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:
No comments:
Post a Comment