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The situation is considerably more complicated where there is an alleged conflict between state and federal laws affecting the same subject matter. Where the conflict is clear and irreconcilable, then, of course, the supremacy clause mandates that the state law must yield.22 When the conflict is not so clear, then the Supreme Court has taken on the role of deciding whether the federal law preempts the field and therefore precludes state regulation of the same subject matter. The standards for deciding whether a field has been preempted by the federal government have not been articulated very clearly,23 and at least one member of the Court-Chief Justice William Rehnquist-has argued that the Court should invoke the doctrine only when Congress has made a clear decision to preempt.24

Finally, decisions of the Supreme Court either upholding or striking down national legislation also have a profound effect on federalism. Prior to 1937, the Supreme Court frequently struck down national economic legislation, often on the grounds that the federal law invaded a field reserved to the states exclusively by the Tenth Amendment.25 Since the “constitutional revolution" of 1937, however, the Court, with one exception,26 has abandoned the Tenth Amendment entirely. This abandonment has been so complete that one might conclude that there are virtually no constitutional restraints on national authority except for those found in the Bill of Rights. Even recognizing the exaggeration, it still does suggest that to the extent that there are any restraints on federal authority, they are more likely to be found through the political process than through the courts.27

states through the process of “selective incorporation.”

The Supreme Court, as well as other federal and even state courts, also discovered what might be called “new rights" within the Constitution, the right of non-English speaking school children to be instructed in a language they can understand, 32 the right of mental patients to treatment, 33 the right of prisoners to be free of cruel and unusual punishment, 34 and the right of married couples to privacy.35

Finally, the Court found new meaning in the equal protection clause of the Fourteenth Amendment. In addition to striking down state-imposed racial segregation in the schools, 36 the Court ordered the reapportionment of state legislatures according to the principle of “one man, one vote.”37 The Court also struck down many state laws giving preference to men over women 38 and held that indigent defendants have a right to counsel to appeal their convictions.39

Taken together, these four elements constitute the “revolution in civil rights and liberties" of the Warren Court era. Although these developments had their critics, 40 supporters argued that they were long overdue, because if these unpopular causes were not championed by the Supreme Court of the United States, they were unlikely to receive serious consideration at all.41 Whatever merit this argument might have had in the 1950s and 1960s, it needs to be reevaluated in the context of the 1980s. Two important changes appear to make it somewhat less compelling.

First, state political processes are more receptive to the claims of minorities than they were during the 1950s and 1960s. The right to vote is much more widespread,42 legislatures are more representative, 43 governors have gained more control over their administrations, 44 civil services have been modernized,45 state courts have been unified and professionalized, 46 and, most generally, a wide range of interest groups now participate in what have become much more open political and governmental pro

cesses. 47

The Supreme Court and

State Civil Liberties Policy It should be recalled that the U.S. Bill of Rights, as originally added to the Constitution in 1791, applied only to actions of the national government.28 For protection against state action, individuals had to look to the bills of rights of the state constitutions. This situation began to change in 1925, some 57 years after the adoption of the Fourteenth Amendment. Although the U.S. Supreme Court was originally hesitant to use the due process and equal protection clauses as grounds for striking down state action as violative of the U.S. Bill of Rights,29 beginning in 192530 the Court started the gradual process of incorporating provisions of the original Bill of Rights within the meaning of the Fourteenth Amendment, thereby making most provisions of the Bill of Rights as fully applicable against state action as they are against national action.

Furthermore, beginning in the 1950s and accelerating during the 1960s, the Court generally gave broad interpretations to most of the provisions of the Bill of Rights31 - now made applicable against the

Second, the nature of civil liberties issues is different in the 1980s. For example, rights protecting citizens against blatant racial and sexual discrimination, third-degree police tactics, and the suppression of books dealing with sex are all well established. While one should be “eternally vigilant”48 against any erosion of these basic rights, many of today's issues of civil rights and liberties are both more subtle and more complicated than those of the past. For example, today's issues of civil rights and liberties often involve a conflict between rights. What should one do, for example, when the claimed right of a journalist to withhold news sources in the name of freedom of the press conflicts with the right of a criminal defendant to all information to plan his or her defense?49 Or when the right of students to pray on the grounds of a public university in the name of religious freedom clashes with the right to be free of a religious establishment?50 Or when the right of a newspaper to publish conflicts with an individual's claim of privacy?51 These are not issues of balancing society's need for security and order against the liberty of an individual; rather, they involve the claim of one individual to a civil liberty against a similar claim by another. At the same time, determining an appropriate remedy for an alleged violation of rights has become more complicated. There is, for example, considerable dispute about the efficacy of the exclusionary rule as a remedy to the problem of unreasonable searches, especially when the violation appears more technical than willful.52 Other difficult problems of remedy arise in prisoners' rights cases53 and some gender equity cases. 54

These two developments of the 1980s-the increased responsiveness of state political processes to civil liberties claims and the complexity of the issues themselves-may call into question the traditional justification for federal judicial activism offered in the 1960s. At least it should suggest the need for experimentation with both forums and solutions.

There is some evidence that the U.S. Supreme Court has become sympathetic to these changes and is more willing to defer to the states on matters of civil rights and liberties. For example, the Court now may be somewhat more accepting of the standards of local communities in obscenity cases55 and substantially less willing to see cases transferred from state to federal courts in habeas corpus and other proceedings.56 Even more important, however, is the apparent willingness of the Court to see cases decided on state constitutional grounds without review by the Supreme Court.57 One must be careful not to overestimate this tendency, but the trend does seem to provide increased opportunities for states to deal with today's complicated issues of civil rights and liberties on the basis of their own constitutions, traditions, and standards.

While some observers applaud this "new judicial federalism,” which would give greater scope to the states in defining civil rights and liberties, others doubt the capacity of the states to protect these rights adequately. There is no a priori answer to this question of whether the states will protect civil rights and liberties; instead, one must look to the record of state constitutions, state judiciaries, and state political processes. 58

authority to the national government. As is well known, the national government has only those powers delegated to it by the Constitution. The states and their citizens retain all powers not delegated to the national government or prohibited specifically to them. This means that state constitutions are more likely to contain limits on governmental authority than is the case with the national Constitution.

Second, state constitutions must deal with matters barely touched on in the U.S. Constitution. State constitutions, for example, have detailed provisions on local government, elections, public education, and land management.

Third, state constitutions may be based on different understandings and philosophies of government.59 The Constitution of the United States is based on a Federalist conception of the separation of powers, with a single strong chief executive, a bicameral legislature in which the states are represented equally in one chamber, and life tenure for judges. State constitutions, on the other hand, may divide executive authority among several statewide elected officials and provide for the election of judges.

Fourth, state constitutions are easier to amend and change than is the U.S. Constitution. In fact, the 50 American states have had a total of 146 different constitutions since 1775.60 It may be that the relative stability of the U.S. Constitution has been made possible, in part, because of the capacity of the states to adopt new constitutions to meet changing social and economic conditions.

Fifth, unlike the U.S. Constitution, state constitutions provide for direct citizen participation in the process of amendment and change. All state constitutions provide for citizen ratification of proposed constitutional amendments; 17 even provide for the initiation of amendments directly by the voters, thus bypassing the legislature altogether.61

Sixth, because state constitutions must contain limits on government, and because they are relatively easy to amend, some commentators have observed that state constitutions tend to become “cluttered" with details that would be best left to statutory law.62 Although this charge can easily be exaggerated, it is true that state constitutions contain much more detail than does the Constitution of the United States. This detailed nature of state constitutions has important consequences for state judiciaries and for the practice of judicial review.

Finally, state bills of rights are often different from the U.S. Bill of Rights. Many state civil rights and liberties provisions are more detailed than are their counterparts in the U.S. Constitution. This is frequently the case with state provisions protecting against an establishment of religion, for example.63 Sometimes the language of state bills of rights appears to go beyond what is required in the U.S. Con

The Nature of State Constitutions State constitutions differ from the Constitution of the United States in several ways. First, the Constitution of the United States, by and large, delegates

stitution. Free speech provisions and guarantees of political participation are often of this nature.64 Most state constitutions contain rights provisions for which there are no counterparts in the U.S. Constitution. For example, 40 constitutions guarantee a right to education, and 19 contain an explicit right to be frce of gender discrimination.65 Again, these differences have important implications for state courts.

State Courts and State Constitutions

The Constitution of the United States requires that state court judges "be bound by Oath or Affirmation, to support this [the U.S. Constitution."66 In implementing this requirement, state constitutions usually require state judges to take a specified oath swearing fidelity to both the U.S. Constitution and the state constitution. For instance, the Pennsylvania Constitution prescribes the following oath for judges: "I do solemnly swear (or affirm) that I will support, obey, and defend the Constitution of the United States and the Constitution of this Commonwealth..

.87 Given that the supremacy clause of the U.S. Constitution provides that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof... shall be the supreme Law of the Land,” state judges, in cases of a conflict between their two loyalties, must give precedence to the U.S. Constitution and law. In fact, the U.S. Constitution makes this requirement explicit. After declaring the Constitution and laws of the United States to be supreme, it goes on to provide that the "Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."68 Yet, even with the clear supremacy of the U.S. Constitution, this does not answer the question of whether state judges should look first to the U.S. Constitution or to the constitution of their state when it is claimed that a state action violates both.

Prior to the ratification of the Fourteenth Amendment in 1868, state judges, quite naturally, looked to their state constitutions because there was little in the U.S. Constitution to limit state action.69 Later, when the U.S. Supreme Court began to find such protections in the Fourteenth Amendmentfirst for property rights and then for personal liberties-state judges also turned to the U.S. Constitution.70 After 1937, the U.S. Supreme Court held that the Fourteenth Amendment does not limit state economic regulation, except in the most unusual situations. State court judges, because they are bound by the Supreme Court's interpretations of the U.S. Constitution, likewise turned from the Fourteenth Amendment as a defense of property rights against state action but, of course, continued to use their state constitutions as property rights were challenged by increasingly active state governments.

Similarly, as the Warren Court expanded the scope of national constitutional protections for personal liberties, state judges also turned to the U.S. Constitution when confronted with cases involving personal liberties. In part, this tendency to look to the U.S. Constitution resulted from the nature of the legal strategy employed: because federal constitutional rights were so broadly interpreted by the U.S. Supreme Court, lawyers naturally argued their client's cause on the basis of the U.S. Constitution. State constitutional issues, when they were raised at all, were often seen as secondary.

Furthermore, state court judges began to interpret state constitutional provisions as identical to equivalent national constitutional provisions. For example, the language of Section 8 of the Pennsylvania Constitution's Declaration of Rights-dealing with searches and seizures-is similar to the language of the Fourth Amendment to the U.S. Constitution; consequently, Pennsylvania judges have tended to interpret Section 8 in precisely the same way as federal judges have interpreted the Fourth Amendment. Clearly, Section 8 of the Pennsylvania Constitution could not have been interpreted to deny rights protected by the Fourth Amendment of the U.S. Constitution. At the same time, Section 8 could have been interpreted by Pennsylvania judges to guarantee rights beyond what might be required by the Fourth Amendment.

This raises the difficult issue of “floors and ceilings.” If state judges view state constitutional provisions as identical to U.S. constitutional provisions, then interpretations by the U.S. Supreme Court become both the floor and the ceiling for the states. However, if state court judges interpret state constitutional provisions independently of the way in which the U.S. Supreme Court interprets the U.S. Constitution, then U.S. Supreme Court interpretations impose a floor only, and the states are free to develop an independent constitutional law that goes beyond that of the U.S. Supreme Court. At least this is the view of a number of state supreme court justices, including Hans Linde of Oregon, Stanley Mosk of California, Robert N. C. Nix, Jr., of Pennsylvania, and Robert Utter of Washington.

Interpreting state bills of rights independently of the U.S. Bill of Rights also raises once again the problem of uniformity versus diversity. Should American citizens have precisely the same civil rights and liberties regardless of where they live? Or should the states continue to play a role in defining civil rights and liberties? If the latter position is admitted, what should be the role of the U.S. Supreme Court in setting basic standards for civil rights and liberties? Becausc the American federal system is predicated on a pragmatic and dynamic balancing of uniformity and diversity, one should not be surprised to find these difficult considerations arising here.

State Constitutional Law and

American Federalism

The development of an independent state constitutional law has important implications for American federalism, implications that go beyond the issues of personal rights and liberties. For example, an independent state constitutional law reaffirms the role of the states as laboratories. It has been argued that today's issues of civil rights and liberties are extraordinarily complicated, often pitting one personal liberty against another. Even the most ardent civil libertarians disagree on how to resolve such issues as free press versus fair trial or the free exercise of religion versus the establishment of religion. These are conflicts in which society might benefit from experimenting with a variety of solutions in different settings without imposing a single uniform national standard. Even beyond issues of civil rights and liberties, experimentation seems a necessity when confronted with such issues as balancing legislative and executive control over bureaucracy or how to achieve equity in educational finance.

In addition, an independent state constitutional law would foster diversity, one of the key values underlying federalism itself. One should not assume that uniformity in constitutional doctrine means better constitutional doctrine. Many contemporary constitutional issues admit of a variety of solutions, no one of which is necessarily better than another, only different.

Third, the development of an independent state constitutional law would reinforce the role of the states as polities. Earlier in this chapter, it was argucd that the principal role of the states in the American federal system is to make policy for their own citizens in keeping with their own needs and traditions. Constitutional policymaking, no less than legislative and executive policymaking in such fields as education, social welfare, and domestic relations, is an attribute of being a polity. This must not be taken to mean that the states are “sovereign," at least in the classic sense of that word. The American states exist within the framework of the Constitution of the United States, whose supremacy clause assures the superiority of constitutionally legitimate national laws. Nevertheless, no matter how broadly we interpret the powers delegated to the national government, our constitutional bargain assures a considerable policymaking role for the states.

Finally, an independent state constitutional law can be supportive of democracy itself. Constitutions address the most fundamental political questions: what public policies are legitimate, how is political conflict managed and organized, and what are the

very purposes of the political community? In the American states, citizens write and approve constitutions, ratify amendments through direct participation, and, in most states, play a role in selecting or retaining the judges who interpret the constitutions. These matters of constitutional choice are at the very heart of democracy. Without vital state constitutions and constitutional development, American citizens would be denied any opportunity to participate in this most basic decisionmaking process.

The Organization of this Study This study is organized into four parts. Part I, which includes this chapter and the next, explores the role of state constitutions and constitutional law in the American federal system and the contemporary opportunities for the development of an independent state constitutional law. Part II, which includes chapters 3 through 7, explores how state courts have addressed fundamental constitutional issues, including the organization of state government, civil rights and liberties, equality, criminal procedure, and property rights. Part III, chapters 8 and 9, deals with how the development of an independent state constitutional law affects selected areas of public policy-in this case workmen's compensation and educational reform. Finally, Part IV, chapter 10, presents the conclusions of the study. NOTES 1 For other overview treatments, see U.S. Advisory Commission on Intergovernmental Relations, State Constitutional Law: Cases and Materials (Washington, DC: ACIR, M-159, October 1988), and The Question of State Goverment Capability (Washington, DC: ACIR, A-98, January 1985), pp. 27-63; John Kincaid, ed., “State Constitutions in a Federal System,” The Annals of the American Academy of Political and Social Science 496 (March 1988): entire issuc; “New Developments in State Constitutional Law,Publius: The Journal of Federalism 17 (Winter 1987): entire issue; and Bradley D. McGraw, ed., Developments in State Constitutional Law (St. Paul: West Publishing Co., 1985). 2 U.S. Advisory Commission on Intergovernmental Relations, Changing Public Attitudes on Governments and Taxes, 1988 (Washington, DC: ACIR, S-17, 1988), pp. 6-7 and 33-34. 3For a description of the writing and ratification of the Massachusetts Constitution, see Paul C. Reardon, “The Massachusetts Constitution Marks a Milestone,” Publius: The Joumal of Federalism 12 (Winter 1982): 45-56. For fuller treatment, see Ronald M. Peters, The Massachusetts Constitution of 1780: A Social Compact (Amherst: University of Massachusetts Press, 1979). The Massachusetts Constitution of 1780 now has 117 amendments. For a complete chronology of state constitution writing, see Albert L. Sturm, “The Development of American State Constitutions.” Publius: The Journal of Federalism

12 (Winter 1982): 57-98. 5Scc the comparisons drawn by James Madison and Alexander Hamilton in Federalist #50 and Federalist #85, in Jacob E. Cooke, ed., The Federalist (Middletown, Connecticut: Wesleyan University Press, 1961), pp. 343-347 and 587-595. 6 Donald S. Lutz, “The Purposes of American State Constitutions,Publius: The Journal of Federalism 12 (Winter 1982): 27-44. See also the same author's “The United States Constitution as an Incomplete Text,” Annals of the American Academy of Political and Social Science 496 (March 1988): 23-32. ?For a discussion of the American states as “polities,” see Daniel J. Elazar and Stephen Schechter, The Role of the States as Polities in the American Federal System (Philadelphia: Center for the Study of Federalism, 1982), esp. pp. 4-19. 8 For a discussion of Indian federalism, see D. D. Basu, Introduction to the Constitution of India (New Delhi: Prentice Hall of India Private Ltd., 1985). 9For a discussion of the relationship between national and state constitutional law in Brazil, see Antonio Rulli, Jr., “Federal and State Law in the Brazilian Federal System," paper presented at the meeting of the Comparative Federalism Research Group, Philadelphia, PA,

1987. 10 Constitution of the United States, Article I, Scction 10. 11 For a good discussion of this “umpiring function, sce

John R. Schmidhauser, The Supreme Court as Final Arbiter of Federal-State Relations (Chapel Hill: University of

North Carolina Press, 1958). 12“... nor shall private property be taken for public use

without just compensation." Amendment V. 134

“... nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the

Laws." Amendment XIV. 14 “No state shall pass any ‘Law impairing the Obligation of

Contracts. ...” Article I, Section 10. 15“The Citizens of each State shall be entitled to all Privi

leges and Immunities of Citizens in the several States."

Article IV, Section 2. 16 Congress shall have the power “To regulate Commerce

with foreign Nations, and among the several States, and with the Indian Tribes." Article 1, Section 8. As early as 1851, the U.S. Supreme Court held that under certain circumstances, this power is exclusive with Congress and, even in the absence of national law, state regulation may still be prohibited, but under other circumstances, state regulation is permissible--giving rise to what has been called “the dormant power of the commerce clause." See Cooley v. Board of Wardens, 53 U.S. 299 (1851). See also Southern Pacific Company v. Arizona, 325 U.S. 761 (1945), and Bibb v. Navajo Freight Lines, 359 U.S. 520

(1959). 17“No State shall, without the Consent of Congress, lay any

Impost or Duty on Imports or Exports, except where may be absolutely necessary for executing its inspection laws.

..." Article I, Section 10. 18 Beginning with West Coast Hotel v. Parrish, 300 U.S. 399

(1937), the Supreme Court reversed a long string of precedents and began to reject constitutional objections to state economic regulation based on the due process clause of the Fourteenth Amendment. The situation with regard to claims brought under the equal protection clause is somewhat more complicated. For discussion of the latter issue, see Railway Express Agency v. New York, 336 U.S. 106 (1949), and Morey v. Doud, 354 U.S. 457 (1957).

19 See Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982), and Nollan v. California Coastal Commission, 107 S.Ct. 3141 (1987). See also Lee P. Symons, “Property Rights and Land Use Regulation: First English and Nollan," Publius: The Journal of Federal

ism 18 (Summer 1988): 81-96. 20 See Southern Pacific Company v. Arizona. 21 See Philadelphia v. New Jersey, 437 U.S. 617 (1978), for

example. 22 It was on this point that the U.S. Supreme Court ulti

mately decided the case of Gibbons v. Ogden, 22 U.S. 1

(1824). 23 For two attempts to articulate such standards, see Hines

v. Davidowitz, 312 U.S. 52 (1941), and Pennsylvania v. Nelson, 350 U.S. 497 (1957). See chapter 2 of this report

for a fuller treatment. 24 See his dissenting opinion in City of Burbank v.

Lockheed Air Terminal, Inc., 411 U.S. 624 (1973). See also Puerto Rico Department of Consumer Affairs v.

Isla Petroleum Corporation, 56 U.S.L.W.4307 (1988). 25 See, for example, Carter v. Carter Coal Company, 298

U.S. 238 (1936). 26 National League of Cities v. Usery, 426 U.S. 833 (1976).

But sec also Garcia v. San Antonio Metropolitan Transit

Authority, 105 S.Ct. 1005 (1985), reversing Usery. 27 Indeed, this was the precise argument of the majority in

Garcia. 28 This was reaffirmed in Barron v. Baltimore, 32 U.S. 243

(1833). 29 One of the earliest cases raising the issue of the impact of

the Fourteenth Amendment on the Bill of Rights was the Slaughter House Cases, 83 U.S. 36 (1873). See also Twining v. New Jersey, 211 U.S. 78 (1908), Palko v. Connecticut, 302 U.S. 319 (1937), and especially Adamson v.

California, 332 U.S. 46 (1947). 30 Gitlow v. New York, 268 U.S. 652 (1925), in which the

Supreme Court "incorporated” freedom of speech among the “liberties” protected by the due process

clause of the Fourteenth Amendment. 31 See, for example, Camara v. Municipal Court, 387 U.S.

523 (1967). Chimel v. California, 395 U.S. 752 (1969), Katz v. United States, 389 U.S. 347 (1967) and Miranda v.

Arizona, 384 U.S. 436 (1966). 32 Lau v. Nichols, 414 U.S. 563 (1974). 33 See, for example, New York Association for Retarded

Children v. Rockcfeller, 356 F.Supp. 752 (1973). 34 Holt v. Sarver, 505 F.2d 194 (1974), for example. Also, see

generally, Ellis Katz, “Prisoners' Rights, States' Rights and the Bayh-Kastenmeier Institutions Bill," Publius:

The Joumal of Federalism 8 (Winter 1977): 179-198. 35 Griswold v. Connecticut, 381 U.S. 479 (1965). 36 Brown v. Board of Education, 349 U.S. 294 (1954). 37 Baker v. Carr, 369 U.S. 186 (1962). 38 Reed v. Reed, 404 U.S. 71 (1971), for example. 39 Douglas v. California, 372 U.S. 353 (1963). 40 See Clifford M. Lytle, The Warren Court and Its Critics

(Tucson: University of Arizona Press, 1968). 41 This is one of the principal arguments of John Ely, De

mocracy and Distrist: A Theory of Judicial Review

(Cambridge: Harvard University Press, 1980). 42 See Malcolm E. Jewell and David M. Olson, American

State Political Parties and Elections (Homewood, Illinois: The Dorsey Press, 1982).

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