| "Kaye —
Dual Constitutionalism in Practice" |
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I would like to shift the focus from the historical and practical to the theoretical by asking, is independent state court adjudication of parallel protections supported by a cohesive theory, or is this today indeed merely a passing disagreement with particular decisions of the United States Supreme Court? You are of course familiar with the great debate raging in the law as to how a constitution should be interpreted.[71] Some insist that it must be read by the intent of the framers; others assert that intent of the framers cannot be controlling, and that the document must be interpreted in light of prevailing attitudes and modem values. It occurs to me that this issue, as well as the one at hand, both propel us to an even more fundamental inquiry. We can answer the question of how to interpret a constitution, whether state or federal, only by understanding what, in a real sense, a constitution is. The very word "constitution," in common understanding, means the most basic structure of a thing, how it is constituted. The English regarded themselves as having a constitution long before the Colonials began drawing up constitutions for themselves on paper, and the English constitution has never been written down in a single document. That the English can speak of their unwritten "constitution" helps to underscore exactly what a constitution means. A community's constitution is its basic make-up, the source, delineation and delimitation of rights and powers within that society, the collective assessment of the rules of the game under which the process of decision making and exercise of power within that community will proceed. As the very basis of a living community, a constitution is necessarily a thing of that community. The essential difference between British and American constitutionalism is not that American constitutions are written. Rather, it is that the British constitution is founded upon a concept of parliamentary supremacy. Under British theory constitutional sovereignty resides in Parliament. The laws enacted by Parliament, though restrained by traditions and principles are perforce within the constitution. Our nation, by contrast, is rooted in a concept that sovereignty resides in the People. Thus it is possible that our designated lawmakers can at times enact laws that fall outside the basic law established by the People. Where the People are sovereign, their conception of their constitution exists apart from, and above, ordinary legislative enactments. The day-to-day function of a constitution, however, goes further. It is a fact of human nature, and of the democratic process, that our actions-both as individuals and as a community-sometimes conflict with our most basic, or overarching, values. Therefore, what we set out to embody in a constitution are those values we do not wish to sacrifice to more transient choices. Our constitutional values can of course be explicitly changed, but amendments are accomplished only through extraordinary political processes-the approval of two successive legislatures followed by a popular referendum in the case of the state Constitution,[72] and the approval of two-thirds of both Houses of Congress and three-fourths of the states in the case of the federal charter.[73] The constitution, in short, is that set of values to which we have bound ourselves, the values that transcend even our currently made choice-or in the words of James Madison, the values that "counteract the impulses of interest and passion."[74] This is no abstraction but rather a reflection of the most abiding reality of both our past and present. We talk a great deal about the constitutional shield provided the People against the government, but in a democracy the threats to our values often have popular support. The Constitution throughout history has been called upon to protect long venerated values that are momentarily abandoned or neglected. It is a function of constitutional law, then, to preserve a community's overarching values in the face of its transient choices. And it is a significant function of the courts to ascertain and identify these most basic values, and flag them when they are at risk. As Judge Cardozo aptly wrote in The Nature of the Judicial Process: "The restraining power of the judiciary does not manifest its chief worth in the few cases in which the legislature has gone beyond the lines that mark the limits of discretion. Rather shall we find its chief worth in making vocal ideals that might otherwise be silenced, in giving them continuity of life and of expression, in guiding and within the limits where choice ranges. This function should preserve to the courts the power that now belongs to them, if only the power is exercised with insight into social values, and with suppleness of adaptation to changing social need."[75] What many, many most notably Hugo Black, have sought in a original intent-the protection of civil liberties by fixing us to an a priori commitment to them-cannot realistically be achieved in that manner. The right to a fair trial or free speech does not exist today simply because a group of framers ago intended them to exist. They can and do exist today because we mean them to, even though at times we may otherwise. The overarching values of the past can and surely do in form our inquiry into what values make up our "constitution" today.[76] We are, after all, interpreting a text, not inventing one. Moreover, we look to the past because our most basic values, when they change, tend to do so very slowly, and then by a process of evolution. But interpreting our Constitution cannot stop with values of the past. It necessarily involves as well the community's present values-identifying the values that this community has declared should limit the ordinary processes of its government. All of this speaks with particular force, and has special relevance, to the subject of state constitutions. Where a provision has been adopted into our Constitution from the federal charter, intent-based interpretation would be unusually difficult. When dealing with intentions of several distinct groups of framers and amenders, are we to look to the intent of the federal framers, or the intent that the framers believed-perhaps erroneously-the federal framers held? Or did the state trainers intend something altogether different? A text-based "contemporary values" approach fares no better. If we read the words of all the constitutions of this nation in terms of what those words mean to us today, it is hard to argue that the same words have any different meaning anywhere. Obviously, if there is any variation across this nation it is not in the meaning of words, it is in the concepts they embody. It should be immediately apparent that the Constitution established by this community under threat of British invasion in 1777, and painstakingly reviewed and amended throughout the ensuing centuries, reflects its own values, which may or may not be identical to those held elsewhere. Indeed, the history that has shaped the values of this State is different in many respects from that which has shaped the consensus in other states, not to mention our nation as a whole. Many states today espouse cultural values distinctively their own; Alaska, for instance, is unique in its constitutional guarantee of the right to possess marijuana in one's home.[77] If it is our duty to look at what our "constitution" represents in order to determine what it says, and if what a constitution represents is that community's most basic, overarching values, then it is only right to interpret our state Constitution independently of others, even where concepts are expressed in the same words. An independent interpretation of course does not mean that identical clauses will invariably be read differently, or more broadly, than their federal counterparts or those of sister states.[78] The Supreme Court, in reading the federal Constitution, must lay out a minimal rule for a diverse nation, with due concern for principles of federalism. State courts, even when working with the same basic provisions, have a different focus, which is to fashion workable rules for a narrower, more specific range of people and situations. Their solutions thus may at times be identical to the federal solutions, but they are not necessarily so.[79] Practical considerations support this theory. State courts are generally closer to the public, to the legal institutions and environments, within the state, and to the public policy process. This both shapes their strategic judgments, and renders any erroneous assessments they may make more readily redressable by the People. Moreover, building a coherent body of law-one that is not merely reacting to particular Supreme Court decisions on the Supreme Court to flesh out the contours of a developing right-has the advantage of furthering predictability and stability in our state law.[80] In short, the development of an independent body of state constitutional doctrine not only has deep historical roots but also is theoretically sound. We have so far been concerned with the conditions under which state constitutional rights depend upon the delineation of federal constitutional rights. I think it's only proper to turn the tables and ask, are there conditions under which federal constitutional rights should depend upon the delineation of state constitutional rights? Development of federal law through experimentation within the states of course has along tradition. Justice Brandeis in his famous New State Ice dissent[81] described as one of the "happy incidents" of the federal system that a state, if its citizens chose, could serve as a laboratory for novel social and economic experiments without risk to the rest of the country.[82] The Supreme Court implicitly recognized this process in Mapp v. Ohio,[83] in giving the exclusionary rule national application, noting that since its own prior decision declining to recognize exclusionary rule as binding nationally, two-thirds of the state had themselves adopted the rule.[84] Only last term the Supreme Court reversed its prior ruling on the discriminatory use of peremptory challenges.[85] A few years earlier, in denying certiorari in a New York case, three Justices explicitly made known their interest in the issue, but said they preferred to allow it to percolate further in the state laboratories, to generate solutions upon which the Supreme Court might rely.[86] The growing trend among the states ultimately led the Court to depart from its holding in Swain v. Alabama,[87] and also provided content for the new rule.[88] This practice comports with the theory outlined earlier.[89] As states may well have different constitutions from the national community, it logically follows that if a value is recognized by enough such communities, then that value has come to be so recognized by-and part of the "constitution" of-the larger community as well. In short, rights that come to be recognized as such by enough of the People acting through the states may become federal rights-values of national, constitutional importance. Is there a place in our traditional constitutional structure for such a result? I suggest that there is-the ninth amendment, which reads: "The enumeration in the constitution of certain rights shall not be construed to deny or disparage other rights retained by the Peop1e."[90] The ninth amendment is perhaps the one sentence in the federal Constitution that has never been figured out. "In sophisticated legal circles," John Hart Ely tells us, "mentioning the Ninth Amendment is a sure fire way to get a laugh. ('What are you planning to rely on to support that argument, Lester, the Ninth Amendment?')."[91] The ninth amendment has been dismissed is stating a mere truism: that all powers not delegated by the constitution to the federal government remain undelegated as a result of the Bill of Rights. But, as Dean Ely points out, the tenth amendment, added to the Constitution at the same time as the ninth, says this much more clearly. Thus, the ninth amendment becomes not only an unneeded truism but also a redundant unneeded truism. As a commonplace of constitutional interpretation, however, "[i]t cannot be presumed that any clause in the Constitution is intended to be without effect.[92] In the case of the ninth amendment, then, what might that intended effect be? The amendment's relatively few boosters have been singularly unsuccessful at developing any content for it that would do more than license the federal judiciary to define new rights without providing any standards or mechanisms for so doing. Yet as the text must have been intended to mean something, the task must be to reason our way to some set of standards or mechanisms that make sense of it. Reasoning through what it must mean to say that the enumeration of rights in the original Bill of Rights does not "deny or disparage" other rights retained by the People, one might very well arrive at the point also reached from the opposite direction: approaching state constitutional values as the building blocks of federal constitutional values.[93] It makes sense that rights protected by the federal Constitution should be expandable by the People acting through the states. Under prevailing political theory when the Constitution was framed-particularly among the recalcitrant ratifiers at whose insistence the Bill of Rights was added-it was fundamental "that the powers granted under the Constitution, being derived from the people, may be resumed by them whenever perverted to their injury; that every power not therein granted remains in the people at their will; that no right of any denomination can be cancelled, abridged, restrained or modified except in the instances and for the purposes for which power is given; and that among other essentials, liberty of the press and of conscience cannot be abridged.[94] As Chief Justice Marshall made clear in Marbury, "That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected."[95] Whatever other rights may have been contemplated by the framers of the ninth amendment, one of these "original" rights was clearly the right to establish, and to alter, the principles of government. The conception that state-generated constitutional rights could at some point become binding nationally gives the ninth amendment substance without license. First, it allows for growth in the federal Constitution slowly and through cautious experimentation, subject to testing and confirmation, and provides the People the time and opportunity, acting through their state processes, to reject, expand or modify rights declared at the state level before they are taken as part of a national consensus. Second, this conception of the ninth amendment gives the federal judiciary a point of reference as to the overarching values embodied in our Constitution today, insuring that the Constitution grows to fit society, but in a way more accessible to the democratic process and less dependent on any individual judge's divination of "contemporary values." Finally, this view reinforces the role of the states as not only guarantors but also generators of individual rights. In summary, state constitutional law is significant historically; its independent development is sound today, both practically and theoretically, and it represents an avenue for the future delineation of constitutional rights nationally. |
 The Historical Society of the Courts of the State of New York |
