This is, of course, not always the case. For example, it is difficult to characterize a constitutional provision adopted to overcome a judicial decision denying the authority for certain governmental action as a “limitation" on governmental power. The point is, however, that the function of the constitutional provision under scrutiny is an important factor in its interpretation. The texts of state constitutions are much more volatile than their federal counterpart. They are subject to change, and such changes come from a number of different sources-legislatively recommended amendment or revision, initiative amendment, or proposals submitted to the voters by constitutional conventions. Thus state constitutional questions often require interpretation of provisions of relatively recent, and sometimes differing, origin. Often the current state constitutional provision is the product of many amendments over the years. Furthermore, many state constitutional provisions have been "copied" from other states. All these factors, distinguishing the federal from state constitutions, can and should affect interpretation. B. Application of General Concepts of Interpretation A recurring question in interpreting state constitutional provisions concerns the extent to which concepts of interpretation developed for statutes or other legal documents should be applied to state constitutional interpretation. The Supreme Court of North Dakota has stated: "Generally, principles of construction applicable to statutes are also applicable to constitutional provisions." State ex rel. Sanstead v. Freed, 251 N.W.2d 898, 908 (N.D. 1977). Read the following case with this idea in mind. Eberle v. Nielson 78 Idaho 572, 306 P.2d 1083 (1957) TAYLOR, Justice. The petitioners . . . members of the current Thirty-fourth Session of the State Legislature, on behalf of themselves and others similarly situated, file petition in this Court seeking a writ of mandate to compel issuance of warrants by the defendant, State Auditor, for payment of expenses incurred by them while serving as members of various committees of the legislature. They allege that funds were regularly appropriated for the payment of such expenses; that vouchers were regularly prepared and approved by the presiding officer of the respective houses, and were presented to and approved by the State Board of Examiners; and that the defendant had refused to draw warrants for the payment thereof on the ground that payment of such claims was not authorized by law. Defendant, answering the petition, admits all of the allegations therein, and affirmatively alleges that sec. 67-412, I.C., purporting to authorize payment of such expenses, is in violation of Article 3, sec. 23, of the State Constitution. Section 67-412, I.C., enacted in 1951, is as follows: Each member of the legislature of the State of Idaho shall receive the sum of $5.00 per day as committee expenses while serving as a member of any committee during any session of the legislature, including the present thirty-first session of said legislature; and provided that no member shall receive such expense for service on more than one committee at the same time. The pertinent part of sec. 23, Article 3, of the Constitution provides: Each member of the legislature shall receive for his services a sum of ten dollars per day from the commencement of the session; but such pay shall not exceed for each member, except the presiding officers, in the aggregate, $600 for per diem allowances for any one session; and shall receive each the sum of ten cents per mile each way by the usual traveled route." In determining the constitutionality of a legislative enactment, fundamental principles must ever be kept in mind and rigidly observed. Statutes are presumed valid and all reasonable doubts as to constitutionality must be resolved in favor of validity. . . . Where a statute is susceptible of two constructions, one of which would render it invalid and the other would render it valid, the construction which sustains the statute must be adopted by the courts.... The burden of showing unconstitutionality of a statute is upon the party who asserts it, and invalidity must be clearly shown. . . . It is the duty of the courts to uphold the constitutionality of legislative enactments when that can be done by reasonable construction.... In construing our State Constitution there are also certain fundamental principles which must be recognized and given effect. Unlike the Federal Constitution, the State Constitution is a limitation, not a grant, of power. We look to the State Constitution, not to determine what the legislature may do, but to determine what it may not do. If an act of the legislature is not forbidden by the state or federal constitutions, it must be held valid. This fundamental concept of the State Constitution is generally accepted throughout the United States, and is not questioned in these proceedings. It has always been the guiding principle of constitutional construction in this state. . . . There flows from this fundamental concept, as a matter of logic in its application, the inescapable conclusion that the rule of expressio unius est exclusio alterius has no application to the provisions of our State Constitution. Collins v. Riley, 24 Cal.2d 912, 152 P.2d 169, at page 171. This rule was again approved and quoted by the Supreme Court of California in Dean v. Kuchel, 37 Cal.2d 97, 230 P.2d 811. This Court has also heretofore refused to apply the rule of expressio unius est exclusio alterius to the revenue provisions of the Constitution, as follows: Certainly our Constitution does not expressly prohibit the people of Idaho from raising revenue in the manner provided in chapter 179 of the Session Laws of 1913, and, while it is true there are three methods of raising revenue expressed in section 2 of article 7 of the Constitution, we cannot infer from this that an implication arises prohibiting the state from also raising revenue pursuant to its inherent power to do so in any other manner its Legislature may see fit to adopt. In re Kessler, 26 Idaho 764, 771, 146 P. 113, 114, L.R.A.1915D, 322. The tax in question is by a method other than those mentioned in section 2, art. 7, of the Constitution, but is not on that account unconstitutional, because it is not necessary that the Constitution expressly authorize the Legislature to enact each and every kind of tax adopted by it. An act is legal when the Constitution contains no prohibition against it. Independent School Dist. v. Pfost, 51 Idaho 240, 252, 4 P.2d 893, 897. Applying the foregoing rules and principles to the case before us, we find no limitation in sec. 23, Article 3, of the Constitution, forbidding the legislature to provide for the payment of expenses of its members. It expressly allows to each member $10 per day "for his services," and provides that such per diem shall not exceed $600 for any one session. It also allows "ten cents per mile each way by the usual traveled route." This is a lump sum allowance for travel. The section is silent as to any other expenses. It follows that the enumeration of an allowance for services and an allowance for travel, and the absence of any restrictive terms limiting the legislators to such allowances, leaves the legislature free to provide for the payment of other expenses necessarily incurred by its members in the discharge of their duties. Discussion Notes 1. See also Imbrie v. Marsh, 3 N.J. 578, 612-13, 71 A.2d 352, 371 (1950) (Oliphant, J., dissenting) (cautioning about applying expressio unius maxim to state constitutions); and Reilly v. Ozzard, 33 N.J. 529, 538-39, 166 A.2d 360, 365 (1960) ("Where, as here, the constitutional provision is prohibitory in nature, it surely can not mechanically be inferred that what was not prohibited was thereby affirmatively guaranteed"). 2. In Eberle, the Idaho Supreme Court avoided the problem of "negative implication" in state constitutional interpretation. As noted earlier, many state constitutions include provisions that could be relegated to statutory law. Particularly when these provisions mandate legislative action or grant authority to a legislature already vested with plenary power, courts can transform these provisions into limitations on legislative power. Professor Frank P. Grad described this problem: It must be emphasized that very nearly everything that may be included in a state constitution operates as a restriction on the legislature, for both commands and prohibitions directed to other branches of the government or even to the individual citizen will operate to invalidate inconsistent legislation.... William F. Swindler, "State Constitutions for the 20th Century" Nebraska Law Review Judicial Doctrine and the Future Because state constitutions are all too detailed and explicit, there is a built-in orientation toward strict construction in the majority of states. Despite the assurance that the legislative power is plenary in the absence of specific constitutional limitations, and that the police power of the sovereign resides in the lawmaking branch, courts tend to offset the legislative effort in many cases by a narrow reading of the statutory language and the constitutional formulae In constitutional theory state government is a government of plenary powers, except as limited by the state and federal constitutions.... In order to give effect to such special authorizations, however, courts have often given them the full effect of negative implication, relying sometimes on the canon of construction expressio unius est exclusio alterius (the expres sion of one is the exclusion of another). Frank P. Grad, "The State Constitution: Its Function and Form for Our Time," Virginia Law Review 54 (June 1968): 964-66. For these reasons, many apparent grants of authority become, through judicial interpretation, limits on legislative power. Courts and lawyers should be aware of this hidden dimension of state constitutional language. 3. With respect to the problem of negative implication, see also Dean v. Kuchel, 230 P.2d 811, 813 (Cal. 1951); Hoffman v. Clark, 69 Ill. 2d 402, 422,372 N.E. 2d 74, 83 (1977); Ex Parte the Alabama Senate, 466 So. 2d 914 (Ala. 1985). 4. See also City of Sacramento v. Hickman, 59 Cal. Rptr. 609, 428 P.2d 593 (1967), which sets forth a number of principles of state constitutional interpretation. which may apply. Moreover, new constitutions or constitutional amendments are ambivalently treated. Although the standard protestation is that "a constitutional provision can speak only to the future," the influence of past construction is readily preserved when a new provision preserves in haec verba the language of the provision it supplants. As one state court has observed: "When a portion of the constitution has been construed, considered and acted on for decades in one way by all branches of government," only an explicit amendment altering the language or the literal effect of the provision will warrant a change in construction. "[The constitution] should not be changed, expanded or extended beyond its settled intent and meaning by any court to meet daily changes in mores, manners, habits or thinking of the people," except by amendment, the same opinion declared.89 Under the prodding example of federal constitutional doctrine, the courts in the states having tended to develop a somewhat broader application of the concept of delegability of legislative power, and to 89State v. Hall, 187 So. 2d 861, 863 (Miss. 1966). define more broadly the police power in general, although, with reference to the exercise of the power, the nexus between public need and the action taken may be narrowly defined. With reference to the recurrent question of use of public school buses by private school pupils, the courts are still inclined to be all but inflexible. An encouraging trend appears to have developed in quite recent years, as state legislatures have been urged to act more boldly under existing constitutional power, and courts in a number of states have sustained their actions. Where the constitutional language is not in itself restrictive, the general policy endorsed by the constitutional language need not be subjected to rules of strict construction. And where historically a word or phrase has taken on a new meaning or understanding now in general acceptance, which differs from the meaning of the time of enactment of the constitutional passage in which the word or phrase appears, the recent usage will apply. The self-executing nature of many constitutional provisions has been reaffirmed, and in matters of constitutional questions the issue of standing has been disposed of in a manner more conformable with recent federal decisions. The matter of the wisdom of legislation is once again being left to the legislature, and any changing view of public policy relating to legislative enactments is apt to be accepted by the courts. Police power, if reasonably invoked, is upheld, and where this involves anti-discrimination standards it is unequivocally validated. If this trend of recent state constitutional decision continues, it may conceivably counteract the inhibiting effect of the older narrow construction in so many areas of state jurisprudence. It is too early to determine whether, in the late sixties, state courts have begun to make a massive intellectual reversal of poles analogous to the reversal in federal constitutional law after 1937. There is still the unconscionable tangle of restrictive detail in the constitutions themselves, awaiting deletion through comprehensive amendments. But to the degree that a new state constitutionalism can be effected through a shift from narrow to broad judicial definition of legislative authority, there may be some ground for hope. The decade of the seventies holds the answer. Chapter 1, Article 11 of the Vermont Constitution. The state constitutional issue has been squarely raised, but neither party has presented any substantive analysis or argument on this issue. This constitutes inadequate briefing, and we decline to address the state constitutional question on the basis of the record now before this Court. State v. Taylor, 145 Vt. 437, 439, 491 A.2d 1034, 1035 (1985). Because the briefs fall short of the mark on the state constitutional claim, we are directing the parties to file supplemental briefs addressing that issue. The standard we have set is clear: what is adamantly asserted must be plausibly maintained. Yet our duty is not met by simply drawing the line. On the subject of briefing, we have said many times what we are against! Now the hour has come to say what we are for. To put it in another way, we who have the mind to criticize must have the heart to help. This occasion makes clear the need to raise the plane of consciousness of bench and bar about the resurgence of federalism that is sweeping across the country. Since 1970 there have been over 250 cases in which state appellate courts have viewed the scope of rights under state constitutions as broader than those secured by the federal constitution as interpreted by the United States Supreme Court.1 Oregon Justice Hans Linde has stated: "A lawyer today representing someone who claims some constitutional protection and who does not argue that the state constitution provides that protection is skating on the edge of malpractice."2 Recently a young lawyer wrote of attorney neglect regarding the possibilities of state constitutional law: It is the highest law of our state, yet it is sometimes esteemed the lowest. It is routinely cited, then routinely forgotten. It is our birthright, which we have sold for a bowl of federal porridge. It is our state Constitution, the poor relation of the United States Constitution. But it may soon be coming into new wealth.3 One longs to hear once again of legal concepts, their meaning and their origin. All too often legal argument consists of a litany of federal buzz words memorized like baseball cards. As Justice Linde has noted: State v. Jewett 500 A.2d 233 (Vt. 1985) HAYES, Justice. In this case, we are asked to decide, among other issues, whether the defendant was illegally stopped and arrested in violation of his rights guaranteed by 1Collins, Reliance on State Constitutions: Some Random Thoughts, in Developments in State Constitutional Law 2 (B. McGraw ed. 1985). 2Welsh & Collins, Taking State Constitutions Seriously, 14 The Center Mag. 6, 12 (Sept./Oct. 1981). 3Tinkle, The Resurgence of State Constitutional Law, 18 [Me.] Bar Bull. 257 (1984). |