Tuesday, January 1, 2019

Interpreting the Constitution, State by State


Our federal Constitution has little to say about many of the problems that arise in a modern society.  The justices who make up the Supreme Court claim they apply an appropriate philosophy for dealing with such situations, but in practice, they are left to base their decisions on their personal beliefs about what is appropriate for the nation.  They may or may not be bound by judicial precedents, and they can be swayed by public opinion.  The Court is hesitant in directly countering an opinion shared by a clear majority of the citizens.  

Given the extreme partisan divisions in the country, the selection of a new justice can seem like an existential threat to a way of life.  There has to be a way in which democracy, the will of the majority of the people, can inform the decisions made by these nine biased human beings.  History suggests that Supreme Court rulings can be affected by related decisions reached in state courts based on state constitutions. These rulings are also made by biased individuals, but their opinions are informed by the beliefs held by the majority of the residents of their state.   Positions taken by a number of state courts can then provide both legal precedent and an expression of the will of a significant fraction of the population.  That can be difficult for a federal court to ignore.

Former Justice John Paul Stevens reviewed the book 51 Imperfect Solutions: States and the Making of American Constitutional law by Jeffrey S. Sutton in an article titled The Other Constitutions for the New York Review of Books.  Sutton describes four examples where state courts were more correct in preserving individual rights and produced the appropriate decisions before those positions were eventually reached by the Supreme Court.

“These examples demonstrate that the law may be best served if proponents of a new or expanded right give priority to a claim based on their state constitution, and that state judiciaries can set an example for the federal judiciary. Each of them—as well as a fifth example, regarding partisan gerrymandering, that Judge Sutton does not take up but is also worthy of study—merits separate discussion.”

The first example discussed by Sutton involved the funding of public education.  When the Supreme Court ruled against officially designated segregated schooling in Brown v. Board of Education (1954), it did not address the fact that states could effectively continue to impose substandard education on blacks by controlling the amount of money spent in a given school district.  In fact, unequal educational funding was the subject of a suit brought against the state of Texas, and the Supreme Court sided with Texas and refused to insist on greater equality in state funding.

“In San Antonio Independent School District v. Rodriguez (1973), over the dissent of four justices, including Thurgood Marshall, the Court rejected a challenge to Texas’s school-financing system, which was based on local property taxes and thus created wealth-based barriers to equal educational opportunities in Texas’s public schools.”

Incredible as it might seem today, it would be the Texas Supreme Court that would ultimately rule that unequal funding was unconstitutional according to the state constitution.

“The plaintiffs received no relief in their federal case, but in three cases in the 1980s and 1990s the Supreme Court of Texas held that the state’s school-financing system violated the Texas Constitution. Courts in other states, like New Jersey and Ohio, have similarly held that their state constitutions require some measure of equal funding among school districts, demonstrating that state constitutions sometimes offer greater protections than the US Constitution does.”

A second example involves the use of evidence obtained by unconstitutional means in criminal trials.  Many states, but not all, had concluded that such evidence was not admissible.  These opinions influenced the Supreme Court to take a similar position.

“In Mapp v. Ohio (1961), the Supreme Court, noting the states’ “impressive” experience with such a rule, established that the exclusionary rule applies to evidence obtained as a result of an unreasonable search or seizure. Twenty-three years later, the Court established a good-faith exception to the exclusionary rule so that, if police officers reasonably rely on a warrant that is later found to be invalid, the evidence obtained pursuant to that warrant need not be excluded from trial.”

Stevens indicates a different lesson is to be drawn from Sutton’s third example.  In the early twentieth century the supposed “science” of eugenics was widely supported.  It was generally believed that mental disabilities, crime and unsocial behavior were hereditary qualities and the nation’s integrity was being compromised by allowing in so many immigrants with inferior characteristics into the nation.  The obvious solution was to prohibit any individual deemed “feebleminded” from procreating.

“Many national leaders at that time—including, for example, Theodore Roosevelt and John D. Rockefeller—believed that the genetic quality of the human population could be improved through selective breeding. Many eugenicists thus advocated the forced sterilization of people whom they viewed as inferior members of society, such as the mentally ill, the immoral, and the criminally inclined. In Buck v. Bell (1927), Justice Oliver Wendell Holmes wrote an opinion joined by all but one of his colleagues that upheld an order approving the sterilization of a woman who medical authorities claimed was ‘feebleminded’.”

Prior to this federal decision, many state courts had ruled against forced sterilizations.  The effect of the Supreme Court ruling was to inhibit state courts from coming up with counter opinions.  The opportunity to obtain protection via state courts still existed, but subservience to the federal ruling eliminated those opportunities.  The practice of eugenic cleansing disappeared not because of the US Constitution, but because Adolphe Hitler took it to its natural conclusion.

“In this case, the Supreme Court’s decision had the effect of dissuading state courts from protecting individual rights as robustly as they had been protecting them before Buck v. Bell, underscoring the potential danger of focusing exclusively on federal rights and federal courts.”

Sutton’s final example involves forcing students to pledge allegiance to the American flag.  This practice might seem for many to be unnecessary and inappropriate for an educational setting, but for Jehovah’s Witnesses it was totally unacceptable.  Yet, the Supreme Court ruled that schools could compel children to participate.

“…Justice Felix Frankfurter’s opinion for the Supreme Court in Minersville School District v. Gobitis (1940) authorized schools to compel students to salute the flag. Following that ruling, hundreds of Jehovah’s Witnesses were attacked across the country.”

Some states accepted the federal ruling, but many did not.  The Supreme Court was forced by the discord to come up with a new ruling.

“Although many state courts reached a conclusion similar to that of the Supreme Court in Gobitis, several prohibited such compulsion and thus set the stage for Justice Robert Jackson’s opinion overruling that decision in West Virginia Board of Education v. Barnette (1943).”

Stevens suggests a similar evolution in federal constitutional interpretation may be taking place with regards to the practice of gerrymandering legislative districts.

“Although the Supreme Court has been unable to find in the US Constitution manageable standards for judging the permissibility of partisan gerrymanders, state courts are not foreclosed from construing a state constitutional provision as mandating impartiality. In other words, state law may well offer an effective remedy against partisan gerrymandering regardless of whether federal law does. Indeed, just this year, in League of Women Voters v. Commonwealth of Pennsylvania, the Pennsylvania Supreme Court held that the state’s gerrymandered congressional map violated the state constitution. In light of the continuing uncertainty about when, if ever, the Supreme Court will identify federal standards for judging the constitutionality of partisan gerrymanders, it is particularly important for voting rights advocates to look to state courts and constitutions in mounting such challenges.”

This discussion invites the reader to consider other areas in which state or local activism resulted in shifts in constitutional interpretation.  Legalization of same-sex marriage would probably fall in that category.  Legalization of marijuana by states for both medical and recreational purposes is growing and producing pressure for some sort of accommodation at the federal level to occur.  The growing popularity of imposing national healthcare policies, as in the Affordable Care Act (Obamacare), may protect that program from judicial death and could pave the way for a more functional and efficient national system.

So, keep the faith all of you who feel the need to be a part of some form of a “resistance.”  There are more ways than one for activism to succeed.

The interested reader might find the following articles informative:




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