Harvard Law Review January, 1977 *489 STATE CONSTITUTIONS

Harvard Law Review

January, 1977

*489 STATE CONSTITUTIONS AND THE PROTECTION OF INDIVIDUAL RIGHTS

William J. Brennan, Jr. [FNa1]

During the 1960's, as the Supreme Court expanded the measure of federal protec-

tion for individual rights, there was little need for litigants to rest their claims, or judges

their decisions, on state constitutonal grounds. In this Article, Mr. Justice Brennan ar-

gues that the trend of recent Supreme Court civil liberties decisions should prompt a re-

appraisal of that strategy. He particularly notes the numerous state courts which have

already extended to their citizens, via state constitutions, greater protections than the

Supreme Court has held are applicable under the federal Bill of Rights. Finally, he dis-

cusses, and applauds, the implications of this new state court activism for the structure

of American federalism.

REACHING the biblical summit of three score and ten seems to be the occasion--or the

excuse--for looking back. Forty-eight years ago I entered law school and forty-four years ago

was admitted to the New Jersey Bar. In those days of innocence, the preoccupation of the pro-

fession, bench and bar, was with questions usually answered by application of state common

law principles or state statutes. Any necessity to consult federal law was at best episodic. But

those were also the grim days of the Depression, and its cure was dramatically to change the

face of American law. The year 1933 witnessed the birth of a plethora of new federal laws and

new federal agencies developing and enforcing those laws; ones that were to affect profoundly

the daily lives of every person in the nation.

In my days at law school, Felix Frankfurter had taught administrative law in terms of the

operations of the Interstate Commerce Commission--because that was the only major federal

regulatory agency then existing. But then came in rapid succession the National Labor Rela-

tions Board, the Securities and Exchange Commission, the Civil Aeronautics Board, the Fed-

eral Communications Commission, the Federal Power Commission and a host of others. In ad-

dition, laws such as the Fair Labor Standards Act, administered by the Labor Department, also

began to require practitioners to master new, and federal, fields of law in *490 order to serve

their clients. And, of course, those laws and agencies did not disappear with the end of the De-

pression--rather a procession of still more federal agencies and federal laws has followed.

Only recently, for example, Congress created the Environmental Protection Agency and the

Equal Employment Opportunity Commission--new major sources of concern for today's cli-

ents keeping lawyers everywhere very federal law-minded.

In the beginning of this legal revolution, however, federal law was not a major concern of

state judges. Judicial involvement with decisions of the new federal agencies was the business

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of federal courts. I have tried to recall how often in my years on the New Jersey courts from

1949 to 1956 issues of federal law were relevant to cases tried before me as a trial judge in Pa-

terson and Jersey City, or were addressed by me on the appellate division or in the supreme

court. I can remember only three cases out of the hundreds with which I was involved over

those years that turned on the resolution of a federal question, and in all three that question

was statutory. Two were cases tried before me in Jersey City, one a railroad worker's suit un-

der the Federal Employers Liability Act and the other a case that implicated the Immigration

and Naturalization Act. Undoubtedly the reason they are still fresh in my memory is that I had

frantically to dig up the federal statutes and federal cases that bore on their disposition be-

cause both presented federal questions of first impression in my experience. The third instance

was a labor injunction case in which I first circulated an opinion to my brethren on the su-

preme court sustaining a chancery injunction against peaceful picketing, only to have to with-

draw the opinion and set aside the injunction when the United States Supreme Court held that

federal law preempted state regulation of such picketing.

In recent years, however, another variety of federal law--that fundamental law protecting

all of us from the use of governmental powers in ways inconsistent with American concep-

tions of human liberty--has dramatically altered the grist of the state courts. Over the past two

decades, decisions of the Supreme Court of the United States have returned to the fundament-

al promises wrought by the blood of those who fought our War between the States, promises

which were thereafter embodied in our fourteenth amendment--that the citizens of all our

states are also and no less citizens of our United States, that this birthright guarantees our fed-

eral constitutional liberties against encroachment by governmental action at any level of our

federal system, and that each of us is entitled to due process of law and the equal protection of

the laws from our state governments no less than from our national one. Although courts do

not today substitute their personal*491 economic beliefs for the judgments of our democratic-

ally elected legislatures, [FN1] Supreme Court decisions under the fourteenth amendment

have significantly affected virtually every other area, civil and criminal, of state action. And

while these decisions have been accompanied by the enforcement of federal rights by federal

courts, they have significantly altered the work of state court judges as well. This is both ne-

cessary and desirable under our federal system--state courts no less than federal are and ought

to be the guardians of our liberties.

But the point I want to stress here is that state courts cannot rest when they have afforded

their citizens the full protections of the federal Constitution. State constitutions, too, are a font

of individual liberties, their protections often extending beyond those required by the Supreme

Court's interpretation of federal law. The legal revolution which has brought federal law to the

fore must not be allowed to inhibit the independent protective force of state law--for without

it, the full realization of our liberties cannot be guaranteed.

* * *

The decisions of the Supreme Court enforcing the protections of the fourteenth amend-

ment generally fall into one of three categories. The first concerns enforcement of the federal

guarantee of equal protection of the laws. While the best known, of course, are Brown v.

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Board of Education [FN2] and Baker v. Carr, [FN3] perhaps even more the concern of state

bench and bar in terms of state court litigation are decisions invalidating state legislative clas-

sifications that impermissibly impinge on the exercise of fundamental rights, such as the

rights to vote, [FN4] to travel interstate, [FN5] or to bear or beget a child. [FN6] Equally im-

portant are decisions that require exacting judicial scrutiny of classifications that operate to

the peculiar disadvantage of politically powerless groups whose members have historically

been subjected to purposeful discrimination--racial minorities [FN7] and aliens [FN8] are two

examples.

The second category of decisions concerns the fourteenth *492 amendment's guarantee

against the deprivation of life, liberty or property where that deprivation is without due pro-

cess of law. The root requirement of due process is that, except for some extraordinary situ-

ations, an individual be given an opportunity for a hearing before he is deprived of any signi-

ficant “liberty” or “property” interest. Our decisions enforcing the guarantee of the due pro-

cess clause have elaborated the essence of that “liberty” and “property” in light of conditions

existing in contemporary society. For example, “property” has come to embrace such crucial

expectations as a driver's license [FN9] and the statutory entitlement to minimal economic

support, in the form of welfare, of those who by accident, birth or circumstance find them-

selves without the means of subsistence. [FN10] The due process safeguard against arbitrary

deprivation of these entitlements, as well as of more traditional forms of property, such as a

workingman's wages [FN11] and his continued possession and use of goods purchased under

conditional sales contracts, [FN12] has been recognized as mandating prior notice and the op-

portunity to be heard. At the same time, conceptions of “liberty” have come to recognize the

undeniable proposition that prisoners and parolees retain some vestiges of human dignity, so

that prison regulations and parole procedures must provide some form of notice and hearing

prior to confinement in solitary [FN13] or the revocation of parole. [FN14] Moreover, the

concepts of liberty and property have combined in recognizing that under modern conditions

tenured public employees may not have their reasonable expectation of continued employ-

ment, [FN15] and school children their right to a public education, [FN16] revoked without

notice and opportunity to be heard.

I suppose, however, that it is mostly the third category of decisions by the United States

Supreme Court during the last twenty years--those enforcing the specific guarantees of the

Bill of Rights against encroachment by state action--that has required the special considera-

tion of state judges, particularly as those decisions affect the administration of the criminal

justice system. After his retirement, Chief Justice Earl Warren was asked what he regarded to

be the decision during his tenure that would have the greatest consequence for all Americans.

His choice was Baker v. Carr, because he believed that if each of us has an *493 equal vote,

we are equally armed with the indispensable means to make our views felt. I feel at least as

good a case can be made that the series of decisions binding the states to almost all of the re-

straints of the Bill of Rights will be even more significant in preserving and furthering the

ideals we have fashioned for our society.

Before the fourteenth amendment was added to the Constitution, the Supreme Court held

that the Bill of Rights did not restrict state, but only federal, action. [FN17] In the decades

between 1868, when the fourteenth amendment was adopted, and 1897, the Court decided in

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case after case that the amendment did not apply various specific restraints in the Bill of

Rights to state action. [FN18] The break-through came in 1897 when the prohibition against

taking private property for public use without payment of just compensation was held embod-

ied in the fourteenth amendment's proscription, “nor shall any state deprive any person of …

property, without due process of law.” [FN19] But extension of the rest of the specific re-

straints was slow in coming. It was 1925 before it was suggested that perhaps the restraints of

the first amendment applied to state action. [FN20] Then in 1949 the fourth amendment's pro-

hibition of unreasonable searches and seizures was extended, [FN21] but the extension was

made virtually meaningless because the states were left free to decide for themselves whether

any effective means of enforcing the guarantee was to be made available. It was not until 1961

that the Court applied the exclusionary rule to state proceedings. [FN22]

It was in the years from 1962 to 1969 that the face of the law changed. Those years wit-

nessed the extension to the states of nine of the specifics of the Bill of Rights; decisions which

have had a profound impact on American life, requiring the deep involvement of state courts

in the application of federal law. The eighth amendment's prohibition of cruel and unusual

punishment was applied to state action in 1962, [FN23] and is the guarantee under which the

death penalty as then administered was struck *494 down in 1972. [FN24] The provision of

the sixth amendment that in all prosecutions the accused shall have the assistance of counsel

was applied in 1963, and in consequence counsel must be provided in every courtroom of

every state of this land to secure the rights of those accused of crime. [FN25] In 1964, the fifth

amendment privilege against compulsory self-incrimination was extended. [FN26] And after

decades of police coercion, by means ranging from torture to trickery, the privilege against

self-incrimination became the basis of Miranda v. Arizona, requiring police to give warnings

to a suspect before custodial interrogation. [FN27]

The year 1965 saw the extension of the sixth amendment right of an accused to be con-

fronted by the witnesses against him; [FN28] in 1967 three more guarantees of the sixth

amendment--the right to a speedy and public trial, the right to a trial by an impartial jury, and

the right to have compulsory process for obtaining witnesses-- were extended. [FN29] In 1969

the double jeopardy clause of the fifth amendment was applied. [FN30] Moreover, the de-

cisions barring state-required prayers in public schools, [FN31] limiting the availability of

state libel laws to public officials and public figures, [FN32] and confirming that a right of as-

sociation is implicitly protected, [FN33] are significant restraints upon state action that resul-

ted from the extension of the specifics of the first amendment.

These decisions over the past two decades gave full effect to the principle of Boyd v.

United States, [FN34] the case Mr. Justice Brandeis hailed as “a case that will be remembered

so long as civil liberty lives in the United States.” [FN35] That principle, stated by Mr. Justice

Bradley, was “… constitutional provisions for the security of person and property should be

liberally construed …. It is the duty of courts to be watchful for the constitutional rights of the

citizen, and against any stealthy encroachments thereon.” [FN36]

*495 The thread of this series of Bill of Rights holdings reflects a conclusion--arrived at

only after a long series of decisions grappling with the pros and cons of the question--that

there exists in modern America the necessity for protecting all of us from arbitrary action by

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governments more powerful and more pervasive than any in our ancestors' time. Only if the

amendments are construed to preserve their fundamental policies will they ensure the main-

tenance of our constitutional structure of government for a free society. For the genius of our

Constitution resides not in any static meaning that it had in a world that is dead and gone, but

in the adaptability of its great principles to cope with the problems of a developing America.

A principle to be vital must be of wider application than the mischief that gave it birth. Con-

stitutions are not ephemeral documents, designed to meet passing occasions. The future is

their care, and therefore, in their application, our contemplation cannot be only of what has

been but of what may be.

* * *

Of late, however, more and more state courts are construing state constitutional counter-

parts of provisions of the Bill of Rights as guaranteeing citizens of their states even more pro-

tection than the federal provisions, even those identically phrased. This is surely an important

and highly significant development for our constitutional jurisprudence and for our concept of

federalism. I suppose it was only natural that when during the 1960's our rights and liberties

were in the process of becoming increasingly federalized, state courts saw no reason to con-

sider what protections, if any, were secured by state constitutions. It is not easy to pinpoint

why state courts are now beginning to emphasize the protections of their states' own bills of

rights. It may not be wide of the mark, however, to suppose that these state courts discern, and

disagree with, a trend in recent opinions of the United States Supreme Court to pull back

from, or at least suspend for the time being, the enforcement of the Boyd principle with re-

spect to application of the federal Bill of Rights and the restraints of the due process and equal

protection clauses of the fourteenth amendment.

Under the equal protection clause, for example, the Court has found permissible laws that

accord lesser protection to over half of the members of our society due to their susceptibility

to the medical condition of pregnancy, [FN37] as well as laws that impose special burdens on

those of our citizens who are of illegitimate birth. [FN38] The Court has also found uncompel-

ling the claims of *496 those barred from judicial forums due to their inability to pay access

fees, [FN39] and has further handicapped the indigent by limiting their right to free trial tran-

scripts when challenging the legality of their imprisonment. [FN40]

Under the due process clause, the Supreme Court has found no liberty interest in the repu-

tation of an individual--never tried and never convicted--who is publicly branded as a criminal

by the police without benefit of notice, let alone a hearing. [FN41] The Court has recently in-

dicated that tenured public employees might not be entitled to any more process before

deprivation of their employment than the government sees fit to give them. [FN42] It has ap-

proved the termination of payments to disabled individuals who are completely dependent

upon those payments, prior to an oral hearing, a form of hearing statistically shown to result in

a huge rate of reversals of preliminary administrative determinations. [FN43] And it has

veered from its promise to recognize that prisoners, too, have liberty interests that cannot be

ignored. [FN44]

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The same trend is repeated in the category of the specific guarantees of the Bill of Rights.

The Court has found the first amendment insufficiently flexible to guarantee access to essen-

tial public forums when in our evolving society those traditional forums are under private

ownership in the form of suburban shopping centers; [FN45] and at the same time has found

the amendment's prohibitions insufficient to invalidate a system of restrictions on motion pic-

ture theaters based upon the content of their presentations. [FN46] It has found that the war-

rant requirement plainly appearing*497 on the face of the fourth amendment does not require

the police to obtain a warrant before arrest, however easy it might have been to get an arrest

warrant. [FN47] It has declined to read the fourth amendment to prohibit searches of an indi-

vidual by police officers following a stop for a traffic violation, although there exists no prob-

able cause to believe the individual has committed any other legal infraction. [FN48] The

Court has held permissible police searches grounded upon consent regardless of whether the

consent was a knowing and intelligent one, [FN49] and has found that none of us has a legit-

imate expectation of privacy in the contents of our bank records, thus permitting governmental

seizure of those records without our knowledge or consent. [FN50] Even when the Court has

found searches to violate fourth amendment rights, it has--on occasion-- declared exceptions

to the exclusionary rule and allowed the use of such evidence. [FN51]

Moreover, the Court has held, contrary to Boyd v. United States, that we may not interpose

the privilege against self-incrimination to bar government attempts to obtain our personal pa-

pers, no matter how private the nature of their contents. [FN52] And the privilege, said the

Court, is not violated when statements unconstitutionally obtained from an individual are used

for purposes of impeaching his testimony, [FN53] or securing his indictment by a grand jury.

[FN54]

The sixth amendment guarantee has fared no better. The guarantee of assistance of counsel

has been held unavailable to an accused in custody when shuffled through pre-indictment

identification procedures, no matter how essential counsel might be to the avoidance of preju-

dice to his rights at later stages of the criminal process. [FN55] In addition, the Court has

countenanced a state's placing significant burdens--in the form of a “two-tier” *498 trial sys-

tem--on the constitutional right to trial by jury in criminal cases. [FN56] And in the face of

our requirement of proof of guilt beyond a reasonable doubt, the Court has upheld the per-

missibility of less than unanimous jury verdicts of guilty. [FN57]

Also, a series of decisions has shaped the doctrines of jurisdiction, justiciability, and rem-

edy, so as increasingly to bar the federal courthouse door in the absence of showings probably

impossible to make. [FN58] At the same time, the Younger doctrine has been extended to al-

low state officials to block federal court protection of constitutional rights simply by answer-

ing a plaintiff's federal complaint with a state indictment. [FN59] And the centuries-old rem-

edy of habeas corpus was so circumscribed last Term as to weaken drastically its ability to

safeguard individuals from invalid imprisonment. [FN60]

It is true, of course, that there has been an increasing amount of litigation of all types

filling the calendars of virtually every state and federal court. But a solution that shuts the

courthouse door in the face of the litigant with a legitimate claim for relief, particularly a

claim of deprivation of a constitutional right, seems to be not only the wrong tool but also a

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dangerous tool for solving the problem. The victims of the use of that tool are most often the

litigants most in need of judicial protection of their rights--the poor, the underprivileged, the

deprived minorities. The very lifeblood of courts is popular confidence that they mete out

evenhanded justice and any discrimination that denies these groups access to the courts for

resolution of their meritorious claims unnecessarily risks loss of that confidence.

* * *

Some state decisions have indeed suggested a connection between these recent decisions

of the United States Supreme Court and the state court's reliance on the state's bill of rights.

For example, the California Supreme Court, in holding that statements taken from suspects

before first giving them Miranda warnings are inadmissible in California courts to impeach an

accused who testifies in his own defense, stated: “We … declare that [the decision to the con-

trary of the United States Supreme Court [FN61]] *499 is not persuasive authority in any state

prosecution in California. … We pause … to reaffirm the independent nature of the California

Constitution and our responsibility to separately define and protect the rights of California cit-

izens despite conflicting decisions of the United States Supreme Court interpreting the federal

Constitution.” [FN62]

Enlightenment comes also from the New Jersey Supreme Court. In 1973 the United States

Supreme Court held that where the subject of a search was not in custody and the prosecution

attempts to justify the search by showing the subject's consent, the prosecution need not prove

that the subject knew he had a right to refuse to consent to the search. [FN63] The Court ex-

pressly rejected the contention that the validity of consent to a non-custodial search should be

tested by a waiver standard requiring the state to demonstrate that the individual consented to

the search knowing he did not have to, and that he intentionally relinquished or abandoned

that right. In State v. Johnson, [FN64] Mr. Justice Sullivan, writing for New Jersey's high

court, first acknowledged that the United States Supreme Court decision was controlling on

state courts in construing the fourth amendment and was therefore dispositive of the defend-

ant's federal constitutional argument. [FN65] But Mr. Justice Sullivan went on to consider

whether the identically phrased provision of the New Jersey Constitution, Art. 1, para. 7,

“should be interpreted to give the individual greater protection than is provided by” the feder-

al provision. [FN66] Counsel had not made this argument either to the trial court or on appeal,

but the supreme court, sua sponte, posed the issue and afforded counsel the opportunity for ar-

gument on the question. Mr. Justice Sullivan held for the court that, while Art. I, para. 7 was

in haec verba with the fourth amendment and until then had not been held to impose higher or

different standards than the fourth amendment, “we have the right to construe our state consti-

tutional provision in accordance with what we conceive to be its plain meaning.” [FN67] That

meaning, he went on to hold, was “that under Art. I, par. 7 of our State Constitution the valid-

ity of a consent to search, even in a non-custodial situation, must be measured in terms of

waiver, i.e., where the state *500 seeks to justify a search on the basis of consent it has the

burden of showing that the consent was voluntary, an essential element of which is knowledge

of the right to refuse consent.” [FN68]

Among other instances of state courts similarly rejecting United States Supreme Court de-

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cisions as unpersuasive, the Hawaii [FN69] and California [FN70] Supreme Courts have held

that searches incident to lawful arrest are to be tested by a standard of reasonableness rather

than automatically validated as incident to arrest; [FN71] the Michigan Supreme Court has

held that a suspect is entitled to the assistance of counsel at any pretrial lineup or photographic

identification procedure; [FN72] and the South Dakota [FN73] and Maine [FN74] Supreme

Courts have held that there is a right to trial by jury even for petty offenses. [FN75]

Other examples abound where state courts have independently considered the merits of

constitutional arguments and declined to follow opinions of the United States Supreme Court

they find unconvincing, even where the state and federal constitutions are similarly or identic-

ally phrased. [FN76] As the Supreme Court of Hawaii has observed, “while this results in a

divergence of meaning between words which are the same in both federal and state constitu-

tions, the system of federalism envisaged by the United States Constitution tolerates such di-

vergence where the result is greater protection of individual rights under state law than under

federal law….” [FN77] Some state courts seem apparently even to be anticipating contrary

rulings by the United States Supreme Court and are therefore resting decisions solely on state

law grounds. *501 For example, the California Supreme Court held, as a matter of state con-

stitutional law, that bank depositors have a sufficient expectation of privacy in their bank re-

cords to invalidate the voluntary disclosure of such records by a bank to the police without the

knowledge or consent of the depositor; [FN78] thereafter the United States Supreme Court

ruled that federal law was to the contrary. [FN79]

And of course state courts that rest their decisions wholly or even partly on state law need

not apply federal principles of standing and justiciability that deny litigants access to the

courts. Moreover, the state decisions not only cannot be overturned by, they indeed are not

even reviewable by, the Supreme Court of the United States. We are utterly without jurisdic-

tion to review such state decisions. [FN80] This was precisely the circumstance of Mr. Justice

Hall's now famous Mt. Laurel decision, [FN81] which was grounded on the New Jersey Con-

stitution and on state law. The review sought in that case in the United States Supreme Court

was, therefore, completely precluded.

This pattern of state court decisions puts to rest the notion that state constitutional provi-

sions were adopted to mirror the federal Bill of Rights. The lesson of history is otherwise; in-

deed, the drafters of the federal Bill of Rights drew upon corresponding provisions in the vari-

ous state constitutions. Prior to the adoption of the federal Constitution, each of the rights

eventually recognized in the federal Bill of Rights had previously been protected in one or

more state constitutions. [FN82] And prior to the adoption of *502 the fourteenth amendment,

these state bills of rights, independently interpreted, were the primary restraints on state action

since the federal Bill of Rights had been held inapplicable.

The essential point I am making, of course, is not that the United States Supreme Court is

necessarily wrong in its interpretation of the federal Constitution, or that ultimate constitution-

al truths invariably come prepackaged in the dissents, including my own, from decisions of

the Court. It is simply that the decisions of the Court are not, and should not be, dispositive of

questions regarding rights guaranteed by counterpart provisions of state law. [FN83] Accord-

ingly, such decisions are not mechanically applicable to state law issues, and state court

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judges and the members of the bar seriously err if they so treat them. Rather, state court

judges, and also practitioners, do well to scrutinize constitutional decisions by federal courts,

for only if they are found to be logically persuasive and well-reasoned, paying due regard to

precedent and the policies underlying specific constitutional guarantees, may they properly

claim persuasive weight as guideposts when interpreting counterpart state guarantees. I sug-

gest to the bar that, although in the past it might have been safe for counsel to raise only feder-

al constitutional issues in state courts, plainly it would be most unwise these days not also to

raise the state constitutional questions.

* * *

Every believer in our concept of federalism, and I am a devout believer, must salute this

development in our state courts. Unfortunately, federalism has taken on a new meaning of

late. In its name, many of the door-closing decisions described above have been rendered.

[FN84] Under the banner of the vague, undefined notions of equity, comity and federalism the

Court has condoned both isolated [FN85] and systematic [FN86] violations of civil liberties.

Such decisions hardly bespeak a true concern for equity. Nor do they properly understand the

nature of our federalism. Adopting the premise that state courts can be trusted to safeguard in-

dividual *503 rights, [FN87] the Supreme Court has gone on to limit the protective role of the

federal judiciary. But in so doing, it has forgotten that one of the strengths of our federal sys-

tem is that it provides a double source of protection for the rights of our citizens. Federalism is

not served when the federal half of that protection is crippled.

Yet, the very premise of the cases that foreclose federal remedies constitutes a clear call to

state courts to step into the breach. With the federal locus of our double protections weakened,

our liberties cannot survive if the states betray the trust the Court has put in them. And if that

trust is, for the Court, strong enough to override the risk that some states may not live up to it,

how much more strongly should we trust state courts whose manifest purpose is to expand

constitutional protections. With federal scrutiny diminished, state courts must respond by in-

creasing their own.

Moreover, it is not only state-granted rights that state courts can safeguard. If the Supreme

Court insists on limiting the content of due process to the rights created by state law, [FN88]

state courts can breathe new life into the federal due process clause by interpreting their com-

mon law, statutes and constitutions to guarantee a “property” and “liberty” that even the feder-

al courts must protect. Federalism need not be a mean-spirited doctrine that serves only to

limit the scope of human liberty. Rather, it must necessarily be furthered significantly when

state courts thrust themselves into a position of prominence in the struggle to protect the

people of our nation from governmental intrusions on their freedoms.

We can confidently conjecture that James Madison, Father of the Bill of Rights, would

have approved. We tend to forget that Madison proposed not ten, but, in the form the House

sent them to the Senate, seventeen amendments. The House approved all seventeen including

Number XIV--a number prophetic of things to come with the adoption of Amendment XIV

seventy-nine years later--for Number XIV would have imposed specific restraints on the

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states. Number XIV provided: “No State shall infringe the right of trial by Jury in criminal

cases, nor the right of conscience, nor the freedom of speech or of the press.” [FN89] Madis-

on, in a speech to the House in 1789, argued that these restrictions on the state power were “of

equal, if not greater, importance than those already made” [FN90] in the body of the Constitu-

tion. There *504 was, he said, more danger of those powers being abused by state govern-

ments than by the government of the United States. Indeed, he said, he “conceived this to be

the most valuable amendment in the whole list. If there were any reason to restrain the Gov-

ernment of the United States from infringing these essential rights, it was equally necessary

that they should be secured against the State governments.” [FN91]

But Number XIV was rejected by the Senate, and Madison's aim was not accomplished

until adoption of Amendment XIV seventy-nine years later. The reason that Madison placed

such store in the effectiveness of the Bill of Rights was his belief that “independent tribunals

of justice will consider themselves in a peculiar manner the guardians of those rights.” [FN92]

His reference was, of course, to his proposed Bill including Number XIV, but we may be con-

fident that he would welcome the broadening by state courts of the reach of state constitution-

al counterparts beyond the federal model as proof of his conviction that independent tribunals

of justice “will be naturally led to resist every encroachment upon rights expressly stipulated

for….” [FN93]

[FNa1]. Associate Justice, United States Supreme Court.

[FN1]. Ferguson v. Skrupa, 372 U.S. 726, 730 (1963).

[FN2]. 347 U.S. 483 (1954) (invalidating state laws requiring public schools to be racially se-

gregated).

[FN3]. 369 U.S. 186 (1962) (invalidating state laws diluting individual voting rights by legis-

lative malapportionments). See also Reynolds v. Sims, 377 U.S. 533 (1964).

[FN4]. Harper v. Virginia State Bd., 383 U.S. 663 (1966).

[FN5]. Shapiro v. Thompson, 394 U.S. 618 (1969).

[FN6]. Eisenstadt v. Baird, 405 U.S. 438 (1972); Griswold v. Connecticut, 381 U.S. 479

(1965).

[FN7]. Brown v. Board of Educ., 347 U.S. 483 (1954).

[FN8]. Sugarman v. Dougall, 413 U.S. 634 (1973); Graham v. Richardson, 403 U.S. 365

(1971).

[FN9]. Bell v. Burson, 402 U.S. 535 (1971).

[FN10]. Goldberg v. Kelly, 397 U.S. 254 (1970).

[FN11]. Sniadach v. Family Fin. Corp., 395 U.S. 337 (1969).

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[FN12]. Fuentes v. Shevin, 407 U.S. 67 (1972).

[FN13]. Wolff v. McDonnell, 418 U.S. 539 (1974).

[FN14]. Morrissey v. Brewer, 408 U.S. 471 (1972).

[FN15]. Perry v. Sindermann, 408 U.S. 593 (1972).

[FN16]. Goss v. Lopez, 419 U.S. 556 (1975).

[FN17]. Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833).

[FN18]. See O'Neil v. Vermont, 144 U.S. 323, 332 (1892); McElvaine v. Brush, 142 U.S. 155,

158-59 (1891); In re Kemmler, 136 U.S. 436, 446 (1890); Presser v. Illinois, 116 U.S. 252,

263-68 (1886); Hurtado v. California, 110 U.S. 516 (1884); United States v. Cruikshank, 92

U.S. 542, 552-56 (1875); Walker v. Sauvinet, 92 U.S. 90 (1875).

[FN19]. Chicago B. & Q.R.R. v. Chicago, 166 U.S. 226, 241 (1897).

[FN20]. Compare Gitlow v. New York, 268 U.S. 652, 666 (1925), with Prudential Ins. Co. v.

Cheek, 259 U.S. 530, 543 (1922).

[FN21]. Wolf v. Colorado, 338 U.S. 25, 27-28 (1949).

[FN22]. Mapp v. Ohio, 367 U.S. 643 (1961).

[FN23]. Robinson v. California, 370 U.S. 660 (1962).

[FN24]. Furman v. Georgia, 408 U.S. 238 (1972). But see Gregg v. Georgia, 96 S. Ct. 2909

(1976); Proffitt v. Florida, 96 S. Ct. 2960 (1976); Jurek v. Texas, 96 S. Ct. 2950 (1976).

[FN25]. Gideon v. Wainwright, 372 U.S. 335 (1963); Argersinger v. Hamlin, 407 U.S. 25

(1972).

[FN26]. Malloy v. Hogan, 378 U.S. 1 (1964).

[FN27]. Miranda v. Arizona, 384 U.S. 436 (1966).

[FN28]. Pointer v. Texas, 380 U.S. 400 (1965).

[FN29]. Klopfer v. North Carolina, 386 U.S. 213 (1967); Parker v. Gladden, 385 U.S. 363

(1966); Washington v. Texas, 388 U.S. 14 (1967).

[FN30]. Benton v. Maryland, 395 U.S. 784 (1969).

[FN31]. School Dist. v. Schempp, 374 U.S. 203 (1963).

[FN32]. New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

[FN33]. NAACP v. Alabama, 377 U.S. 288 (1964).

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[FN34]. 116 U.S. 616 (1886).

[FN35]. Olmstead v. United States, 277 U.S. 438, 474 (1928) (dissenting opinion).

[FN36]. 116 U.S. at 635.

[FN37]. Geduldig v. Aiello, 417 U.S. 484 (1974); cf. General Electric Co. v. Gilbert, 45

U.S.L.W. 4031 (U.S. Dec. 7, 1976) (decided under Title VII).

[FN38]. Compare Mathews v. Lucas, 96 S. Ct. 2755 (1976), with Weber v. Aetna Cas. & Sur.

Co., 406 U.S. 164, 175 (1972) (“… imposing disabilities on the illegitimate child is contrary

to the basic concept of our system that legal burdens should bear some relationship to indi-

vidual responsibility or wrongdoing.”). Recent decisions have also given rise to some doubt as

to the Court's continuing commitment to the eradication of racial discrimination in employ-

ment and education. See Washington v. Davis, 96 S. Ct. 2040 (1976); Pasadena City Bd. of

Educ. v. Spangler, 96 S. Ct. 2697 (1976); Milliken v. Bradley, 418 U.S. 717 (1974).

[FN39]. Compare Ortwein v. Schwab, 410 U.S. 656 (1973), and United States v. Kras, 409

U.S. 434 (1973), with Boddie v. Connecticut, 401 U.S. 371 (1971).

[FN40]. United States v. MacCollom, 96 S. Ct. 2086 (1976).

[FN41]. Paul v. Davis, 424 U.S. 693 (1976).

[FN42]. Arnett v. Kennedy, 416 U.S. 134 (1974); Bishop v. Wood, 96 S. Ct. 2074 (1976).

[FN43]. Mathews v. Eldridge, 424 U.S. 319 (1976).

[FN44]. Compare Meachum v. Fano, 96 S. Ct. 2532 (1976) (finding no liberty interest implic-

ated in the transfer of a prisoner to a maximum security facility), with Wolff v. McDonnell,

418 U.S. 539 (1974).

[FN45]. Hudgens v. NLRB, 424 U.S. 507 (1976), overruling Food Employees Union Local

590 v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968); Lloyd Corp. v. Tanner, 407 U.S. 551

(1972).

[FN46]. Compare Young v. American Mini-Theatres, Inc., 96 S. Ct. 2440 (1976), with

Erznoznick v. City of Jacksonville, 422 U.S. 205 (1975).

[FN47]. United States v. Watson, 423 U.S. 411 (1976). See also United States v. Santana, 96

S. Ct. 2406 (1976) (holding that in a Watson-like situation, police may pursue a suspect into

his or her home).

[FN48]. United States v. Robinson, 414 U.S. 218 (1973); Gustafson v. Florida, 414 U.S. 260

(1973). The Court has also declined to read the amendment to prohibit warrantless searches of

the glove compartments of automobiles impounded for mere parking violations. South Dakota

v. Opperman, 96 S. Ct. 3092 (1976).

[FN49]. United States v. Watson, 423 U.S. 411 (1976); Schneckloth v. Bustamonte, 412 U.S.

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218 (1973).

[FN50]. United States v. Miller, 96 S. Ct. 1619 (1976).

[FN51]. E.g., United States v. Janis, 96 S. Ct. 3021 (1976).

[FN52]. Andresen v. Maryland, 96 S. Ct. 2737 (1976); Fisher v United States, 96 S. Ct. 1569

(1976).

[FN53]. Harris v. New York, 401 U.S. 222 (1971).

[FN54]. United States v. Calandra, 414 U.S. 338 (1974).

[FN55]. Compare Kirby v. Illinois, 406 U.S. 682 (1972), with United States v. Wade, 388

U.S. 218 (1967).

[FN56]. Ludwig v. Massachusetts, 96 S. Ct. 2781 (1976) (approving trial de novo system).

[FN57]. Apodaca v. Oregon, 406 U.S. 404 (1972).

[FN58]. Rizzo v. Goode, 423 U.S. 362 (1976); Simon v. Eastern Ky. Welfare Rights Org., 96

S. Ct. 1917 (1976); Warth v. Seldin, 422 U.S. 490 (1975); O'Shea v. Littleton, 414 U.S. 488

(1974).

[FN59]. Hicks v. Miranda, 422 U.S. 332 (1975).

[FN60]. Stone v. Powell, 96 S. Ct. 3037 (1976); Francis v. Henderson, 96 S. Ct. 1708 (1976).

[FN61]. Harris v. New York, 401 U.S. 222 (1971).

[FN62]. People v. Disbrow, 16 Cal. 3d 101, 113, 114-15, 545 P.2d 272, 280, 127 Cal. Rptr.

360, 368 (1976). The Hawaii and Pennsylvania Supreme Courts have taken similar positions.

See State v. Santiago, 53 Hawaii 254, 492 P.2d 657 (1971); Commonwealth v. Triplett, 341

A.2d 62 (Pa. 1975).

[FN63]. Schneckloth v. Bustamonte, 412 U.S. 218 (1973).

[FN64]. 68 N.J. 349, 346 A.2d 66 (1975).

[FN65]. See Oregon v. Hass, 420 U.S. 714, 719 (1975).

[FN66]. 68 N.J. at 353, 346 A.2d at 67-68.

[FN67]. Id. at 353 n.2, 346 A.2d at 68 n.2.

[FN68]. Id. at 353-54, 346 A.2d at 68.

[FN69]. State v Kaluna, 55 Hawaii 361, 520 P.2d 51 (1974).

[FN70]. People v. Brisendine, 13 Cal. 3d 528, 531 P.2d 1099, 119 Cal. Rptr. 315 (1975).

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[FN71]. Compare cases cited notes 69 & 70 supra, with United States v. Robinson, 414 U.S.

218 (1973).

[FN72]. Compare People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974), with United

States v. Ash, 413 U.S. 300 (1973).

[FN73]. Parham v. Municipal Court, 199 N.W.2d 501 (S.D. 1972).

[FN74]. State v. Sklar, 317 A.2d 160 (Me. 1974). See also Baker v. City of Fairbanks, 471

P.2d 386 (Alaska 1970).

[FN75]. Compare cases cited notes 73 and 74 supra, with Baldwin v. New York, 399 U.S. 66

(1970), and Duncan v. Louisiana, 391 U.S. 145 (1968).

[FN76]. For a listing of such examples, see the cases collected in the following articles: Falk,

The Supreme Court of California 1971-1972, Foreword: The State Constitution: A More than

“Adequate” Nonfederal Ground, 61 CALIF. L. REV. 273 (1973); Howard, State Courts and

Constitutional Rights in the Day of the Burger Court, 62 VA. L. REV. 873 (1976); Wilkes,

The New Federalism in Criminal Procedure: State Court Evasion of the Burger Court, 62 KY.

L.J. 421, 437-43 (1974); Wilkes, More on the New Federalism in Criminal Procedure, 63 KY.

L.J. 873 (1975); Project Report, Toward an Activist Role for State Bills of Rights, 8 HARV.

C.R.-C.L. L. REV. 271 (1973).

[FN77]. State v. Kaluna, 55 Hawaii 361, 369 n.6, 520 P.2d 51, 58 n.6 (1974).

[FN78]. Burrows v. Superior Court, 13 Cal. 3d 238, 529 P.2d 590, 118 Cal. Rptr. 166 (1974).

[FN79]. United States v. Miller, 96 S. Ct. 1619 (1976).

[FN80]. The Supreme Court's jurisdiction over state cases is limited to the correction of errors

related solely to questions of federal law. It cannot review state court determinations of state

law even when the case also involves federal issues. Murdock v. City of Memphis, 87 U.S.

(20 Wall.) 590 (1875). Moreover, if a state ground is independent and adequate to support a

judgment, the Court has no jurisdiction at all over the decision despite the presence of federal

issues. Fox Film Corp. v. Muller, 296 U.S. 207 (1935); Murdock v. City of Memphis, 87 U.S.

(20 Wall.) 590 (1875). One reason for the refusal to review such decisions, even where the

state court also decides a federal question erroneously, was explained by Mr. Justice Jackson

in Herb v. Pitcairn, 324 U.S. 117, 125-26 (1945):

Our only power over state judgments is to correct them to the extent that they incor-

rectly adjudge federal rights. And our power is to correct wrong judgments, not to revise

opinions. We are not permitted to render an advisory opinion, and if the same judgment

would be rendered by the state court after we corrected its views of federal laws, our re-

view could amount to nothing more than an advisory opinion.

[FN81]. Southern Burlington County NAACP v. Township of Mt. Laurel, 67 N.J. 151, 336

A.2d 713 (invalidating town's exclusive zoning ordinance), appeal dismissed and cert. denied,

423 U.S. 808 (1975).

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[FN82]. See generally Brennan, The Bill of Rights and the States, in THE GREAT RIGHTS

(E. Cahn ed. 1963).

[FN83]. The Court has made this point clear on a number of occasions. See Oregon v. Hass,

420 U.S. 714, 719 (1975) (“… a State is free as a matter of its own law to impose greater re-

strictions on police activity than those this Court holds to be necessary upon federal constitu-

tional standards”); Cooper v. California, 386 U.S. 58, 62 (1967).

[FN84]. See Stone v. Powell, 96 S. Ct. 3037 (1976); Francis v. Henderson, 96 S. Ct. 1708

(1976); Hicks v. Miranda, 422 U.S. 332 (1975).

[FN85]. See Paul v. Davis, 424 U.S. 693 (1976); cases cited note 84 supra.

[FN86]. See Rizzo v. Goode, 423 U.S. 362 (1976); O'Shea v. Littleton, 414 U.S. 488 (1974).

[FN87]. See Stone v. Powell, 96 S. Ct. 3037, 3051 n.35 (1976); Doran v. Salem Inn, Inc., 422

U.S. 922, 930 (1975).

[FN88]. See p. 496 & notes 41-42 supra.

[FN89]. See E. DUMBAULD, THE BILL OF RIGHTS 215 (1957); Brennan, supra note 82,

at 69-70.

[FN90]. 1 ANNALS OF CONG. 440 (Gales & Seaton eds. 1789).

[FN91]. Id. at 755. See Brennan, supra note 82, at 69-70.

[FN92]. 1 ANNALS OF CONG. 439 (Gales & Seaton eds. 1789). See United States v.

Calandra, 414 U.S. 330, 356-57 (1974) (Brennan, J., dissenting).

[FN93]. 1 ANNALS OF CONG. 439 (Gales & Seaton eds. 1789).

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END OF DOCUMENT

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