State Constitutional Distinctions

Every state’s constitution contains many provisions, typically found in its bill of rights, protecting civil liberties. Sometimes these provisions closely resemble provisions of the U.S. Constitution, yet in many cases they differ, sometimes substantially, from provisions found in the federal Constitution or in the constitutions of other states. As a result, state constitutions may protect rights different from those protected by the federal Constitution. For example, the right to an education receives protection under most state constitutions, but not under the U.S. Constitution. State constitutions also may protect the same rights protected by the federal Constitution, but to a greater extent. Thus, police wishing to search for evidence of criminal activity in certain circumstances need not first obtain a warrant under the U.S. Constitution, but must do so under the constitutions of many states. Because of these kinds of distinctions, state constitutions often protect the civil liberties of citizens of their states more robustly than the U.S. Constitution protects the liberties of citizens of the nation.

The scope and distinctiveness of state constitutional rights has varied over time. During the earliest phase of state constitution making, from 1776 to 1789, state constitutions often differed from one another dramatically. After 1790, when new states began seeking admission to the Union, and when older states periodically decided to revise or replace their constitutions, drafters looked frequently to the U.S. Constitution, as well as to the constitutions of the existing states, for models. The routine copying of civil liberties provisions from one constitution to another led slowly to a growing convergence of constitutional texts. This process of convergence was strengthened during the nineteenth century by the influence among state court judges of a natural-law philosophy of individual rights. According to this philosophy, the rights that citizens hold against their governments are dictated by universal principles of Natural Law, and the way in which constitutional drafters happen to express them in various constitutional provisions is thus not particularly significant. As a result, state judges often interpreted provisions of state constitutions to mean the same thing as equivalent provisions of the national or other state constitutions regardless of their actual wording.

The process of state and national convergence in the protection of civil liberties was strengthened again in the mid-twentieth century when the U.S. Supreme Court developed the Incorporation Doctrine, under which provisions of the federal Bill of Rights are deemed to apply to the states. After incorporation, state governments found themselves obliged to observe not only state constitutional provisions protecting liberty but federal constitutional provisions as well. This doctrine made the constitutional protection of civil liberties more uniform across the nation by invalidating any state constitutional provision to the extent it failed to protect liberty as expansively as the corresponding provision of the federal Bill of Rights. Moreover, many state courts increasingly deferred to the Supreme Court’s leadership on civil liberties issues, deliberately construing state constitutional provisions to mean whatever the Supreme Court had held the analogous provision of the U.S. Constitution to mean. By the mid-1970s, a judicial consensus seemed to be coalescing around the idea that the United States has essentially a single constitutional regime of civil liberties and that the scope and meaning of individual rights are determined for all Americans by the U.S. Supreme Court.

This consensus soon broke down, however, when the Supreme Court began during the late 1970s and early 1980s to construe federal constitutional rights more narrowly than it had during previous decades. As the Court retreated from the protection of individual rights, some state judges began to reexamine rights provisions of their state constitutions as potential sources of additional protection. Because the Incorporation Doctrine does not prevent state constitutions from granting greater protection for civil liberties than the U.S. Constitution requires, some state courts began to assert their independence from the Supreme Court by construing state constitutional provisions to protect rights that the Supreme Court had ruled were unprotected by the federal Constitution.

Today, state courts have most actively expanded rights beyond the boundaries protected by the federal Constitution in the area of criminal procedure. Numerous state courts have construed their state constitution’s search and seizure provision to bar warrantless searches by state and local police in circumstances in which the Fourth Amendment of the U.S. Constitution permits them. Some courts have construed state constitutions to protect the right to counsel, the right to confront witnesses, and the prohibition on double jeopardy more broadly than the Supreme Court has construed equivalent rights under the U.S. Constitution.

Outside the field of criminal procedure, several state courts have ruled that their state constitutions provide broader protection than does the federal Constitution for the rights of free speech and equal protection. For example, unlike the federal First Amendment, the free speech provisions of the constitutions of California, Colorado, Massachusetts, New Jersey, Oregon, and Washington have all been construed to protect a speaker’s right of reasonable access to privately owned shopping malls. Some state courts have relied on state constitutions to expand the rights of gays and lesbians beyond federal boundaries, most recently with respect to the right to form civil unions. And courts in eighteen states have invalidated under their state constitutions aspects of those states’ education and educational finance policies that easily pass muster under Supreme Court rulings construing the U.S. Constitution.

At the same time, many state courts have chosen to continue to follow rulings of the U.S. Supreme Court when construing civil liberties provisions of their state constitutions. Sometimes state courts follow federal rulings simply because the text and founding history of the state constitution are so similar to the text and history of the federal Constitution that the interpretive process leads directly to the same results. Other state courts have expressed a reluctance to depart from the path marked out by the Supreme Court, because they believe that uniformity in the enforcement of constitutional liberties is desirable or because they question the legitimacy of rejecting conclusions reached by the nation’s highest court on a vital subject of mutual concern.

JAMES A. GARDNER

References and Further Reading

• Latzer, Barry. State Constitutional Criminal Law. New York: Clark, Boardman, Callaghan, 1995 (with Supplement, 2000).
• Tarr, G. Alan. Understanding State Constitutions. Princeton: Princeton University Press, 1998.

See also State Constitutions and Civil Liberties; State Courts