STATES' RIGHTS' ARE OUR RIGHTS, TOO

...experimentation is encouraged...

...As with many state rules which depart from the Federal model, there are particular historical reasons for this provision...

...For example, before the Supreme Court imposed a national right to counsel for indigent defendants in most criminal cases, it had to survey the country to determine if the legal systems of all fifty states could afford to provide such a right...

...When the PruneYard shopping center owner appealed the California court's decision to the United States Supreme Court, for example, he did so primarily on the strength of his argument that his Federal property rights were violated when he was forced to allow the pamphleteers onto his premises...

...But the U.S...

...the California Supreme Court disagreed, not on the basis of the California Constitution but rather on the basis of that state's motor vehicle code, which establishes a policy of detaining persons stopped for traffic violations only long enough to issue a summons...

...Justice Stanley Mosk of the California high court is among the most enthusiastic...

...If the Supreme Court makes a mistake, it involves the whole country, and whenever it imposes a national rule, experimentation with alternatives is preempted...

...Its decisions become law across the country, and such pervasive power encourages judicial conservatism...

...The people of a state have, accordingly, more to fear from their legislatures than from Congress...

...The Framers believed that an omnipotent central government was the gravest threat to individual liberty, and they codified that belief in the Tenth Amendment, which reserves to the states and the people all powers not expressly bestowed on the Federal Government...

...As PruneYard demonstrates, state courts no longer meekly follow Supreme Court constitutional decisions...

...A similar Congressional coricern, centered on the Catholic Church's monopoly on education in New Mexico, led to a similarly strict provision in the constitution of that state...

...But, for Madison, fundamental rights were deserving of dual protection, an assessment which will certainly persuade observers of the Burger Court's disavowal of much of the Warren Court's work...

...This is deference with a vengeance, especially when one considers that state sovereignty in these matters was a guiding precept of the Founding Fathers...

...If a state provides greater protection from unreasonable searches than the Federal Government, for example, state law enforcement officers could simply turn cases over to their Federal counterparts, thus assuring that evidence inadmissible in the state's courts will be heard in the Federal forum...

...the free-speech provisions of the California Constitution, said the California court, guaranteed these students the Francis J. Flaherty is a 1981 graduate of Harvard Law School and a former executive editor of the Harvard Civil Rights-Civil Liberties Law Review...

...Legal scholars have likewise been remiss...

...The Supreme Court of Michigan, for example, held that the use of an informer by the government was tantamount to a search and thus required the government to obtain a warrant before engaging in such activity...

...But more pivotal than any of these longstanding guarantees are the spate of additional guarantees adopted by states during the late 1960s and early 1970s...

...And, although the Supreme Court has held that the Sixth Amendment does not require a jury trial for "petty offenses," Maine's highest court has concluded that, on the basis of the legislative history of the Maine Constitution, jury trials in that state are required for even the least serious of crimes...

...Pennsylvania and many other states forbid in their constitutions any discrimination based on sex, and Rhode Island grants each of its citizens a right "to speak for himself at his trial, a privilege not found in the Sixth Amendment...

...Thus, the potential for a judicial states' rights movement is significant, and at least some state courts are fascinated by the possibilities...

...Finally, state constitutions provide a richer lode of individual rights because of the different natures of Federal and state government...

...Do we really want to have fifty-one definitions of equal protection...

...Homogenization, whether in the form of a nationwide string of McDonald's restaurants or a uniform interpretation of "freedom of speech," is fundamentally boring...

...Because the Warren Court was, in its time, one of the most liberal courts, state or Federal, few state courts wanted to interpret their constitutions more liberally than the Supreme Court had done at the Federal level...

...Relying on their own constitutions, the courts of Delaware and Massachusetts have ruled against state-financed bus transportation for private-school students, despite a 1947 Supreme Court ruling that such practices do not violate the First Amendment's prohibition of the establishment of religion...

...many states, prospering in those relatively good times, could afford expensive conventions, and a 1964 Supreme Court decision on legislative apportionment required some of them to adopt extensive redistricting plans...

...Simple trial strategy thus dictates increased reliance on state courts...

...Floating through all this relative neglect is a prejudice against state court judges, a view described by Federal Judge Ruggero J. Aldisert as one which holds "that all Federal judges are meritorious fountainheads of wisdom, whereas their state counterparts are political hacks who happened to stump for a gubernatorial winner...

...Congress, worried about the pervasive influence of the Mormon Church in the Utah Territory, conditioned Utah's admission into the Union on its adoption of a strict separation of church and state clause...

...Despite a 1973 Supreme Court ruling that school-financing formulas which rely heavily on local property taxes do not violate the Federal equal-protection clause, at least ten states' courts have held that their state constitutions barred such formulas...

...A reading of state court decisions from the Warren years highlights the extent of this development...

...Whatever their relative competence, state courts may willy-nilly become forums as consequential as Federal courts for the resolution of civil rights and civil liberties questions...

...In the Northwest, for example, there is a strong and venerable environmental tradition which is often expressed in the region's state constitutions...

...Nevertheless, fruitful and fascinating though such diversity may be, it is also confusing...

...Article 16 of the Massachusetts Declaration of Rights protects that right, as does Section 1 of Article 1 of the Utah Constitution...

...The Indiana and Montana constitutions, for example, mandate that penal administration be based on the need for prisoner reformation and public protection, rather than on punishment alone, and New Hampshire raises freedom from monopolies to a constitutional principle...

...These decisions, which are based on either the state constitutions' equal-protection clauses or on a right to education found in some of those constitutions, prohibit any great variation in per-pupil expenditures between property-rich and property-poor school districts...

...The California Constitution was amended in 1974 to provide that "rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution...

...State judges share the blame with others in the legal community for this state of affairs...

...Compounding these confusions is the attitude of some state supreme courts, which regard their sovereignty as adequate justification for simply disagreeing with the Supreme Court without any reference to local laws or local history...

...we should...

...State courts, familiar with state conditions and traditions, can also calibrate their decisions more closely with local reality than can a remote court in Washington...

...Judicial decentralization seems very attractive: Risks are few...

...Some of the largest school systems in the country, including those of California, New Jersey, and Connecticut, must, to some extent, now equalize expenditures across their states...

...Once convened, however, these bodies supplemented their constitutions with provisions reflecting such modern concerns as freedom from electronic surveillance, the right of privacy, protection of the environment, fair treatment for the handicapped, and freedom from sex discrimination...

...the detail and reach of state constitutions are simply greater than those found in the Federal document...

...The Utah Constitution, for example, strictly forbids any intermingling of church and state...

...Supreme Court's conservative decisions of the past decade have infused those documents with a new vitality and, if this trend continues, the cry of "states' rights" will take on a new—and liberal—cast unforeseen by the conservatives who have made that phrase their rallying cry...

...The Federal Constitution prescribes the nationally required minima...

...Opponents of increased reliance on state courts to protect civil liberties cite the poor historical record of those courts—the abysmal performance of Southern state courts on civil rights issues, for example...

...The California Supreme Court, while acknowledging that the U.S...

...The possibilities for the evasion of states' rights is another problem, particularly in criminal procedure...

...The diffusion and separation of powers may very well be the most prudent way to secure civil liberties...

...But legal scholars are divided over the merits of this development...

...This is a persuasive and time-honored claim, first put forward by James Madison at the Constitutional Convention of 1787 during debate over the wisdom of adopting a Federal bill of rights...

...Differences in constitutional language often have a similar effect...

...His reportage and commentary have appeared in Harper's, Commonweal, The Hudson Review, and other journals...

...Enthusiasts like Associate Justice William Bren-nan of the Supreme Court assert that "one of the strengths of our Federal system is that it provides a double source of protection for the rights of our citizens...

...State courts are often seen as the minor leagues of the American judicial system...

...An orderly demonstration on public property was fine, said the Court, but the First Amendment did not require a recalcitrant shopping center owner to allow his property to be used for such purposes...

...more and more, they discover in the cognate provisions of their state constitutions rights more protective of individual liberties than the Supreme Court has found in the Bill of Rights...

...Applying that notion to the judiciary will provide an opportunity to reap a progressive harvest from the movement toward states' rights now being nurtured by the Reagan Administration...

...Elsewhere, such as in North Carolina and Wyoming, state constitutions provide for a right to education, and New Hampshire, true to New England's historical suspicion of any and all governments, sets out in its constitution what must be the ultimate guarantee: the right of the people to revolt against oppressive governments...

...Whatever the merits of this trend to states' rights in the courts, the inevitable dislocations in having fifty-one American supreme courts ensure basic liberties would still make for a safer course than reliance on nine remote and life-tenured justices in Washington...

...But it is perhaps in the area of school finance that state courts have made the greatest practical revisions in Federal constitutional law...

...It is more practical for a gay person to move to a state which recognizes sexual orientation as a fundamental right than for him to leave the country in the face of a Supreme Court refusal to so recognize...

...Although the students immediately filed a suit claiming they had a First Amendment right to pass out leaflets, a quick limning of recent Supreme Court decisions offered them little hope of success: in 1971 and 1976 Warren Burger's Court had ruled against plaintiffs with similar claims...

...Although Brandeis was speaking of state legislatures, his remarks are equally applicable to state courts...

...As a result, many state constitutions are more comprehensive and contemporary than the Bill of Rights...

...Conservative state supreme courts probably pose no danger under this scheme...

...This holding, contrary to the Supreme Court's 1971 decision in United States v. White, was based solely on Federal cases and on the White dissent...

...Referring to his fellow constitutional scholars, Columbia University Law Professor Louis Henkin judged that "none of us pays much attention to state constitutions...

...they must abide by the constitutional minima as determined by the Supreme Court regardless of their personal predilections...

...Without discussing any Michigan laws, policies, or historical traditions which might mandate this result, the Michigan court simply held that the warrantless use of informers violated the state constitution, thus insulating the decision from Supreme Court review...

...The range of options such pluralism creates for a diverse citizenry is appealing...

...Congress, for example, can pass only those laws clearly based on some provision of Article I, the section of the Constitution from which Congress derives its authority...

...California, which has been called the birthplace of this trend, has elevated this assertiveness into a fundamental legal principle...

...There is plenty of room to disagree on the liberal side with Court decisions of the past ten years or so, and state courts are increasingly taking up the cudgels...

...Some of their constitutions, unrevised for a century or more, needed updating...

...right peacefully to distribute their pamphlets in the shopping center...

...The Supreme Court held in 1973 that full searches of suspects after arrest were always "reasonable...

...These state-Federal differences are not grounded solely in state constitutional language...

...A number of states held constitutional conventions during those years for a variety of reasons...

...State courts have enlarged upon other Federal rights in such diverse areas as the right to counsel, the double-jeopardy prohibition, and the prohibition against coerced self-incrimination...

...under the banner of the "New States' Rights" he and Justice Hans Linde of the Oregon Supreme Court have for many years advocated the revitalization of the state judiciaries...

...No such constraint binds state legislatures, bodies of unlimited powers which can adopt any legislation not forbidden them by either the Federal or state constitutions...

...These local variations in law and tradition are numerous...

...Many state constitutions prohibit' 'cruel or unusual punishment," rather than the conjunctive "cruel and unusual punishment" of the Eighth Amendment...

...When the Warren Court was rapidly expanding Bill of Rights protections in the 1960s, state courts were required to go along...

...That requirement in the Bill of Rights protects such guarantees as free speech and freedom from racial discrimination only against violations by the government...

...The New Jersey Constitution is more encompassing than the Bill of Rights in several areas, primarily because the former does not have the latter's "state action" requirement...

...State courts could be as pivotal as Federal courts in the resolution of civil rights and civil liberties issues Moreover, some commentators believe that state courts are particularly appropriate institutions to guard basic liberties...

...Familiarity with local traditions is no recommendation for a state court if that tradition is racism...

...This view had as its proponent no less a figure than Thomas Jefferson, who wrote in 1816: "What has destroyed the liberty and the rights of man in every government which has ever existed under the sun...

...The Burger Court changed all that...

...New Hampshire and Vermont, for example, adopted constitutional clauses guaranteeing the right of conscientious objection...

...As a result, both states' constitutions provide a greater protection against governmental establishment of religion than does the Federal Bill of Rights...

...The reason for all this unwonted independence lies in the relationship of state to Federal constitutions...

...Professor A. E. Dick Howard of the University of Virginia Law School reported several years ago that an Oklahoma court, "noting the identical language of state and Federal search and seizure provisions, thought it 'elementary' that the court must turn to United States Supreme Court decisions to determine the legality of a search and seizure, regardless of 'any prior decision' of the Oklahoma courts...

...the absence of that limitation in the New Jersey Constitution renders those freedoms enforceable against both private and governmental action...

...and try novel social and economic experiments without risk to the rest of the country...

...This judicial declaration of independence is affecting major areas of law...

...The Supreme Court, finding no violation of the owner's property rights or any other Federal rights, had no choice but to let the California court decision stand...

...The national Government is one of express and limited powers, with all other powers reserved to the states...

...Herbert Wilkins, associate justice of the Massachusetts Supreme Judicial Court, cites a 1962 obscenity case involving the suppression of Henry Miller's Tropic of Cancer in which that state court ignored the free speech provisions of its state constitution and based its holding solely on First Amendment principles...

...Sometimes, a court will cite the "traditions" or "unique history" of its state as justification for affording greater protections than those enshrined by the Bill of Rights...

...To prevent such dilution and evasion of state guarantees, Federal courts would have to develop rules governing the introduction of such evidence...

...Further, the insularity and remoteness of Federal judges is seen by some as a guarantee of impartiality...

...Charles Douglas III of the New Hampshire Supreme Court predicts that "by dusting off our state constitutions, judges can be 'activists' in the best sense of the word and breathe life into the fifty documents...

...One of the happy incidents of the Federal system," Brandeis said, is "that a single courageous state may, if its citizens choose, serve as a laboratory...

...Litigants often fail to raise state constitutional issues, preferring to rely solely on Federal provisions...

...No such short rein restrains the Supreme Court: Reversal requires an extraordinary and usually unattainable consensus (consider the Equal Rights Amendment) of two-thirds of both houses of Congress and three-quarters of the state legislatures...

...states are free to enlarge upon them, as did California in the PruneYard case, as long as they do not thereby violate any other Federal rights...

...judges should be shielded from political influences...

...and an atrophying arm of our Federal system is revitalized...

...The Supreme Court, notes a Harvard Law School report on state constitutions, operates under an "onus of nationwide applicability...

...A unanimous New York appeals court handed down a similar decision in late October 1981...

...Some state constitutional guarantees have no Federal counterpart...

...At least some state judges are excited at the prospect...

...Harvard Law School Professor Vern Countryman, lecturing in the state of Washington on the eve of that state's constitutional convention in 1968, prophetically argued that one reason for retention of a vital state bill of rights was insurance against "the day when the Supreme Court becomes less generous...

...the public is doubly protected...

...Law clerks, who assist state judges, usually arrive fresh out of law school armed with an excellent education in Federal law but comparatively ignorant of state law...

...Furthermore, the relative ease of amending a state constitution provides an easy corrective to state-court decisions which are out-of-step with popular opinion...

...Moreover, for the historically-minded, this trend is a return to first principles...

...The shopping center owner protested, and a security guard ushered the students from the premises...

...At the Prune Yard shopping center in Campbell, California, several years ago, some high school students were distributing pamphlets decrying a United Nations anti-Zionism resolution...

...Do we want the extent of a citizen's freedom from unreasonable searches to depend on whether he is prosecuted in state or Federal court...

...Delegate Roger Sherman stood to speak in the negative, noting that because states had bills of rights of their own a Federal bill would be redundant...

...This is merely poor judicial decision-making: All court decisions should rest on specific and relevant bases, not on general preferences for the views of dissenting judges in another jurisdiction...

...Yet, for a variety of reasons, these state provisions have long lain dormant, neglected even by state court judges entrusted with guarding them...

...the chances are good that New York's highest court will affirm that holding...

...The generalizing and concentrating of all cares and powers into one body, no matter whether of the autocrats of Russia or France, or of the aristocrats of a Venetian Senate...

...Although a state supreme court is the ultimate interpreter of that state's constitution, it cannot enforce those sections of its constitution which it interprets as providing less protection than do corresponding Federal guarantees...

...First, basing a liberal legal position on the Federal Bill of Rights simply is not a good bet anymore: The ACLU success rate in the Supreme Court, for example, had fallen from 90 per cent in the 19681969 term to 50 per cent in 1974-1975...

...Similarly, courts in Hawaii and Pennsylvania have refused to follow the Burger Court's decision that statements obtained by police in violation of Miranda v. Arizona may be used at trial for the limited purpose of impeaching the credibility of a defendant-witness...

...Upon this linguistic variation many state courts base their broader readings of that proscription...

...Such a constraint would not apply to state courts: If Arizona could pay the bill for state defense of the poor, it need not wait until Oregon could do so...

...Every state, in fact, has a bill of rights with guarantees similar to those found in the Federal Bill of Rights, and many of the states provide additional guarantees found nowhere in the Federal formulation of fundamental rights...

...Such pluralism also holds a certain aesthetic attraction: A decentralized judiciary is the legal analogue to the 1960s attempt to preserve urban neighborhoods...

...In 1932, Justice Louis Brandeis welcomed the diversity which federalism encourages...

...Some liberals fret that creatively conservative state courts will devise ways to cut back on civil liberties without violating the Federal Constitution...

...Supreme Court is the ultimate arbiter of the Federal Constitution, nonetheless later sided with the students...

...But the issue of federalism is the centerpiece of all discussions of the propriety of state judicial independence...

...The Hawaii Supreme Court declared in 1971: "Nothing prevents our constitutional drafters from fashioning greater protections for criminal defendants than those given by the United States Constitution," and the Massachusetts Supreme Judicial Court similarly observed in 1980 that "our constitutional guarantee of due process has sometimes impelled us to go further than the United States Supreme Court...

...Moreover, state bills of rights differ significantly from their Federal counterpart, both by providing greater protections of analogous Federal rights and by guaranteeing some rights not found in the Bill of Rights at all...

...If your answer is the First Amendment, you're only partially correct...

...A state court's mistake has only local ill effects, and its experience provides a valuable lesson for the rest of the country...

...The Alaska Supreme Court, for example, citing that state's pluralism and libertarian bent, held in 1972 that the freedom of expression granted by Alaska's Constitution forbade school regulations governing pupils' hair length, regardless of whether the Fourteenth Amendment was similarly interpreted by the Federal courts...

...Some state courts—notably those in California, Alaska, and Hawaii—are more combative than others, but even timid state courts have at least become aware of the possibilities their state constitutions offer for modification of Supreme Court decisions...