States Have Bills of Rights, Too

BY the mid-1970s, United States Supreme Court Justice William Brennan didn't like the trend he was seeing in the judicial protection of individual liberties under the US Constitution. Even before the Reagan and Bush administrations started appointing an army of conservative judges to the federal bench, it was clear to Brennan that the Warren-court era - characterized by expansive Supreme Court interpretations of the Bill of Rights - was over.

So in 1977 Justice Brennan - a former judge on the New Jersey Supreme Court - published an article in the Harvard Law Review urging civil-liberties lawyers and state judges to use state constitutions as independent sources of individual rights.

For a time lawyers and state judges were left scratching their heads. Despite the efforts of a few pioneers like former Oregon Supreme Court Justice Hans Linde, state constitutional law was virtually dormant in the realm of civil liberties. Today, however, state protection of individual rights is a growth industry.

Across the nation, state supreme courts are handing down rulings on state charters that expand civil liberties beyond the benchmarks thus far established by federal courts under the US Constitution. State judges are broadening individual rights in such areas as criminal law (search and seizure, self-incrimination, cruel and unusual punishment), equity in school financing, gender equality, and privacy - for example, drug testing and homosexual rights.

"This [trend] isn't limited to traditionally liberal state courts, such as those in California and New Jersey," says Gerald Uelmen, dean of Santa Clara Law School in California. "It's happening across the board."

In historically conservative Kentucky, for instance, the state high court recently struck down an anti-sodomy statute, in contrast to an earlier US Supreme Court decision upholding a Georgia law. In Tennessee, as in a number of other states, the high court has ruled that the state's school-financing scheme is unfair under the state constitution, whereas the Supreme Court has said that the US Constitution doesn't apply to school funding.

And at a time when the US Supreme Court is whittling back the Warren-court rights granted to criminal defendants, many state courts are expanding those rights.

"It's skating on the edge of malpractice for a criminal-defense lawyer not to assert state constitutional rights on behalf of a client," says John Henry Hingson III, a defense lawyer in Oregon City, Ore. Mr. Hingson, who says he had to teach himself because of the paucity of educational materials on state constitutional law, travels about proselytizing to other defense lawyers.

Just as the Warren court's decisions in criminal law were its most controversial, so with state constitutional rulings. In at least two states, such rulings have triggered a backlash. In 1982 California voters passed an initiative providing that if police evidence against a criminal defendant cannot be suppressed under the US Constitution, it cannot be suppressed under the state charter, either. A recent amendment to the Florida Constitution has a similar effect.

Such developments hardly signal the end of the boom, however. Books, scholarly articles, and newsletters now are offering judges and lawyers guidance on state constitutional rights, as well as practice tips for litigators. National civil-liberties organizations that previously focused exclusively on the federal courts are also devoting attention - and money - to litigation in state courts.

Some legal scholars are uneasy about the trend. In a law-review article last year, Prof. James Gardner of Western New England Law School in Springfield, Mass., decried what he views as the Balkanization of constitutional law. Assertions of state constitutional rights, he wrote, undermine America's national identity and the role of the US Constitution as the embodiment of national values.

In a response to Professor Gardner published last month, however, Neil Cogan, the dean of the Quinnipiac School of Law near New Haven, Conn., argued that the trend is consistent with US federalism. Moreover, Dean Cogan wrote, a robust discourse about constitutional rights within and among the states ultimately will enrich the federal judiciary's interpretation of the Bill of Rights.