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national standards to such an extent that it
imposes conflicting obligations or cumula-
tive burdens on multistate businesses.
The doctrine of "adequate and independent
state grounds” should be invoked to prevent
the U.S. Supreme court from reviewing a
state high court judgment that plainly rests
on a determination of state law.
The "abstention" and "equitable restraint".
doctrines should be invoked to restrict the
original jurisdiction of the federal district
courts in favor of state court declarations of

state constitutional and statutory law. The Commission recommends, further, that, whenever possible and appropriate, state judges look to state constitutional provisions first, using the "adequate and independent grounds” doctrine, when deciding constitutional questions, rather than turning immediately to the U.S. Constitution. By interpreting state constitutional provisions independently of how similar provisions of the U.S. Constitution are

interpreted, state courts can protect their decisions from U.S. Supreme Court review and thereby foster the growth of an independent body of state constitutional law.

The Commission also recommends, as a supplementary measure of protection, that states increase their support for the State and Local Legal Center so as to maintain a strong presence on the many federalism issues that come before the U.S. Supreme Court.

The Commission once again urges the Congress to recognize and affirm the importance of state constitutional law in the American federal system and exercise restraint in preempting state and local responsibilities as well as in mandating responsibilities and expenses on state and local governments. To help bolster the Congress' resolve in these matters, the Commission recommends that the states establish a "federalism impact process" by which they could respond, in a timely fashion, to contemplated actions by the Congress that might diminish state and local authority. The Academy for State and Local Government should be considered for this role.

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This study examines selected aspects of the place of state constitutional law in the American system and of recent developments in state constitutional law, particularly as this body of law has been developed by state high courts. The study is not intended to be comprehensive because a full examination of the many facets of state constitutional law would require several large volumes. Instead, we have sought to focus on certain aspects of state constitutional law that highlight the importance, variety, and innovativeness of developments in the states. This study looks, therefore, at the bearings of state constitutions on state government structure, civil liberties, equality, criminal rights (the exclusionary rule), economic and property rights, workers' compensation, and education.1

This study takes on particular importance when one considers the results of ACIR's 1988 national public opinion poll. Only 44 percent of American adults knew that their state has its own constitution, and 44 percent of the respondents did not know that their state constitution has its own bill of rights.2 Perhaps these results are not surprising because, after all, so much attention has been given to federal constitutional law in recent decades that "constitutional law” today is virtually synonymous with federal constitutional law.

This eclipsing of state constitutional law in the minds of not only the general public but also many policymakers is one indicator of the condition of contemporary American federalism. Renewed attention to and interest in state constitutional law, therefore, must be viewed as part and parcel of any effort to restore a better balance of national-state power in the federal system. The American system of dual constitutionalism represents a unique and highly successful experiment in democratic governance, one that needs constant attention if we are to continue to make it work, and work better.

Another indicator of the eclipsing of state constitutions is that during 1987, the year of the bicentennial of the drafting of the Constitution of the United States of America, that revered document was often said to be the oldest, still operative, written constitution in the world. Even forgiving some exaggeration, the careful observer should recognize that the claim is not true. The oldest, still operative, written constitution in the world is the Constitution of Massachusetts, written largely by John Adams and ratified by the citizens of Massachusetts in 1780, a full seven years before the Constitution of the United States was written in Philadelphia.3 The Constitution of the United States, of course, continues to be the oldest, still operative, written, national constitution in the world.

Beyond the need for historical accuracy, the longevity of the Massachusetts Constitution is important because it underscores the limited role that the United States Constitution was designed to serve in the American federal system. The thirteen original states were fully functioning constitutional entities before 1787. Delaware, Maryland, New Hampshire, New Jersey, North Carolina, Pennsylvania, South Carolina, and Virginia all enacted constitutions in 1776. Georgia and New York wrote constitutions the following year, 1777. Massachusetts adopted its constitution in 1780. Only Connecticut and Rhode Island continued to function under their colonial charters until they replaced them with constitutions in 1818 and 1842 respectively. Thus, Americans had considerable experience with written constitutions before the framers met in Philadelphia during the summer of 1787. Indeed, much of the debate that took place, both in the Constitutional Convention itself and in the state ratifying conventions, demonstrates how the framers of the U.S. Constitution built on these state constitutional experiences. In The Federalist, for example, one finds repeated references to state constitutions, both positive and negative.

subdivisions) play the dominant role in setting education policy.

Today, few arcas of public policy belong exclusively either to the national government or to the states. Rather, policy responsibility is shared between the national government and the states. In some areas, such as foreign policy, the federal government is the dominant actor; in others, such as education, the states play the principal role. Given the expansion of national authority, especially since 1937, one can argue about how much policymaking “room” is left to the states. Nevertheless, it is important to recognize that just as we conceive of the federal government as a polity, both energized and constrained by the U.S. Constitution, so also must we think of the states as polities, energized and constrained by their own constitutions.

The Constitution of the United States

as an “Incomplete Document" The Constitution of the United States is dependent on state constitutions in an even more profound and contemporary way. As Donald S. Lutz has suggested, the Constitution of the United States is "incomplete." It is predicated on the continued existence and vitality of state constitutions. Unlike many constitutions in Europe and elsewhere in the world, the Constitution of the United States is silent, or mostly silent, on such fundamental constitutional matters as local government finance, education, and the structure of state and local government. These and other constitutional matters are left to the states to resolve, in keeping with their own needs, preferences, and traditions. Thus, the “complete” American constitution includes both the Constitution of the United States and the constitutions of the 50 statesboth as they are written and as they are implemented and interpreted by judges and other government officials.

The Constitution of the United States delegates limited, although important, powers to the national government. When exercising those delegated powers, the laws of the United States are supreme. State laws, and even state constitutional provisions, must yield to these legitimate expressions of national authority. At the same time, because national authority is limited to those powers delegated by the U.S. Constitution, the states retain broad areas of policymaking authority to themselves. The areas of public policy reserved to the states are controlled not by the U.S. Constitution, but by the constitutions of the 50 individual states.

At least since 1937, however, the constitutional delegations of authority to the national government have been interpreted broadly; consequently, there is hardly an area of social or economic life that cannot be reached now by the national government. This is not to suggest that the national government can, constitutionally, control all areas of public policy, only that it can influence them. For example, few Americans would contend that the national government could mandate a uniform curriculum for the nation's schools. At the same time, few would deny that the federal government has had a considerable impact on curriculum through its grant-in-aid system, its curriculum development projects, and its initiatives in such areas as bilingual education, the education of the handicapped, and school desegregation. Despite this federal presence, however, the states (and their

The States as Polities From this perspective, the American states are polities within the framework of the American federal system. That is, the primary role of the states is to make policy choices dealing with that wide range of matters assigned to them by their citizens and left open to them by the very incompleteness of the U.S. Constitution. To put the matter somewhat differently, and without disparaging the crucial role of the states in the implementation of national programs, the states are political arenas for the forging of public policy, not administrative agencies for the implementation of policy made by the national government.

As polities, the states require rules both for the management of political conflict and for the determination of what is legitimate public policy. In some federal systems, these basic decisions are made in a single, national constitution. The states of India, for example, do not have their own constitutions; their political authority and organization are provided for in the national constitution. In Brazil, while the states write their own constitutions, they make few important choices because they must conform to the detailed provisions of the national constitution.. These arrangements may be appropriate for India and Brazil, where the national government is the principal arena for policymaking, but a different arrangement is necessary where the states play an important policymaking role.

Furthermore, if the American states are policymakers, and have the right to enact constitutions to serve as the frameworks for that policymaking process, then we would cxpect considerably more variation, both in terms of policy outcomes and policy processes, than we might find in federal systems which are, in effect, mcrcly decentralized administrative systems. Such diversity may be a blessing or a curse, depending on one's perspective. In the American federal system, there is always a tension between uniformity and diversity. Unfortunately, there is no clear formula to instruct us on when to opt for one or the other; rather, the choice more usually is made in the various arenas of the political process-legislatures, executive agencies, and courts.

The United States Constitution

as a Constraint on the States Of course, the U.S. Constitution serves as an overarching framework in which the states (and the federal government) perform their governing functions. This framework-as originally written, as amended, and as interpreted-constrains the states in many important ways.

First and clearly foremost, Article VI of the U.S. Constitution provides that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme law of the Land. ..." This supremacy clause makes it clear that the Constitution, along with legitimate national laws and treaties, are superior to state enactments, including state constitutional provisions.

Sometimes, the words of the U.S. Constitution as they limit the states are fairly clear, as, for example, when the Constitution prohibits the states from "grant[ing] Letters of Marque and Reprisal; coin[ing] Money; [or] emit[ing] Bills of Credit...,"10 although even these specific limitations are subject to some interpretation. The range of possible interpretations increases with the indefiniteness of the language, as, for example, when the Fourteenth Amendment requires the states to accord their residents “due process of law." Debates about the meaning of the Constitution are resolved primarily by the Supreme Court of the United States, so that, according to one observer, the Supreme Court is “the umpire of the federal system."11

This umpiring function is performed in three types of cases: (1) where there is an alleged conflict between a state constitutional provision or enactment and a provision of the Constitution of the United States, (2) where there is some conflict between state and federal laws or treaties and the validity of either or both is called into question, and (3) where the constitutionality of a federal law or treaty affecting national-state relations is challenged. The particular issue involved may concern an economic regulation or a personal liberty. Given that the U.S. Supreme Court applies different standards of review for each type of issue, each must be discussed separately.

has been quite mixed. The charge that a state economic regulation violates the U.S. Constitution is usually based on one of several claims: (1) that the challenged state action is in violation of that provision of the Fifth Amendment which prohibits the taking of private property for public use without just compensation;12 (2) that a state regulation violates either the due process or equal protection clause of the Fourteenth Amendment;13 (3) that the state law is one “impairing the obligation of contracts” in violation of Section 10 of Article 1;14 (4) that a state law so favors its own citizens that it violates the interstate privileges and immunities clause of Article IV, Section 2;15 (5) that the state law regulates an aspect of interstate commerce reserved exclusively to the national government;16 or (6) that a state revenue measure is, in fact, a duty on imports or exports in violation of Article I, Section 10.17

These claims are treated more fully in chapter 2 of this study; here it merely should be pointed out that the six claims fall into two different categories: (1) that the state has violated a right of its own residents that is protected by the U.S. Constitution (e.g., the just compensation, impairment of contracts, due process, or equal protection provisions), and (2) that the state action has an unconstitutional “spillover effect” on other states (e.g., the interstate commerce, privileges and immunities, or duty on imports or exports provisions).

With regard to the first sort of claim-that the state has violated the property rights of its own citizens-the U.S. Supreme Court since the 1930s has come to the position of allowing the states considerable discretion, only rarely striking down state actions. 18 Although there has been some revival of the “takings” provision of the Fifth Amendment, 19 the Supreme Court has shown little recent inclination to support claims of this first type.

However, the Supreme Court continues to play a more active role when confronted with claims that a state action adverscly affects the rights or interests of other states or citizens of other states. For example, the Court will look closcly at state actions that allegedly place an "undue burden" on interstate commerce20 or appear to “discriminate” against other states or citizens of other states.21

These two patterns of decisions by the Supreme Court have important implications for state constitutions. First, to the extent that the U.S. Supreme Court no longer protects property rights against state actions, individuals must look to their state constitution and state judiciary for the protection of their property rights. Sccond, the states would appear to have considerable constitutional discretion in structuring economic relationships among their own citizens, so long as the state action has relatively little impact beyond its borders.

The Supreme Court and

State Economic Policy When confronted with a claim that a state economic regulation violates some provision of the U.S. Constitution, the record of the U.S. Supreme Court

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