We the 50 Peoples

State constitutionalism challenges the federal judicial leviathan.

Brian Doherty from the March 1997 issue

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The average state constitution is four times as long as the federal one, and some are eight times as long. And they are often larded with material that seems more the stuff of statute--or humor--than of the sacred compact binding a people into political unity. Louisiana amended its constitution to make Huey Long's birthday a state holiday. Texas's constitution declares that banks may use automated teller machines. The width of ski trails in state parks is a constitutional matter in New York.

State court judges themselves don't treat their constitutions with much respect, Gardner found. He argues that "contrary to the claims of New Federalism, state constitutional law today is a vast wasteland of confusing, conflicting, and essentially unintelligible pronouncements." Gardner sampled 1,208 state supreme court decisions from 1990 and found that in only 21 percent of the cases did the court even attempt to address state constitutional issues.

The new state constitutionalism may not yet have matured into a coherent judicial philosophy. Still, state courts have made a batch of decisions in the past decade expanding different constitutional rights beyond federal standards. Search-and-seizure cases have been busy arenas for state court activism; states such as Hawaii, Pennsylvania, New York, and Arizona have explicitly prohibited various kinds of police searches and seizures that have been countenanced by the federal Supreme Court.

New York has been a leader in expanding Fourth Amendment rights, but not everyone is cheering. Peter Reinharz, a prosecutor with New York City's Family Court Division, publicly excoriated his state's decisions regarding search and seizure in a recent issue of City Journal. Like most critics of the new state constitutionalism, Reinharz doesn't attack the concept of state courts relying on their state constitutions for independent reasoning, but he does question the judges' policy wisdom.

"I've been a prosecutor for 15 years," Reinharz says. "There's not one cop on patrol who can explain to me what the four tiers [established by New York courts to test proper searches] are about. You can't design tests that can't be interpreted by the people to whom they must apply."

Reinharz complains that the relevant language in the state and federal constitutions regarding protection from searches is absolutely identical, so no textual reason exists for departing from federal Supreme Court precedent. Cato's Lynch says he frequently encounters such arguments. "It's like people view it as somehow impolite to tell the Supreme Court, 'Sorry, but we reject your reading.'"

State constitution watcher Jennifer Freisen adds, "I don't believe the U.S. Supreme Court is infallible. I don't worship them. They could be wrong. If a [state court] decision is based on decent legal reasoning, there's no reason to fetishize the Supreme Court, to fetishize centralized power."

Explicit differences in the language of similar federal and state rights guarantees often have a role in the new state constitutionalism as well, as with the right to bear arms. Twenty-two state constitutions explicitly say you can use guns for personal defense, and 20 weapons laws have been overturned based on state constitutional guarantees, dating back to 1822. "In a lot of cases, state constitutions aren't monkeyed up with 'militia' clauses," says Stephen Halbrook, an activist lawyer and gun rights scholar who has argued many gun rights cases in both state and federal courts. "A lot have phrases like 'defense of self and state.' The first gun control law in American history was in Kentucky, and the state court promptly overturned it."

Today, after a recent series of disappointing decisions in such states as Ohio, Oregon, and Colorado upholding weapons bans that Halbrook thinks clearly violate their state constitutional weapons-rights guarantees, he's no longer so sure that state courts are any better than federal ones on gun rights.

Along with being tougher on government intrusions on citizens' liberties, state courts have also extended some "rights" that are in fact obligations for others--insisting that their state governments are constitutionally required to be more generous with tax dollars. Despite a federal Supreme Court decision to the contrary, the states of Minnesota, California, Montana, and New Mexico have decided that it would be positively unconstitutional to limit public funding for abortions.

That state courts are making decisions relying on their own constitutions, their own text, their own history, and their own judgment is an encouraging sign that political power in the United States doesn't have to be calcified in a central leviathan. While federalism leaves room for the multiplication of error, the more states realize they don't have to obey the federal government, in judicial precedent or other areas, the more room to maneuver the American citizen has--the more room for social and legal experimentation and evolution.

Even James Gardner, one of the fiercest academic critics of the state courts' legal reasoning, recognizes the new state constitutionalism's potential value. "Despite their shoddy methods, I came to the conclusion that I don't think states need any other reason to depart from Supreme Court precedent than that they think the Supreme Court was wrong," Gardner says. "We don't have a state and federal government to provide different polities with different values and to constitutionalize them. It's to provide two different avenues of protection for rights that we as Americans have decided we have."