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We the 50 peoples: state constitutionalism challenges the federal judicial leviathan.

Hawaii recently panicked the nation when a state judge there declared that prohibiting same-sex marriages violated the Hawaii constitution's equal protection clause. The decision is being appealed to Hawaii's Supreme Court, which previously sent the case back to the circuit court, demanding that the state must meet a strict burden of proof for the necessity of denying same-sex marriage rights. (See "Gay Rites," January 1996.) When the rest of the country caught wind of the Hawaii Supreme Court's willingness to overthrow the same-sex marriage ban, the reaction was swift and sure: Congress passed and President Clinton signed a law that allows other states not to honor the marriages, in contradiction to the Constitution's "full faith and credit" clause.

When you think Constitution, you probably imagine the Supremes, those nine contentious, berobed guys and gals in their august Washington halls. But such brethren aren't just in D.C. Every state has its own set, interpreting its own constitution. While the federal Constitution guarantees a certain minimum protection of citizens' rights, that's just a floor. States can set a higher ceiling. Hawaii's Supreme Court caused a ruckus, but its decision to expand a right beyond the federal standard is as American as outrageous tort lawsuits.

Hawaii isn't the only state thumbing its nose at federal courts. After a half century of moribundity, in which federal courts were the arena for most fights over citizens' rights, state courts are more and more establishing higher ceilings for what they see as citizens' rights. What state courts call "rights" can stretch from freedom from police searches to the right to state money for abortions - so these decisions are often controversial. As state courts are changing the lives of specific litigants and developing new legal biospheres for their states, they also face charges of playing politics instead of the disinterested judge.

The new wave of state constitutionalism isn't just abstract judicial ideology - it has real effects in the lives of real people:

* A Maryland citizen won't lose his farm for having a couple of pounds of marijuana in his backyard barbecue.

* People in Kentucky, Michigan, and Texas can engage in oral or anal sex in the privacy of their home, without fearing jail time.

* Cops in New York and Montana can't search your entire property up to your house's door looking for probable cause for arrest, even though the "open fields" search doctrine embraced by the U.S. Supreme Court allows that.

* An arrested suspect in Pennsylvania doesn't have to worry about cops searching his car without a warrant, and a passenger in a car whose driver was arrested doesn't have to let a cop rummage through her purse.

* Judges in Texas can't impose gag orders that prohibit discussing a lawsuit outside a courtroom, despite federal permission for those restrictions under some circumstances.

Of course, if you disagree with the policy decisions inherent in such judicial rulings, the whole movement can seem like politics sailing under a judicial flag of convenience. Such accusations are perhaps inevitable in legal debates, which are matters of rhetoric and persuasion, not mathematical precision. Most people who praise or condemn judicial federalism, suggests University of Chicago law professor Richard Epstein, do so because of the results they believe it's likely to produce. "There's no one thing you can say about this trend," says Epstein. "Most objections to the practice [of expanding rights beyond federal standards] are to the substantive decision, not the diffusion of authority."

The fact that state courts have been disagreeing with the feds more and more is a sign, Epstein surmises, of a deeper loss of legitimacy and splintering of thought in legal philosophy and practice, and in intellectual culture at large. "I'm amazed at how much the degree of disagreement in the law has changed since I was in law school," Epstein says. "In 1970 the disagreement was over 30 degrees [of the legal philosophical spectrum], now it's over 180 degrees." As cultural and philosophical divisions widen, Epstein says, institutions like the Supreme Court have a harder time maintaining a broad legitimacy.

State constitutions preceded the federal Constitution; its Bill of Rights was largely modeled after already existing state bills of rights. In America's early days, state courts guarded their prerogatives jealously, and until the 1920s federal courts didn't enforce the Bill of Rights on the states at all. During the '60s, the Warren Court stepped up such federal enforcement aggressively. Federal courts usurped most bill-of-rights action.

Law arises from the arguments lawyers make - and when civil liberties action was in the federal courts, that's where lawyers flocked. The go-to-the-feds mindset arose from the civil rights battles of the '50s and '60s, says Timothy Lynch of the Cato Institute, who writes about and cheers growing state constitutional activism. "Back then the attitude was, 'They're battling Jim Crow down South. The state courts are stagnant backwaters. The action is in the federal courts, that's where we can get results.' It's been hard for lawyers to break out of that mindset."

Thomas B. Stoddard of the Lambda Legal Defense Fund, a gay rights legal activist group, told National Journal in 1991, "If I had my druthers, I would rather go to the Supreme Court and liberate every single state in the union." But the federal Supreme Court's Bowers v. Hardwick decision in 1986 upheld a Georgia sodomy law - and by implication any other state's sodomy law.

So Lambda is now pursuing cases against sodomy laws in state courts on state constitutional grounds, with some successes. "State courts recognize that their state constitutions provide greater security for individual rights than does the federal Constitution in many cases - specifically when it comes to privacy and equal protection," says Lambda staff attorney Suzanne Goldberg. "So we've chosen the states as a deliberate strategy."

The federal Supreme Court's rights juggernaut slowed down in the late '70s and early '80s. With the Rehnquist Court in full swing, liberal former Supreme Court Justice William Brennan declared a renaissance in state constitutionalism in a speech in November 1986. By 1991, legal scholar Ronald L. K. Collins had counted 750 decisions where state supreme courts, relying on their own state constitutions, extended citizens' rights beyond federal Supreme Court precedent.

Jennifer Freisen, a professor at Loyola Law School in Los Angeles and author of The State Constitutional Law: Litigating Individual Rights, Claims and Defenses, says state constitutionalism "is still re-surging. It's so heavy I can hardly keep up with it." Freisen has compiled more than 1,200 pages of decisions where state courts have consulted their own constitutions to reach conclusions about citizens' rights different from the federal Supreme Court's decisions under similar circumstances.

State constitutions still don't enjoy much respect. James A. Gardner of the Western New England School of Law argued in a 1992 Michigan Law Review article that we shouldn't even consider state constitutions "constitutions" in the same sense as the federal one.

Unlike the federal document, state constitutions aren't streamlined, long-lasting edifices. America has had 146 different state constitutions; 31 states have had two or more constitutions, and 18 have had four or more. And as of 1985, America's state constitutions had been amended more than 5,000 times.

The average state constitution is four times as long as the federal one, and some are eight times as long. And they are often larded with material that seems more the stuff of statute - or humor - than of the sacred compact binding a people into political unity. Louisiana amended its constitution to make Huey Long's birthday a state holiday. Texas's constitution declares that banks may use automated teller machines. The width of ski trails in state parks is a constitutional matter in New York.

State court judges themselves don't treat their constitutions with much respect, Gardner found. He argues that "contrary to the claims of New Federalism, state constitutional law today is a vast wasteland of confusing, conflicting, and essentially unintelligible pronouncements." Gardner sampled 1,208 state supreme court decisions from 1990 and found that in only 21 percent of the cases did the court even attempt to address state constitutional issues.

The new state constitutionalism may not yet have matured into a coherent judicial philosophy. Still, state courts have made a batch of decisions in the past decade expanding different constitutional rights beyond federal standards. Search-and-seizure cases have been busy arenas for state court activism; states such as Hawaii, Pennsylvania, New York, and Arizona have explicitly prohibited various kinds of police searches and seizures that have been countenanced by the federal Supreme Court.

New York has been a leader in expanding Fourth Amendment rights, but not everyone is cheering. Peter Reinharz, a prosecutor with New York City's Family Court Division, publicly excoriated his state's decisions regarding search and seizure in a recent issue of City Journal. Like most critics of the new state constitutionalism, Reinharz doesn't attack the concept of state courts relying on their state constitutions for independent reasoning, but he does question the judges' policy wisdom.

"I've been a prosecutor for 15 years," Reinharz says. "There's not one cop on patrol who can explain to me what the four tiers [established by New York courts to test proper searches] are about. You can't design tests that can't be interpreted by the people to whom they must apply."

Reinharz complains that the relevant language in the state and federal constitutions regarding protection from searches is absolutely identical, so no textual reason exists for departing from federal Supreme Court precedent. Cato's Lynch says he frequently encounters such arguments. "It's like people view it as somehow impolite to tell the Supreme Court, 'Sorry, but we reject your reading.'"

State constitution watcher Jennifer Freisen adds, "I don't believe the U.S. Supreme Court is infallible. I don't worship them. They could be wrong. If a [state court] decision is based on decent legal reasoning, there's no reason to fetishize the Supreme Court, to fetishize centralized power."

Explicit differences in the language of similar federal and state rights guarantees often have a role in the new state constitutionalism as well, as with the right to bear arms. Twenty-two state constitutions explicitly say you can use guns for personal defense, and 20 weapons laws have been overturned based on state constitutional guarantees, dating back to 1822. "In a lot of cases, state constitutions aren't monkeyed up with 'militia' clauses," says Stephen Halbrook, an activist lawyer and gun rights scholar who has argued many gun rights cases in both state and federal courts. "A lot have phrases like 'defense of self and state.' The first gun control law in American history was in Kentucky, and the state court promptly overturned it."

Today, after a recent series of disappointing decisions in such states as Ohio, Oregon, and Colorado upholding weapons bans that Halbrook thinks clearly violate their state constitutional weapons-rights guarantees, he's no longer so sure that state courts are any better than federal ones on gun rights.

Along with being tougher on government intrusions on citizens' liberties, state courts have also extended some "rights" that are in fact obligations for others - insisting that their state governments are constitutionally required to be more generous with tax dollars. Despite a federal Supreme Court decision to the contrary, the states of Minnesota, California, Montana, and New Mexico have decided that it would be positively unconstitutional to limit public funding for abortions.

That state courts are making decisions relying on their own constitutions, their own text, their own history, and their own judgment is an encouraging sign that political power in the United States doesn't have to be calcified in a central leviathan. While federalism leaves room for the multiplication of error, the more states realize they don't have to obey the federal government, in judicial precedent or other areas, the more room to maneuver the American citizen has - the more room for social and legal experimentation and evolution.

Even James Gardner, one of the fiercest academic critics of the state courts' legal reasoning, recognizes the new state constitutionalism's potential value. "Despite their shoddy methods, I came to the conclusion that I don't think states need any other reason to depart from Supreme Court precedent than that they think the Supreme Court was wrong," Gardner says. "We don't have a state and federal government to provide different polities with different values and to constitutionalize them. It's to provide two different avenues of protection for rights that we as Americans have decided we have."

Brian Doherty (BMDoherty@aol.com) is assistant editor of REASON.
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Author:Doherty, Brian
Publication:Reason
Date:Mar 1, 1997
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