State Constitutions, Modern History, Civil Liberties under

Civil liberties under state constitutions did not receive concerted attention from either modern scholars or the judiciary until the close of the Warren Court. From 1897 to 1969, as the Supreme Court federalized civil liberties through the incorporation doctrine that applied provisions of the federal Bill of Rights against the states through the Fourteenth Amendment’s due process clause, state courts seldom turned to the protections of the bills of rights in their own constitutions. Although there were notable exceptions, such as the state courts that adopted the exclusionary rule and the right to counsel before being required to do so, frequently the state courts merely followed the example set by the Supreme Court, even when interpreting their own constitutions. Not surprisingly, then, state constitutions were not a subject of academic interest during most of the twentieth century. In fact, in 1966, Professor Lester J. Mazor noted that no treatise existed on state constitutional law or civil liberties under state constitutions.

However, as the Burger Court replaced the Warren Court, a new awakening regarding the civil liberties protected by state constitutions emerged. Many scholars, state court judges, and even a Supreme Court justice urged the states to not merely parrot the federal interpretation of civil liberties but to engage in their own independent examination of the guarantees contained in their fundamental state charters. Such an independent scrutiny is permissible because, although the U.S. Supreme Court’s decisions are binding on questions of federal law, they are not dispositive of the rights provided by state constitutions, even with respect to provisions that protect similar rights. As the Supreme Court held in PruneYard Shopping Center v. Robins (1980), state constitutions may protect a different scheme of constitutional values as long as the resulting liberty structure does not violate the provisions of the supreme federal Constitution.

PruneYard upheld the California Supreme Court’s determination that its state constitution protected free speech and petitioning rights at a privately owned shopping center, even though the Supreme Court had reached a contrary result under the U.S. Constitution in Lloyd Corporation v. Tanner (1972). The shopping center contended, among its other arguments, that Lloyd barred the state from granting free speech rights to citizens on its property. But the Supreme Court disagreed, reasoning that while Lloyd constrained the reach of free speech rights under the federal Constitution, it was well established that the state could adopt in its own constitution more expansive individual liberties so long as this state constitutional grant did not contravene any provision of the U.S. Constitution. This well-established principle authorizes an independent system of civil liberties under a state constitution. All that remained was to provide a reason to create one.

The New Judicial Federalism Movement

The impetus for an independent state civil rights jurisprudence stemmed at least partially from a desire to preserve the individual civil liberties established by the Warren Court against their erosion by the more conservative approaches used by the Burger Court and later the Rehnquist Court. Although the Burger and Rehnquist Courts did not explicitly overrule Warren Court landmarks, such as Griffin v. Illinois (1956), Mapp v. Ohio (1961), Gideon v. Wainwright (1963), and Miranda v. Arizona (1966), these decisions were frequently narrowed by later rulings creating exceptions to their principles. For some proponents, state constitutions, statutes, and judicial decisions held the only promise to continue the progressive liberties revolution of the Warren Court.

Yet it would be unfair to merely characterize this as an ideological movement. The call to examine state constitutions was motivated at least equally by the appropriate dual protection of liberty under the American federal system. James Madison envisioned in The Federalist Papers that a ‘‘double security’’ would arise to the ‘‘rights of the people’’ from the division of governmental power between the federal and state governments and among the branches of each. As the federal judiciary established a framework for judicial enforcement of civil liberties, Madison’s federal vision could best be served by an independent judicial examination of the rights guaranteed by the state constitutions. The movement became known as the new judicial federalism, although sometimes either ‘‘new’’ or ‘‘judicial’’ is omitted.

New judicial federalism urged that state constitutional liberties should not be relegated to a subordinate position, especially considering that they were the original source of American freedoms. State bills of rights actually preceded the federal charter, their existence being one of the reasons that the Constitutional Convention of 1787 did not deem a federal statement of rights necessary. The Bill of Rights ratified in 1791 borrowed pervasively from state constitutions, appropriating almost every one of its provisions from an existing state bill of rights. Thus, from a historical perspective, state constitutions were the wellspring of the American conception of civil liberties. The adherents to the new judicial federalism contended this influence should continue even under modern American federalism. The states could secure rights based on the local concerns of their citizens, being more responsive to their needs. The states could also serve as laboratories of experimentation regarding the appropriate level of liberty, without having to establish a uniform federal rule applicable to all fifty states.

The best known and most cited piece of scholarship encouraging new judicial federalism, even though many of its ideas had previously been expressed, is Justice William J. Brennan’s article State Constitutions and the Protections of Individual Rights. Brennan urged that, despite federal incorporation, the state constitutions should not be forgotten, as they too ‘‘are a font of individual liberties, their protections often extending beyond those required by the Supreme Court’s interpretation of federal law.’’ He continued that the Court’s decisions should not be considered dispositive of civil liberties guaranteed by state law counterparts. Instead, he urged that, as the Burger Court’s decisions had diminished protection of federal civil rights, the state courts needed to respond by increasing their own scrutiny to safeguard liberty.

Many others also provided scholarly commentary encouraging and defending the new judicial federalism, including notable contributions by Professor (later Oregon Supreme Court Justice) Hans A. Linde, California Supreme Court Justice Stanley Mosk, Wisconsin SupremeCourt Justice ShirleyAbrahamson, and Professor Robert F. Williams. However, not all the commentary has been favorable. Professor Earl M. Malz contended that the new judicial federalism actually does not further principles of federalism, but instead merely tends to subject state legislative determinations to another level of judicial review, thereby reducing governmental flexibility, breeding uncertainty, and increasing the costs of the legal system. Professor James A. Gardner objected that the very premise of state constitutionalism envisioned by new judicial federalism was flawed, evidenced by the conflict among state constitutional decisions and the refusal of thousands of decisions to engage in an independent analysis of state constitutional liberties. Even supporters of the new judicial federalism had to concede that the states had not consistently embraced the tenets of the movement.

State Judicial Interpretations

Although the number of state judicial decisions interpreting state civil liberties in a different manner than the federal Constitution is now large enough that most have stopped counting, such decisions still represent the minority approach. A 2000 study by Professor James N. G. Cauthen found that state supreme courts during a twenty-five-year period followed the federal analysis in more than two thirds of all cases raising an issue of individual liberties. Thus, although the quest for state judicial independence on civil liberties has met with some successes, it is not the norm.

Nevertheless, the new judicial federalism movement has significantly influenced the judiciary’s interpretation of civil liberties in a number of states, including, among others, California, Florida, Massachusetts, Alaska, Hawaii, New Jersey, and Oregon. Some state court decisions even preceded Justice Brennan’s article, rejecting or refusing to await federal constitutional decisions and relying instead on state constitutions to protect the rights of their citizens. The most famous early example was People v. Anderson (1972), where the California Supreme Court held that the death penalty violated the state constitutional prohibition on ‘‘cruel or unusual punishment.’’ The court relied on the California constitutional convention’s rejection of the EighthAmendment’s ‘‘cruel and unusual’’ language, the early history of the provision, and conceptions of fundamental justice. Although Anderson’s result was later overturned by a California constitutional amendment reinstating the death penalty, the case still is an early recognition of the ‘‘responsibility to separately define and protect the rights of California citizens’’ later explicitly articulated by that same court in People v. Disbrow (1976).

Other early state court decisions came to similar conclusions. The Alaska Supreme Court in Baker v. City of Fairbanks (1970) rejected the application of the petty offense exception to the right to jury trial under its state constitution, concluding ‘‘we are under a duty, to develop additional constitutional rights and privileges under our Alaska Constitution if we find such fundamental rights and privileges to be within the intention and spirit of our local constitutional language and to be necessary for the kind of civilized life and ordered liberty which is at the core of our constitutional heritage.’’ The Hawaii Supreme Court in State v. Kaluna (1974) noted that it had and would continue to ‘‘extend the protections of the Hawaii Bill of Rights beyond those of textually parallel provisions in the Federal Bill of Rights when logic and a sound regard for the purposes of those protections have so warranted.’’ Over the decades since the 1970s, such state judicial declarations of independence have only become more common.

The resulting state court decisions have touched almost every aspect of American constitutional liberties. Particularly significant have been those holdings protecting additional rights for criminal defendants, dismantling unequal school financing schemes, authorizing free speech rights on private property, invalidating exclusionary zoning practices, extending the rights of privacy and equality, expanding religious liberty, requiring state funding for abortions, and recognizing same-sex marriage and unions. Yet, in almost all these situations, two to three times as many state courts have not read their state charters to protect such liberties.

Although many commentators bemoan this divergence, arguably it is an expected consequence of American federalism. The states will vary in the manner in which their citizens balance liberty against security, individual freedom against community morals, and private property against public needs. For some states, the United States Supreme Court has already protected individual rights as far, if not farther, than their preferred balance. For other states wanting to tip the balance more toward liberty, the new judicial federalism is another mechanism to do so. Nevertheless, the fixation on judicial interpretation should not obscure a more direct avenue—state constitutional amendment.

State Constitutional Amendments

Since 1970, some states have enshrined additional civil liberties for their citizens into their state constitutions either by adopting a new constitution or amending an older one. Several states have adopted state constitutional privacy provisions, which provide a textual basis for the protection of privacy in contrast to the unenumerated federal right of privacy. In addition, fourteen states adopted their own state equal rights amendments during the 1970s, which were very similar to the never ratified federal ERA. Finally, two states, California and Rhode Island, even adopted constitutional amendments specifying that their state constitutional rights were not dependent on the U.S. Constitution.

Conversely, though, other modern state constitutional amendments have been designed to limit or overturn rights previously recognized by judicial decision. In addition to the California constitutional amendment reinstating the death penalty, other California amendments have dispensed with the state constitutional exclusionary rule and limited busing to what is mandated by the federal Constitution. Massachusetts, Florida, Pennsylvania, and Hawaii have also ratified amendments that have modified the judicial interpretation of provisions of their bills of rights.

Thus, in many respects, the modern history of civil liberties under state constitutions is a continuing dialogue. The proponents of the new judicial federalism helped awaken an interest in independent state constitutional adjudication. Although the reception has been mixed, this movement has succeeded in increasing awareness of the potential to secure liberty through either state judicial interpretation or state constitutional amendment.

CHARLES W. ‘‘ROCKY’’ RHODES

References and Further Reading

• Abrahamson, Shirley S., Reincarnation of State Courts, Southwestern Law Journal 36, (November 1982): 951–974.
• Brennan, William J., Jr., State Constitutions and the Protection of Individual Rights, Harvard Law Review 90 (January 1977): 489–504.
• Cauthen, James N. G., Expanding Rights under State Constitutions: A Quantitative Appraisal, Albany Law Review 63 (2000): 4: 1183–1204.
• Gardner, James A., The Failed Discourse of State Constitutionalism, Michigan Law Review 90 (February 1992): 761–837.
• Linde, Hans A., First Things First: Rediscovering the States’ Bills of Rights, University of Baltimore Law Review 9 (Spring 1980): 379–396.
• Maltz, Earl M., False Prophet—Justice Brennan and the Theory of State Constitutional Law, Hastings Constitutional Law Quarterly 15 (Spring 1988): 429–449.
• Mazor, Lester J., Notes on a Bill of Rights in a State Constitution, Utah Law Review 1966 (September 1966): 326–350.
• Mosk, Stanley, State Constitutionalism: Both Liberal and Conservative, Tex. L. Rev. 63 (March/April 1985): 1081–1093. Rossiter, Clinton, ed. The Federalist Papers. New York: Mentor, 1961.
• Tarr, G. Alan. Understanding State Constitutions. Princeton: Princeton University Press, 1998.
• Williams, Robert F., In the Supreme Court’s Shadow: Legitimacy of State Rejection of Supreme Court Reasoning and Result, South Carolina Law Review 35 (Spring 1984): 353–404.

Cases and Statutes Cited

• Baker v. City of Fairbanks, 471 P.2d 386 (Alaska 1970)
• Gideon v. Wainwright, 372 U.S. 335 (1963)
• Griffin v. Illinois, 351 U.S. 12 (1956)
• Lloyd Corp. v. Tanner, 407 U.S. 551 (1972)
• Mapp v. Ohio, 367 U.S. 643 (1961)
• Miranda v. Arizona, 384 U.S. 436 (1966)
• People v. Disbrow, 545 P.2d 272 (Cal. 1976)
• People v. Anderson, 493 P.2d 880 (Cal.), cert. denied, 406 U.S. 958 (1972)
• PruneYard Shopping Center v. Robins, 474 U.S. 74 (1980)
• State v. Kaluna, 520 P.2d 51 (Hawaii 1974)

See also Bills of Rights and in Early State Constitutions; State Constitutions and Civil Liberties