We the 50 peoples: state constitutionalism challenges the federal judicial leviathan

Reason, March, 1997 by Brian Doherty

Hawaii recently panicked the nation when a state judge there declared that prohibiting same-sex marriages violated the Hawaii constitution's equal protection clause. The decision is being appealed to Hawaii's Supreme Court, which previously sent the case back to the circuit court, demanding that the state must meet a strict burden of proof for the necessity of denying same-sex marriage rights. (See "Gay Rites," January 1996.) When the rest of the country caught wind of the Hawaii Supreme Court's willingness to overthrow the same-sex marriage ban, the reaction was swift and sure: Congress passed and President Clinton signed a law that allows other states not to honor the marriages, in contradiction to the Constitution's "full faith and credit" clause.

When you think Constitution, you probably imagine the Supremes, those nine contentious, berobed guys and gals in their august Washington halls. But such brethren aren't just in D.C. Every state has its own set, interpreting its own constitution. While the federal Constitution guarantees a certain minimum protection of citizens' rights, that's just a floor. States can set a higher ceiling. Hawaii's Supreme Court caused a ruckus, but its decision to expand a right beyond the federal standard is as American as outrageous tort lawsuits.

Hawaii isn't the only state thumbing its nose at federal courts. After a half century of moribundity, in which federal courts were the arena for most fights over citizens' rights, state courts are more and more establishing higher ceilings for what they see as citizens' rights. What state courts call "rights" can stretch from freedom from police searches to the right to state money for abortions - so these decisions are often controversial. As state courts are changing the lives of specific litigants and developing new legal biospheres for their states, they also face charges of playing politics instead of the disinterested judge.

The new wave of state constitutionalism isn't just abstract judicial ideology - it has real effects in the lives of real people:

* A Maryland citizen won't lose his farm for having a couple of pounds of marijuana in his backyard barbecue.

* People in Kentucky, Michigan, and Texas can engage in oral or anal sex in the privacy of their home, without fearing jail time.

* Cops in New York and Montana can't search your entire property up to your house's door looking for probable cause for arrest, even though the "open fields" search doctrine embraced by the U.S. Supreme Court allows that.

* An arrested suspect in Pennsylvania doesn't have to worry about cops searching his car without a warrant, and a passenger in a car whose driver was arrested doesn't have to let a cop rummage through her purse.

* Judges in Texas can't impose gag orders that prohibit discussing a lawsuit outside a courtroom, despite federal permission for those restrictions under some circumstances.

Of course, if you disagree with the policy decisions inherent in such judicial rulings, the whole movement can seem like politics sailing under a judicial flag of convenience. Such accusations are perhaps inevitable in legal debates, which are matters of rhetoric and persuasion, not mathematical precision. Most people who praise or condemn judicial federalism, suggests University of Chicago law professor Richard Epstein, do so because of the results they believe it's likely to produce. "There's no one thing you can say about this trend," says Epstein. "Most objections to the practice [of expanding rights beyond federal standards] are to the substantive decision, not the diffusion of authority."

The fact that state courts have been disagreeing with the feds more and more is a sign, Epstein surmises, of a deeper loss of legitimacy and splintering of thought in legal philosophy and practice, and in intellectual culture at large. "I'm amazed at how much the degree of disagreement in the law has changed since I was in law school," Epstein says. "In 1970 the disagreement was over 30 degrees [of the legal philosophical spectrum], now it's over 180 degrees." As cultural and philosophical divisions widen, Epstein says, institutions like the Supreme Court have a harder time maintaining a broad legitimacy.

State constitutions preceded the federal Constitution; its Bill of Rights was largely modeled after already existing state bills of rights. In America's early days, state courts guarded their prerogatives jealously, and until the 1920s federal courts didn't enforce the Bill of Rights on the states at all. During the '60s, the Warren Court stepped up such federal enforcement aggressively. Federal courts usurped most bill-of-rights action.

Law arises from the arguments lawyers make - and when civil liberties action was in the federal courts, that's where lawyers flocked. The go-to-the-feds mindset arose from the civil rights battles of the '50s and '60s, says Timothy Lynch of the Cato Institute, who writes about and cheers growing state constitutional activism. "Back then the attitude was, 'They're battling Jim Crow down South. The state courts are stagnant backwaters. The action is in the federal courts, that's where we can get results.' It's been hard for lawyers to break out of that mindset."