states to deny voting rights to any citizen by reason of race or color, or sex, or failure to pay a tax, or to eighteen-year-old citizens. Except for this progressive expansion of the franchise, the Thirteenth and Fourteenth Amendments are the only federal constitutional provisions since 1789 to guarantee individual rights against the states.

With the turn of the twentieth century, the United States Supreme Court began to construe the Fourteenth Amendment's guarantee of "due process" so as to strike down substantive state regulations, first of property and economic activities, and later of activities involving speech, press, assembly, and religion that the first amendment would protect against federal infringement. Theoretically, each state's bill of rights remained the primary and independent guarantee against oppressive action by that state, but state courts had provided little protection in interpreting and enforcing these guarantees. In the thirty years after 1935, claims to rights equivalent to those under the First Amendment and federal restraints on the criminal law process were increasingly pressed upon and accepted by the United States Supreme Court under the Fourteenth Amendment, until practically all provisions of the federal Bill of Rights were incorporated into "due process" under that amendment. (See incorporation doctrine.)

Because most state constitutions are easily amended, they often reflect the shifting popular concerns of an era as the United States Constitution does not. Although a federal equal rights amendment proposed in 1972 failed to win ratification, similar texts were adopted by twelve states. Eight states incorporated guarantees of "privacy" into their bills of rights, creating new conundrums about the intended meaning and scope of that term. Some states sought to halt or reverse the ending of racial segregation by constitutional amendments, futile in the face of the Fourteenth Amendment, to forbid the operation of integrated public schools or the enactment of open housing laws. Some sought to stem the costs of social programs by new limits on taxes and spending.

State constitutions also were amended in reaction to judicial decisions under state bills of rights. The record of state constitutional amendments must be considered in any theory that would locate changing social values in the changeless terms of the Fourteenth Amendment.

State courts have a mixed record in enforcing their states' guarantees of liberty, equality, and fair procedures. Defendants' procedural rights in principle were well protected at trial, but not in police investigations and prearraignment procedures. About half the states followed the federal rule to exclude illegally seized evidence before the United States Supreme Court mandated exclusion under the Fourteenth Amendment. State courts gave some force to constitutional clauses concerning the separation of church and state but practically none to freedom of speech or of the press, the latter often being threatened as much by orders of the courts themselves as by legislation. Much of the United States Supreme Court's case law after 1930 responded to state court failures to protect individual rights. With the growth of this case law, lawyers began to argue only under the developing federal jurisprudence, and state courts gave no independent application to their states' own guarantees, with one exception: They continued to strike down state regulations of business and property under notions of substantive due process long after the Supreme Court disavowed this practice under the Fourteenth Amendment.

Since the 1970s, however, there has been a dramatic revival of state court decisions under state constitutions. Some of these were independent of any decision of the United States Supreme Court; many others turned to state constitutions in reaction to Supreme Court holdings or doctrines denying claims under the United States Constitution. The revival was encouraged in a 1977 speech by Justice william j. brennan, himself a former member of the New Jersey Supreme Court. The theme was taken up by other Justices and state judges.

The result is a rapidly growing diversity of constitutional decisions among state and federal courts. The California court in serrano v. priest (1977) and the New Jersey court in Robinson v. Cahill (1973) held that equal rights under their states' constitutions required equalization of financial support to public schools after the Supreme Court denied this claim under the Fourteenth Amendment in san antonio school district v. rodriguez (1972). Similar holdings followed when the Supreme Court allowed the exclusion of abortion from state-paid medical services. After the United States Supreme Court limited rights of access to shopping centers in Lloyd Corp., Ltd. v. Tanner (1972), several state courts found such rights in their state constitutions, some on the far-reaching premise that their state's speech guarantees did not run only against government. State decisions have invalidated services to parochial school students that pass muster under the First Amendment. The Oregon Supreme Court in Wheeler v. Green (1979) forbade punitive damages for defamation, though the United States Supreme Court has indicated that they are permissible.

The most numerous and most controversial constitutional guarantees apply to criminal law. Their protection is not so generally valued by twentieth-century citizens as it was by those who gave them constitutional stature. State supreme courts have struck down the death penalty as cruel or unusual punishment and have departed from federal holdings on such issues as double jeopardy, right to jury trial and to counsel for petty offenses, and searches incident to arrest. The response has included constitutional amendments by initiatives to reinstate capital punishment and to tie state provisions relating to police seizures to fourth amendment holdings of the United States Supreme Court.

Before the United States Supreme Court bound the states to most federal constitutional rights through the Fourteenth Amendment, courts had to decide only whether and how to apply each state's bill of rights. After the Supreme Court's incorporation doctrine decisions, most courts again applied only a single body of law, the federal case law. The revival of state constitutional guarantees raised problems inherent in the dual legal system of federalism that had long been forgotten. Some of these are procedural problems; others concern the substance of constitutional interpretation.

When state law, including state constitutional law, protects whatever right a person claims, it cannot logically be said that the state violates any federal guarantee that the person otherwise might invoke. Logical procedure, therefore, requires that the state's ordinary law and thereafter its constitutional law be determined before reaching any claim that the state falls short of federally mandated standards. This principle has been recognized by some state courts, for example Oregon's in Sterling v. Cupp (1981), Maine's in State v. Cadman (1984), and New Hampshire's in State v. Ball (1983). Other courts, however, apply their own state constitutions selectively when they perceive a reason to differ from federal doctrine or to insulate a decision from review by the United States Supreme Court, or they cite both federal and state constitutions for the same holding. These hybrid practices have been criticized as unprincipled because state constitutions are invoked only when necessary to diverge from less protective decisions of the United States Supreme Court, or because citation of both constitutions simultaneously prevents further review by the United States Supreme Court and discourages amendment of the state constitution. In 1983 the United States Supreme Court and some state courts called for "clear statements" whether the claimed right was grounded in the state or the federal constitution.

Many lawyers and judges routinely use contemporary Supreme Court pronouncements on federal constitutional law as benchmarks also for interpretation of state constitutions, particularly when similar texts are involved. But state courts need not regard these pronouncements as authoritative in state constitutional interpretation, whether or not the texts are the same. The fact that state and federal texts were adopted with the same intent or purpose does not make the federal interpretation presumptively correct; a difference in texts only makes this point easier to see. The principle is true both for results and for methodology; many state decisions do not follow the mid-century Supreme Court's formulas for analyzing and resolving constitutional issues, while others do so.

Responsible interpretation of state constitutions often presents problems unique to the state. Historical records are not readily available to lawyers; sometimes none were preserved. When old texts are repeated in successive constitutions, it is debatable which generation's understanding should matter. The uneven quality of opinions requires reliance on precedents to be selective yet not capricious. The ever present temptation held out to courts is to act as pragmatic policymakers in the guise of constitutional interpreters, without excessive scruple whether anyone placed the supposed principle of decision into the constitution, or whether the principle as stated can be given consistent application.

For many reasons constitutional law has long been equated with the decisions of the Supreme Court of the United States. The Court as an institution is the subject of extensive and continuing writings by social scientists and journalists as well as by legal scholars. Only its decisions apply throughout the nation. The Court's nationalization of individual rights in mid-twentieth century, coinciding with the development of dominant national news media and with the emphasis of professional education on national materials, obscures the fact that the federal system makes the states responsible for large and important areas of law over which the Supreme Court has no jurisdiction unless a state administers this responsibility in a manner contrary to the United States Constitution or laws.

The late-twentieth-century revival of state constitutions has served to remind the general public as well as legal professionals of the essentials of the federal system. Its importance is not measured by the instances in which state courts have enforced individual rights beyond decisions of the United States Supreme Court. Many important functions, problems, and innovations of state constitutions do not concern individual rights. Moreover, citizens sometimes were quick to repeal constitutional guarantees of rights when these were enforced by their courts. State constitutions provide no security for dispensing with the national guarantees of the Fourteenth Amendment.

Even debates over repealing guaranteed rights, however, brought citizen responsibility for these rights close to home as no United States Supreme Court decision could do. Although citizens in some states amended their constitutions to revive capital punishment and relinquish protections against police abuses, similar proposals were defeated in other states.

Experience in the states, in the conduct of state government as well as in state court decisions of constitutional issues, continues to offer alternative models and concepts by which to test, and sometimes to gain, ideas for the nation. After two centuries, independent constitutional thought and action in the states remains an essential strength of federalism as well as a guarantee of individual freedom.

Hans A. Linde
(1986)

Bibliography

Abrahamson, Shirley S. 1982 Reincarnation of State Courts. Southwestern Law Journal 36:951–974.

Brennan, William J. 1977 State Constitutions and the Protection of Individual Rights. Harvard Law Review 90:459–504.

Douglas, Charles G. 1978 State Judicial Activism—The New Role for State Bills of Rights. Suffolk University Law Review 12:1123–1150.

Elazar, Daniel J. and Schechter, Stephen L., eds. 1982 State Constitutional Design in Federal Systems. Publius 12:1–185.

Linde, Hans A. 1984 E Pluribus—Constitutional Theory and State Courts. Georgia Law Review 18:165–200.

Mc Graw, Bradley D. 1984 Developments in State Constitutional Law. St. Paul, Minn.: West Publishing Co.

Pollock, Steward G. 1983 State Constitutions as Separate Sources of Fundamental Rights. Rutgers Law Review 35:705–722.

Porter, Steward C. and Tarr, G. Alan, eds. 1982 State Supreme Courts. Westport, Conn.: Greenwood Press.

Uter, Robert F. 1984 Freedom and Diversity in a Federal System. University of Puget Sound Law Review 7:491–525.

State Constitutional Law

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