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mental system. Actually, the existence of local governments predates national independence and the formation of the states. It is surprising, therefore, to note that the first state constitutions were virtually silent on the question of local governments and their powers. As one commentator noted, the early state constitutions did not separate "powers vertically (state-local) as well as horizontally (executive-legislative-judicial)."74 This absence of "constitutional legitimacy”75 for local governments caused a number of problems in developing legal and political justifications for their ongoing existence and exercise of powers. These justifications varied, until finally, by the 1860s, the famous “Dillon's Rule" of local government subordination to the state legislature gained acceptance:
Municipal corporations owe their origin to,
This dependent status of local governments, particularly of large cities, became more and more unsatisfactory as cities and their problems grew, while rural-dominated state legislatures tended to give insufficient attention to urban problems. Local leaders began to argue for their own powers, which they could utilize to address local problems without constantly seeking authority from a sometimes distant and unconcerned state legislature. These local concerns led to the home rule movement, a major component of which involved state constitutional amendments granting semi-autonomous powers to local governments.77 The forms of these amendments have followed several different models, have evolved over time,78 and have generated much litigation over the question of whether an area of concern can be dealt with by local government rather than by the state legislature.79 For example, the well-known Village of Morton Grove gun control case in Illinois turned on, among other things, the home rule power to regulate firearms.80
In addition to home rule, many other areas of local government are directly affected by state constitutions. Taxation and finance, for example, including the tax limitation movement of the 1970s, are treated in detail in state constitutions.81 The recent movement to require state funding to enable local governments to carry out state-imposed “mandates” has resulted in constitutional amendments in seven states (and statutory provisions in seven other states) requiring such legislative funding, although those rules are not always effective.82 Finally, there appears to be a significant trend in the judicial interpretation of state constitutions that recognizes “localism” as a
state constitutional value, at least in litigation over exclusionary zoning and school finance.83
Conclusion The evolution of the treatment of government structure in state constitutions reflects, to a great extent, the progressing understanding of American government. As citizens came to understand the need for expanded executive power and the dangers of unfettered legislative authority, the legislativeexecutive balance was adjusted. As the need for judicial independence, court unification, and additional, intermediate courts was felt, state constitutions were amended to accommodate these needs. Calls by local government Icaders for increased powers were, albeit slowly, recognized by constitutional home rule provisions.
The picture of state constitutions as governmental straitjackets, or inhibitors of change, has been changing. There has been movement toward what Daniel J. Elazar calls the "managerial pattern" of state constitutions, characterized by "conciseness, broad grants of powers to the state executive branch, and relatively few structural restrictions on the legislature."84
Still, however, state constitutions contain many costly restrictions on the way state and local governments operate, if not on how they are structured. This is particularly true in the area of taxation and finance. It must be remembered, in the words of Frank P. Grad:
The least we may demand of our state consti-
tive demands for service. 85 NOTES 1 Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era (Chapel Hill: University of North Carolina Press, 1980), pp. 55-56. 2 William M. Wiecek, The Guarantee Clause of the United States Constitution (Ithaca: Cornell University Press,
1972). 3 Pacific States Telephone and Telegraph Co. v. Oregon,
223 U.S. 118 (1912). “See Coyle v. Smith, 221 U.S. 559 (1911). See also Peter S. Onuf, “New State Equality: The Ambiguous History of a Constitutional Principle,” Publius: The Journal of Federalism 16 (Fall 1986): 53-69. 5 Prentice v. Atlantic Coast Line Railroad, 211 U.S. 210,
255 (1908) 6 New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)
(Brandeis, J., dissenting). 7 Truax v. Corrigan, 257 U.S. 312, 344 (1921) (Holmes, J.,
dissenting) 8 Pennsylvania Packet, December, 1778, The Complete Writings of Thomas Paine, ed. Philip S. Foner, 2 Vols. (New York: Citadel Press, 1969), 2:281.
9See L. Harold Levinson, “The Decline of the Legislative Veto: Federal/State Comparisons and Interactions,”
Publius: The Journal of Federalism 17(Winter 1987): 115. 10 Frank P. Grad, “The State Constitution: It's Function
and Form in Our Time," Virginia Law Review 54 (June
1968): 941. 11 State ex rel. Schneider v. Kennedy, 225 Kan. 13, 587 P
2nd 844, 850. (1978) 12 The Italia Shipping Corp. v. Nelson, 323 III. 427, 439
(1926). 13 Robert F. Williams, “Evolving State Legislative and Ex
ecutive Power in the Founding Decade,” Annals of the American Academy of Political and Social Science 496 (March 1988): 43. See also John V. Orth, "Separate and Distinct: Separation of Powers in North Carolina,” North
Carolina Law Review 62 (October, 1983): 1. 14 Askew v. Cross Key Waterways, 372 So. 2d 913, 924 (Fla.
1978); Robert W. Martin Jr., “Legislative Delegations of Power and Judicial Review – Preventing Judicial Impotence,” Florida State University Law Review 8 (Winter
1980): 51. 15 New Jersey Constitution. Article III, Section 1. 16 Brown v. Heymann, 297 A 2d 572, 576-77 (NJ, 1972);
Martin, “Legislative Delegations,” p. 51 n. 41. 17 Frank E. Cooper, State Administrative Law, 2 vols. (Indi
anapolis: Bobbs-Merrill, 1965), 1:31. 18 Reynolds v. Sims, 377 U.S. 533, 564 (1964). 19 Client Follow-Up Co. v. Hynes, 390 N.E. 2d 847,849 (III.
1979). 20 Amasa M. Eaton,"Recent State Constitutions,” Harvard
Law Review 6 (October 1892): 109. 21 Gordon S. Wood, The Creation of the American Republic,
1776-1787 (Chapel Hill: University of North Carolina
Press, 1969), p. 452. 22 See also Rodney O. Davis, “The People in Miniature':
The Illinois General Assembly, 1818-1848,” Illinois His
torical Journal 81 (Summer 1988): 95-108. 23 Wood, Creation of the American Republic, p. 62. 24 Peter S. Onuf, “State Politics and Ideological Transfor
mation: Gordon S. Wood's Republican Revolution,"
William and Mary Quarterly, 3rd ser. 44 (July 1987): 614. 25 Wood, Creation of the American Republic, p 409. 26 Grad, “The State Constitution,” 964-966. 27 For a case avoiding this negative implication problem,
see Eberle v. Nielson, 78 Idaho 572, 306 P.2d 1083 (1957). 28 Millard H. Ruud, “No Law Shall Embrace More than
One Subject,” Minnesota Law Review 42 (January 1958):
389. 29 See, e.g., Pennsylvania Constitution, Article III, Section
2. 30 See, e.g., Ohio Constitution, Article II, Section 9. 31 See, e.g., Pennsylvania Constitution, Article III, Section
1. 32 See, e.g., Florida Constitution, Article III, Section 12. 33 Grad, “The State Constitution,” p. 955 n. 92. 34 Ibid., pp. 961-62. 35 Ibid., p. 963. 36 Ruud, “No Law Shall Embracc," p. 447. 37 Robert F. Williams, “State Constitutional Limits on
Legislative Procedure: Legislative Compliance and Judi
cial Enforcement,” Publius: The Journal of Federalism 17
(Winter 1987): 91. 38 David Magleby, Direct Legislation: Voting on Ballot
Propositions in the United States (Baltimore: John Hop
kins University Press, 1984), pp. 38-40. 39 George Lefcoe and Barney Allison, "The Legal Aspects
of Proposition 13: The Amador Valley Case," Southern
California Luw Review 53 (November 1979): 172. 40 Sce Richard Briffault, “Distrust of Democracy,” Texas
Law Review 63 (March/April 1985): 1347 (reviewing
Magleby, Direct Legislation). 41“The Americans, in short, made of the gubernatorial
magistrate a new kind of creature, a very pale reflection indeed of his regal ancestor. This change in the governor's position meant the effectual elimination of the magistracy's major responsibility for ruling the society-a remarkable and abrupt departure from the English constitutional tradition.” Wood, Creation of the
American Republic, p. 136. See also pp. 132-43. 42 Whitehead v. Rogers, 223 So2d 330 (Fla. 1969). Compare
Burns v.Butscher, 187 So. 2d 594 (Fla. 1966) with District School Board v. Askew, 278 So. 2d 272, 275 (Fla. 1973)
(“constitutional officers”). 43 See Jon C. Moyle, “Why We Should Abolish Florida's
Elected Cabinet,” Florida State University Law Review 6 (Summer 1978): 591; Malcolm B. Johnson, “Why We
Should Keep Florida's Elected Cabinet," p. 603. 44 See generally Ada E. Bechman, "The Item Veto Power
of the Executive," Temple Law Quarterly 31 (Fall 1957): 27; Arthur J. Harrington, “The Propriety of the Negative-The Governor's Partial Veto Authority," Mar
quette Law Review 60 (Spring 1977): 865. 45 Interestingly, this notion of gubernatorial reduction of
appropriation items, as opposed to absolute veto, seems to stem from Pennsylvania's judicial interpretation in Commonwealth v. Barnett, 199 Pa. 161, 48 X 976 (1901) of its provision to permit such reductions. Virtually all other courts that have considered the issue have rejected this interpretation. See. e.g., Wood v. State Administration Board 255 Mich. 220 238 N.W. 16 (1931); Mills v. Porter, 69 Mont. 325, 222 P 428 (1924). A number of states, however, have amended their constitutions to authorize gubernatorial reduction. See generally Note, “Item Veto, Reduction of Items, Elimination of Items Included in a General Sum,” Southern California Law
Review 12 (March 1939): 321. 46 NewYork Times, October 25, 1981. Not surprisingly, this
suggestion came from a former governor of California, a state where governors may reduce items. The idea is not new. See for example, Note, “Separation of Powers: Congressional Riders and the Veto Power,” University of
Michigan Journal of Law Reform 6 (No. 3 1973): 735. 47 Louis Fisher and Ncal Devins, “How Successfully Can
the States' Item Veto Be Transferred to the President?" Georgetown Law Journal 75 (October 1986): 159. See also House Committee on Rules, Item Veto: State Experience and its Application to the Federal Situation, 99th Congress, 2nd Session (Committee Print 1986), and U.S. Advisory Commission on Intergovernmental Relations, Fiscal Discipline in the Federal System: National Reform and the Experience of the States (Washington, DC: ACIR,
1987). 48 Sec, for example, Brown v. Firestonc, 382 So. 2d 654 (Fla.
1980): State ex rel Sego v. Kirkpatrick. 86 N.M. 359, 524 P.2d 975 (1974); Karcher v. Kcan. 97 N.J. 483, 479 A.2d 403 (1984); State cx rel. Kleczka v. Conta, 82 W.S. 2d 679, 364 N.W. 2d 539 (1978).
4944 N.Y. 2d at 166-67, 375 N.E. 20 at 750-51, 404 N.Y.S.22
at 570. See also Buettell v. Walker, 59 III 20 146, 319 N.E. 2d 502 (1974) (purpose of executive order appears to be to formulate a new legal requirement rather than to cxecute an existing one); Shapp v. Butera, 22 Pa. Commw. 229 348 A.2d 910 (1975) (governor has only those powers delegated by constitution or statute, or which may be implied from the nature of the duties imposed on him.) See generally Martin v. Chandler, 318 S.W. 2d 40 (Ky. 1958); Opinion of the Justices, 118 N.H. 582, 392 A.2d 125 (1978); Richard E. Faboriti, “Executive Power under the New Illinois Constitution: Field Revisited,” John Marshall Journal of Practice and Procedure 6 (Spring 1973): 235; Note, “Gubernatorial Executive Orders as Devices for Administrative Discretion and Control,” Iowa Law
Review 50 (Fall 1964): 78. 50 Edward S. Corwin, “The Progress of Constitutional The
ory between the Declaration of Independence and the Meeting of the Philadelphia Convention,” American Historical Review 30 (April 1925): 521; William E. Nelson, “The Eighteenth Century Background of John Marshall's Constitutional Jurisprudence,” Michigan Law Re
view 76 (May 1978): 893. 51 See Roscoe Pound, “The Rulemaking Power of the
Courts,” American Bar Association Journal 12 (September 1926): 599; John Henry Wigmore, "All Legislative Rules for Judiciary Procedure are Void Constitution
ally,” Illinois Law Review 23 (November 1928): 276. 525 N.J. 240, 74 A.2d 406 (1950) 53 The New Jersey Constitution provides: “The Supreme
Court shall make rules governing the administration of all courts in the State and subject to law, the practice and procedure in all such courts.” New Jersey Constitution,
Article 6, Section 2, paragraph 3 (emphasis added). 54 Florida Constitution, Article 5, Section 2(a). Issues for
judicial interpretation still remain. See, e.g., Carter v. Sparkman, 335 So. 2d 802, 808 (Fla. 1976), cert. denied, 429 U.S. 1041 (1977) (repeal by implication not permitted): In re Clarification of Florida Rules of Practice and Procedure, 281 So. 2d 204 (Fla. 1973) (legislature may re
peal but not amend rules) 56 In re Florida Rules of Criminal Procedure, 272 So. 2d 65
(Fla. 1973). 56 See in re Florida Evidence Code, 376 So. 2d 1161 (Fla.
1979); In re Florida Evidence Code, 372 So. 2d 1369 (Fla.
1979). 57 People v. McKenna, 196 Colo. 367,585 P. 275 (1978). Sce
also Knight v. City of Margate, 86 NJ 374, 386-98, 431 A2d 833, 839-45 (1981) (distinguishing the existence of
judicial rulemaking power from its exercise).
The constitutional grant of rulemaking power as
Id. at 363, 307, A.2d at 577. The difference, of course, between the two "techniques” of exercising judicial power was that the New Jersey Supreme Court had held that the legislature could not overrule court rules, although the legislature could overrule substantive law decisions.
59 Scc Petition of the Florida State Bar Ass'n, 40 S. 2d 902,
905-06 (Fla. 1949) and cases cited therein. See also Board of Overseers of the Bar v. Iec, 422 A.2d 998, 1002 (Me.
1980). 60 Sec Wajert v. Slate Ethics Commission, 491 Pa. 255, 420
A.2d 439 (1980); Ballou v. State Ethics Commission, 56 Pa. Commw. 240, 424 A.2d 983 (1981); Kremer v. State Ethics Commission, 56 Pa. Commw. 160, 424 A.2d 968 (1981) (judges). Contra Knight v. City of Margate, 86 N.J. 374, 431 A.2d 833 (1981). See generally Joseph D. Robertson and John W. Buehler, “The Separation of Powers and the Regulation of the Practice of Law in
Oregon,” Willamette Law Journal 13 (No. 2 1977): 273. 61 See for example, Art XVIII, Integration Rule of the
Florida Bar, as amended, cited in Attorney General and Others to Amend Article XVIII of the Integration Rule
of the Florida Bar, 339 So. 2d 646 (Fla. 1976). 62 Scc American Trial Lawyers Association v. New Jersey
Supreme Court, 66 N.J. 258, 330 A.2d 350 (1974). 63 See generally In re Interest on Trust Accounts, 402 So.
20 389 (Fla. 1981). The program is discussed in Comment, “A Source of Revenue for the Improvement of Legal Services, Part I,” St. Mary's Law Journal 10 (No. 3 1978): 539; “Part II," St. Mary's Law Journal 11 No. 1
1979): 113. 64 Commonwealth ex rel Caroll v. Tate, 442 Pa. 45, 52, 274
A.2d 193, 197 (1971). See also Comment, “State Court Assertion of Power to Determine and Demand Its Own Budget,” University of Pennsylvania Law Review 120 (June 1972): 1187. For a more recent example of the Pennsylvania Court's thinking, see Beckert v. Warren, 439 A.2d 638 (Pa. 1981). See generally Geoffrey C. Hazard, Jr., Martin B. McNamara and Irwin F. Sentilles, III, "Court Finance and Unitary Budgeting," Yale Law Journal 81 (June 1972): 1286; Note, “Judicial Financial Autonomy and Inherent Power," Comell Law Review 57 (July 1972): 975. 65See generally Comment, “The State Advisory Opinion in Perspective,” Fordham Law Review 44 (October
1975): 81. 66 See In re House Resolution No 12, 88 Colo. 569, 298
(1931; In re Opinion of the Justices, 314 Mass. 767. 49
N.E. 2d 252 (1943). 67 Commonwealth v. Welosky, 276 Mass. 398, 400, 177 N.E.656, 658 (1931). The court continued:
When the same questions are raised in litigation,
dicial duty can impel. The New Llampshire Supreme Court “caution[ed) that the opinion is not a judicial decision. ...” In re Opinion of the Justices, 82 N.H. 561, 575, 138 A. 284, 291 (1927). The Florida Constitution provides for interested persons to bc hcard on the questions presented.” Florida
Constitution, Art. IV, Section 1(c). 68 Henry Robert Glick, Supreme Courts in State Politics
(New York: Basic Books, 1971), p. 5: “State supreme courts are not simply duplications of the national court at a lower level of the judicial hierarchy. Instead, they are distinctive institutions which are integral parts of state political and legal systems." See also Herbert Jacob and
Kenneth N. Vines, Politics in the American States: A Comparative Analysis, 3d ed. (Boston: Little Brown and Co., 1976), p. 246: “I[t] becomes apparent that the state courts make significant policies in many of the same sub
stantive areas in the other organs of government.” 69 Glick, Supreme Courts, p. 151; Henry Robert Glick and
Kenneth N. Vines, State Court Systems (1973). See generally, G. Alan Tarr and Mary Cornelia Porter, State Supreme Courts in State and Nation (New Haven: Yale Uni
versity Press, 1988). 70 Hans A. Linde, “Judges, Critics, and the Realist Tradi
tion,” Yale Law Joumal 82(1972): 248. See also Lawrence Baum and Bradley C. Canon, “State Supreme Courts as Activists: New Doctrines in the Law of Torts,” in Mary Cornelia Porter and G. Alan Tarr, State Supreme Courts: Policymakers in the Federal System (Westport, Connecticut: Greenwood Press, 1982), p.83. The “legitimacy” of such common-law decisions is sometimes attacked as invading the province of the legislature. Sce generally Ralph F. Bischoff, “The Dynamics of Tort Law. Court or Legislature?” Vermont Law Review 4 (Spring 1979): 35. State supreme courts also pursue policy initiatives outside their formal judicial role in the adversary process, including direct and indirect contact with legislators. See Henry Robert Glick, “Policy-Making and State Supreme Courts: The Judiciary as an Interest Group,” Law and
Society Review 5 (November 1970): 271. 71304 U.S. 64 (1938). 72 See, for example, Arthur J. England, Jr., Eleanor
Mitchell Hunter, and Richard C. Williams, Jr., “Constitutional Jurisdiction of the Supreme Court of Florida: 1980 Reform,” University of Florida Law Review 32 (Winter 1980): 193-96; Arthur J. England, Jr. and Richard C. Williams, “Florida Appellate Reform One Year Later," Florida State University Law Review 9 (Spring 1981):
250-53. 73 Commonwealth v. O'Neal, 369 Mass. 242, 275, 339
N.E.2d 676,694 (1975). For the contrary view, see State v.
Baker, 81 N.J. 99, 115-26, 405 A.2d 368, 375-81 (1979). 74 James E. Herget, “The Missing Power of Local Govern
ment: A Divergence between Text and Practice in Our Early State Constitutions,” Virginia Law Review 62 (June 1976): 1001.
76 Clinton v. Cedar Rapids and Missouri River Railroad, 24
Iowa 455 (1868), quoted in Michael E. Libonati, “Intergovernmental Relations in State Constitutional Law. A Historical Overview,” Annals of the American Academy
of Political and Social Science 496 (March 1988): 113. 77 Jefferson B. Fordham, “Foreword: Local Government
in the larger Scheme of Things," Vanderbilt Law Review
8 (June 1955): 668-71. 78 Kenneth Vanlandingham, "Constitutional Municipal
Home Rule since the AMA (NLC) Model,” William and
Mary Law Review 17 (Fall 1975): 1. 79 See, for example, City of Miami Beach v. Fleetwood Ho
tel, Inc., 261 So. 2d 801 (Fla. 1972) (rent control); City of Miami Beach v. Forte Towers, Inc., 305 So. 2d 764 (Fla.
1974) (same). 80 Kalodimos v. Village of Morton Grove, 103 III. 2d 483,
474 N.E. 24 266 (1984). 81 David M. Rosenberger, “Historical Perspective on Con
stitutional Limitation of Property Taxes in Michigan,” Wayne Law Review 24 (March 1978): 939; M. David Gelfand, “Secking Local Government Fiscal Integrity through Debt Ceilings, Tax Limitations, and Expenditure Limits: The New York Fiscal Crisis, the Taxpayers' Revolt, and Beyond,” Minnesota Law Review 63 (1979):
545. 82 U.S. General Accounting Office, Legislative Mandates:
State Experiences Offer Insights for Federal Action (Washington, DC: GAO, September 1988); Libonati, “Intergovernmental Relations,” p. 116; Durant v. State Board of Education, 424 Mich. 364, 381 N.W. 2d 622 (1985); Boone County Court v. State, 631 S.W. 2d 321 (Mo.
1982). 83 Richard Brissault, “Localism in State Constitutional
Law,” Annals of the American Academy of Political and
Social Science 496 (March 1988): 117. 84 Daniel J. Elazar, “The Principles and Traditions Under
lying State Constitutions,” Publius: The Journal of Feder
alism 12 (Winter 1982): 22. 85 Grad, “The State Constitution," p. 939.
The States and Civil Liberties
Most Americans today view the protection of civil liberties primarily as the responsibility of the U.S. Supreme Court, and they look to its rulings interpreting the federal Bill of Rights and the Fourteenth Amendment to discover the scope of individual rights. Yet this identification of civil liberties with the federal Constitution and the U.S. Supreme Court is a relatively recent development in American history. For most of the nation's history, the federal Bill of Rights was understood to protect solely against federal infringements on rights.' State law-as found in state bills of rights, state statutes, and the common law-served as the primary guarantor of individual liberties.
The dramatic shift in the relative roles played by state law and federal law in protecting rights began in the early 20th century. In 1925 the U.S. Supreme Court ruled that the First Amendment's ban on abridgements of freedom of speech by the scdcral government is applicable to the states by the due process clause of the Fourteenth Amendment.2 Over the next 50 years, the Supreme Court continued its gradual process of selectively extending federal constitutional protection on a case-by-case basis against state violations of various other guarantees of the U.S. Bill of Rights. During the 1960s, this process, usually referred to as “selective incorporation,” accelerated significantly, as the Supreme Court incorporated most of the Bill of Rights' criminal justice guarantees.
Selective incorporation influenced both the forums in which civil liberties claims were advanced and the forms that those claims took. By ruling that the federal Constitution prohibited state violations of rights, the Supreme Court multiplied its opportunities to address civil liberties issues. At the same time, the perception that federal forums were more sympathetic to rights claimants-a perception that oftentimes was quite accurate-diverted cases from state courts, thereby retarding the development of a state constitutional jurisprudence. Even when civil liberties issues arose in state tribunals, attorneys typically ignored state bills of rights or treated staic and fcderal provisions as interchangeable, relying on the
U.S. Supreme Court for doctrine and legal precedent. The predictable result was the domination of civil liberties law by the federal judiciary.
Early in the 1970s, this domination was challenged by a few state courts that began to rely on state bills of rights to resolve civil liberties issues. Since then, this development, known as the "new judicial federalism," has become a nationwide phenomenon. State judges from all sections of the country have reported significant increases in litigation under state bills of rights.? Scholars have identified some 400 cases since 1970 in which state high courts have either granted greater rights protection under their state constitutions than was granted by the U.S. Supreme Court under the federal Constitution or have based thcir decisions affirming rights solely on their state constitutions. 8
The emergence of the new judicial federalism raiscs ancw the question of what part state law can and should play in delincating and protecting rights. To answer this question, we review in this chapter the debate over the role to be assigned to state law in protecting civil liberties. Next, to assess the contribution of state law in protecting rights, we consider how state law has dealt with selected aspects of the freedoms of speech, press, and religion. Clearly, no set of three issues can be fully representative. However, because the rights at stake in these three areas are so fundamental, our survey of state efforts to protect them furnishes some indication of the role currently played by state civil liberties law.° Equally important, our analysis of these issues illustrates the opportunities that the states have to contribute to the protection of civil libcrties, the array of legal weapons at their disposal for this purpose, and the use that the states have made of these weapons.
A State Civil Liberties Law? The basic question to be addressed is whether the states should play any part in defining and protecting rights. Opponents of state involvement have insisted that the protection of rights is properly a federal responsibility because all Americans should enjoy the same rights, rather than having their rights de