| "Kaye —
Dual Constitutionalism in Practice" |
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In short, as a historical matter, state constitutions exist and function independently of the federal Constitution. As the New York Court of Appeals concluded in 1911, Supreme Court interpretations of the fourteenth amendment are simply not controlling of our construction of our own Constitution."[18] Decades after the adoption of the fourteenth amendment, state and federal courts continued to function as a partnership of equals in the protection of constitutional rights. While dual federalism remained theoretically intact, one of the two partners thereafter began to play a more dominant role. This trend may, for convenience, be dated to 1938-when the Supreme Court suggested in Caroline Products[19] that the specific prohibitions of the first ten amendments might be embraced within the fourteenth amendment and apply to the states.[20] The process of incorporation accelerated sharply during the 1960s, until by 1969 all or part of the first,[21] fourth,[22] fifth,[23] sixth,[24] and eighth[25] amendments were applied to the states. At the same time-and expressing dissatisfaction with many state courts' discharge of their "front-line responsibility for the enforcement of constitutional rights"[26]-the Supreme Court began actively widening and raising the federal floor. Individual rights became increasingly federalized. The broadening application of provisions of the federal Bill of Rights to the states "made U.S. Supreme Court law the touchstone for much of the nation's constitutional decision making, concerning individual rights.[27] These are the years in which many of us received our professional education and training. As lawyers, we have acquired an easy familiarity with the federal Bill of Rights and have grown accustomed to controlling federal precedents in the adjudication of constitutional rights of the citizens of this State, even though this is in fact a relatively new development in our nation's history. In our dual system, the Supreme Court's growing dominance necessarily affected constitutional law as applied by state courts. While state courts have at all times been important contributors to the body of constitutional law, they too became involved in the application of federal law. So long as the federal floor, or national minimum, was satisfied, state courts could have imposed ceilings in the form of greater rights applicable within their own borders under their own constitutions, and these judgments would then have been conclusive, beyond Supreme Court review.[28] But as a practical matter, the federal guarantees as then interpreted by the Supreme Court in general not only satisfied but often exceeded their view of the requirements of comparable state provisions.[29] This same fundamental dualism has more recently sparked the heightened interest in state constitutional law, but now it is the state courts that are expressing dissatisfaction with the Supreme Court's role in the enforcement of constitutional rights.[30] While state courts interpreting parallel provisions of their charters may have been satisfied in particular cases that the federal floor also established their own ceiling, reformulation of the floor cannot help but bring the rest of the structure into question. The point to be drawn from history, however, is that in a system of government that is founded upon dual sovereignties, independent state court adjudications based on state constitutions-two layers of constitutional protection-are hardly revolutionary or illegitimate. This heightened interest in state constitutional law has gained impetus from other developments in the United States Supreme Court, not the least of which have been the writings of individual Justices.[31] Of the past few years, to my mind a most significant development in this regard has been the 1983 Supreme Court decision in Michigan v. Long.[32] The question of when a state court judgment is subject to Supreme Court review, and the source of such authority, is not easily answered, except we know that as a matter of policy a state judgment will not be reviewed if it rests on a nonfederal pound which is independent of the federal question in the case and adequate to support the judgment.[33] What is an "adequate and independent" state ground has itself remained elusive, and appears to have been determined by any of several techniques applied on an ad hoc and largely unexplained basis. Until Michigan v. Long, however, it was safe to assume that any lack of clarity as to the basis of a state court judgment would be resolved in favor of the state court as the final arbiter, and against further review. Michigan v. Long, of course, reversed this historical presumption. As a result, more state court judgments extending the rights of its citizens will, for the time being, be brought under Supreme Court scrutiny. However much one might be discomfited by this shift or by the new methodology. Michigan v. Long has sharply focused the issue; it has staked out the state courts' sphere of autonomy; and it has given the state courts the ability to assure that they remain the ultimate arbiters of state law decisions. Where a state court makes clear that its judgment rests on bona fide separate, adequate and independent grounds, the Supreme Court has declared that it will not review that decision. As Justice O'Connor wrote: "We believe that such an approach will provide state judges with a clearer opportunity to develop state jurisprudence unimpeded by federal interference, and yet will preserve the integrity of federal law."[34] Justice Stevens has added a further ingredient: that it is not only fundamental that state courts be left free to develop their own jurisprudence but also, from the federal perspective, desirable and important that they do so. Justice Stevens in a recent concurrence took the Massachusetts Supreme Court to task for premising a decision on federal grounds, needlessly inviting Supreme Court review and ultimately a remand for decision on the state ground, when it might have finally resolved the issue in the first instance under its own constitution.[35] In charging the Massachusetts court with "a misconception of our constitutional heritage and the respective jurisdiction of state and federal courts,"[36] Justice Stevens echoed a sentiment found in our earliest history, that the states in our federal system are the primary guardian of the liberty of the people. This is a premise of our constitutional system. As a matter of history, therefore, it is hardly a novel doctrine that underlies contemporary interest in independent state court adjudication of concurrent constitutional provisions. |
 The Historical Society of the Courts of the State of New York |
