Civil liberties: more state courts take cue from state constitutions

Faced with the conservative posture of the current US Supreme Court, a small but growing number of state supreme courts have begun looking for other ways to expand constitutional rights.

The answer, they have found, is in their own back yards. After years of neglect these courts are dusting off the bills of rights in their state constitutions. As a result, they are carrying civil liberties far beyond the scope of the US Supreme Court.

State constitutions, in fact, ensure civil liberties not even hinted at in the US Constitution. For example:

* In New Hampshire, residents enjoy the "right to revolution."

* Californians enjoy the "right to fish."

* In Florida, Louisiana, and Illinois, handicapped people enjoy specific constitutional guarantees against certain discriminatory practices.

* Idaho forbids licensing, special taxing, or registering of firearms or ammunition.

* Louisiana prohibits laws that "subject any person to euthanasia."

"If people actually changed their mindset from Washington, D.C., to their own states, they'd be amazed at what they'd find there [in their own constitutions], " says Ronald Collins, who will serve as a judicial fellow to US Chief Justice Warren Burger this fall, and who has co-written a paper on the rediscovery of state constitutions.

Traditionally, state constitutions have been overlooked by state courts, which grew accustomed to taking their lead on civil liberties decisions from the social activism of the high court under former Chief Justice Earl Warren.

"The impetus created by the Burger court has had the salutary effect of reminding state courts that they have individual charters with individual guarantees that demand individual interpretation," notes Robert Welsh, an assistant professor of political science at the University of California, Los Angeles, and Mr. Collin's co-author.

Although state constitutions cannot provide less than the minimum guarantees outlined in the US Constitution, they can provide greater civil liberties for their residents than those afforded them at the national level. Because such decisions are based on state, rather than federal law, the federal courts cannot interfere in any way.

So under California's constitution, for example, law enforcement officers must have a search warrant to obtain an individual's bank records, and drivers pulled over for a traffic violation may not be subjected to a full bodily search -- rights granted Californians under the state constitution, but which are not granted to them, or to other Americans, under current interpretations of the US Constitution by the US Supreme Court.

Although the push toward "state constitutionalism" began as a liberal thrust -- and has been led by liberal state supreme courts such as California -- conservative-minded state courts have put out feelers as well.

In Alabama, for example, the State Supreme Court ruled recently that, under the state constitution's due process clause, it was unconstitutional for the Alabama Legislature to make it illegal to scalp football tickets.

Even the US Supreme Court has given an official nod to the growing trend. Last year, the court unanimously upheld a California decision, based on the state constitution's guarantee of free speech, which ruled against a shopping mall owner who wanted to prohibit petitions from being circulated in his shopping center.

In a concurring opinion, Justice Thurgood Marshall wrote, "I applaud the [ California Supreme Court] decision, which is part of a very healthy trend of affording state constitutional provisions a more expansive interpretation than this court has given to the federal Constitution."

Not everyone, however, is so enthusiastic about the return to state constitutions.

Some conservatives, particularly in the law enforcement field, argue that the trend means more liberal court decisions on behalf of the rights of criminals, and not of individuals. Many judges who must run for reelection worry that unpopular state rulings on civil liberties will make it more difficult for them to keep their seats than if those rulings were made by the federal courts.

Other observers argue that because many state constitutions can be changed by voters, there could be a backlash against civil liberties as angry citizens try to curb what they perceive as overly liberal court decisions. Already, in California, a voter initiative on crime is being prepared. If approved, it would amend the state constitution and force the California Supreme Court back from some of its more liberal criminal rights decisions and into closer conformity to US Supreme Court rulings.

Advocates argue that state constitutionalism will allow courts to establish a greater consistency in law, rather than subjecting them to what California Supreme Court Justice Stanley Mosk calls "the ebb and flow of opinions on the Potomac" -- a reference to what have been perceived as occasionally vague and at times flip-flopping decisions handed down by the US Supreme Court.

"In stressing individual state constitutionalism . . . we are not trying to declare war on the US Supreme Court," says Justice Mosk. "They're upholding the federal Constitution as they see it. But at the same time, state courts have the duty to be faithful to state constitutions . . . I believe we have the right to afford to our citizens greater individual rights than are afforded by the federal constitution."

The emerging trend remains limited to a handful of states, with Michigan, California, New Jersey, Pennsylvannia, Massachusetts, Alaska, and Oregon among the most active. And it is hampered by the fact that -- unlike federal constitutional law -- state constitutional jurisprudence is relatively undeveloped. Rulings are often impossible to locate in legal research guides. And few, if any, textbooks or law school and undergraduate courses on the subject are available.