| "Kaye —
Dual Constitutionalism in Practice" |
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Footnote 1: See, e.g., Bamberger, Recent Developments in State Constitutional Law (P. L. I. 1985) (hereinafter Recent Developments) Brennan, State Constitutions and the Protection of Individual Rights, 90 HARV. L. REV. 489 (1977) (hereinafter State Constitutions); Collins, State Constitutional Law, NAT'L L. J., Supp., Sept. 29, 1986; Collins and Galie, Models of Post Incorporation Judicial Review: 1985 Survey of State Constitutional Individual Rights Decisions, 55 U. CINN. L. REV. 317 (1986) (hereinafter Judicial Review); Collins, Galie and Kincaid, State High Courts, State Constitutions and Individual Rights Litigation Since 1980: A Judicial Survey, 16 Publius 141 (1986); Countryman, Why a State Bill of Rights? 45 WASH. L. REV. 454 (1970) (hereinafter State Bill); Developments in State Constitutional Law: The Williamsburg Conference (West 1985) (hereinafter Williamsburg); Symposium: The Emergence of State Constitutional Law, 63 TEX. L. REV. 959 (1985); Note, Developments in the Law-The Interpretation of State Constitutional Rights, 95 HARV. L. REV. 1324 (1982). Footnote 2: State court decisions interpreting the federal Constitution are subject to review by the United States Supreme Court. However, state court decisions-or for that matter, federal court decisions-interpreting state constitutions are subject to Supreme Court review only for federal law violations. See Peters, State Constitutional Law: Federalism in the Common Law Tradition, 84 MICH L. REV. 583, 588 (1986). Footnote 3: I: B. Schwartz, The Bill of Rights: A Documentary History, 199, 286, 383 (1971); II: Schwartz, id. at 1204; Oakes, The Proper Role of the Federal Courts in Enforcing the Bill of Rights, 54 N.Y.U.L. REV. 911 (1979). See also Project Report: Toward an Activist Role for State Bills of Rights, 8 HARV. C. R.-C. L.L. REV. 271, 275 (1973) (hereinafter Project Report); Peters, Remarks at the Second Court Judicial Conference-F.R.D.-(Sept. 5, 1986) (hereinafter Remarks). Footnote 4: The Federalist Papers, No. 17 (A. Hamilton). Footnote 5: See e.g. , The Federalist Papers, Nos. 45 and 46 (J. Madison). See also Mosk, State Constitutionalism: Both Liberal and Conservative 63 TEX. L. REV. 1081, 1082 (1985) (hereinafter Liberal and Conservative). Footnote 6: Massachusetts v. Upton, 466 U.S. 727, 738-39 (1984) (Stevens, J., concurring) Baker, The Ambiguous Independent and Adequate State Ground in Criminal Cases: Federalism Along a Mobius Strip, 19 GA. L. Rev. 799, 824, (1985) (hereinafter State Ground); Pollock, Adequate and Independent State Grounds as a Means of Balancing the Relationship Between State and Federal Courts, 63 TEX. L. REV. 977, 978 (1985) (hereinafter State and Federal Courts). Footnote 7: 32 U.S. (7 Pet.) 243 (1833). Footnote 8: Id. at 250. Footnote 9: Id. at 247-48. Footnote 10: 13 N.Y. 378 (1856). Footnote 11: Id. at 405-06. Footnote 12: In the Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), the Supreme Court narrowly construed the fourteenth amendment's "privileges or immunities" clause, which provides that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." The Court held that "the entire domain of the privileges and immunities of citizens of the States...lay within the constitutional and legislative power of the States, and without that of the Federal government." Id. at 77. Footnote 13: Mugler v. Kansas, 123 U.S. 623 (1887). Footnote 14: Id. at 669. Footnote 15: See Railroad Commission Cases, 116 U.S. 307 (1886); Barbier v. Connolly, 113 U.S. 27 (1885); Hurtado v. California, 110 U.S. 516 (1884); Munn v. Illinois, 94 U.S. 113 (1876). Footnote 16: Allgeyer v. Lousiana, 165 U.S. 578 (1897). The "Lochner era" is of course named for Lochner v. New York, 198 U.S. 45 (1905), in which the Court invalidated a New York law setting maximum working hours for bakers. Footnote 17: Compare West Coast Hotel v. Parrish, 300 U.S. 379 (1937) (upholding minimum wage legislation) with Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936) (invalidating similar legislation). Footnote 18: Ives V. South Buffalo Ry. Co., 201 N.Y. 271, 317 (1911). Footnote 19: United States v. Carolene Prods. Co., 304 U.S. 144, 152 n. 4 (1938). Footnote 20: But see Chicago, B. — Q.R. v. Chicago, 166 U.S. 226 (1897) (due process clause protects right to just compensation); Fiske v. Kansas, 274 U.S. 380 (1927) (due process clause protects freedom of speech); Near v. Minnesota, 283 U.S. 697 (1931) (same); DeJonge v. Oregon, 299 U.S. 353 (1937) (freedom of assembly). Justice Black's well-known view that the fourteenth amendment guaranteed the "no state could deprive its citizens of the privileges and protections of the Bill of Rights," Adamson v. California, 332 U.S. 46, 74-75 (1947) (Black, J., dissenting), did not prevail. Footnote 21: See Everson v. Board of Ed., 330 U.S. 1 (1947) (non-establishment of religion); Cantwell v. Connecticut, 310 U.S. 296 (1940) (free exercise of religion); Hague v. CIO, 307 U.S. 496 (1939) (right to petition); DeJonge v. Oregon, 299 U.S. 353 (1937) (freedom of assembly); Near v. Minnesota, 283 U.S. 697 (1931) (freedom of press); Fiske v. Kansas, 274 U.S. 380 (1927) (freedom of speech). Footnote 22: See Mapp v. Ohio, 367 U.S. 643 (1961) (exclusionary rule); Wolf v. Colorado, 338 U.S. 25 (1949) (unreasonable search and seizure). Footnote 23: See Benton v. Maryland, 395 U.S. 784 (1969)(double jeopardy); Malloy v. Hogan, 378 U.S. 1 (1964) (self-incrimination). Footnote 24: See Duncan v. Lousiana, 391 U.S. 145 (1968) (right to trial by jury in criminal cases); Washington v. Texas. 388 U.S. 14 (1967) (right to compulsory process); Klopfer v. North Carolina, 386 U.S. 213 (1967) (right to speedy trial); Pointer v. Texas, 380 U.S. 400 (1965) (right to confrontation); Gideon v. Wainwright, 372 U.S. 335 (1963) (right to counsel); In re Oliver, 333 U.S. 257 (1948) (right to public trial). Footnote 25: Robinson v. California, 370 U.S. 660 (1962) (cruel and unusual punishment). Provisions of the first eight amendments that have not been made applicable to the states through incorporation but are found in the New York State Bill of Rights include the fifth amendment right not to be tried except upon indictment by a grand jury, N.Y. Const. art. 1 § 6; see People v. Iannone, 45 N.Y.2d 589, 593 n. 3 (1978); the seventh amendment right to trial by jury in a civil case, N.Y. Const. art. I , § 2; and the eighth amendment right to nonexcessive bail, N.Y. Const. art. 1, § 5; see People ex rel. Klein v. Krueger, 25 N.Y.2d 497, 499 n. l (1969). See Countryman, State Bill, supra note 1 , at 466. Footnote 26: Gideon v. Wainwright, 372 U.S. at 351 (Harlan, J. concurring); Brennan, The Bill of Rights and the States, 36 N.Y.U.L. Rev. 761, 777-78 (1961); Project Report, supra note 3, at 274; Countryman, State Bill, supra note 1, at 455; "The states had achieved a dismal record of employing their state constitutions. As Professor Paulsen wrote in 195l, '[I]four liberties are not protected in Des Moines, the only hope is in Washington." Mosk, Liberal and Conservative, supra note 5, at 1084. See also Lukas, Common Ground: A Turbulent Decade in the Lives of Three American Families 222 (Vantage ed. 1986). Footnote 27: Collins and Galie, Judicial Review, supra note 1 , at 322. to give but one example of the expansion, in the 1920s the Supreme Court upheld, as consistent with the first amendment, state statutes prohibiting the advocacy of criminal anarchy. See Whitney v. California, 274 U.S. 357 (1927); Gitlow v. New York, 268 U.S. 652 (1925). Although the progression was not smooth (see, e.g., Dennis v. United States, 341 U.S. 494 [195l]), by the late 1950s the court had moved toward a distinction between advocacy of doctrine and unprotected advocacy of action. See Yates v. United States, 354 U.S. 298 (1957). This trend culminated in 1969 in Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam) overruling Whitney v. California, 274 U.S. 357 (1927), in which the Court held that the first amendment barred the states from penalizing advocacy "directed to inciting oproducingnt imminent lawless action" unless it was "likely to incite oproducece such action." Id. at 447. See also Brennan, State Constitutions, supra note 1 , at 490, 493. Footnote 28: See, e.g., PruneYard Shopping Center v. Robbins, 447 U.S. 74, 81 (1980); Oregon v. Hass, 420 U.S. 714, 719 (1978); Sibron v. New York, 392 U.S. 40, 60 (1968). Footnote 29: People v. Adams, 53 N.Y.2d 241, 250 (1981). Footnote 30: See e.g., People v. Disbrow, 545 P.2d 272 (Cal. 1976), and particularly cases cited in id., at 281; State v. Ball, 471 A.2d 347 (N.H. 1983); State v. Hunt, 450 A.2d 952 (N.J. 1982); People v. P.J. Video, Inc., 68 N.Y.2d 296 (1986), cert. denied,-U.S.(1987)-; and see Brennan, State Constitutions, supra note 1, at 498-502. Footnote 31: See, e.g., Massachusetts v. Upton, 466 U.S. at 735 (Stevens, J., concurring); Michigan v. Mosley, 423 U.S. 96, 120 (1975) (Brennan, J., dissenting); Brennan, State Constitutions, supra note 1. "In recent years particularly the Supreme Court has emphasized and encouraged this and related aspects of Federalism by exercising special restraint in prescribing constitutional rules of procedure which would displace or foreclose development of State rules specifically tailored to local problems and experiences." Adams, 53 NY.2d at 250. Footnote 32: 463 U.S. 1032 (1983). Footnote 33: The reasoforor the restraint is that a Supreme Court decision on the federal question would other wise merely be an advisory opinion. Pollock, State and Federal Courts, supra note 6, at 980. See generally, Baker, State Ground, supra note 6. Footnote 34: 463 U.S. at 1041. But see Bamberger, Recent Developments, supra note 1 , at 296, nothing that in decisions since Michigan v. Long the Supreme Court "has indicated a strong willingness to review state court decisions." Footnote 35: Massachusetts v. Upton, 466 U.S. at 735 (Stevens, J., concurring); see also South Dakota V. Neville, 459 U.S. 553, 556-71 (1983) (Stevens, J., dissenting). As the Vermont Supreme Court wrote in State v. Badger, 450 A.2d 336, 347 (Vt. 1982): "Fulfillment of this court's responsibilities as a member of the federalist systerequiresrs us to consider the availability of state grounds before federal appeal." Footnote 36: 466 U.S. at 737. Footnote 37: The State has actually had four constitutions: those of 1777, 1821, 1846 (the "People's Constitution") and 1894. The 1894 Constitution, extensively revised and supplemented in 1938 remains in effect today. Since its first amendments in 1801, the Constitution has also undergone steady piecemeal revision, initiated by one legislature, approved by the next, and then approved by the public at a general election. See C. Lincoln, The Constitutional History of New York (1905), for a comprehensive early history of the State Constitution, and particularly id., vol. 1 at 613, for a critical assessment of the amendment process as "rather too easy." While the resolution for a convention to draw a constitution also provided for a bill of rights, the 1777 Constitution contained no bill of rights; indeed, a formal bill of rights was first added to the Constitution in 1846. The 1777 Constitution, however, continued the English bill of rights, and further provided for a right to vote, trial by jury, right to counsel and religious liberty. this Constitution established the three branches ogovernmentnt that persist to this day as the structural framework of our state, as well as national, government. it was at the time regarded as "the most excellent of all the American Constitutions." Id. at 559. Footnote 38: Art. XI, sec. 1; see Levittown v. Nyquist, 57 N.Y.2d 27, 47-48 (1982), app. dismissed, 459 U.S. 1138, 1139 (1983). Footnote 39: Art. XVII, § I . "State aid to the needy was deemed to be a fundamental part of the social contract...it is clear that section 1 of article XVII imposes upon the State an affirmative duty to aid the needy...Although our Constitution provides the Legislature with discretion in determining the means by which this objective is to be effectuated, in determining the amount of aid, and in classifying recipients and defining the term 'needy,' it unequivocally prevents the Legislature from simply refusing to aid those whom it has classified as needy. Such a definitconstitutionalal mandate cannot be ignored or easily evaded in either its letter or its spirit." Tucket v. Toia, 43 N.Y.2d. 1, 7-8 (1977); Lee v. Smith, 43 N.Y.2d 453 (1977). See also McCain v. Koch, 117 A.D.2d 198, lv. granted, 121 A.D.2d 997 (1st Dep't 1986) aff'g 128 Misc.2d 265 (N.Y. Sup. Ct. 1985); Eldredge v. Koch, 98 A.D.2d 675 (1st Dep't 1983); Note, A Right to Shelter for the Homeless in New York State, 61 N.Y.U.L. REV. 272 (1986); Note, Establishing a Right to Shelter for the Homeless, 50 BROOKLYN L. REV. 939 (1984). Footnote 40: Art. XVII, § 3; Art. XVIII, § 1. See Suffolk Hous. Servs. v. Town of Brookhaven, 109 A.D.2d 323 (2d Dept 1985), app. dismissed, 67 N.Y.2d 917, lv. granted, 68 N.Y.2d 603 (1986); Robert E. Kurzius, Inc. v Incorporated Vill. of Upper Brookville, 51 N.Y.2d 338 (1980), cert. denied, 450 U.S. 1042 (1981); Berensen v. Town of New Castle, dismissed, 409 U.S. 1003 (1972). Compare Southern Burlington Cty. NAACP v. Township of Mount Laurel (Mount Laurel I), 67 N.J. 151, app. dismissed and cert. denied, 423 U.S. 808 (1975); Southern Burlington Cty. NAACP v. Township of Mount Laurel (Mt. Laurel II), 92 N.J. 1 58 (1983). Footnote 41: Art. XIV, § 4. Footnote 42: Art. IV, § 8. See Davidson v. Smith, 69 N.Y.3d 677 (1986); People ex rel. Roides v. Smith, 67 N.Y.2d 899 (1986); Jones v. Smith, 64 N.Y.2d 1003 (1985); New York State Coalition of Pub. Employers v. New York State Dep't of Labor, 60 N.Y.2d 789 (1983); People v. Cull, 10 N.Y.2d 123 (1961). Footnote 43: Art. V, § 7. See Lippman v. Board of Ed., 66 N.Y.2d 313 (1985). Footnote 44: Art. VI, § 4(k) provides that the Appellate Division shall have all the jurisdiction possessed by it on the effective date of the article. See People v. Pollenz, 67 N.Y.2d 264, 270 (1986). Footnote 45: Art. I, § 16 (wrongful death): art. I, § 17 (labor); art. I, § 18 (workers' compensation). Footnote 46: McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819). Footnote 47: Flushing Nat'l Bank v. Municipal Assistance Corp., 40 N.Y.2d 731, 739 (1976). Footnote 48: For an example of a State's choice so to treat a provision of its own constitution, see Fla. Const, art. 1 , § 12, mandating that the state search and seizure guarantee by construed in conformity with the fourth amendment to the U.S. Constitution as interpreted by the U.S. Supreme Court. See generally Wilkes, First Things Last: Amendomania and State Bills of Rights, 54 Miss. L.J. 223 (1984). Footnote 49: Galie, State Constitutional Guarantees and Protection of Defendants' Rights: The Case of New York 1960-1978, 28 BUFF. L. REV. 157, 192, (1979); see also Kramer — Riga, The New York Court of Appeals and the United States Supreme Court, 1960-76, 8 Publius 75 (1978). Footnote 50: Galie, The Other Supreme Courts: Judicial Activism Among State Supreme Courts, 33 SYRACUSE L. REV. 731, 764, 765 (1982). See also People v. Hobson, 39 N.Y.2d 479 (1976). Footnote 51: 201 N.Y. 271 (1911). Footnote 52: See F. Bergan, The History of the New York Court of Appeals, 1847-1932, 245-47 (1985); see also, B. Cardozo, The Growth of the Law 71 (1924); New York Central R.R. Co. v. White, 243 U.S. 188 (1916). Footnote 53: 201 N.Y. at 317. Footnote 54: 45 N.Y.2d 152 (1978). Footnote 55: Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978). Footnote 56: 45 N.Y.2d at 159-61. See also Svendsen v. Smith's Moving — Trucking Co., 54 N.Y.2d 865 (1981), cert. denied, 455 U S 927 (1982). The dissent in Sharrock and the concurrence in Svendson would instead have relied on the per curiam opinion in Central Savings Bank v. City of New York, 280 N.Y. 9 (1939) (amending remittitur in 279 N.Y. 255 (1938)) cert. denied, 306 U S 661 (1939) in which the Court of Appeals held, on remittitur, that the state and federal due process "clauses are formulated in the same words and are intended for the protection of the same fundamentarightsts of the individual and there is, logically, no room for distinction in definition of the scope of the two clauses." Id. at 10. The Court explained that the conclusion in its original opinion that the amendment violated the state due process clause "followed necessarily from our determination that in accordance with a long line of decisions of the Supreme Court of the United States the statute is repugnant to the Federal Constitution." Id. One is hard pressed, however, to find the "long line" of due process decisions of the Supreme Court purportedly relied upon by the Court of Appeals in Central Savings Bank. Moreover, construction of the state and federal due process clauses as identical was wholly unnecessary. As the Court of Appeals noted, "We did not by reference solely to the Constitution of the State intend to indicate that though we cannot give validity to a statute which is repugnant to the due process clause in the State Constitution and hold invalid statutes not repugnant to the Federal Constitution as defined by the Supreme Court. No such question was presented or considered in this court." Id. Footnote 57: An "interpretive" analysis considers whether the language of a state constitution specifically recognizes rights not enumerated in the federal Constitution; whether language in a state constitution is sufficiently different to support a broader interpretation of the individual right under state law; whether the history of the adoption of the text reveals an intention to make the state provision coextensive with, or broader than, the parallel federal provision; and whether the very structure and purpose of the state constitution serves to affirm certain rights rather than merely restrain the sovereign power of the state. A "noninterpretive" analysis deals with other matters, such as policy and tradition of the state. P.J. Video, 68 N.Y.2d at 302-03. See Maltz, The Dark Side of State Court Activism, 63 TEX. L. REV. 995 (1985), questioning the value of yet another layer of noninterpretive review. Footnote 58: The analysis with respect to search and seizure pertains as well to the equal protection clause. Despite an identity of text and history, the Court of Appeals has on occasion concluded that greater rights should be accorded under the equal protection clause of the state Constitution. The equal protection provision approved at the 1938 Constitutional Convention, N.Y. Const. art. I, § 11, was designed simply to embody "in our Constitution the provisions of the Federal Constitution which are already binding upon our State and its agencies." Dorsey v. Stuyvesant Town Corp., 229 N.Y. 512, 530 (1949), cert denied, 339 U.S. 981 (1950). See also Under 21 v. City of New York, 65 N.Y.2d 344, 360 (1985) (applying federal precedents); Esler v. Walters, 56 N.Y.2d 306, 313-14 (1982) (coverage is the same as under federal provision). In Cooper v. Morin, 49 N.Y.2d 69 (1979), cert denied, 446 U.S. 984 (1980), however, the Court of Appeals, concluding that the denial of contact visitation privileges to pretrial detainees would not violate the federal Constitution, found this unacceptable as a matter of state law. "We have not hesitated when we concluded that the Federal Constitution as interpreted by the Supreme Court fell short of adequate protection for our citizens to rely upon the principle that that document defines the minimum level of individual rights and leaves the States free to provide greater rights for its citizens through its Constitution, statutes or rule-making authority." Id. at 79. Footnote 59: Weeks v. United States, 232 U.S. 383 (1914). Footnote 60: People v. Defore, 242 N.Y. 13 (1926). Footnote 61: For a discussion of the relevant history see People v. Johnson, 66 N.Y.2d 398, 408 (1985) (Titone, J., concurring). Footnote 62: See, e.g., People v. Ponder, 54 N.Y.2d 160, 165 (1981). Footnote 63: Johnson, 66 N.Y.2d at 406; People v. Gonzalez, 62 N.Y.2d 386, 389-90 (19840/ Footnote 64: P.J. Video, 68 N.Y.2d at 304. Footnote 65: Three modes of analysis have been identified: reliance on both state and federal Constitutions; the "primacy" approach-i.e., looking first to the state Constitution; and the "interstitial" or supplemental approach-i.e., consulting the state Constitution if action is first found valid under the federal Constitution. See Pollock, State and Federal Courts, supra note 6, and Bamberger, Recent Developments, supra note 1, at 301. Compare Sterling v. Cupp, 290 Ore. 611, 614 (1981), with Right to Choose v. Byrne, 91 N.J. 287 (1982). See also Baker, State Ground, supra note 6 at 833; Linde, E. Pluribus-Constitutional Theory and State Courts, 18 GA. L. REV. 165, 179 (1984); Linde, First Things First: Rediscovering the State Bills of Rights, 9 U. BALT. L. REV. 379 (1980) (hereinafter First Things First); Hill — Marks, Foreward: Toward a Federalist System of Rights, 1984 Ann. Survey Am. L. 1 (1984); Williams, In the Supreme Court's Shadow: Legitimacy of State Rejection of Supreme Court Reasoning and Result, 35 S.C. L. Rev. 353 (1984). Footnote 66: See People ex rel. Arcara v. Cloud Brooks Inc., 68 N.Y.2d 553, 557 (1986); Adams, 53 N.Y.2d at 250; see also Cooper, 49 N.Y.2d 69; Brennan, The Roles of the State Supreme Court Justice and the United States Supreme Court Justice, 56 N.Y.5.B.J. 6 (Oct. 1984) (hereinafter Roles of Justice). Footnote 67: See State v. Hunt, 91 N.J. 338 (1982), for a list of relevant considerations in this determination. "To make an independent argument under the state clause takes homework-in texts, in history, in alternative approaches to analysis. It is not enough to ask the state court to reject a Supreme Court opinion on the comparable federal clause merely because one prefers the opposite result." Linde, First Things First, supra note 65, at 392. See also Bamberger, Recent Developments, supra note 1, at 306; Howard, State Courts and Constitutional Rights in the Day of the Burger Court, 62 VA. L. REV. 873, 934-44 (1976). And see State v. Jewett, 500 A.2d 233 (Vt. 1985), where the Vermont Supreme Court declined to address the state constitutional issue raised because the parties had failed to discuss it adequately in their briefs, and directed that supplemental briefs be filed on the issue. In response to the decision, the Vermont attorney general set up a committee to research history and precedents connected with the Vermont Constitution. Collins and Galie, Judicial Review, supra note 1, at 335. Footnote 68: See, e.g., PruneYard Shopping Ctr. v. Robins, 447 U.S. 74 (1980) (speech); Arcara, 68 N.Y.2d 553 (same); SHAD Alliance v. Smith Haven Mall, 66 N.Y.2d 496 (1985) (same); Bellanca v. State Liq. Auth., 54 N.Y.2d 228 (1981) (same); People v. Barber, 289 N.Y. 378, 384 (l943) (same); McMinn v. Town of Oyster Bay, 66 N.Y.2d 544 (l985) (land use); Pollock, State Constitutions, Land Use and Public Resources: The Gift Outright, Williamsburg, supra note 1, at 146 (1985). Footnote 69: P.J. Video, 68 N.Y.2d 296; People v. Bigelow, 66 N.Y.2d 417 (1985); Johnson, 66 N.Y.2d at 398. Footnote 70: P.J. Video, 68 N.Y.2d at 305. State v. Kimbro, 496 A.2d 498 (Conn. 1985). As Chief Justice Peters recently noted, in choosing as a matter of state constitutional law to adhere to the "well-developed federal test" of Aguilar-Spinelli instead of the newer "less stringent" test of Illinois v. Gates, "the Connecticut court was able to profit from a developed history of an established, workable test for warrantless searches, without having to commit itself to changing federal views on the reach of the fourth amendment. We were reinforced in our view of our constitution by a similar decision reached by a Massachusetts court with a similar constitutional history." Peter, Remarks, supra note 3. Collins and Galie, Judicial Review, supra note 1, at 318 n. 3. Footnote 71: See, e.g., Wachtler, Will America Survive?, 41 The Record 191 (March 1986); Powell, The Original Understanding of Original Intent, 98 HARV. L. REV. 885 (1985). Footnote 72: N.Y. Const. art XIX. Footnote 73: U.S. Const. art V. Footnote 74: Letter from J. Madison to T. Jefferson (Oct. 17, 1788), reprinted in 5 The Writings of James Madison 273 (G. Hunt ed. 1904). Footnote 75: B. Cardozo, The Nature of the Judicial Process 94 (1921). Footnote 76: "We may assume that the framers of the Constitution in adopting that section, did not have specifically in mind the selection and elimination of candidates for Congress by the direct primary any more than they contemplated the application of the commerce clause to interstate telephone, telegraph and wireless communication, which are concededly within it. But in determining whether a provision of the Constitution applies to a new subject matter, it is of little significance that it is one with which the framers were not familiar. For in setting up an enduring framework of government they undertook to carry out for the indefinite future and in all the vicissitudes of the changing affairs of men, those fundamental purposes which the instrument itself discloses. Hence we read its words, not as we read legislative codes which are subject to continuous revision with the changing course of events, but as the revelation of the great purposes which were intended to be achieved by the Constitution as a continuing instrument of government." United States v. Classic, 313 U.S. 299, 315-16 (1941) (Stone, J.). Footnote 77: See Ravin v. State. 537 P.2d 494 (Alaska 1975). Footnote 78: "Horizontal Federalism, a federalism in which states look touch other for guidance, may be the hallmark of the rest of the century." Pollock, State and Federal Courts, supra note 6, at 992. Guidance may additionally be taken by state courts from dissenting opinions of the United States Supreme Court. Footnote 79: See Brennan, Some Aspects of Federalism, 39 N.Y.U.L REV. 945, 948-49 (1964); Brennan, Roles of Justice, supra note 66. See also Sager, Forward: State Courts and the Strategic Space Between the Norms and Rules of Constitutional Law, 63 TEX L. REV. 959 (1985). Footnote 80: See People v. Hicks, 68 N.Y.2d 234, 243 (1986); People v. Elwell, 50 N.Y.2d 231 (1980); State v. Williams, 93 N.J. 39 (1983); but see Hobson, 39 N.Y.2d at 488 with respect to stare decisis in constitutional law. As the New Jersey Supreme Court recently wrote in State v. Gi1more, 103 N.J. 508 (1986), in concluding under the state constitution that defendant's right to an impartial july had been violated by the prosecutor's use of peremptory challenges: . That the United States Supreme Court has overruled Swain in Batson does not mean that the laboratories operated by leading state courts should now close up shop. For one thing, Batson rests on federal grounds of equal protection, whereas Wheeler and its progeny rest on state constitutional rights to trial by an impartial jury. For another, Batson is not the final word in this area-as the majority recognized, and as Justice White emphasized in concurrence, "[m]uch litigation will be required to spell out the contours of the Court's Equal Protection holding..." 476 U.S. at-, 90 L.E.2d at 90 n. 24 (majority) — 91 (White, J., concurring). . Accordingly, we base our decision on the New Jersey Constitution, which protects fundamental rights independently of the United States Constitution. Id. at 522. Footnote 81: New State Ice Co. V. Liebman. 285 U.S. 262, 311 (1932) (Brandesi, J., dissenting). Footnote 82: A similar process of recognizing constitutional rights-which are then beyond legislative diminution-may occur within state law. In In re Storar, 52 N.Y.2d 363 (1981), the Court of Appeals recognized as a matter of common law the right of a competent adult to control the course of his medical treatment, and not to have his life prolonged by medical means; the Court did not reach the question whether this right is also guaranteed by the Constitution. Id. at 376-77. The lower court, in In re Eichner(Fox), 73 A.D.2d 431 (2d Dep't l980), had held that the right to refuse medical treatment was guaranteed by the constitutional right to privacy. Id. at 461. In Rivers v. Katz; 67 N.Y.2d 485, 493 (1986), the Court of Appeals concluded that the fundamental common law right to refuse medical treatment "is coextensive with the patient's liberty interest protected by the due process clauof ourour State Constitution." Footnote 83: 367 U.S. 643 (l96l). Footnote 84: Id. at 651. Footnote 85: Batson v. Kentucky. 476 U.S.-, 106 S.Ct. 1712, 90 L. Ed. 2d 69 (1986). Footnote 86: McCray v. New York, 461 U.S. 961 (1983) (Powell, Blackmun and Stevens, JJ., concurring). Footnote 87: 380 U.S. 202 (1965). Footnote 88: After it becaapparentant that the Swain rule had virtually no bite, two state courts-California, People v. Wheeler, 22 Cal.3d 258 (1978), and Massachusetts, Commonwealth v. Soares, 377 Mass. 461, cert. denied, 444 U.S. 881 (1979)-decided on the basis of their state constitutions to adopt a stricter rule. over the course of several years, the mechanics of the rule were fleshed out. See, e.g., People v. Hall, 35 Cal. 3d 161 (1983); Commonwealth v. Robinson, 382 Mass. 189 (1981). Other state courts followed suit. Riley v. State, 496 A.2d 997 (Del. 1985); State v. Neil, 457 So.2d 481 (Fla. 1984); see also State v. Crespin, 94 N.M. 486 (App. 1980). The Supreme Court noted in Batson v. Kentucky, supra note 85, that two federal Court of Appeals had found discriminating peremptory challenges violative of the federal Constitution by "[f]ollowing the lead of a number of state courts construing their state's Constitution." 106 S.Ct. at 1714 n. l (emphasis added). The Court's ruling itself basically adopted the California-Massachusetts procedure nationally. Footnote 89: See text accompanying notes 71-76 supra. Footnote 90: U.S. Const., amend. IX. Footnote 91: J. Ely, Democracy and Distrust: A Theory of Judicial Review 34 (1980). See also B. Patterson, The Forgotten Ninth Amendment (1955); Redlich, Are There "Certain Rights...Retained by the People"? 37 N.Y.U.L. Rev. 787 (1962). The Patterson bservedeved as something of a spark for the ninth amendment's brief renaissance. See Griswold v. Connecticut, 381 U.S. 479, 484 (1965); id. at 487-99 (Goldberg, J., concurring); cf. id. at 511-20 (Stewart, J., dissenting). On further approaches to the ninth amendment see generally C. Black, Decision According to Law (1981). Footnote 92: Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803). Footnote 93: See text accompanying notes 81-87 supra. Footnote 94: Kelsey, The Ninth Amendment of the Federal Constitution, 11 IND. L.J. 309. 314-15 (1936) (summarizing Virginia's reservations in ratifying Constitution). The theory of the ninth amendment is, essentially, that "nothing has or can be lost by the people because these rights exist independent of the limited powers granted to the federal government." Call, Federalism and the Ninth Amendment, 64 DICK. L. REV. 121, 130 (1960). The problem lies in identifying what these rights might be. One student of the ninth amendment found, upon pursuing its legislative history, that the amendment's purpose was "to guarantee that rights protected under state law would not be construed as supplanted by federal law merely because they were no expressly listed in the Constitution." Caplan, The History and Meaning of the Ninth Amendment, 69 VA. L. REV. 223, 254 (1983). The amendment, as conceived of by its framers, "simply provides that the individual rights contained in state law are to continue in force under the Constitution until modified or eliminated by state enactment, by federal preemption, or by a judicial determination of unconstitutionality." Id. at 228. Thus, "[t]he retained rights envisioned by the framers...included not only those established by common law and statute as of the Constitution's adoption, but also those to be subsequently established by state legislation." Id. at 248. Footnote 95: Marbury v. Madison, 5 U.S. at 137.
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