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10 See e.g., New Jersey Constitution, Art. I, para I (1844). 11 See generally Ronald J. Peters, Jr., The Massachusetts

Constitution of 1780: A Social Compact (Amherst: University of Massachusetts Press, 1978), p. 190 (discussing

these two facets of political equality). 12 See J. Paul Selsam, The Pennsylvania Constitution of

1776: A Study in Revolutionary Democracy (Philadelphia: University of Pennsylvania Press, 1936); Richard A. Ryerson, “Republican Theory and Partisan Reality in Revolutionary Pennsylvania: Toward a New View of the Pennsylvania Constitutionalist Party", in Sovereign States in an Age of Uncertainty, Ronald Hoffman and Peter J. Albert, eds. (Charlottesville: University Press of Vir

ginia, 1981), p. 94. 13 Virginia Constitution, Bill of Rights 4 (1776). For a simi

lar provision, see Massachusetts Constitution, Pt. 1, Art.

VI (1780). 14 On the nature of “constitutions” in the revolutionary

era, see Cecelia M. Kenyon, “Constitutionalism in Revolutionary America,” in Roland J. Pennock and John W. Chapman, eds., Nomos XV: Constitutionalism (New

York: New York University Press, 1979), pp. 86-92. 15 See William E. Nelson, “The Eighteenth Century Back

ground of John Marshall's Constitutional Jurisprudence," Michigan Law Review 76 (1978): 937; William E. Nelson, “Changing Conceptions of Judicial Review. The Evolution of Constitutional Theory in the States, 1790-1860,” University of Pennsylvania Law Review 120 (1972): 1168 16 Frank P. Grad, “The State Bill of Rights,” in V. Ranney,

ed., Con-Con: Issues for the Illinois Constitutional Convention (Urbana: Institute of Government and Public Affairs, University of Illinois, 1970), p. 34. But see Kenyon, “Constitutionalism," pp. 96-99 (“natural law" concepts, though largely ideological, were thought to be enforceable through “public opinion, elections... (and]

revolution"). 17 On the role of textual basis in judicial interpretation of

state constitutions, see Hans A. Linde, “Without ‘Due Process: Unconstitutional Law in Oregon," Oregon Law

Review 49 (1970): 131 18 See, for example, Henry v. Bauder, 213 Kan. 751, 518

P.2d 362 (1974). There, the Kansas Supreme Court observed: “While ... [the equality) provisions of our Bill of Rights declare a political truth, they are given much the same effect as the clauses of the Fourteenth Amendment.” 752-53, 518 P.2d at 365; see also State v. Currens, 111 Wis. 431, 434-35, 87 N.W. 561, 562 (1901) (although phrased like the Declaration of Independence, “lise, liberty, and the pursuit of happiness" provision judicially enforceable); Winters v. Myers, 92 Kan. 414, 420-25, 140 P. 1033, 1036-37 (1914) (noting that constitutional provisions declare political truths and legislation may not

"trench upon the political truths which they affirm”). 19 Peper v. Princeton University

Board of Trustees, 77 N.J. 55, 79, 389 A.2d 465, 477 (1978). New Jersey's constitu

tional provision is quoted in footnote 5. 20448 U.S. 297 (1980) (upholding termination of funds for

abortion in the Medicaid program). See generally Robert F. Williams, “In the Supreme Court's Shadow. Legitimacy of State Rejection of Supreme Court Reasoning and Result,” South Carolina Law Review 35

(1984): 364-365. 21 Right to Choose v. Byrne, 91 N.J. 287,305,450 A.2d 925,

934 (1982)

22 See, for example, Haase v. Sawicki, 20 Wis. 2d 308, 311

n.2, 121 N.W.2d 876, 878 n.2 (1963). 23 See generally Merrill Peterson, Democracy, Liberty, and

Property: The State Constitutional Conventions of the 1820s (Indianapolis: Bobbs-Merrill, 1966) (discussion of the Massachusetts, New York, and Virginia conven

tions). 24 Ibid., pp. 59, 214, 377.24.6 26 See James Willard Hurst, The Growth of American Law:

The Law Makers (Boston: Little Brown & Co., 1950), pp. 241-42; William F. Swindler, “Minimum Standards of Constitutional Justice: Federal Floor and State Ceiling,” Missouri Law Review 49 (1984): 2; A.J. Thomas, Jr., and Ann Van Wynen Thomas, “The Texas Constitution of

1876," Texas Law Review 35 (1959): 907. 26 See note 13 and accompanying text. The concern of the

newer provisions was with legislative rather than royal

favoritism. Suc Linde, “Without 'Due Process,'” p. 141. 27 Scc Linde, “Without 'Duc Process,' " p. 141. As to the

"copying" or "borrowing" of state constitutional provisions during westward expansion, see Robert F. Williams, “State Constitutional Law Processes," William

and Mary Law Review 24 (1983): 174 n.14. 28 Oregon Constitution, Art. I, 20 (1859). 29 Historian Rush Welter observed: “Hence the whole

thrust of Jacksonian thought was in the first instance negative, an effort to eliminate institutions and practices that an earlier generation had more or less taken for granted. The "aristocracy” that Jacksonians complained of consisted of selective access to power, prosperity, or influence. At bottom it was a political rather than a social or economic concept in Jacksonian eyes, an “aristocrat" was someone who was empowered by law to affect the economic and social welfare of his contemporaries, or who enjoyed legal privileges that he could turn to his own account in an otherwise competitive economy.” Rush Welter, The Mind of America: 1820-1860 (New York: Columbia University Press, 1975), pp. 77-78 (footnote omitted). As to “Jacksonian Democracy,” see R. Lawrence Hachey, “Jacksonian Democracy and the Wisconsin

Constitution," Marquette Law Review 62 (1979): 485. 30 Linde, “Without 'Due Process,' p. 141. For a listing of

similar state provisions, see p. 182 n.43. For opinions by Justice Linde on Art. I, 20, see State v. Freeland, 295 Or. 367, 667 P.2d 509, 512-16 (1983); State v. Clark, 291 Or.

231, 236-46, 630 P.20 810, 814-18 (1981). 31 Hewitt v. State Accident Insurance Fund Corp., 294 Or.

33, 42,653 P.20 970,975 (1982); see also Behrns v. Buake, 89S.D. 96, 100, 229 N.W.2d 86, 89 (1975X“more stringent constitutional standard” than fourteenth amendment); Comment, Willamette Law Journal 19 (1983): 757 (dis

cussing Hewitt). 32 See State v. Frecland, 667 P.2d 509, 512 (1983); State v.

Clark, 291 Or. 231, 237-38, 630 P.2d 810, 814-15 (1981). 33 Linde, “Without ‘Due Process,'” p. 142 notes 53 and 54. 34 See In re Aston Park Hosp., Inc., 282 N.C. 542, 193

S.E.2d 729 (1973); Comment, “Hospital Regulation after Aston Park: Substantive Due Process in North Caro

lina,” North Carolina Law Review 52 (1974): 763. 35 See James Quale Dealey, Growth of American State Con

stitutions from 1776 10 the End of the Year 1914 (New York: DaCapo Press. 1972, 1915 reprint) pp. 224-26; Hurst, The Growth of American Law, pp. 241-42; Thomas

and Thomas, “The Texas Constitution,” 915. 36 See, for example, Florida Constitution, Art. III, 11(aX1)

(1968); Pennsylvania Constitution, Art.III, 32

37 See generally City of Louisville v. Klusmeyer, 324 S.W.2d

831. 833-34 (Ky. 1959) (noting that both territorially and substantively "special" statutes are permissible in certain cases). The Tennessee Constitution's “law of the land" provision, Tennessee Constitution, Art. XI, 8 (1796) has been interpreted to allow statutes to be restricted to certain counties by population classification only when “the classification is based upon reason, is natural and not arbitrary or capricious." State ex rel Hamby v. Cummings,

166 Tenn. (2 Beeler) 460,463,63 S.W.2d. 515, 516 (1933). 38 Illinois Constitution, Art. IV, 13 (1970); see Grace v.

Howlett, 51 Ill. 2d 478, 283 N.E.2d 474 (1974). Illinois' "special laws” provision declares further that “whether a general law is or can be made applicable shall be a matter for judicial determination.” Illinois Constitution, Art. IV, 13 (1970). On judicial enforcement of this type of provision, see Truax-Traer Coal Co. v. Compensation Commissioner, 123 W. Va. 621, 626-27, 17 S.E.2d 330, 334 (1941); Thomas F. Green, Jr., “A Malapropian Provision of State Constitutions,” Washington University Law Quarterly 24 (1939): 359; Frank E. Horack, “Special Legislation: Another Twilight Zone,Indiana Law Jour

nal 12 (1936): 110-21. 39 Illinois Constitution, Art. I, 2 provides: “No person

shall. . . be denied the equal protection of the laws.” 40 See Karasik, “Equal Protection,” pp. 270-74. 41 Grace v. Howlett, 51 Ill. 2d 478, 487 283 N.E.2d 474, 479

(1974). 42 Pennsylvania Constitution, Art. I 26 (1967); cf. New York

Constitution, Art. I. 11(1938) (earlier version of this type of provision). For discussion of similar provisions in other state constitutions, see Albert L. Sturm, “The Development of American State Constitutions,” Publius: The Journal of Federalism 12 (1982): 87-88; Albert L Sturm and Kaye M. Wright, “Civil Libcrtics in Revised State Constitutions,” in Stephen L. Wasby, cd., ('ivil Liberties: Policy and Policy Making (Carbondale: Southern

Illinois University Press, 1976), pp. 182-83. 43 See, for example, New Jersey Constitution, Art. I, para 5

(1947) 44 See Hurst, The Growth of American Law, p. 246. See gen

erally Charles Press, “Assessing the Policy and Operational Implications of State Constitutional Change,” Publius: The Joumal of Federalism 12 (1982). 108-11 (dis

cussing the politics of constitutional revision). 45 448 U.S. 297 (1980). 46 This was a Fifth Amendment equal protection case deal

ing with a federal statute. The companion case, Williams v. Zbaraz, 448 U.S. 358 (1980), applied identical analysis to a state statute under the equal protection clause of the

Fourteenth Amendment. 47 Williams v. Zbaraz, 315-17. 48 Ibid., 317 n.19. 49 Roe v. Wade, 410 U.S. 113 (1973). 50 Eisenstadt v. Baird, 405 U.S. 438, 453 (1972); Skinner v.

Oklahoma, 316 U.S. 535, 541 (1942). 51 This argument, which contends that such federal consti

tutional rights constitute "civil rights” under the state constitutional provision, was rejected in Fischer v. Department of Public Welfare, 509 Pa. 282, 502 A. 2d 114

(1985). 52 See generally Frank P. Grad, “The State Constitution:

Its Function and Form in Our Time," Virginia Law Review 54 (1968): 929-939 (describing the shifting functions of state governments).

53 Of course, many states did not enforce even these earlier

provisions in the area of, for example, racial discrimina

tion. 54 Laurence H. Tribe, American Constitutional Law

(Mineola, New York: Foundation Press, 1978) 15-10, p. 933 n.77. For a complete discussion of unconstitutional conditions, see Seth Kreimer, “Allocational Sanctions: The Problem of Negative Rights in a Positive State,"

University of Pennsylvania Law Review 132 (1984): 1293. 5562 N.J. 473,513, 303 A.2 273, 294, cert. denied, 414 U.S.

976 (1973) 56 New Jersey Constitution, Art. VIII, 4, para 1 (1947); see

Gershon M. Ratner, “A New Legal Duty for Urban Public Schools: Effective Education in Basic Skills,” Texas Law Review 63 (1985): 815 n. 144; Paul L. Trachtenberg, “Reforming School Finance through State Constitutions: Robinson v. Cahill Points the Way,Rutgers Law

Review 27 (1974): 415-28. 57 See Cahill, 62 N.J. 501-10, 303 A.2d 287-92. For a deci

sion dealing with equality of educational opportunity for handicapped students under New Jersey's "thorough and efficient” provision, see Levine v. State Department of Institutions and Agencies, 84 N.J. 234, 418 A.2d 229 (1980); see also In re G.H., 218 N.W.2d 441, 446 (N.D. 1974) (holding that failure to provide free education to handicapped children violates North Dakota Constitu

tion's education and equality provisions). 58 The New Jersey court said: “In passing we note briefly

the reason why we are not prepared to accept that concept for State constitutional purposes. We have no difficulty with the thought that a discrimination which may have an invidious base is “suspect” and will be examined closcly. And if a discrimination of that kind is found, the inquiry may well end, for it is not likely that a State interest could sustain such a discrimination. But we have not found helpful the conccpt of a “fundamental” right.”

Cahill, 62 N.J. 491, 303 A.20 282. 59 Ibid., 62 N.J. at 492, 495-96, 303 A.2d at 283, 284. In fact,

New Jersey has no “equal protection" clause in its constitution. The general state constitutional doctrines of equality arise from New Jersey Constitution, Art. I, para.

1(1947). See supra note 5. 60 See generally Michael M. Bernard, Constitutions, Taxa

tion and Land Policy, 2 vols. (Lexington, Massachusetts: D.C. Heath, Lexington Books, 1979, 1980) (abstracting tax provisions from the federal and all state constitutions); Wade J. Newhouse, Constitutional Uniformity and Equality in State Taxation, 2nd ed. (Buffalo: William S. Hein Co., 1984) (analysis of state tax uniformity and equality provisions, organized into nine prototypical clauses); William L. Matthews, Jr., “The Function of Constitutional Provisions Requiring Uniformity in Taxation," Kentucky Law Joumal 38 (1949): 31 (discussing the development and application of state tax uniformity provisions); David A. Myers, “Open Space Taxation and State Constitutions,” Vanderbilt Law Review 33 (1980): 837 (differential taxation of farm, timber, and open space land tends “both to countermand and to reinforce the ideal that absolute equality in state taxation

can be attained"). 61 Scc, for example, Gottlieb v. City of Milwaukee, 33 Wis.

20 408, 147 N.W. 2d 633 (1967). 62 Sec Note, “Incquality in Property Tax Assessments: New

Cures for an Old Il.” Harvard Law Review 75 (1962): 1377-80; Note, “The Road to Uniformity in Real Estate Taxation: Valuation and Appeal," University of Pennsylvania Law Review 124 (1976): 1447.

63 See Lenhausen v. Lake Shore Auto Parts Co., 410 U.S.

356, 359 (1973); Allied Stores, Inc. v. Bowers, 358 U.S. 522, 526 (1959); Nashville, Chattanooga. and St. Louis Railway v. Browning, 310 U.S. 362, 368 (1940) (referring to the “narrow and sometimes cramping provision of...

state uniformity clauses"). 64 Amidon v. Kane 444 Pa. 38, 47, 279 A.2d 53, 58 (1971). 65 Federal initiatives include passage of the Equal Pay Act

of 1963 (57 U.S.C. 206 (1976]), the Civil Rights Act of 1964 (42 U.S.C. 2000e [1976 and Supp. III 1979]), and Title IX of the Education Act Amendments of 1972 (20 U.S.C. 1681 (1976]) as well as Reed v. Reed 404 U.S. 71 (1971) and subsequent judicial rulings under the equal protection clause of the Fourteenth Amendment. State initiatives include not only the constitutional guarantees of gender equality discussed below but also statutory reforms and judicial decisions demonstrating a commitment to securing gender equality even in the absence of express constitutional mandates. See, for example, Sailer

Inn v. Kirby, 485 P.2d 529 (Cal. 1971). 66 For a thorough overview of the changes in state law, see

Barbara A. Brown, Ann E. Freedman, Harriet N. Katz, and Alice M. Price, Women's Rights and the Law: The Impact of the ERA on State Laws (New York: Praeger, 1977). 67 Alaska Constitution, Art. I, 3 (1972); California Consti

tution, Art. I, 8 (19); Colorado Constitution, Art. II, 29 (1972); Connecticut Constitution, Art. I 20 (1974); Hawaii Constitution, Art. 1, 3, and Art. I, 5 (1972); Illinois Constitution, Art. I, 18 (1971); Louisiana Constitution, Art. I, 3 (1974); Maryland Constitution, Art. 46 (1972); Massachusetts Constitution, Part First, Art. I (1976); Montana Constitution, Art. II, 4(1973); New Hampshire Constitution, Part First, Art. 2 (1975); New Jersey Constitution, Art. I, para. 1(1947); New Mexico Constitution, Art. II, 18 (1973); Pennsylvania Constitution, Art. I, 28 (1971); Texas Constitution, Art. I, 3a (1972); Utah Constitution, Art. IV, 1 (1896); Virginia Constitution, Art. I, 11 (1971); Washington Constitution, Art. 31, s 1 and 2 (1972); and Wyoming Constitution, Art. VI, 1, and Art. I, 3 (1890). Litigation and legislative action under these provisions through 1980 are surveyed in NOW Legal Defense and Education Fund, ERA Impact Project (unpub

lished, 1981). 68 The revised provision substituted “persons” for “men.”

The aim of securing equal rights through this change is documented in “Note: Rediscovering the New Jersey E.R.A.: The Key to Successful Sex Discrimination Liti

gation,Rutgers Law Review 17 (Winter 1986): 253. 69 See, for example, McLean v. First N.W. Industries of

America, Inc., 600 P.2d 1927 (Wash. 1979), and Junior Football Association v. Gaudct, 546 S.W.2171(Tex. Civ.

App. 1976). 70 See, for example, People v. Ellis, 311 N.E.20 98 (III.

1974). For a contrary view, see Hartford Accident and Indemnity v. Insurance Commissioner, 482 A.20 542(Pa.

1984). 71 Salt Lake City v. Wilson, 148 P. 1104 (Ut. 1915), and

Stanton v. Stanton, 517 P.2d 1010 (Ut. 1974). 72 Consortium is defined as the “[c]onjugal fellowship of

husband and wife, and right of each to the company, society, cooperation, affection, and aid of the other in every conjugal relation.” (Black's Law Dictionary, 5th ed. (St. Paul: West Publishing Co., 1979), p. 280) Traditionally, under common law a husband could recover for negligence leading to an impairment or loss of the con

sortium of his spouse, but a wife could not. Darrin v. Gould, 540 P.2.1 885 (Wash. 1975); Rand v. Rand, 374 A.2d 900 (MU. 1977); and Hopkins v. Blanco, 320 A.2d

139 (Pa. 1974). 73 Henderson v. Henderson, 327 A.2d. 60 (Pa. 1974); Smith

v. Smith, 534 P.2d 1033 (Wash. 1975); Cooper v. Cooper, 513 S.W.2d 229 (Tex. Civ. App. 1973); Friedman v. Friedman, 521

S.W.2d 111 (Tex. Civ. App. 1975); and Krempv. Kremp, 590 S.W.2d 229 (Tex. Civ.App. 1979). 74 The relevant cases, in both "little ERA” and “non

ERA” states, are surveyed and analyzed in G. Alan Tart and Mary Cornelia Porter, “Gender Equality and Judicial Federalism: The Role of State Appellate Courts," Hastings Constitutional Law Quarterly 9 (Summer 1982):

942-950 and 963-973, Tables E-H. 75 See, for example, People v. Barger, 550 P.2d 1281 (Col.

1976); Finley v. State, 527 S.W.2d 553 (Tex. Crim. App.

1975); and Brooks v. State, 330 A.2d 670 (Md. 1975). 76Sce, for example, Hopkins v. Blanco, 302 A.2d 855 (Pa.

1973); Whittlescy v. Miller, 572 S.W.2d 665 (Tex. Civ. App. 1978); and Lundgrens v. Whitney's Inc., 614 P.2d 1272 (Wash. 1980). For discussion of state elimination of the discriminatory common-law ban on recovery, see

Tarr and Porter, “Gender Equality,” pp. 937-942. 77 Sce, for example, Packel v. Pennsylvania Interscholastic

Athletic Association, 334 A.2d 839 (Pa. 1975), and Dar

rin v. Gould, 540 P.2d 885 (Wash. 1975). 78 For example, whereas in Texas the right of married

women to revert to their birth names on official records was confirmed by judicial decision, in Maryland and Pennsylvania the issue was resolved by opinions issued by the states' attorneys general. For Texas, see In re Erickson, 547 S.W. 2d 357 (Tex. Civ. App. 1977); for Maryland, see 57 Opinions of the Attorney General 234 (11/30/72), cited in NOW Legal Defense and Education Fund, ERA Impact Project: Summary-Maryland State ERA Experience, pp. 7-8; and for Pennsylvania, see Official Opinion No. 62, Opinions of the Attorney General 172 (8/20/73), cited in NOW Legal Defense and Education Fund, ERA Impact Project: Summary-Pennsylvania

State ERA Experience, pp. 11-12. 79 Connecticut prohibited gender discrimination by private

employers in 1967 and by public employers in 1969 (Connecticut Gen. Stats. 4-61, 31-12, and 53-35 (1979 Rev.)). A year prior to the adoption of the state ERA in 1973, the state had made gender neutral all laws concerning divorce, marriage, alimony, division of property, custody, and child support (Connecticut Gen. Stat. 46b-40 et seq. (1979 Rev.]). It should be noted that many states that did not adopt constitutional prohibitions on gender discrimination nonctheless acted to remove discriminatory provisions from their laws. See Brown et al., Women's

Rights and the Law, chapter 3. 80 This account of New Mexico's reform effort is based on

NOW Legal Defense and Education Fund, ERA Impact Project: Summary--New Mexico State ERA Experience,

pp.8-13. 81 For example, two months after the Virginia Supreme

Court in Archer v. Mayes, 194 S.E.2d 707 (Va. 1973), upheld an automatic exemption from jury duty offered only to women, the Virginia Legislature replaced the statute with one offering an exemption to anyone who is responsible for the care of a child or a handicapped adult (Virginia Code 8.01-341.1 (Rep. Vol. 1977).

Chapter 6

The States and Criminal Procedure

Rights protections for defendants in criminal cases represent another area where state courts have become very

active in recent years. State courts are often holding that a defendant is afforded more protection under a section of a state constitution than the U.S. Supreme Court has granted through its interpretation of the corresponding provision in the U.S. Bill of Rights. This development has resulted, in part, from the changes in the substance of U.S. Supreme Court decisions. Under Chief Justices Warren Burger and William Rehnquist, the Court has slowed the expansion of criminal defendant rights and, in some areas, narrowed the protections granted to the defendant under the U.S. Constitution by the Warren Court.1

Because of the Supreme Court's post-Warren approach to defendant rights, the state courts are taking initiatives in this field. Justice William Brennan approves of these state initiatives. He finds that "state courts no less than federal are and ought to be the guardians of our liberties."2 In the past, when defendants' rights were federalized, the states had no reason to consider their own state constitutions. However, the Burger/Rehnquist Court does not interpret these rights as expansively as did the previous Court.

This chapter will demonstrate that, despite several problems, state courts have turned to their own constitutions to guarantee more protection than the Supreme Court's interpretation of the U.S. Constitution grants to the defendant. State courts may and do interpret their constitutions independently of the federal Constitution. State constitutions are not mirrors of the federal Constitution; they have their own language and history, which shape state court interpretation.

In order to avoid Supreme Court review and possible reversal, state courts must make a plain statement that their decision is based on an independent and adequate state ground and note that whilc fcderal law may persuade the court it does not compel the result. This chapter focuses on the exclusionary

rule of the Fourth Amendment to the U.S. Constitution. This rule has become central to the American criminal justice system. This rule is also important for federalism because, even if a state court is able to use state grounds as the basis of its decision, a federal court may still be able to use the evidence that was suppressed in the state court. The U.S. Supreme Court has held that successive prosecutions in state and federal courts are not violative of the double jeopardy clause of the Fifth Amendment.

The defendant can attempt to stop the federal court from using evidence that is impermissible under the state constitution even if he or she cannot avoid the federal prosecution. The state court might be able to enjoin the state official, who obtained the evidence in violation of state rules, from testifying or handing the evidence over to the federal prosecutor. The state court might be able to prohibit the introduction of evidence from a federal official who violated the state constitution through the "reverse silver platter doctrine.” In addition, the defendant can make his or her argument to the federal court. If the state court is hesitant to act, the federal judge may rule that the federal officials should not receive evidence that a state official obtained in violation of state law. The federal court can also decide to prohibit state officials from using evidence seized contrary to state law in the federal prosecution.

State Courts and Constitutions Several commentators assert that the states should take the initiative in the area of constitutional rights. Ronald Collins, for example, maintains that the states must take responsibility to protect individual rights in order to revitalize federalism. For Justice William Brennan, the federal courts are still primarily responsible for protecting individual rights, but the states should take the role of expanding protections beyond federal guarantees. He believes that James Madison would have approved and welcomed the increase in the reach of state constitutional law.5 Perhaps, as one commentator suggests, the state rule

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