“State Constitutions and the Protection of Individual Rights”

Image: Official portraits of the 1976 U.S. Supreme Court: Justice William J. Brennan, Jr. Library of Congress, https://www.loc.gov/pictures/item/2002721281/
The Judiciary
Why did Justice William Brennan conclude that “full realization of our liberties cannot be guaranteed” unless state courts engage in independent interpretation of state constitutions? When and why have state courts begun to interpret their state constitutional provisions independently of U.S. Supreme Court rulings on a regular basis, according to Justice Brennan?
Consider the implications of Justice Brennan’s argument regarding state courts’ ability to interpret state constitutions in a way that produces different outcomes from U.S. Supreme Court interpretations of the U.S. Constitution. In particular, what role have state courts played in interpreting their state constitutions in cases concerning abortion rights after the U.S. Supreme Court ruled in Dobbs that the U.S. Constitution does not protect abortion rights Dobbs V. Jackson ? What are the advantages and disadvantages of relying on state courts to protect rights by relying on state constitutional provisions?

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In this frequently cited 1977 Harvard Law Review article, Supreme Court Justice William Brennan Jr. (1906–1997) directed the attention of jurists, lawyers, and the public to state constitutions and their capacity to provide greater protection for rights than is guaranteed by the U.S. Constitution. By the 1970s, state courts were engaging in independent interpretation of state constitutions in various ways. In some instances where state and federal constitutional provisions were phrased identically, state judges nevertheless concluded that they need not be bound in interpreting their state constitutions by the outcomes the Supreme Court reached when deciding cases based on the same language in the U.S. Constitution.

In other cases, state constitutional provisions are phrased differently than cognate provisions in the U.S. Constitution and can afford higher levels of protection for rights. For instance, some state bills of rights prohibit “cruel or unusual punishment,” and have been interpreted as going further in limiting capital punishment than the Eighth Amendment to the U.S. Constitution, which prohibits “cruel and unusual punishment.” Some state courts have also noted that their state bills of rights ensure that a criminal defendant has the opportunity to “meet the witnesses against him face to face,” in contrast with the Sixth Amendment’s requirement that a defendant “be confronted with the witnesses against him”; and that the language in these state guarantees requires a higher level of protection than the slightly different federal language.

In still other cases, state courts have issued rulings grounded in state constitutional provisions without any counterpart in the U.S. Constitution, such as when state courts have drawn on state constitutional provisions explicitly protecting a right to “privacy” or a “clean and healthful environment.”

Justice William J. Brennan Jr.

Source: Justice William J. Brennan, “State Constitutions and the Protection of Individual Rights,” Harvard Law Review 90, no. 3 (1977): 489–504, https://doi.org/10.2307/1340334.

... Over the past two decades, decisions of the Supreme Court of the United States have returned to the fundamental 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 federal 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 economic beliefs for the judgments of our democratically elected legislatures,1 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 necessary 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....

Of late, however, more and more state courts are construing state constitutional counterparts of provisions of the Bill of Rights as guaranteeing citizens of their states even more protection 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 1960s our rights and liberties were in the process of becoming increasingly federalized,2 state courts saw no reason to consider 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 principle3 with respect to application of the federal Bill of Rights and the restraints of the due process and equal protection clauses of the Fourteenth Amendment....

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 identically phrased. 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 constitutions, the system of federalism envisaged by the United States Constitution tolerates such divergence where the result is greater protection of individual rights under state law than under federal law ... .”4 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. For example, the California Supreme Court held, as a matter of state constitutional law, that bank depositors have a sufficient expectation of privacy in their bank records to invalidate the voluntary disclosure of such records by a bank to the police without the knowledge or consent of the depositor; thereafter the United States Supreme Court ruled that federal law was to the contrary....

This pattern of state court decisions puts to rest the notion that state constitutional provisions were adopted to mirror the federal Bill of Rights. The lesson of history is otherwise; indeed, the drafters of the federal Bill of Rights drew upon corresponding provisions in the various 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. And prior to the adoption of 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 constitutional 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. Accordingly, such decisions are not mechanically applicable to state law issues, and state court 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 suggest to the bar that, although in the past it might have been safe for counsel to raise only federal constitutional issues in state courts, plainly it would be most unwise these days not also to raise the state constitutional questions....

  1. 1. Perhaps a reference to the dissent of Justice Oliver Wendell Holmes (1841–1935) in Lochner v. New York (1905), in which Homes argued the case was decided “upon an economic theory which a large part of the country does not entertain.”
  2. 2. During the 1960s the Supreme Court continued a process begun earlier in the twentieth century by issuing a number of decisions holding that the due process clause of the Fourteenth Amendment “incorporated” various provisions of the U.S. Bill of Rights, thereby rendering them applicable to and binding on state governments.
  3. 3. In Boyd v. United States, 116 U.S. 616 (1886), the Supreme Court held that material obtained from someone in violation of the Fourth Amendment’s protection against unreasonable searches and seizures could not be used as evidence against that person in legal proceedings, because this would violate the Fifth Amendment guarantee against self-incrimination.
  4. 4. Justice Brennan’s note: State v. Kaluna, 55 Hawaii 36i, 369 n.6, 520 P.2d 5I, 58 n.6 (I974).
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