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lowing its 1913 decision, which ruled out the "use" of money for maintaining or aiding sectarian schools.48 If the U.S. Supreme Court adopts a more accommodationist stance on aid to religious institutions, as has been predicted, it can be expected that state courts will be called on increasingly to determine whether such aid violates the state constitution.

their constitutionality. In part, this division reflects textual differences among state constitutions. For example, after their high courts had invalidated programs authorizing the transportation of students to parochial schools, Wisconsin and New York adopted constitutional amendments expressly permitting their reinstitution.43 On the other hand, the Alaska Supreme Court concluded that, given Alaska's emphatic constitutional ban on aid to religious institutions, the failure to include a clause permitting indirect aid implied that such aid was impermissible.44

In part, however, interstate disagreements on the constitutionality of indirect aid can be traced to whether state judges are willing to read state constitutional provisions as independent judgments on the permissibility of aid to religious institutions. Generally speaking, those state courts that have invalidated programs of indirect aid have displayed a greater sensitivity to the distinctive language in state constitutions and to the historical experiences that produced it. Gaffney v. State Department of Education, which involved the constitutionality of Nebraska's textbookloan law, can serve as a model of independent constitutional analysis. 45 Eschewing the U.S. Supreme Court's doctrinal formulations, the Nebraska Supreme Court focused instead on the state's constitutional prohibition of any “appropriation in aid of any sectarian institution or any educational institution not owned and controlled by the state.” The clarity of this language, the court insisted, made interpretation unnecessary, and its broad sweep admitted of no exceptions. Moreover, the records of the convention that drafted the provision confirmed that a major aim was to devise a precise prohibition that would prevent sectarian conflict over the funding of church-related schools. The Nebraska Supreme Court therefore ruled the law unconstitutional.

Other state courts have likewise emphasized the distinctive language of their state constitutions in justifying development of an independent constitutional position. The California Supreme Court, for example, concluded that the state constitution's ban on expenditures for “any sectarian purposc” was designed to prevent the state from providing benefits to scctarian schools that furthered their educational purpose. On that basis, the court invalidated a textbook loan program.46 Similarly, the Idaho Supreme Court, in striking down a state law authorizing the transportation of students to nonpublic schools, reasoned that the uncompromising prohibitory language in the Idaho Constitution was purposely included to place even greater restrictions on government than that found in the First Amendment.47 Finally, the Massachusetts high court, noting that a challenged textbook loan program aided sectarian schools in carrying out their essential educational function, held that it violated a state constitutional amendment, adopted fol

Conclusion Our survey of how state law has helped to define and protect civil liberties, although hardly exhaustive, permits some general observations. First, state involvement in protecting rights is nothing new. It was the states that first devised bills of rights, and it was the states that had primary responsibility for defining and protecting rights for over a century after the nation was created. Thus, the “new judicial federalism” and the recent upsurge of interest in state civil liberties law should be heralded not as an innovation, but as the rediscovery of a traditional aspect of Amcrican lcdcralism.

Sccond, throughout the nation's history, the states have utilized a variety of legal means to safeguard rights. Among the most familiar of these are state bills of rights, which have been employed to complement, supplement, and extend the protections available under the U.S. Constitution. However, other state constitutional provisions-for example, education clauses banning sectarian influences in publicly funded schools-also have served to safeguard civil liberties. So, too, have state statutes, such as those protecting reporters' confidential sources. Finally, state courts have invoked the common law and their own rulemaking authority to secure individual rights.49 Thus, our examples underscore the variety of state initiatives on behalf of rights.

Third, as the struggle for religious liberty in Virginia illustrates, these initiatives-constitutional, legislative, and judicial-have served not only to protect rights within the borders of the state but also to provide impetus and guidance for efforts by other states and the national government to secure rights. This coincides with the pattern of cooperative activity that has characterized many aspects of American federalism throughout the nation's history.

Having said this, the fact remains that contemporary state efforts to safcguard civil liberties occur in the context of a federal system in which the federal courts have assumed a major role in protecting rights. This heavy federal influence underlines the crucial importance of the legal relationship between federal and state law-and particularly between federal and state bills of rights. It is well established that state constitutional rulings resting on “independent and adequate state grounds” are exempt from federal judicial scrutiny.50

pretation of the state provision. Federal precedent may be persuasive, but it is not authoritative; state officials have an obligation to seek the best possible interpretation of their own constitutions. In fact, some scholars have argued that state courts should avoid taking their cucs from U.S. Supreme Court rulings because the institutional positions of the state and federal courts are quite dissimilar.56 As the nation's highest court, the U.S. Supreme Court is constrained by considerations of federalism and the separation of powers that may prevent it from according full protection to rights. Because state courts do not operate under such constraints, it is argued, they should feel free to go beyond federal rulings that seem to underprotect civil libertics. In the next two chapters, which deal with state constitutional protections of the rights of criminal defendants and of equality, we shall see how they have done so.


When, then, is it appropriate to interpret state bills of rights independently? Some jurists—most notably, Justice Hans Linde of the Oregon Supreme Court-have concluded that the correct answer is always.51 It is their contention that the logic of our federal system requires that state judges look first to the law of their own state in deciding cases and then to federal law only when a case cannot be resolved on state grounds. Even jurists who have not endorsed this “state law first” position have recognized that, when state law diverges from federal law, it must be given independent effect.52 A moment's reflection suggests that such divergence is likely to occur frequently

As we have noted earlier, many state constitutional provisions, such as state guarantees of privacy and prohibitions on undue harshness in punishment, have no federal constitutional analogues.53 Thus, if states are to remain faithful to their law, they must seek the meaning of those guarantees independently.

Furthermore, whereas federal constitutional guarantees secure rights only against governmental infringement, state guarantees may protect rights against private infringement as well. In some instances, state constitutions do so expressly.54 In others, as our discussion of state free speech provisions has shown, the state guarantees do not specify to whom their constitutional strictures are addressed. Although some state courts have been influenced by federal constitutional doctrine to read a "state action” requirement into these constitutional guarantees, many scholars and jurists have challenged this practice as unwarranted. Indeed, some scholars have insisted that in the absence of express language to the contrary, state guarantees should be read to reach private as well as governmental action.55 Whatever the validity of this contention, fidelity to state constitutions demands that the scope of statc protection be determined not by reference to federal constitutional doctrine, but rather by independent analysis of state guarantees.

In addition, as our discussion of state provisions on church and state has shown, even state provisions that restrict only governmental action and have some sort of federal analogue often differ from their federal counterparts in language and/or historical origins. In such circumstances, sensitivity to the federal character of the American polity should caution against assuming too readily that state protections are merely functional equivalents of federal constitutional guarantees.

Finally, even when the text of state and federal constitutional provisions are identical, this does not mean that state officials—be they judges, executives, or legislators-are obliged to accept the U.S. Supreme Court's interpretation of the federal guarantee as authoritative, foreclosing independent inter

1 This was established authoritatively in Baron v. Balti

more, 32 U.S. (7 Peters) 243 (1833). 2 Gitlow v. New York, 268 U.S. 653 (1925) and Stromberg v. California, 283 U.S. 359 (1931), marked the first invalidation of a state law on federal free speech grounds, and Near v. Minnesota, 283 U.S.697 (1931), the first invalidation of a state law as an infringement of the federal freedom of the press. 3For an overview, see Richard C. Cortner, The Supreme Court and the Second Bill of Rights (Madison: University of Wisconsin Press, 1981). 4 Relevant cases include: Robinson v. California, 370 U.S. 660 (1962) (cruel and unusual punishment); Gideon v. Wainwright, 372 U.S. 335 (1963) (right to counsel); Murphy v. Waterfront Commission, 378 U.S. 52 (1964) (selfincrimination); Pointer v. Texas, 380 U.S. 400 (1965) (confrontation of witnesses); Kopfer v. North Carolina, 386 U.S. 213 (1967) (speedy trial); Duncan v. Louisiana, 391 U.S. 145 (1968) (trial by jury); and Benton v. Maryland, 392 U.S. 784 (1969) (double jeopardy). 5 For an overview of thesc carly cases, see Donald E. Wilkes, Jr., “Thc New Federalism in Criminal Procedure: State Court Evasion of the Burger Court,” Kentucky Law Journal 62 (1974): 421-451. 6 For a bibliography of the literature on the new judicial federalism and a listing of judicial rulings, see Ronald K.L. Collins and Peter J. Galie, “State Constitutional Rights Decisions,National Law Joumal 11 August 1986. Since December 1987, the Association of State Attorneys General has published a monthly survey of developments in state constitutional law. See also John Kincaid, “State Court Protections of Individual Rights under State Constitutions: The New Judicial Federalism,The Journal of State Government 61 (September/October

1988): 163-169. 7Ronald K.L. Collins, Peter J. Galie, and John Kincaid, “State High Courts, State Constitutions, and Individual Rights Litigation since 1980: A Judicial Survey,Publius: The Journal of Federalism 16 (Summer 1986): 141-162. 8 Collins and Galic, “State Constitutional Rights Deci

sions." 9 For further discussion of the protection of rights under state constitutions, see chapters 5 and 6.

10 For a recent elaboration of the justifications for federal

ism, see Daniel J. Elazar, Exploring Federalism (Tus

caloosa: University of Alabama Press, 1987), chapter 3. 11 It follows that if states have concurrent responsibility for

defining and protecting rights, state officials have a constitutional obligation to honor and enforce this body of state law, even though doing so may lead to different

definitions of rights from state to state. 12 Whereas some state constitutions, such as Virginia's and

Pennsylvania's, were prefaced by eloquent declarations of individual rights, others-for example, New Jersey's—had no bill of rights at all. Even those states that adopted bills of rights differed in what was protected. Compare, for example, the treatment of religion under the Massachusetts and Virginia constitutions. For a more general treatment of early state constitutional guarantees, see William E. Nelson and Robert C. Pal

mer, Liberty and Community (New York: Oceana, 1987). 13 For an overview of state provisions, see Robert Dowlut

and Janet A. Knoff, “State Constitutions and the Right to Keep and Bear Arms,” Oklahoma City University Law

Review 7 (Summer 1982): 177-241. 14 See Ronald K.L. Collins, “Bills and Declarations of

Rights Digest,” in The American Bench, 3rd ed. (Sacramento: Reginald Bishop Forster and Associates, 1985),

pp. 2491-2493. 15 For a listing and discussion, see chapter 6. 16 The U.S. Supreme Court candidly admitted as much in

San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973). More generally, sce Robert F. Williams, “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, and Lawrence G. Sager, “Fair Measure: The Legal Status of Underenforced Constitutional Norms,"

Harvard Law Review 91 (April 1978): 1212-1264. 17 For discussion of how state courts have dealt with this is

sue under their state constitutions, see G. Alan Tarr, “State Constitutions and First Amendment Rights,” in Stanley Friedelbaum, ed., Human Rights in the States

(Westport, Connecticut: Greenwood Press, 1988). 18 Representative cases include Serrano v. Priest, 487 P.2d

1241 (Cal. 1971) and Southern Burlington County NAACP v. Township of Mount Laurel, 336 A.2d 713

(N.J. 1975). 19 For an overview of these provisions, see Collins, pp.

2502-2505. 20 For background on state rulings on the freedoms of

speech and of the press prior to incorporation, see David B. Rabban, “The First Amendment in Its Forgotten Years," Yale Law Joumal 90 (January 1981): 514-595, and Margaret A. Blanchard, “Filling in the Void: Speech and Press in State Courts Prior to Gitlow," in Bill È. Chamberlin and Charlene J. Brown, eds., The First Amendment

Reconsidered (New York: Longman, 1982). 21 This focus on governmental infringements on rights is

characteristic of the federal Constitution-only the Thirteenth Amendment directly forbids private viola

tions of individual rights. 22 Marsh v. Alabama, 326 U.S. 501 (1946). 23 Lloyd Corporation v. Tanner, 407 U.S. 551 (1972) and

Hudgens v. National Labor Relations Board, 424 U.S. 507 (1976), overruling Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308 (1968).

24 This underlines the important point that the states, in ex

ercising their traditional legal responsibilities, often

make decisions that affect civil liberties. 25 Michigan Constitution, Art. I, sec. 5. Other state consti

tutional provisions, such as those relating to access to the ballot, may also be relevant in specific cases. See Batchelder v. Allied Storcs International, 445 N.E.2d 590 (Mass.

1983). 28 On the importance assigned to property rights by state

constitution-makers, see, for example, the Arkansas Declaration of Rights, Art. II, Sec. 22: “The right of property is before and higher than any constitutional sanction.” On the need to compensate property owners, see, for example, Illinois Constitution, Art. I. Sec. 15: "Private property shall not be taken or damaged for public use without just compensation as provided by law."

See generally chapter 7 of this study. 27592 P.2d 341 (Cal. 1979). 28 Cases decided shortly after the ruling in Pruneyard

Shopping Center v. Robins, 447 U.S. 74 (1980), include: State v. Schmid, 423 A.2d 615 (N.J. 1980): Commonwealth of Pennsylvania v. Tate, 432 A.2d 1382 (Pa. 1981): State v. Felmet, 273 S.E.2d 708 (N.C. 1981); Alderwood Associates v. Washington Environmental Council, 635 P.2d 108 (Wash. 1981); and Batchelder v. Allied Stores

International, 445 N.É.2d 590 (Mass. 1983). 29635 P.2d at 112. 30 Cologne v. Westfarms Associates, 409 A.2d 1201 (Conn.

1984); Woodland v. Michigan Citizens Lobby, 378 N.W.22 337 (Mich. 1985); and Shad Alliance v. Smith Haven Mall, 498 N.Y.S.2299 (N. Y. 1985). One court that initially endorsed a right of free speech on private property appcars to be reconsidering its position: Western Pennsylvania Socialist Workers 1982 Campaign v. Connecticut General Life Insurance Co., 515 A.2d 1331 (Pa.

1986). 31 See Brown v. Davis, 495 A.2d 900 (N.J. Sup. Ct. 1984),

and Jacobs v. Major, 390 N.2d 86 (Wis. App. 1986). For possible solutions to these difficulties, see Martin B. Marguilies, “Westfarms' Unquiet Shade,University of Bridgeport Law Review 7 (1986): 1-45; and Sanford Levinson, “Freedom of Speech and the Right of Access to Private Property under State Constitutional Law,” in Bradley D. McGraw, ed., Developments in State Constitutional

Law (St. Paul: West Publishing Co., 1985). 32 For discussion of this dialogue, see G. Alan Tarr and

Mary Cornelia Porter, State Supreme Courts in State and Nation (New Haven: Yale University Press, 1988), chap

ter 1. 33 For a ruling that suggests a possible new direction for

state constitutional law dealing with freedom of expres

sion, see Oregon v. Henry, 732 P.2d 9 (Ore. 1987). 34 Branzburg v. Hayes, 408 U.S. 665 (1972). An analysis of

congressional failure to pass a shield law is found in Maurice Van Gerpen, Privileged Communication and the Press (Westport, Connecticut: Greenwood Press, 1979),

chapter 7. 35 Background on state shield laws and their interpretation

can be found in Geroen, Privileged Communication; Arthur B. Hanson, An Analysis of State Newsmen's Privilege Legislation and Cases Arising Thereunder (Washington, DC: 1972); and "Comment, The Newsman's Privilege after Brazburg: The Case for a Federal Shield Law,”

U.C.L.A. Law Review 24 (October 1976): 160-192. 36 Following judicial rulings in State v. Donovan, 30 A.2d

421 (Sup. Ćt. 1943) and Brogan v. Passaic Daily News, 123 A.2d 473 (N.J. 1956), the New Jersey legislature amended the state's shield law to extend coverage, N.J. Stat. Ann. Sec 2A: 84A-21 (West 1976) (enacted 1960). After In re Bridge, 295 A.2d 3 (App. Div.), ccrtif. denied, 299 A.2d 78 (1972), cert. denicd, 410 U.S. 991 (1973), the legislature again amended the shicld law, 1977 N.J. Í aws 1027. Finally, responding to In re Farber, 394 4.20 330, cert. denied, 439 U.S. 997 (1978), the New Jersey legislature in 1980 further extended the protection asforded reporters, N.J. Stat. Ann. Sec. 2Z:84A-21.1 to 21.9 (West

Supp. 1983-1984). 37 California Constitution, Art. I Sec. 2(b), adopted in response to Farr v. Superior Court, 99 Rptr. 342 (Ct. App. 1971), cert. denied, 409 U.S. 1011 (1972), and Rosato v. Superior Court, 124 Cal. Rptr. 427 (Ct. App. 1975), cert. denied, 427 U.S. 912 (1976). The New Mexico Supreme Court invalidated the state's shield law as a legislative invasion of the judiciary's authority to establish rules of evidence. See Ammerman v. Hubbard Broadcasting,

Inc., 551 P.2d 1354 (N.M. 1976). 38 Some federal judges have acknowledged their debt to

state tribunals. See, for example, William J. Brennan, Jr., "Some Aspects of Federalism," New York University Law

Review 39 (1964): 947. 39 Relevant cases include: KFGO Radio, Inc. v. Rothe, 298,

N.W.2d 505 (N.D. 1980), and State ex rel. Oregonian

Publishing Co. v. Deiz, 613 P.2d 23 (Ore. 1980). 40 For a more detailed treatment of the historical back

ground of state provisions on church and state, see G. Alan Tarr, “Religion under State Constitutions," Annals of the American Academy of Political and Social Science

498 (March 1988): 65-75. 41 See, for example, Harfst v. Hoegen, 163 S.W.2d 609 (Mo.

1942), and Berghorn v. School District, 260 S.W.2à 573 (Mo. 1953). The sole instance of a state ruling permitting direct aid-Opinion of the Justices, 102 N.E. 464 (Mass. 1913)-prompted a constitutional amendment prohibiting aid: Massachusetts Constitution Amend., Art. 46,

Sec. 2. 42 On bus transportation, see Everson v. Board of Educa

tion, 330 U.S. 1 (1947), and on the loaning of textbooks,

see Board of Education v. Allen, 392 U.S. 236 (1968). 43 Reynolds v. Nusbaum, 115 N.W.2d 761 (Wisc. 1962), reversed by amendment, Wisconsin Constitution, Art

. I, Sec. 21: and Judd v. Board of Education, 15 N.E.2d 576 (N. Y. 1938), reversed by amendment, New York Consti

tution, Art. XI, Sec. 4. 44 Matthew v. Quinton, 362 P.2d 932 (Alas. 1961). 45 Gaffney v. State Department of Education, 220 N.W.2d

550 (Neb. 1974).

46 California Tcachers Association v. Riles, 632 P.2d 953

(Cal. 1981). 47 Epeldi v. Egelking. 488 P.2d 860 (Ida. 1971). 48 Bloom v. School Committee of Springfield, 379 N.E.2d

578 (Mass. 1978). 49 For the common law as a source of rights, see, for exam

ple, State v. Zdanowicz., 55 A. 743 (E and A 1903), in which the New Jersey Supreme Court recognized a common-law right against self-incrimination, a position that it has confirmed in more recent cases, such as State v. Fary, 117 A.2d 499 (N.J. 1955) and State v. Hartley, 511 A.2d 80 (N.J. 1986). For judicial rulemaking as a source of rights, see People v. Jackson, 217 N.W.2d 22, 27-28 (Mich. 1974), in which the Michigan Supreme Court established a suspect's right to counsel, absent extraordi

nary circumstances, during identification procedures. 50 For discussion of this doctrine, see Stewart G. Pollock,

“Adequate and Independent State Grounds as a Means of Balancing the Relationship between State and Fed

eral Courts,” Texas Law Review 63 (1985): 977-94. 51 Hans A. Linde, “Without “Due Process': Unconstitu

tional Law in Oregon," Oregon Law Review 49 (1970):

125-87; and State v. Kennedy, 66 P.2d 1316 (Ore. 1983). 52 See, for example, Stewart G. Pollock, “State Constitu

tions as Separate Sources of Fundamental Rights,Rutgers Law Review 35 (Summer 1983): 707-722, and State v.

Hunt, 450 A.2d 952, 965-67 (N.J. 1982). 53 For an example of state constitutional protection of pri

vacy rights, see Alaska Constitution, Art. 1, Sec. 22: "the right of the people to privacy is recognized and shall not be infringed." The importance of these state privacy guarantees was underscored by the U.S. Supreme Court in Katz v. United States, 389 U.S. 342, (1967): “The protection of a person's general right to privacy... is... left largely to the law of the individual states." For an example of state constitutional protection against excessively harsh punishment, see, for example, Rhode Island Constitution, Art. I, Sec. 14: “[N]o act of severity which is not necessary to secure an accused person shall be permit

ted." 54 See, for example, Montana Constitution, Art. II, Sec. 4:

"Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of ...

religious ideas." 55 See David M. Skover, “The Washington Constitutional

‘State Action' Doctrine: A Fundamental Right to State Action," University of Puget Sound Law Review 8 (Winter

1985): 221-282. 56 See Williams, “In the Supreme Court's Shadow," and

Sager, “Fair Measure.”

Chapter 5

Equality under State Constitutions

State governments are responsible for undertaking or administering most governmental activities that directly affect individual citizens. In undertaking these activities, they are constantly confronted with the task of determining what distinctions between persons are legitimate and what distinctions violate constitutional mandates of equality. Under the federal Constitution, there is only one generally applicable requirement of equality that binds the actions of states. This is the equal protection clause of the Fourteenth Amendment, adopted in 1868, which provides that: “No state shall. . . deny to any person within its jurisdiction the equal protection of the laws.” State constitutions, in contrast, contain many different equality provisions, aimed at a range of different but related problems. Although the Fourteenth Amendment equality requirement is well known and extensively analyzed, the state provisions have not received careful attention.'

James Madison contended that in a large, geographically and politically diverse nation, there would be less likelihood of oppression of minorities because of the need for continued coalition, political accommodation, and compromise. Madison wrote in The Federalist:

The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other.3

Madison's concerns scem to have been proven generally true. As responses, state constitutional provisions have aimed at a number of demonstrated problems relating to cquality over the years.

Most state constitutions do not contain an explicit “equal protection” clause.4 They do, however, contain a variety of equality provisions. In some states, broad guarantees of individual rights have been interpreted to require equal protection of the laws in general. Further, most states have generally applicable provisions prohibiting special and local laws, grants of special privileges, or discrimination against citizens in the exercise of civil rights or on the basis of sex. Finally, many state provisions guarantee equality in specific or limited instances-from requiring “uniform" or "thorough and efficient” public schools to requiring uniformity in taxation.

Virtually all of these state constitutional provisions differ significantly from the federal guarantee of equal protection. They were drafted differently, adopted at different times, and reflect the diverse concerns about equality that surfaced during the various eras of state constitutional revision. For example, the broad guarantees of individual rights found in many state constitutions are intended to secure an equality of rights before the law for all persons. The bans on special laws and local laws, however, focus on the substance of the law, seeking to ensure equality (understood as uniformity of treatment) by requiring that laws be of general applicability. The same concern that all citizens be treated uniformly underlies the constitutional prohibitions of special privileges, which protect the general public against preferential treatment for a small group, and the requirement of uniformity in taxation. Conversely, state bans on discrimination on the basis of gender, religion, or race reflect the more familiar concern to protect members of minority groups from majority tyranny. Finally, constitutional requirements of “uniform” or “thorough and efficicnt" public schools reflect a concern that the state avoid favoritism in the provision of essential state services.

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