| "Kaye —
Dual Constitutionalism in Practice" |
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In this year of celebration of the federal Constitution's 200th anniversary, we appropriately also focus attention on our state Constitution, adopted ten years earlier. Given that we have both a state and federal Constitution, a state and federal Bill of Rights, and state and federal courts that are sworn to uphold them, the relation and accommodation between the two is naturally a subject of interest. Of particular concern are provisions that are parallel if not identical in both constitutions, including, for example, such significant protections of the Bill of Rights as the right of free speech; the right to counsel, due process and equal protection of the law; and the protection against unreasonable searches and seizures. Should state courts decide such common issues on a state or federal basis? Should they read their own constitutions to provide greater protection than found under the equivalent provisions of the federal charter, or should they simply conform to federal precedents? I would like to explore these questions both as a matter of history and as a matter of theory. Much has been written on the recent emergence of state constitutional law.[1] The literature indicates that, more often now, state courts are deciding that standards set by the United States Supreme Court under the federal Constitution do not satisfy the more rigorous requirements of similar provisions of state constitutions, as to which state courts are in general the final arbiters.[2] Some describe this as a new judicial federalism; others, more pejoratively, as an unprincipled reaction to particular criminal law decisions and perceived directions of the Supreme Court. History tells us that, whether in civil or criminal matters the dependent protection of individual rights under state constitutions is not new, nor is it an illegitimate assumption of authority by state courts. Ironically, in this bicentennial year the emergence of state constitutional law is in many respects a return to a philosophy of federalism similar-althougadmittedlyly not identical-to that of the framers. When the framers gathered in Philadelphia each of the Colonies already had adopted a constitution setting out the fundamental terms by which it was to be governed. In New York, our Constitution, drawn up under the stress of war and revolution, was adopted on April 20, 1777. The state charters for many years were the sole protection against governmental overreaching. Indeed, when the federal Constitution was first drawn up, a Bill of Rights was viewed as unnecessary, in part because state constitutions already safeguarded the rights of citizens. And when the Bill of Rights was later added, it was taken from and actually mirrored corresponding state enactments.[3] Despite this deliberate duplication, there was no thought that state constitutions were thereby superseded or their Bills of Rights rendered redundant. To the contrary, the contemplation was that the states would remain the principal protectors of individual rights-the "immediate and visible guardian of life and property"[4]-with the powers of the nationagovernmentnt principally directed to external objects such as war, peace and foreign commerce.[5] The framers designed a system of dual federalism-that the federal government and the states constituted separate sovereignties, each supreme within its sphere. For the first century of our history, the federal Bill of Rights was a protection solely in relation to federal authorities; state constitutions protected the People from abuse by state authorities.[6] Barron v. Mayor of Baltimore,[7] decided by the United States Supreme Court in 1833, exemplifies this design. By a series of ordinances, the City of Baltimore had redirected the course of several streams so that they ran into a harbor near a wharf owned by Barron, Barron proved to the satisfaction of the trial court that the soil and debris carried down by the streams made the harbor so shallow that his pier became unusable. After losing before a Maryland court of appeals, Barron appealed to the United States Supreme Court, arguing that the City of Baltimore had taken his property without just compensation in violation of the fifth amendment. In a unanimous decision written by Chief Justice Marshall, himself a great federalist, the Court dismissed the appeal for want of jurisdiction. The fifth amendment-and by analogy, the entire Bill of Rights-in Chief Justice Marshall's words, "is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the states."[8] As the Court wrote: Each state established a constitution for itself, and, in that constitution, provided such limitations and restrictions on the powers of its particular government as its judgment dictated. In their several constitutions, [the states] have imposed such restrictions on their respective governments, as their own wisdom suggested; such as they deemed most proper for themselves. It is a subject on which they judge exclusively....[9] The state courts, by the same token, understood that they were the arbiters of their own constitutions. In New York, as early as 1856, in Wynehamer v. People,[10] the New York State Court of Appeals struck down a statute as violative of the due process clause of the state Constitution. That case involved an 1855 "Act for the prevention of intemperance, pauperism and line," which made unlawful the possession and sale of "intoxicating liquors." The Court found that the Act constituted a deprivation of property without due process of law, writing that it was: not insensible to the delicacy and importance of the duty [it assumed] in overruling an act of the legislature, believed by so many intelligent and good men to afford the best remedy for great and admitted evils in society; but we cannot forget that the highest function intrusted to us is that of maintaining inflexibly the fundamental law. And believing...that the prohibitory act transcends the constitutional limits of the legislative power, it must be adjudged to be void.[11] In the wake of the Civil War and in a spirit of nationalism, the fourteenth amendment was adopted. Although its full reach was not immediately manifest, the fourteenth amendment eventually changed half of the Barron formula. After a false start in the Slaughter-House Cases,[12] the Supreme Court began repeatedly suggesting that the due process clause of the fourteenth amendment applied to and limited the exercise of power by the states. As the federal Constitution marked its centennial, the Supreme Court had occasion to consider whether a Kansas statute barring the manufacture and sale of "intoxicating liquors" constituted a denial of due process.[13] Despite counsel's reliance on that leading New York State case-Wynehamer v. People, seemingly right on point-the Supreme Court held that it did not. The Court, however, made clear its belief that the fourteenth amendment applied to the states, specifically noting that state legislation would "come within" the amendment if "it is apparent that [the legislation's] real object is not to protect the community, or to promote the general wellbeing, but, under the guise of police regulation, to deprive the owner of his liberty and property, without due process of law."[14] By the end of the century the Supreme Court's oft-repeated suggestion[15] ripened into a holding. The Court struck down, as violative of the federal due process clause, a Louisiana statute regulating the issuance of marine insurance, ushering in the "Lochner era" of substantive due process.[16] Although that era ended dramatically in 1937,[17] two legacies remain viable to this day. First, the federal due process clause applies to the states and sets a floor below which state conduct may not fall. And second one of the tasks of the Supreme Court is to establish where that floor should be set. To this extent, the fourteenth amendment modified the vision of two independent sovereigns described by Chief Justice Marshall in Barron v. City of Baltimore. However, for present purposes, it is more important to recognize what the fourteenth amendment did not do: it did not alter the other half of the Barron formula, that each state by its own constitution may limit and restrict its own powers as its wisdom suggests. |
 The Historical Society of the Courts of the State of New York |
