The study of American constitutional law has been dominated by a virtually exclusive focus on the federal Constitution and its judicial interpretation. Legal scholars and political scientists have contributed to this by their preoccupation with constitutional matters as defined by the U.S. Supreme Court. In fact, however, the federal Constitution is "incomplete" in the sense that it relies extensively on mechanisms established in state constitutions, and leaves nearly all matters within the sphere of state power to be regulated by state constitutions and laws.

We have, however, experienced a "constitutional revolution" in the judicial interpretation of individual rights provisions of state constitutions since the early 1970s. The era of major state constitutional innovation prior to the turn of this century3 was concerned primarily with changes in constitutional texts.4 Similarly, the wave of state constitutional revision that took place between 1945 and 1970 dealt with revisions to, and modernization of, the constitutions themselves.5 The rediscovery of state constitutional law in the past decade, however, involves judicial interpretation of state constitutions.

Although state constitutional interpretation always has been important in areas of civil litigation, such as state taxation and eminent domain, and in areas of criminal procedure, such as bail rights, a broader spectrum of the private bar and a growing number of law professors, political scientists, and students now are discovering state constitutional law for the first time. This is attributable directly to the many "evasion cases" of the past two decades; that is, state supreme courts have relied on their own constitutions (1) to provide greater civil liberties protections for their citizens than are required by United States Supreme Court interpretations of the federal Constitution and (2) to insulate their decisions from Supreme Court review.8

Introduction

These events have captured the attention of the legal and political community in a way that a state constitutional convention's increase in gubernatorial powers or modernization of fiscal and budgetary provisions never could. Such structural or political reforms were relegated to the domain of a few political scientists. Their interests have included the structure and power allocations of state and local government, as well as the ways in which such powers actually are exercised. Lawyers and law teachers, by contrast, tend to be concerned with the extent and limit of governmental powers and with the interpretation of constitutional provisions in litigation. It is no surprise, therefore, that the state bill of rights "explosion" of recent decades has captured the attention of lawyers and legal scholars. This new attention, however, has generally been limited to state constitutional protection of individual liberties as an alternative to federal constitutional protections.

The field of state constitutional law, like federal constitutional law, is by no means limited to cases involving the application of state bills of rights. The structure and power of state and local governments, state-local relations, the state judicial system, taxation and public finance, and public education all are affected by the state constitution and its interpretation. Furthermore, the issues governed by state constitutions do not differ significantly from one state to another.10 State constitutional law, however, has not been treated as a matter of political or legal theory or as a subject for comparative treatment; rather, it usually is thought of as a parochial matter. However, the recurring themes and issues found throughout state constitutional law make it susceptible to treatment on a comparative or "all states" basis.

All 50 states have constitutions. These documents, although varying widely as to detail and length, perform the same general function in our fed

eral system of law and government. This function is very different from that of the Constitution of the United States-the constitution usually thought of when we refer to "constitutional law."

A state constitution serves as a charter of law and government for each state-the supreme law of the state-and prescribes in more or less detail the structure and functions of government. Further, state constitutions serve as limitations on the otherwise plenary, sovereign power of states to make law and govern themselves. At the outset, this fundamental point regarding the legal and political function and effect of state constitutions must be understood. By contrast, the federal Constitution is a grant of enumerated powers, upon which all exercises of federal power must be based. The states delegated to the federal government certain powers and agreed to restrain themselves with respect to other powers and functions. Such restraints are found in the federal and state constitutions.

A study of state constitutional law, while pointing out similarities, also highlights the diversity in the legal and governmental systems of our 50 states. In the famous words of Justice Louis Brandeis:

It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. 11

Many common themes appear in the constitutional law of all states. They share many of the same issues, despite differences in how such issues may be resolved in each state. It is the purpose of this book to focus on these common themes and issues, which are likely to arise in any jurisdiction. This will, in turn, accent the importance of the unique language and interpretation of the constitutions of the states in the resolution of specific issues.

In recent years educators in law and political science have noted the absence of state constitutional law in the curriculum and called for courses and materials on the subject. 12 This gap has been acknowledged by judges as well as by educators. Justice Charles G. Douglas of the Supreme Court of New Hampshire observed: "The fact that law clerks working for state judges have only been taught or are familiar with federal cases brings a federal bias to the various states as they fan out after graduation from ‘federally’oriented law schools."13 Justice Douglas deplored the "lack of... textbooks developing the rich diversity of state constitutional law."14 Justice Hans A. Linde of the Oregon Supreme Court observed:

[T]he law schools have nationalized legal education, and constitutional law books deal with the opinions of the United States Supreme Court. Perhaps, if we could develop more constitutional law courses that are built around the issues and the choices which exist throughout our fifty-one constitutions and that would treat the opinions of judges as historic but not infallible struggles with those issues and choices. . . .15

This coursebook is intended to fill a major gap in the teaching of American constitutional law, and contribute to the following process identified by Justice Shirley S. Abrahamson of the Wisconsin Supreme Court:

State constitutions are coming out of the archives into the legal literature and into the classroom. They are coming out of the literature and the classroom into the courtroom. State constitutions will go from the courtroom back into the legal literature and into the classroom, and maybe back to the courtroom, through the lawyers trained in the 1980's.16

Invaluable sources of information concerning each state's constitution can be found in William F. Swindler's 11-volume Sources and Documents of U.S. Constitutions (Dobbs Ferry, N.Y.: Oceana Publications, 1973-1979); and the Legislative Drafting Research Fund, Columbia University, Constitutions of the United States: National and State (Dobbs Ferry, N.Y.: Oceana Publications, various dates), 7 vols. See also Thomas C. Marks, Jr., and John F. Cooper, State Constitutional Law in a Nutshell (St. Paul: West Publishing Co., 1988).

For a new, up-to-date, excellent treatment of many of the issues that arise in state constitutional law, see “Symposium on the Arizona Constitution," Arizona State Law Journal 20 (Spring 1988): 1. The range of issues that can arise under any state's constitution, as illustrated by the materials in this compilation, is treated in Robert F. Williams, "State Constitutional Law Processes," William and Mary Law Review 24 (Winter 1983): 169.

-ENDNOTES

'Donald S. Lutz, “The Purposes of American State Constitutions," Publius: The Journal of Federalism 12 (Winter 1982): 38-42; Lutz, “The United States Constitution as an Incomplete Document," Annals of the American Academy of Political and Social Science 496 (March 1988): 23.

2This may be contrasted with what Professor Howard refers to as the so-called 'Constitutional Revolution' of the 1930s. A.E. Dick Howard, “State Courts and Constitutional Rights in the Day of the Burger Court," Virginia Law Review 62 (June 1976): 880. Professor Swindler asked whether the

1970s would see state courts "make a massive intellectual reversal of poles analogous to the reversal of federal constitutional law after 1937." William F. Swindler, "State Constitutions for the 20th Century," Nebraska Law Review 50 (Summer 1971): 596. Certainly massive change has occurred in the area of state constitutional protections of individual liberties.

3See generally Swindler, "State Constitutions," 583-85.

4Much of that movement and the legislative change accompanying it was frustrated by the United States Supreme Court. Ibid. at 585-86.

5See generally Charles R. Adrian, "Trends in State Constitutions," Harvard Journal on Legislation 5 (March 1968): 311-41; John E. Bebout, "Recent Constitution Writing," Texas Law Review 35 (October 1957): 1071-89; W. Brooke Graves, "State Constitutional Law. A Twenty-five Year Summary," William and Mary Law Review 8 (Fall 1966), 1-48; W. Brooke Graves, "Current Trends in State Constitutional Revision," Nebraska Law Review 40: (No. 4, 1961), 560-74. 6This "new" use of state constitutions will be detailed in Chapters 3 and 4.

7Donald E. Wilkes, "More on the New Federalism in Criminal Procedure," Kentucky Law Journal 63 (No. 4, 1975): 873 n. 2.

8Thus there are both substantive and procedural aspects to this rediscovery of state bills of rights. See Chapter 3, Section B.

Political scientists have done a great deal of work on state constitutional law. See Joseph A. McClain, Jr., “Foreword," Washington University Law Quarterly 27 (April 1942): 311. Between the 1920s and the late 1940s, the American Political Science Review published annually an article on state constitutional law. See, for example, Jacobus Tenbroek and Howard J. Graham, "State Constitutional Law in 1945-1946," American Political Science Review 40 (August 1946): 703-28. See also Swindler, “State Constitutions,” 587 n.54 ("[T]his excellent twenty-year series of annual surveys was discontinued in 1949. The present writer has hopes of seeing the series revived in the near future.") Unfortunately, Swindler's hopes have not been fulfilled, but Rutgers Law Journal has announced plans to publish a survey and analysis of state constitutional law developments in 1989.

10 Professor Frank P. Grad noted: "In spite of their enormous diversity, it is probably safe to say that the similarities between governmental structure in different states are considerably greater than their differences...." Frank Grad, "The State Constitution: Its Function and Form for Our Time," Virginia Law Review 54 (June 1968): 941. This similarity was present from the beginning:

The general similarity of all these early state constitutions is another circumstance worthy of remark. The ready acceptance of closely parallel institutions, formulas, and political ideas, by communities so unlike each other in the life and habits of their people and in their industrial and commercial interests, was beyond the expectation of some of the best minds of the day.

Henry Campbell Black, "The Formation of the First State Constitutions," Constitutional Review 7 (January 1923): 31. 11 New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). Justice Oliver Wendell Holmes referred to "social experiments... in the insulated chambers afforded by the several states. . . ." Truax v. Corrigan, 257 U.S. 312, 344 (Holmes, J., dissenting).

12See, for example, Jefferson B. Fordham, "Some Observations Upon Uneasy American Federalism," North Carolina Law Review 58 (January 1980): 293 (“state constitutional law is both a substantial component of the constitutional system and something of very real professional significance to lawyers.")

13 Charles G. Douglas, "State Judicial Activism-The New Role for State Bills of Rights," Suffolk University Law Review 12 (Fall 1978): 1147.

14Ibid.

15Hans A. Linde, "First Things First: Rediscovering the States' Bills of Rights," University of Baltimore Law Review 9 (1980): 379, 392-93. See also Stanton S. Faville, "Dissecting a Constitution," Wayne Law Review 13 (No. 3, 1967): 549 (calling for required course in state constitutional law); Lester J. Mazor, "Notes on a Bill of Rights in a State Constitution," Utah Law Review 1966 (September 1966): 328. (No treatise exists on state constitutional law, nor one on the subject of civil liberties under state constitutions).

16Shirley S. Abrahamson, "Reincarnation of State Courts," Southwestern Law Journal 36 (November 1982): 971.