State Constitutions and Civil Liberties
When people debate the scope of our liberties, conversations often begin and end with the U.S. Constitution and the Supreme Court’s interpretation thereof. This focus is partially legitimate, because our federal government imposes many standards on states. In addition, how the Supreme Court interprets civil rights guarantees influences how states determine their own, similar responsibilities. At the same time, rights protection remains an essential feature of state constitutionalism. Some liberties explicit in state documents are absent or less encompassing in their federal counterpart. Here, the Supreme Court permits states to use the national standard as a minimum and their own standards as a ceiling. Moreover, nationally mandated criteria are relatively new. For most of our history, states had near exclusive responsibility for protecting civil liberties. Their constitutions were initially designed with this purpose in mind, and they maintained this role relatively unimpeded for almost 200 years. Given the preceding, no study of civil liberties would be complete without a discussion of state constitutions.
Scholars generally define civil liberties in terms of the first eight amendments to the U.S. Constitution. This national benchmark partially favors state constitutions, which have, since their inception in 1776, promoted these enumerated liberties by emphasizing them as inalienable and uncontestable based on nature and popular consent. The federal constitution’s terse list pales in comparison to detailed state accolades. At the same time, states did not uniformly enforce their grandiose parchment guarantees, so much so that subsequent Supreme Court interference rendered many of their grand words insignificant. Yet, the rights provisions found in state constitutions tell an important story. They suggest how important states were—and still are—in protecting civil liberties.
State Guarantees of ‘‘National’’ Civil Liberties
America’s legal commitment to the civil liberties outlined in the first eight amendments has strong ideological and historical roots. Some principles, like guaranteed trial by jury of one’s peers, date back to the Magna Carta of 1215. Others, like those limiting government’s prosecution powers and those prohibiting excessive Bail and cruel and unusual punishment, find their roots in the 1689 English Bill of Rights. Colonists incorporated these ideals and other, related British common law principles into their early charters, and then into their constitutions. Free conscience, a contentious right in Europe, was among the primary reasons people first journeyed to America. Reflective of this, seventeenth-century Colonial Charters and subsequent revolutionary constitutions codified this as an essential right. Finally, British settlers believed that free assembly, right of government petition, and the like were their English birthrights. Revolutionaries bitterly complained these were being denied them. Aiming to prevent similar tyranny in a newly independent America, constitution writers often incorporated these into founding documents as well.
These early legal protections remain a staple in American constitutional law today. The first eight amendments to the federal constitution, themselves based on state documents and the legal and philosophical traditions influencing them, remain unchanged. Moreover, although state constitutions are frequently amended and sometimes totally rewritten, their declared commitment to these explicit concerns has changed little since independence. Often, delegates meeting to revise existing documents simply reratified original rights declarations without much discussion or debate. Delegates meeting to write new documents or revise specific existing declarations usually looked no further than next door. They then debated which neighbor’s provisions were worthy of incorporating. This informal influence promoted ongoing similarities across civil rights protections.
Despite common philosophical roots and ongoing interdependence, each state has its own history and particular cultural and regional needs. This means not all constitutional features are shared among the fifty states or between them and the United States. Instead, provisions and their implementation have varied across the country, over time.
Life, Liberty, and Property
State documents grant special status to life, liberty, and property. The federal constitution protects their holdings with assurances of due legal process and just compensation. States offer similar legal provisions but often include additional, emphatic declarations that highlight commitment to these ideals. This tradition dates back to 1776 when states used their constitutions to reiterate their allegiance to the Declaration of Independence and to ground their revolutionary causes with righteousness from nature and God. Initially, more than half the states noted, as Virginia did, ‘‘ [t]hat all . . . have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.’’ By reiterating that fundamental principle that the British had denied Americans, writers placed purpose and legitimacy into their constitutions. Without this foundation, states were as tyrannous as their motherland. Knowing this, constitutional designers sometimes added declarations like Alabama’s specifying that ‘‘the sole object and only legitimate end of government is to protect the citizens in the enjoyment of life, liberty, and property; and when the government assumes other functions, it is usurpation and oppression.’’
States continue to emphasize the foundational value of life, liberty, and property. Some early entrants later modified their constitutions to pledge support to these ideals explicitly, as did South Carolinians nearly a century after they joined the union. Others attested to their value at inception, as did states across the mountainous west, where inhabitants still migrate specifically to live freely, far away from government intrusions and population clusters. Alaska, among the very last to write its own constitution, begins by noting its dedication to the principle ‘‘that all persons have a natural right to life, liberty, the pursuit of happiness, and the enjoyment of the rewards of their own industry.’’
America’s early history suggests that states took their protective job seriously. Southern responses to slavery infringements, including early nullification and separation threats as well as later, actual succession, exemplify how far states were willing to go. Of course, from a contemporary perspective, states have always selectively enforced their declaratory commitments to life, liberty, and property. For generations, not only southern slaves, but also free men of color, hardly enjoyed a life of liberty and secure property holding. Like these Americans, other selected minorities, such as Chinese railroad workers during the turn of the last century or Japanese citizens during World War II, experienced state and national infringements of these fundamental liberties.
Historical transgressions aside, states have successfully used their declaratory commitments to life, liberty, and property to justify and explain certain actions. In fact, they have sometimes used them to extend citizen protections beyond what the Supreme Court requires of them. Although hard to comprehend today, protections to slave owners then constituted meaningful protection of property. Furthermore, early state security for western settlers was a form of property protection, even though it harmed the lives, liberties, and properties of Native Americans, then considered members of a separate, hostile nation. Likewise, the protection these declaratory commitments offer now sometimes causes harm to others. For example, this specific clause permits California and other states to justify excluding political canvassers from soliciting private shop owners.
First Amendment Protections
State constitutions also give preeminence to First Amendment concerns. The federal document lumps together freedoms regarding religious exercise, speech, press, assembly, and government petition, forbidding Congress to abridge any of them. In comparison, states generally list each concern separately and emphatically. This delineation originally reflected revolutionary dismay with British infringements. More than concerns deserving legal protection, these were considered natural, fundamental, inalienable rights, belonging to each and every individual by birth, not convention. For example, New Hampshire’s first constitution noted that ‘‘among the natural rights, some are in their very nature unalienable . . . [O]f this kind are the RIGHTSOFCONSCIENCE.’’ Arkansas’s first document specified that ‘‘[t]he free communication of thoughts and opinion is one of the invaluable rights of man.’’ States commonly used several declarations— often eight—to iterate the value of First Amendment liberties. At the same time, most constitutions noted that these rights belonged to all except when individual actions disturbed the peace or common good. In concurrence with this caveat, states across America, over time, restricted—either through constitutional or ordinary law—the very liberties to which they declared such emphatic allegiance.
In the case of religious freedom, today we think of free conscience as the liberty to believe in the Almighty or not, to show humility by wearing a veil or not, to observe a Sabbath or not. This kind of religious freedom requires widespread tolerance of personal practices. However, original settlers escaping religious persecutions in Europe did not seek broad religious tolerance. Rather, they sought and created small religious communities, granting dissenting inhabitants freedom to exit, enter other, or start new societies. Colonial Charters incorporated these ideals first by granting a right of conscience, a right reflecting the belief that no sword could engender faith, that true devotion to God was neither outwardly knowable nor truly controllable. Documents then outlined the colony’s religious foundation and purpose, requiring individuals to accept these original principles, face penal consequences, or leave.
Although more secular than their colonial counterparts, early state constitutions still promoted religious faith, most often Protestantism. Virginia’s first constitution was not exceptional in noting that practicing religion was ‘‘the duty which we owe to our Creator.’’ Some states, like Pennsylvania, noted that no one ‘‘who acknowledges the being of a God’’ may be ‘‘deprived or abridged of any civil right as a citizen on account of his religious sentiments.’’ Nonbelievers had no guarantees and depended on the mercy of legislators. In Massachusetts not only was it ‘‘the duty of all men in society . . . to worship the Supreme Being,’’ but only Christians were granted equal protection of the law. Most state constitutions also restricted office holding, requiring leaders to profess the Christian faith, declare the Divine nature of the Bible, or attest to the Trinity or afterlife. Several did not prohibit church establishment, thereby permitting legislative enactment. Massachusetts constitutionally allowed taxpayer moneys to fund local churches and religious schools. Despite all this, however, revolutionary America secured a religious freedom unthinkable in Europe and worth a dangerous journey to experience.
During the antebellum period, states retracted many constitutional provisions favoring Christians. By the 1830s, no state gave money to a specific church. Constitutional provisions permitting or encouraging this were removed. By 1853, only Maryland and Ohio specifically extended civil rights to Christians only. None specifically required officeholders to proclaim faith in Christianity, although several continued to stipulate, as Mississippi did, that ‘‘no person who denies the existence of a Supreme Being shall hold any office in this State.’’ Only a handful of constitutions extended free conscience only to those paying God homage.
Despite this shift, subtle religious biases remained for generations to come. For example, mid-nineteenth century constitutional reforms to secularize schools usually aimed to deny Catholics an education free of Protestant teachings. Similar education maneuverings arose at the turn of the century when immigrants arrived at record levels, and politicians worried about cultural stability. Today, some Judeo-Christian biases remain, such as prominent court displays of the Ten Commandments, government office closures on Sunday, and property tax exemptions for churches. Even so, religious diversity is a tolerated reality across America. The federal government helps ensure this outcome, but individual state acts play an ongoing role.
Other First Amendment liberties demonstrate similar patterns: early protections that were substantial yet restrictive. For example, since the Revolution, the press enjoyed great freedom covering elections and exercised it liberally. True, malicious claims against candidates required proof, unpleasant truths needed justification, and proven libel resulted in punishment. True too, early enforcements were politically motivated. Yet, since independence, electoral political campaigns have been colorfully covered, sometimes viciously. In contrast, other writings suffered. Until the Civil War, antislavery publications were outlawed across most of America. In the late nineteenth and early twentieth century, state courts upheld legislative banning of Birth Control topics, declaring them a form of obscenity. They sustained routine denial of speaker permits for socialists, unionists, and women’s rights advocates, thereby effectively silencing their views. In all these cases, states constitutionally restrained these activities in the name of peace and the common good.
Most state constitutions still separately enumerate each First Amendment liberty and explicitly acknowledge each’s fundamental status. However, some states have since adopted the language found in the U.S. Constitution. For almost two centuries, New York described free conscience in positive and emphatic terms. It separately honored freedom of speech and freedom of press. However, in the mid-twentieth century, New York collapsed these together and described their protective liability together, exactly as the federal document does. This change reflects a widespread phenomenon: Most states—even those with ongoing separately lauded rights—now willingly ‘‘lock in step’’ with the national understanding of First Amendment guarantees. For example, a Supreme Court ‘‘test’’ denies many obscene acts free speech protection. Most states endorse and use this measure. Some, however, rely on their own constitutions and common law practices to evaluate obscenity cases. Their investigations may sustain a particular national ruling, but they may not. Oregon, one of these independent states, has explicitly rejected the Supreme Court’s obscenity standards, arguing its own free speech provisions unconditionally protect obscene acts.
Protections for the Accused
Largely because rights for the accused have theoretical grounding in a legal tradition dating back centuries, the union and its states share similar parchment guarantees. Although various states flesh out each right individually, sometimes having fifteen or twenty separately listed protections, they offer few extra parchment guarantees. For example, two-thirds of the states have search and seizure stipulations basically identical to the Fourth Amendment. About the same number prohibit warrants without probable cause in the same manner the United States does. In both instances, only a handful of state constitutions specify protections less inclusive than the federal document. Several offer more detailed provisions on just punishments, jury requirements, and trial procedures.
Because constitutional provisions for the accused originate from the same long-standing philosophical and legal traditions, each state has always extended numerous guarantees, protecting citizens from tyrannous government prosecution. Principles also led to enhanced practical applications. For example, prohibitions against cruel and unusual punishment led states across America to introduce penitentiaries and reduce the number of crimes requiring Capital Punishment. Some states even outlawed a death penalty. At the same time, variations and misapplications existed. During the antebellum period, juries were under attack. Scholars, jurists, and politicians began questioning whether ordinary people could or should determine the meaning of the law or even guilt in particular criminal cases. Limited constitutional guidelines enabled state legislators and judges to control jury effectiveness by imposing restrictions on the number of jurors, the nature of their deliberation, and the character of their grouping. Here began the new protocol: Judges would interpret law; juries could determine fact. The introduction of plea bargaining further diminished the value of guaranteed trial rights. Marginalized groups especially suffered then and throughout U.S. history. For more than 100 years, women and blacks could not serve as jurors. Men of color often required extra witnesses to prove another guilty. Several states did not offer the poor free legal counsel.
In the past fifty years, some states have revised their constitutions to comply with national standards. For example, Virginia’s constitution now enumerates the criminal proceedings that the Supreme Court mandates. Even states without explicit written compliance generally abide by the court’s rulings on this and similar matters. However, not all blindly follow directives from above. For example, the Supreme Court denies strong search and seizure protections to vehicles stopped for traffic violations. Many states nonetheless limit police actions in these circumstances. Moreover, while currently prosecutors may use evidence seized in good faith without a valid warrant, some states reject this privilege, arguing that such evidence is unconstitutional according to their own standards. Finally, certain states reject Capital Punishment regardless of the crime.
State Guarantees of Other ‘‘Civil’’ Liberties
States protect other liberties not outlined in first eight amendments to the U.S. Constitution. Some of these guarantees also originate from principles that English settlers brought with them to the Americas. Among these is the community’s right to govern itself, a liberty that necessitates voting privileges for individual citizens. No American can forget the revolutionary cry ‘‘No taxation without representation!’’ Pursuant with this exclamation, from declared independence onward, state constitutions have always embraced self-government, along with the franchise, as an essential liberty, necessary to prevent government infringement of all other coveted liberties. In addition, since colonial times, the legal rights and privileges of most everyday affairs have been regional concerns. For example, early charters detailed punishments for adultery and limitations on wife beating; they also included marriage and childrearing responsibilities. Independent states followed suit, constitutionally imposing some requirements and adjudicating others. For most of our union’s history, states determined matters dealing with sexual activity, marriage, divorce, and child rearing.
Nearly all state documents praise popular sovereignty. Most revolutionary constitutions echoed Virginia’s declaration that ‘‘all power is vested in . . . the people’’ and that to protect rights and the common good ‘‘a majority of the community hath an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it.’’ As with other civil liberties, this emphatic allegiance reflects the initial stature of popular sovereignty as a preeminent revolutionary cause. The Declaration of Independence proclaimed its fundamental nature, and state documents followed that example.
The vast majority of revolutionary and antebellum constitutions declared self-government foundationally important. More than half went further, acknowledging the purpose of popular political influence, proclaiming, as Missouri did, that the people had ‘‘the inherent, sole, and exclusive right of regulating the internal government . . . and of altering and abolishing their constitution and form of government whenever it may be necessary to their safety and happiness.’’ As a result of the Civil War, states now temper the proclaimed purpose of popular sovereignty by denying any secession privilege. Yet, this restriction is always noted separately, leaving original proclamations of self-government’s fundamentally innate and instrumental value unspoiled.
Over the years states have expanded the people’s practical decision-making influence. During the antebellum period, states eliminated property and taxpaying requirements for voters and officers. Many appointed positions became elective. During the progressive era, constitutions granted citizens opportunities to affect legislation directly, through initiatives and referenda. These changes certainly aimed to regulate government’s economic influence, preventing large debt or circumventing special interest development. Yet, everyone recognized that these reforms and the popular sovereignty ideal they reflected were intricately connected to civil liberties. Advocates contended that those without voting or decision-making privileges held their rights precariously, at the whim of the privileged. Critics feared that additional voters or newly offered avenues of popular influence would unwittingly destroy life, liberty, and property. Many documents reflect the reform view, using words similar to North Dakota’s that ‘‘[a]ll men . . . have certain inherent rights,’’ and ‘‘to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.’’ The revolutionary claim that civil liberty strongly depended on the people’s ultimate sovereignty remains a concept widely acknowledged in state constitutions.
Contemporary skeptics question this euphoric view, arguing that extensive popular control, especially over constitution making and judicial selections, potentially harms civil liberty protections. Permitting constitutional revision by simple ballot measure may obscure rights provisions, polluting constitutions by introducing into them ordinary legislation and even contradicting rights stipulations. For example, extensive restrictions on land development overwhelm property’s preeminence. Additions like California’s Victim’s Bill of Rights unwittingly trammel on the accused. Skeptics further argue that popular sovereignty, especially when unleashed, undermines constitutional government itself. The initiative permits citizens to rewrite protections as public opinion dictates. Judicial reliance on frequent reelection encourages men of law to heed the people’s whim and thereby treat provisions as pliable words rather than foundational law.
These concerns prohibit many from considering popular sovereignty among the state-protected liberties; yet this conclusion is premature. All rights sometimes conflict with another. Protecting one right, say political speech, sometimes comes at the expense of another, say property or privacy. Furthermore, some features of political voice, namely freedom of speech, assembly, and petition, are nationally recognized as civil liberties, valuable in part because they help prevent government tyranny. The federal constitution’s initial silence on the franchise and its exercise does not diminish their equally foundational importance in a free society.
Like other constitutionally enumerated liberties, state implementation of the popular sovereignty ideal did not result in its universal enjoyment across America. Women lacked the vote until late into the nineteenth century, when states, beginning with Wyoming, began extending the privilege to both sexes. Only after the union’s nineteenth amendment did all states enfranchise women. The case of African Americans entails an even harsher reality. Initially, many northern states extended suffrage regardless of color. However, the end of property restrictions and the feared migration of newly freed slaves led these states to include only whites. Even when U.S. constitutional edict declared African Americans free citizens, with voting rights privileges, clever state machinations prevented enforcement for generations to come.
Other important liberties largely under state control include economic and privacy rights. Although ordinary and common law govern many aspects of these affairs, state constitutions also regulate them using stipulations in rights declarations and elsewhere. For example, around the mid-nineteenth century, in response to overzealous and party-motivated involvement in the economy and various industries, several states made just compensation a guiding constitutional principle of adjudication. They and others limited or abolished imprisonment for debt. At the turn of the century, state constitutions introduced rights protecting citizens from railroads, monopolies, and public utilities. Various laws protecting children and factory workers were then upheld by these and other constitutional guarantees.
States have long concerned themselves with privacy issues also. During the nineteenth century, common law principles guided state determinations in these regards. For example, judges ruled that married women jointly owned their husband’s property and that men owed seduced women reparation. In the twentieth century, states introduced constitutional provisions affecting women and marriage. For example, half of the states constitutionally grant men and women equal protection under the law. In response to scattered local sanctions of same-sex marriage, many states added constitutional provisions defining marriage as a union between a man and a woman. Few statutes or constitutional stipulations concern childrearing directly, but questions of divorce custody and adoption eligibility fall squarely under state jurisdiction, relying on judicial interpretation of ordinary and common law. Moreover, early education, an essential component of child development, is a constitutional matter. Many state documents declare education an inherent right, of fundamental value. Nearly all outline sources for its funding. The Supreme Court, through rulings such as condoning the Amish custom not to educate girls or rejecting mandatory education for illegal immigrant children, continues to reject the unqualified emphasis so many states grant education.
As with other civil liberties, who enjoyed protections, when and where, varied across states. Through much of the nineteenth century, Protestants alone enjoyed free education unencumbered. The practice of separate but equal education relegated many black children to second-rate, poorly funded schools. For more than a century states banned Birth Control and criminalized abortion. Until an early twenty-first– century ruling, many prohibited sodomy. For generations, states prevented individuals from seeking the mate of their choice. For a short time, westerns states outlawed marriages between Chinese and whites. In some places, interracial marriage remained a legal taboo until the mid-twentieth century, when the Supreme Court barred miscegenation laws. These restrictions loosened over time, often by state volition alone. Some remain. Segregated education continues, albeit through legal methods of tracking and the like. The majority of states currently forbid same-sex marriage.
Alongside these restraints, personal liberty flourished and expanded. For example, local courts throughout the country redefined common law so that nineteenth-century women gained equality and respect in and outside marriage. They banned marriage to young minors and between close blood relations. Later, these same courts sought to enforce legal and constitutional statutes aimed at protecting children and laborers from excessive factory demands. Throughout the progressive period, constitutions regulated railroads and public utilities as well as corporations, hoping to help citizens retain benefits of competition. Several permitted women suffrage before the federal amendment. Despite constitutional specifications to the contrary, some local judges continue redefining marriage. Moreover, several state constitutions describe privacy as a fundamental right.
Civil Liberty Protections Today
Because the nation has become the main protector of civil liberties, one easily forgets that for close to 200 years states exercised this job almost exclusively. How the federal government gained and retains this protective authority illuminates what future role states may play.
Neither the federal constitution nor its first twelve amendments sanctioned the government to sidestep states and protect individual liberties. In fact, initial designers of that now-powerful document explicitly argued that civil liberty protection remained eminent state domain. Yet, skeptics immediately recognized that the new government threatened regional autonomy. People then worried not that the federal government would take over rights protection, but that it would overstep its delegated arena of power, pass and enforce laws restricting citizen rights, dominate and destroy states along with their protective abilities, and thereby destroy any semblance of freedom in America. The very eight amendments currently delineating our civil liberties constituted the Federalist response to these fears. Although the initial wording of the First Amendment shows that some founders wanted the nation to help police liberties then under state supervision, the first Congress rejected this.
Despite Congressional insistence that all the initial amendments only restrict federal powers, the scope of the new government’s control was soon brought to the Supreme Court. Here, Chief Justice John Marshall determined that the post-founding revisions aimed strictly at preventing national infringements on the people’s liberty, that states had independent control in matters outlined in the first eight amendments. This view became the standard for nearly a century thereafter.
As already noted, early state dominance resulted in disparities across the union. Constitutional variations, particularly in implementation, proved harsh and suffocating for certain groups but remained sustainable and tolerable largely because state documents reflected cultural diversity and accommodated popular opinion. The dissatisfied could migrate to a state with preferable laws, mores, and opportunities. Runaway slaves often made this choice during the antebellum period, as did free men of color later that century. The relative ease of constitutional revision permitted another outlet for the dissatisfied. Citizens could respond to unwanted provisions through the amendment process, something they frequently did throughout our history.
Conflict over slavery, most particularly the war it instigated between the states, initiated the demise of state control over civil liberties. Victorious northerners orchestrated reconstruction amendments that authorized the federal government to delimit and define Citizenship and its privileges. Drafters and defenders believed that the Fourteenth Amendment extended nationally the guarantees outlined in the first eight amendments. However, subsequent reality proved the folly of their expectations. Before the end of the century, the Supreme Court determined that the Fourteenth Amendment did not incorporate existing national guarantees. Pursuant with this, the Court overturned national civil rights legislation seeking to minimize racial discrimination. It maintained state laws prohibiting interracial marriage and integration in schools, transportation, and the like. Even in cases not involving race, the Court examined contested acts on a case-by-case basis, exploring individually whether disputed concerns were fundamental and substantive enough to merit national interference.
Fifty years later, the Court began empowering these reconstruction amendments. In the 1920s, it ruled that First Amendment stipulations regarding speech and press applied directly to the states. Only when words resulted in a clear and present danger could state restriction be justified. By the forties, the court began addressing state entanglement with religion, explaining that the First Amendment protected Jehovah’s Witnesses who refused to salute the flag on religious grounds. Twenty years later, the Court deemed that mandatory prayer and Bible reading in schools were unconstitutional. In the thirties and again in the sixties, Supreme Court rulings ensured that those accused in state courts enjoyed the same rights as those accused in federal courts. It banned state use of evidence found through unreasonable searches and seizures, granted every American access to free legal counsel, and upheld the privilege against self-incrimination, requiring enforcement agents to remind arrestees across America of this right. Even privacy rights became a national concern, so that now practicing Birth Control, engaging in sodomy, aborting an unwanted pregnancy are all mandated guarantees.
These clear national directives took away much of the independent power states once had defining and protecting civil liberties. However, just when the power of the Supreme Court seemed final, scholars and notable judges offered a new directive, urging states to use nationally outlined protections to determine minimal guarantees and to use their own constitutional traditions to extend liberties beyond that. This plea led to subtle variations, with some states, like California and Oregon, granting their inhabitants greater protections than the federal government does. Although few states exercise this independence consistently, its possibility opens the door for future, expanded state involvement in civil liberty protection.
In addition to this potential for increased state influence, other unpredictable factors affect the future power states may have in protecting liberties. Jurisdictions depend on Supreme Court rulings. What currently remains a state concern, say marriage requirements, can easily be incorporated into the national fold. The Supreme Court need only declare that state differentiation between same and different sex couples goes against the equal protection clause, and overnight states would lose this domain. Likewise, any current nationally protected right may be returned to state jurisdiction. The Court has already accepted many state-legislated restrictions on abortion. Permitting even tighter ones could de facto return control to states.
Public opinion, not just Court whim, fosters confusion over the current and future role of state control in matters of civil liberty. History has shown that without voluntary compliance few Supreme Court pronouncements become accepted practice. States and the individuals composing them sometimes ignore national mandates. Presidents desiring reelection rarely go against such defiance. The Court, lacking the power of the sword, can offer no independent enforcement. For example, community schools often defy integration requirements through self-selecting tracking programs. Small religious communities, like the Hasidic ones in Brooklyn, effectively destroy businesses that do not close in observation of their Saturday Sabbath. Many states permit local communities to ban handgun ownership within their borders. In each case, enjoyed civil liberties differ from national standards.
Isolating the civil liberties under state jurisdictions is difficult. Much of the independent power states retain depends on whether the Supreme Court offers specific guidelines, whether local judges choose to ‘‘lock in step’’ with these guidelines, and whether communities exert independent influence. There exist few immutable directives outlining which level of government protects which civil liberty. That protective distribution largely hinges on the fourteenth amendment, which itself elicits ongoing, rigorous debate as to its scope. How much civil liberty protection states exert strongly depends on human determination. Certainly where states currently have or might reinherit jurisdiction, there exist adequate constitutional guidelines, in place since the beginning of America’s independent existence. However, only time will tell whether states—when asked to do so—will successfully and uniformly implement their extensively declared guarantees.
LAURA J. SCALIA
References and Further Reading
- Bryce, James. The American Commonwealth. Two Volumes. 1888, reprint ed., Indianapolis: Liberty Press, 1995.
- Cronin, Thomas E. Direct Democracy: The Politics of Initiative, Referendum, and Recall. Cambridge, MA: Harvard University Press, 1989.
- Elazar, Daniel J. American Federalism: A View from the States. New York: Thomas J. Crowell, 1972.
- Finkelman, Paul, and Stephen Gottleib, eds. Toward a Usable Past: Liberty under State Constitutions. Athens: University of Georgia Press, 1991.
- Fritz, Christian, Rethinking the American Constitutional Tradition: National Dimensions in the Formation of State Constitutions, Rutgers Law Journal 26 (summer 1995): 969–992.
- Hall, Kermit L. The Magic Mirror: Law in American History. New York: Oxford University Press, 1989.
- ———, ed. By and For the People: Constitutional Rights in American History. Arlington Heights, IL: Harlan Davidson, Inc. 1991.
- Kruman, Marc W. Between Authority and Liberty: State Constitution Making in Revolutionary America. Chapel Hill: University of North Carolina Press, 1997.
- Latzer, Barry. State Constitutions and Criminal Justice. New York: Greenwood Press. 1991.
- Lutz, Donald S. Popular Consent and Popular Control: Whig Political Theory in the Early State Constitutions. Baton Rouge: Louisiana State University Press, 1980.
- ———. The Origins of American Constitutionalism. Baton Rouge: Louisiana State University Press, 1988.
- Rosenberg, Gerald. The Hollow Hope: Can Courts Bring About Social Change? Chicago: University of Chicago Press, 1991
- Scalia, Laura J. America’s Jeffersonian Experiment: Remaking State Constitutions, 1820–1850. DeKalb: Northern Illinois University Press, 1999.
- Swindler, William F., ed. Sources and Documents of United States Constitutions. Ten Volumes. Dobbs Ferry, NY: Oceana Publications, Inc. 1973.
- Tarr, G. Alan. Understanding State Constitutions. Princeton: Princeton University Press, 1998.
- ———, ed. Constitutional Politics in the States: Contemporary Controversies and Historical Patterns. New York: Greenwood Press. 1996.
See also Abolitionist Movement; Accommodation of Religion; American Revolution; Application of First Amendment to States; Ballot Initiatives; Bills of Rights in Early State Constitutions; Child Custody and Foster Care; Church Property after the American Revolution; Defiance of Court’s Ban on School Prayer; Disestablishment of State Churches in the Late Eighteenth Century