intergovernmental perspective, 1991, v.17 no · in the habeaa corpus procasa danie[ e, lungren...
TRANSCRIPT
‘commission_
States and cities are having in-creasing difficulty finding the fundsto provide traditional services and facili-ties —plice, fire, educntion, and tiras-tnrcture— while also t@g to find theadditional resmrrces needed to attackthe problems of drugs, crime, gang vio-lence, and AfDS that are ravaging somany of our cities. Ch kens are stmggl-ing with rising edu~tion and health carecosts and with the necessi~ for child careas the need for two-parent breadwinnergrows and the number of single womenheading households increases.
Some mayors want to march onWashington for more money to solvethese problems. I don’t happen to beone of them. f’d gladly march, however,if it would help convince the Congressand the Administration to honor theclear meaning of the Constitution as tothe relationship among governments.It would be quite a task to convince theCongress, preoccupied with reelectionand unable to control its own expendi-tures, to stop trying to control all of theactivities and conditions of all citizens.me Congress has attempted to remedyall ills through Iegi.dation that requiresstate and Iml governments to f~t themajority of the costs.
By mandating, preempting, andplacing conditions on the spending ofour own money, the Congress has ef-fectively reduced state and local gov-ernments to mere agents of the federalgovernment. Where does it get thatpower? It just takes it. Federalismtoday is an intergovernmental arrange-
ment in which the Congress declareseverything to be of national interest,and then requires the states and lucalgovernments to raise the money andperform the mandates under threat ofcivil and, often, criminal annctions.
The Constitution has been amend-ed a thousand times over without theneed to use the cumbersome, constitu-tionally provided, amendment process.The Congress. the Administration, andthe courts have ignored the admoni-tion of Chief Justice Roger B. “Ikneywho said, “If we are at liberty to give oldwords new meanings—there is no pow-er which may not by this mode of con-struction, be conferred on the generalgovernment and denied to the states.”‘Ilrough the Constitution, the statesdelegated specific and limited powersto the federal government. Although itshould not have been needed, statesadded the Tenth Amendment provid-ing that powers not so delegated are re-served to the states or to the people.Over the years, the Congress has ac-quired the habit of acting at will andwithout regard for constitutional justi-fication, leaving that troublesometechnicality, if ever called for, to cre-ative legal assistants. I recently asked aUnited States Senator, a member ofour Commission, ifthe Senate everdis-cusses the constitutional justificationfor a bill. He just chuckled.
The commerce power, which dele-gates to the Congress the power “toregulate commerce with foreign na-tions, among the several states andwith the Indian tribes,” has often beentested in the courts, where the ingenu-ity of judges and lawyers in construingconstitutionality is downright amazing.The evolution of federal jurisdictionover the waters of this nation is a goodexample of how Congress’ commercepower can be expanded through liberalinterpretation of the Constitution.Federal jurisdiction once required nav-igability, but today, the Congress hasextended its commerce power jurisdic-tion over “waters of the United States”to any land upon which rain falls.
After Garcia v. San Antonio Metro-politan Traruit Authori~ (1985), revision-
ists don’t even have to be so clever infashioning a constitutional justificationbecause the Supreme Court threw upits hands and said to the Congress, dowhat you want to do. The Com’t con-cluded that the Tenth Amendment of-fers no guidance on where to draw theline between federal and state power,and that the only avenue left for main-taining some balance among the gov-ernments in our federal system isthrough the election process.
For the Congress, the end nowjustifies the means, and the TenthAmendment is dead. When JusticeRobert H. Jackson, in Youn@/own v.Smvyer (1952), involving President Tru-man’s steel plant takeover, stated that“necessity knows no law,” he was right.For members of Congress, the greatestnecessity is reelection. He added thatsome judges are strnngly tempted “toemphasize transient results upnn poli-cies. . . and lose sight of enduring con-sequences upon the balanced powerstructure of our republic.”
We no longer have a balancedpower structure in our federal repub.lie. How do we restore it? ACIR, to-gether with organizations of governors,state legislators, and mayors, hasstruggled with this issue since Garcia,They have suggested changing theTenth Amendment to require theCOUttSto determine the limits of con-gressional power. They have suggestedchanging the amendment process togive states an equal right to amend.Unfortunately, the steam has gone nutof those efforts. As people all over thewndd are ttying to gain a measure oflocal control, fully realizing that it isthe best way to ensure freedom, wecontinue to give more and more powerto the central government.
It is obviously difficult to restorethe balance to the intergovernmentalsystem, but I am firmly convinced wehad better get fired up again.
Robert M. IsaacMayor, City of Colorado Springs
2 IntergovernmentalPerspective/Fall 1991
—.—
staffJohn Kincaid
Executive D[rector
Joan A. CaseyPamela L. Reynolds
Co-Editors
Imergovemmental Perspective(ISSN 0362-8507) is publishedfour times a year by theUS Advisory Commissionon Intergovernmental RelationsWashington, DC 20575~2-653-5640
Inmmenbl Fall 1991, Vol. 17, No. 4
5
6
15
18
21
27
31
35
45
49
53
Rights: The Steteeend tha Fadaral GovarnmantDaniel J E/4zar
The State Foundetioneof the U.S. Bill of RightsDonald S, Lutz
Tha Lagacy of 19th-CanturyState Bills of RightsKermit L. Hull
Federal-State Reletionsin the Habeaa Corpus ProcasaDanie[ E, Lungren
State Supreme Courtein Our Evolving Federal SystemEllen A. Peters
Supreme Courte in Conflict:Tha Dreme of DiaagraamantStanley H, Friedelbaum
The Stete and Federal Bills of Rights:Pertners and Rivele in LibertyJohn Rincaid
Salacted Rights Enumeratedin State ConatitutionaMark L. Glasser and John Rincaid
Amending State Bille of Righta:Do Voters Reduce Rights?Janice C. May
The Canadien Constitutional Criaia:Who’s Right on Rights?Robert C, Epond
A Bill of Righte for Australia?Brian Galligon
z A Viaw from the CommissionRobeti M. Isaac
d ACIR Newa
24 Intergovernmental DigastElliott Dubin
58 Booka, etc.
7he Cbaintlan of II?eAdviso~ Comtnission on Imer-govenrmentul Relations has detemd!?ed (hat the p!:blicalionof this pen’odical is necessaw in the tmnsaclion of the pttb-lic blfsiness requited by law of this Conl],tissiotr. Use offi!:rdsforptinting this docunlent hm been approved by (beDime/or of the Ofice of Managentent a!rd B!(dget.
~CIR News
On the ACIR Agenda
At its R16th meeting on Septem-ber 13, 1991, in New Orleans, Louisi.ana, the U.S. Advisory Commission onIntergovemmental Relations tnuk thefollowing actions
Panel on Health CamA panel of experts briefed the Com-
mission on various intergovernmentalavers Of Medicaid. ‘f’bcY discussedaume of the intergovernmental issues indevelopment and adminiatmtion, such asthe roles of different government sec-tom, the future of Medicaid, fmncialiames involving state and Iml ability toimplement effective Medicaid prugrama,and the relationship between Medicaid,Medicare, and other segments of the na-tional health care delive~ system.
The panel included Jane Howth ofthe American Public Welfare Associ-ation Mlchele Melden of the NationalHealth Law Program, Inc; and ElmerSmith of the Medicaid Bureau, HealthCare Financing Authority, U.S. Depart-ment of Health and Human Services.
Staff presented a plan for complet-ing projects and recommendations onMedicaid and the intergovernmentalaspects of health care reform thatwould culminate in a national confer-ence. A pulicy report will be publishedin 1992. Discussion will continue at thenext Commission meeting,
Update onEnvironmental Decisionmaking
Staff presented draft findings onthe environmental decisionmakingstudy for state and local public worksprojects. A committee was appointedto assist staff in developing policy op-tions. Appointed to the committeewere Mayor Robert M. Isaac, State
Senator Samuel B. Nunez, GovernorStan Stephens, and County Commis.sioner D. Michael Stewart.
Federal Crime Bills
The Commission discussed provi-sions of crime bills pending in the Con-gress, particularly provisions thatwould significantly expand federalpowers in criminal justice and the pntential impacts on state and Inca] gov-ernments of the Senate’s proposed“Police Officers’ Bill of Rights.”
State Laws GoverningLocal Government Structures
The Commklon authotied publi-cation of the information repufi StateLaws Gowming Lwal Gomnt S:rrIc-tum md Adminisfrarion: A Cornpwison ofthe L.mvs in 1978 and IW, Melti Hillcumpiled the 1978 repurt, which waspublished by the Institute of Govern.ment at the University of Gmrgia, andupdatd the re~rt for ACIR. He cun-ducted a mmprehensive W-state surveyof the laws affecting forms of Iucal gov-ernment, anncxat ion and wnsofidati~”,lnml elections, administrative opera-tions and procedures, financial manage.ment, and Pemnnel management. Datacnllected for this re~rt til be ve~ use-ful to state and Iucal government plicy.makera and researchers.
Surface ~ansportation
The Commission alau discussedthe proposed House and Senate billson surface transportation.
Properly Taxation
The Commission approved andprovided input for a staff proposal for amajor study of developments in prop-erty taxation. The study will fucus onthe impacts on property taxation of re-cent technological innovations, courtchallenges and decisions, cyclicalswings in the United States and region-al economies, and voter attitudes about“fair” taxes.
State Supportfor ACIR
F-l 1991 was a re~rd yearfor state mpport fur ACIR. ‘f?reCommission wordd like to thankthe following states for their re-cent auppuw MiineW@ Mo”.tans, New Yo~ North Dakota,Ohio, Pennaylvan@ and Utah.
Executive Director Elected
To NAPA
ACIR’S Executive Director, JohnKlncaid, has been elected a FelICIwofthe National Academy of Public Ad-ministration. NAPA is a nonpartisan,nonprofit organization of elected fel-lows fomed in 1%7 to improve theeffectiveness of government. TheAcademy was chartered by the Con-gress in 19S4, the first such chartersince President Lincoln signed thecharter for the National Academy ofSciences in 1S63.
Previous ACIR members and staffwho are NAPA Fellows include WayneF. Anderson, Norman Beckman, TumBradIcy, William G. Colman, Daniel J,Evans, Arthur S. Fleming, Richard G.Lugar, Allen D. Manvel, Edwin MeeseIII, Arthur Naftalin, Alice M, Rivlin,Terry Sanford, George f?Shultz, Carl W.Stenkrg, Ricbad L, ‘flromburgh, DavidB. Walker, and Ruben C. Weaver.
ACIR Staff Changes
Jefiey S. Fitzpatrick has joined theACIR staff as an analyst, He has a mas.ter of public administration degreefrom the University of North Carolinaat Charlotte.
Ronald Allen, an analyst, has takena position with the Federal Bureau ofPrisons in North Carolina. Phi//ip Rig.g’ns, also an analyst, has taken a posi-tion with the United States [nfoma-tion Agency.
(continued on page 59)
4 Intergovernmenti Perswtive/Fall 1591
Rights:The States
and theFederal
Government
Daniel J. Elazar
It used to be that mere mention of the word“rights” in connection with the states wouldbring the immediate response, “What about ra-cial discrimination?” Yet, even in the earliestdays of racism in the United States, less thantwo-fifths of the states legally required or al-lowed varying degrees of racial discrimination,while over three-fifths provided greater legalprotections than the federal government at anygiven time. In fact, most of what later becamelandmark federal civil rights legislation in the1960s was pioneered in the more progressivestates years earlier. In many cases, over half thepopulation in the United States was covered un-der state civil rights laws, admittedly not alwayswell enforced, before the Congress took action.
Wbh the shifting of problems of race from the domain oflegal discrimination, we can confront the role of the statesin matters of rights protection without the blemish of rac-ism for the first time in Amecican history. What emergesis a picture of state pioneering and activism that is notwidely recognized but is very important.
We begin with the ve~ idea of bills of rights. mestat es were the first to develop such protections, yearsbefore the adoption of the federal Bill of Rights which,indeed, WS pro~ed by the Anti-Federalists because oftheir state experiences. The fmt bils or declarations ofrights, as they were then called, go back to the early daysof the American colonies in the 17th Century, to the1630s and 1640s, long before the famous English Bill ofRights of 1689,
The first “modern” American bills of rights werewritten into the new state constitutions during theRevolutionary War, beginning with Virginia in 1776, Asthe citizens of each new state wrote a state constitution,they included declarations of rights, many modeled afterthe Virginia declaration. Almost all of the provisions laterincorporated in the federal Bill of Rights first appeared inthose state declarations of rights.
There are several reasons why this is not recognized.Under the tradition of constitutionalism prevalent in thestates, most rights enforcement was left to legislaturesrather than courts. This was true for the United States as awhole undi after the adoption of the CiviI War amendmentsto the U.S. Constitution. Moreover, the kind of courtenforcement of individual rights that presently dominatesthe American scene dld not begin until the 1924k.
As rights enforcement passed from the legislatures tothe courts, the U.S. Supreme Couti tonk the lead,shattering all precedents and, in many cases, extendingrights protections far beyond then-accepted public opin-ion. This trend reached its peak during the years of theWarren Court, but after the civil rights revolution in tbe1960s and tbe retirement of Chief Justice Earl Warren,the U.S. Supreme Court reduced the pace, though not thescope, of its rights enforcement activities. The statesupreme courts, by now open to the idea, began to pick upon issues of rights enforcement. Beginning in a few of themore progressive states, such as California, New York,Oregon, Washington, and Wisconsin, state supremecourts began making rights decisions on state constitu-tional grounds, going beyond the protections extended bythe U.S. Supreme Court on federal constitutionalgrounds. In the 19S0s, this movement spread to manymore states, so that today it can be said fairly that rightsenforcement is a task actively shared by federal and statecourts on both fedecal and state constitutional grounds.
Prior to the Civil War, federal rights enforcement wasconfined to issues directly involving the federal govern-ment. fndeed, in Barren v. Baltimore (1833), the U.S.Supreme Court, following the intentions of the Framers,qlicitly ruled that the U.S. Bill of Rights did not apply tothe states. It was only after the Civil War amendments to theU.S. Constitution that the Court began to apply federalrights protections as a standard to judge state actions. Inmost cases, though, the Court acted on matters having to do
(continued m wge 13)
lntergovernmenW Perswtive/Fall 1991 5
The StateFoundations
of the U.S.Bill of Rights
Donald S. Lutz
One of three assumptions is usually madeshout the origins of the U.S. Bill of Rlght& (1)the Bill of Rights was the original product of afew minds in 178% (2) the Bill of Rights was anupdated American version of Magna Carta; or(3) James Madison simply compiled the Bill ofR]ghts from the suggestions for amendmentsmade by the state conventions that ratified theU.S. Constitution. None of these assumptions iscorrect. Ins@ad, the Bill of Rights resulted morefrom along political process on American shores,a process in wh]ch the states and their respectivecolonial predecessors played a key role.
The Limited Irdlueoce of Magna CartaTo deal with the second assumption first, it is pussible
to demonstrate the relatively minor influence of MagnaCarta on the Bill of Rights by simply counting overlappingprovisions. The Bill of Rights lists 26 separate rights. Ofthese 26 rights, only four can be trsced to Magna Carta us-ing the most generous interpretation of the language inthat famous ducument (see ~ble 1). Lonking at it fromthe other direction, only four of the 63 provisions in Msg.na Carta ended up in the U.S. Bill of Rights. The lack ofoverlap is not surprising because Magrra Carta and theU.S. Bill of Rights had enomously different functions.The fomer defined the relationship between a king andhis barons, whereas the Iatterpluced limitson all branchesof a government vis-a-vis an entire citizenry.
Despite the enomous historical irnpunance of MagnaCarta, in mntent, fore, and intent, it is only a distant fore-runner of the U.S. Bill of Rights. Nor is tbe overlap with therest of English common law, although impmtant, that exten.sive. In addhirrn to the four rights that mn be truced to Mag-na Carta, another right in the US. Bill of Rights ran kO’aced to the 162SEnglish Rtition of Right, and two to the1~ Engliih BilI of Rights.L~i brings to seven the numberof rights mnong the 26 in the U.S. Bill of Rights that can betrscd to a nmjor English mmmon law ducument. mehighly respected scholar, Bernard Sehwsrtz, is tiling tomake such a linkage for only five of these seven rights.)
Furthemrore, as writers on the English mmmon law al-
WP point out, Magna Carta had to be remnfiied cnntinu.rally,at least 47 times by one count, because the ducumentwas ignored for long periods, and its contents were at besthonored in the brcscb.2 Indeed, despite the guarantees forcertain rights mntained in major documents of English mm-mon law, at the time of the American Revolution, theserights were either not protected at all, or were not protectedto the level mmmon in America.3
Even in those instances where protection of a right inEngland approached that in America, there was a funda-mental difference in whose actions were limited. Psrtlyfor this reason, James Madison said that there were tuumany differences between common law and the U.S. Billof Rights to warrant comparison.
we) huth is, they (the British) have goneno farther than to raise a hurrier against the pow-er of the Crown; the puwer of the Legislature isleft altogether too indefinite. Although I knowwhenever the great rights, the trial by jury, free-dom of the press, or liberty of con%ience, comein question (in Parliament) the invasion of themis resisted by able advocates, yet their MagnaCarta does not contain any one provision for tbcsecurity of those rights, respecting which the peo-ple of Americs are most alamed . . . those choic-est privileges of the people are unguarded in theBritish Constitution. But although . . . it may notbe thought necesm~ to provide limits for the leg-islative puwer in that country, yet a differentopinion prevails in the United States.4
We should turn to documents written on Americanshores, specifically, to state and colony documents, forthe principal origins of the Bill of Rights. As ~ble I il-lustrates, all but the Iast two rights in the U.S. Bill of
6 lntergovemmenW Farswctive/Fsll 1S91
.
Table 1First Statement of fGghts in U.S. Bill of Rights*
BIOof Rights Guarantee Pirst Document Protecting First American Guarantee First Constitutional Guarantee
Rtablisbment of Religion I Rights of Colonists I Same @stOn) I NJ Constitution, Art. XIX
FW Exerc& of Religion MD Act Conwrning Religion Same VA Declaration of Rights, S. 16
Fm S-b MA J3cdy of Liberties, S.12 Same PA Declaration of Rights,Art XII
Free pra I Address to Inhabitants I Same I VA Declaration of Rights, S. 12of Que&c
&mbly Declaration and Resolves Same PA Declaration of Rights,of tbe Continental Congress Art. XVI
Petition Bill of Rights (Engtand, l&9) Declaration of Rights PA Declaration of Rights,and Grievances (1765), S.XII1 Art. XVI
Right to War hs Bill of Rights (England, 16S9) PA Declaration of Rights, SameArt. X11
CJuartering Wldiers Petition of Right (England), NY Charter of L!berties Dela~re Declaration of Rights,s. VI s. 21
Searches Rights of the Colonists Same titon) VA Declaration Rights, S. 10
seizures Magna Carta, C. 39 VA Declaration Rights, S, 10 Same
Grand Juy NY Charter of Liberties Same NC Declaration of Rights,Art. VIII
Double Jeopardy MA My of Liberties, S. 42 Same NH J3i0 of Rights, Art. XVI
SeIf.incrimination VA Declaration of Rights, s.8 Same Same
Due ~ Magna Carta, C. 39 MD Act for the Liberties VA Declaration of Rights, S, 8of tbe People
Just Com&mation MA Body of Liberties, S. 8 Same VT Declaration of Rights, Art. II
SpeedyTrial VA Declaration of Rights, S. 8 Same Same
Jury Trial Magna Carta, C. 39 MA J30dy of Likrties, S. 29 VA Declaration of Rights, S 8
CaW and NatuR VA Declaration of Rights, S. 8 Same Sameof Accusation
Witn*s PA Charter of Privileges, Art. V Same NJ Constitution, Art. XVI
Couml MA My of Liberties, S 29 Same NJ Constitution, Art. XVI
JUIYTrial (civil) MA my of Liberties, S. 29 Same VA Declaration of Rights, S. 11
Bail MA J3cdy of Liberties, S. 18 Same VA Declaration of Rights, S. 9
Fines Magna Carta Sects, ~-22 PA Frame of Government, VA Declaration of Rights, S. 9S. XVIII
Punkbment MA Bdy of Liberties, S. 43,46 Same VA Declaration of Rights, S. 9
Rights Retained by People VA Constitution Same Ninth AmendmentPro~sed Amendment 17
Rese~d POXn MA Declaration of Rights, Same SameArt. IV
“Sour= Based on Bernard Schwartz, The Roots of the Bill of England and he attributes the fimt prohibition againstRi@t/s,Volume 5 New York Chelsea Houw Publishem,19S0), exmssive tines to the 1682Pennsylvania Frame of Govern-p. 1204.Contrary to Schwartz, this author attributes more to ment, whereas it is here attributed to Magna Cnrta. TheEnglish common law dixuments. Schwrtz attributes the first difficulty in such attributions lies in the English version almysprohibition on tbe quartering of troops to the 1653 New York king somewhat different in intent and application. as WO asChatter of Likrties instead of tbe 162S Petition of Right in usually being Iex explicit and sweplng in expression.
Intergovernmenti Perspective/Fatl 1591 7
Table 2Amendments Proposed by State Ratifying Conventions Compared with Madison’s Original Proposed Amendments*
1. Powr Derived from the People2. Government Exercised for the Common Good3. Life, Liberty, Property, and Happiness4. Right of People to Change Government5. Number of Representatives6. Congressional Pay Raises7, Religions Freedom8. Right to a Free Conscien%9. Free Speech
10. Free to Write
11. Free Press12, &mbly13. Petition and Remonstran~14. Right to Bear Arms15. Pacifists Need Not Rear Arms16. No Quartering of Troops in Pea-time17, No Quartering without Warrant18. No Double Jeopardy19. No Double PunishmentW. No Self-Incrimination
21. Due -S of hw Guaranteed22. Compensate for Pro~rty Taken23. No fiw=ive Bail or Fines24. No Cmelor Unusual punishment23. No Unrewnable Search and Seimre26. S~edyand Public Tiial27. Told Nature of Crime28. Con fronted with Accusem29. Can Call Witnesses for Own Defeme30. Right to Counsel
31. Rights Retained by States or People32. No Implied Po~mfor Congre~33. No State May Violate 8, 9, 11,or 26 ahve34. Appeal Limited by DoOarAmount35. Jury Cannot Be Bypassed36. Impartial Jury from Vicinity37. Jury Unanimity Required38. May ChaOenge any Judicial Decision39. Grand Jury Indictment Required40. Jury Trial for Civil Cases
41, Separation of Powm Required42. Powm Rewmdtotbe States
MD MA Nfi
x
x
xx
x
x
x
x
x
xx
x
x
x
x
xx
xx
x
x
xxx
xx
W NC
xxxx
xxxx
xx
:
xxx
:xx
x
x
:xxx
;x
xx
x
x
xx
PA
x
xxxx
x
x
x
;xxxx
x
x
x
xx
SC VA
xxx
;x
xxxxx
xxxxxxx
x
x
xxxxxxxx
xx
x
x
xxx
Madison
x
xxxxxx
x
$xxxxxxx
xxxxxxxxxx
xxx
:xx
xx
“~fimt42rigbts prearranged in tkorder@by Mfidiwni“ Saladino. et. al.. eds.. T6e bc
Table 2 (cont.)Amendments Proposed by State Ratifying Conventions Compared with Madison’s Original Proposed Amendments*
43. Limit National Taring Powr44 No Limit on State Taxes45. No Federal Election Regulation46. Free Elections47. No Standing Army48. State Control of Militia49. State Sovereignty Retained50. Limits on Judicial Powr
51. Treaties Aard with State Law52. Concurrent Jurisdiction for State and National Courts53. No Infringing of State Constitutions54. State Courts to W Used as tiwr Federal Courts55. Can ApPal Supreme Court Decisions56. Defend Oneself in Court57. Civil Control of MilitaV58. Liberty to Fish, Fowl, and Hunt59. Advisory Council for President60. Indewndent Judiciary
61. State Courts Used if Uss Than X$62. Trial in State Crime OKum63. Judges Hold No Other Office64. 4-Year Limit on Milita~ Service65. Limit on Martial Law66. No Mono~lies67. Reduce Jurisdiction of Supreme Court68. No Titles of Nobility69. Keep a Congressional Record70. Publish Information on National Use of Money
71. TwThirds of Senate to Ratify Commerce Treaties72. T~-Thirds of Both Houses to Pass Com merce Bills73. Limit on Regulation of DC74. Presidential Term75. President Limited to Two Terms76. Add State Judges to Impeachment Prowss77. Senate Dmsn’t Jmpeach Senators78. Limit Use of Militia Out of State79. Judicial Salaries Not Changed80. Add Requirements for Being President
81. Twf’birds Vote of bth Houses Needed to JJom Money82. Two-Thirds Vote of Congress Must Declare War83. Habeas Corpus84. Congress Sessions to Be Open85. No Consecutive Terns in Senate86. State ~gislature Must Fill Vacant Senate Seat87. Limit on Powrofbwr Federal CourtsM. Congress May Not Assign Duties to State89. Congress May Not Regulate State Paper Money90. No Foreign Troapsto Be Used
91. Stale Law Used on Militay B=es92, No Multiple Offi@-Holding93. Limit on Bankmptcy Law94. No Presidential Pardon for Tre%on95. President Notthe Commander oftbe Army96. Official Fonnfor President’s Acts97. No Poll Tm98. No Suspension of Lam by Executive99, No Separate Emoluments
lfH1.Judicial System May Not Be Bypassed
MD MA
x
x
x
xxx
x
x
x
x
x
x
x
x
xx
xxx
NH
x
x
x
x
xxx
NY
x
x
x
xx
xxx
x
xx
x
xx
x
x
xxxxxxx
xxxxxx
NC
x
xxxx
x
xx
x
x
xx
xxxx
x
x
xxx
x
xxx
PA SC VA Madison
xxxxxxxx xx xx xxx x
x
x
x xx xxxx
x
xx
xx
xxxx
x
x
x
xxx
lntergovemmental Pemwtive/FdllWl 9
Table 3Madison’s List of Proposed Amendments Comparedwith Provisions in the Existing State Bills of Rights*
1. Po%r Derived from the People2. Government Exercised for the Common Good3. Life, Liberty, Propetiy, and Happines4, Right of the People to Change Government5. Number of Representatives
6. Congressional Pay Raises7. Free Exercise of Religion8. Right to a Free Conscienw9. Free Speech
10. Free to Write
11. Free hess12. Right to Assemble13. Petition and Remonstrance14. Right to Bear hs15. Pacifists Need Not Bear Arms
16. No Quartering of Troops in Peacetime17. No Quartering without Warrant18. No Double Jeopardy19. No Double Punishment20. No Self.Incrimination
21. Due Process of Law Guarantwd22. Com~nsate for Proprty Taken23. No Exwssive Bail24. No Cmelor Unusual Punishment2S. No Unremnable Search and Seimrc
26. S~dyand Public Trial Guaranteed27. Told Nature of CrimeZ. Confronted with_rs29. Can Call Witnewes in Own Defense30. Right to Counsel
31. Rights Retained by States or People32. Nolmplied Po~rsfor Congre~33. No State May Violate8, 11,0r26 above34. Appeal timited by Dollar Amount35. Jury Cannot Se B~assed
36. Impartial Ju~from Vicinity37. Jury Unanimity Required38. May ChaOenge any Judicial Detision39. Grand Jury Indictment Required40. Jury Trial for Civil Cases
41, Separation of Po~rs Required42. Powrs Reserved to States or People
DE
xxx
xx
x
x
xx
x
x
xxx
xxxxx
MD
xxxx
xx
xxx
xx
x
xxxxx
xxxxx
x x
x
MA
xxxx
xx
x
x
xx
x
xxxxx
xxxxx
x
xx
NH
xxxx
xx
x
xxx
x
xx
x
xxxxx
xx
NC
x
xx
xxxx
x
xxxxx
xxx
x
x
PA
xxxx
xx
x
xx
x
x
x
xxxxx
x
VA
xxxx
x
x
xx
x
x
xxx
xxxx
x
x
x
Madison
xxxxx
xxxxx
xxxxx
xxxxx
xxxxx
xxxxx
xxxxx
xxxxx
xx
“The tii-st42 rights arethme Madison compiled and sent to the not in Madison’s proposed amendments. Madiwn’s list isHouse of Representatives. The order is that used in his list. The taken from the original document in the National Archives,rest of the rights are thw found in the state bilk of rights, but The rights in the state bills of rights are based on the docu-
10 Intergovemmentat P3m~tlve/Fall IWI
43. No Taxation tithout Consent44. Free Elections Protected45. Frequent Elections Required
46. No Standing Amy Permitted47, CivOControl of Military4S. No Martial Law(suspending law)49. No Compulsion to Bear Arms50. No ExPmt Facto Law
51. No BOlsofAttainder52. Habeas Corpus53. Justim Not Sold54. Lncation of Trial Convenient55. Inde~ndent Judiciary
56. Recurrence to Fundamentals57. State in Community to Vote58. Equality Is Supprted59. Majority Rule Is Protected~. Frequent Meeting of Legislature
Table 3 (cont.)Madison’s List of Proposed Amendments Comparedwith Provisions in the Existing State Bills of Rights*
61. Free Speech in Legislature62. Convenient Location of Legislature63. Public Offi& Not Hereditary64. No Title of Nobility65. No Emoluments or W1vileges
66. No Taxing of Pau~m67. No Mono~lies6S Collective ProWrty Right69. No Sanguinary La-70. Right to Common Law
71. Right to Migrate72. No Poll Tax73. No Infringing of State Constitutions74. No Religious Test75. Supyrt of Public Worship
76. Attend Religious Instmction77. Uniform Supprt of Religion78. SupPrt of Public Teachem79. Time to Prepare hgal Defenw80. Rotation in Executive Office
81. No Multiple OfticeholdingS2. Proportional Punishment83. Qualified Jurom
DE
xxx
xxx
x
x
x
x
ments as cnllectcd in Francis N. Tbov, ed., The Fedeml attdSlate Constitutions, Coloniaf L’hanem,and O{her O%anic Lawsof the United Stares (Washington, DC Government Printing
MD
xxx
xxx
x
x
xxx
x
x
xx
x
xx
xx
x
x
x
MA
xxx
xxx
x
x
xxx
x
x
x
x
x
x
xxx
NH
xx
xx
xx
xx
x
x
x
x
x
xx
NC PA
x xx xx x
x xx xx
xx
x
x x
x
xx
VA Madison
xxx
xxxx
x
xx
x
x
x
x
x
x
Offim, 19i17),7 VOIS.When an X under under “Madison” isitalicized it means that tbe pro~ed right eventually wincluded in tbe U.S. Bill of Rights.
Intergovernmental PerspecOve/Fall 1591 11
Rights had been codified in state bills of rights by 1789.Sixteen of the 26 rights were first codified and protectedin a document written by a colony’s government. Fourmore were first codified and protected in documentswritten by the Continental Congress. Thus, nble Ishows that the Bill of Rights was not simply made upfrom nothing by a few people in 1789. These rights ex-isted in state and colonial documents.
The Limited Role of the Ratifying Conventions
There is still the third assumption to cunsider. It isperhaps natural to assume that Madison used the amend-ments proposed by the state ratifying conventions to pro-duce his own list of proposed amendments for the Con-gress. After all, eight of these ratifying conventions hadtogether proposed 100 distinct amendments, and it wasthe opposition to the Constitution represented by theseproposed amendments that Madison needed to address.Aa ‘Rible 2 illustrates, the 42 distinct rights mntained inMadisun’s nirreprupused amendments, lkted in the orderhe gave them as numbers 1-42in the table, do seem to be re-lated to what uaapropaed by the ratifyirrg inventions.However, if we uaeacrude measure ofa-tion toap-proxirrrate the “denahy” of the relationship ktweenMadiann’s liit and the proposals of the state ratifying CO”.ventionh we are led to a mntraty conclusion.
The data on state ratifying conventions in Wble 2 con.stitute a matrix that is 8 cells wide and RXlcells from top tobottom. The more cells that have an X in them for the ma-trix defined by the top 42 rows (that is, the more state rati.fying conventions that proposed one of the amendmentsthat ended up in Madison’s list), the denser the relation-ship between Madison’s list and the convention proposals.~irty-five percent of the cells are filled (116 out of 336)which suggests a modest relationship between the twosets of proposals. However, if we identify the proposedamendments made by the state ratifying conventions thatmost duectly addreaaed the protection of state sovereignty(number’a 31, 34 and 42-53), only 3 of these 14 propowlsmade it onto Madison’s list; the density for the 14pro~aalsia 46 ~rcent (51 out of 112 cells). That ia, while there is amudest relationship between what Mad~n put in hs listand what the states propused, Madiaun avoided almost all ofthe amendments that the state mt~g inventions wntedmost —mmely, reinforcements for state auvereignty.
Madison needed to make some connection with stateinterests to mollify the Antifederalists, but he did not likemost of what the states proposed. The tactic he fastenedon was to exploit seams in the Antifederalist position.Americans who argued most vigorously against the pro-posed Constitution offered three different kinds ofamendments that were often intertwined and confused.One type of amendment was aimed at limiting the federalgovernment by withholding a specific power. Examples in-cluded prohibitions on direct taxes, monopolies, and bor-rowing money on credit. A second type of amendment al-tered an institution in such a way as to pull teeth.Examples included making senators ineligible for concur-rent terms, giving state and national cuurts concurrent ju-riadiction~ and requiring a two-thirds vote in both housesfor any bdl dealing with navigation or mmmerce.
A third type of amendment was one suitable for a billof rights as we now understand it. Examples included pro-tection of the rights to speak, write, publish, assemble,and petition (rights that safeguarded the ability of a peo-
ple to organize politically), as well as prohibitions onself-incrimination, double jeopardy, excessive bail, andsearches without a warrant (rights that defined an impar-tial legal system). One cmr see in Madison’s selection pro-cess a clear inclination toward the third over the first twokinds of amendments.
In effect, then, Madiaun avoided any alternation inthe institutions defined by the U.S. Constitution, largelyignored apec~lc prohibitions on national puwer, and optedinstead for a list of rights that would mnnect clearly with thepreferences of state govemment$ but would not increasestate puwer via-a-viathe federal government as defined inthe Constitution. me states’ cmrcems abmrt ~wem andrights were subtly shifted to a fms only on rights.
This finesse upset snme Antifederalkt$ who awedthat Madisnn had “throw a tub to the whale” (that is,created a distraction to deflect attention from the real issue),but it worked vety well for one critical reaaon: Madi.wn usedthe bills of rights attached to the state constitutions as hismndel. The Antifederalists had difficulty op~singMadison’s use of thk mrrdelbecause it was of their own mak-ing and was part of what they were demanding. Madiann of-fered the Andfederaliats the ‘ppr harrieca’”he felt wereineffective in &ting state cmrstitutions, and the h-tifederalists had either to accept such amendments as usefulor to admit the truth of Madtin’s “paper barrier” argument.
The Centrality of State Bills of Rights
An examination of the state bills of rights written be-tween 1776 and 1787 shows that Madison effectively ex-tracted the least common denominator frOm them as thebasis for hls propused list of amendments, excepting thoserights that might reduce the power of the federal gover-nment.Almost every one of the 26 rights in the U.S. Bill ofRights could be found in two or three state documents,and most of them in five or mores
Tire state bills of rights typically cmrtained a more ex.tensive listing than did the natioml version. MaVland’s 1776dwment listed 49 rights in 42 acctions; M-chusetts(17W) Iiited 49 rights in 30 sections and New Hampshire(1784) Iiatd W rights in 38 sections.’ Viginia’s (1776) 42rights and Pennsylvania’s (1776)35 rights came closest to du-plicating the mntent of the U.S. Bitl of Rights.’
~ble 3 shows clearly the strong connection be-tween the state bills of rights and Madison’s proposedamendments. If we look at the matrix formed by the 42rights on Madison’s list and the seven state bills ofrights, 59percent of thecellsin the matrix are filled (173out 294) compared to the 35 percent density betweenMadison’s list and the amendments proposed by thestate ratifying conventions. If we construct a matrti us-ingthecontentsof the state bills of rights and the rightson Madison’s list that were eventually ratified as theU.S. Bill of Rights, we find that the percentage of thematrix filled rises to 71 percent (129 out of 182 cells),compared with 45 ercent (81 out of 182) when compar-
!ing the state rat] ylng convention proposals with therights ratified as part of the U.S. Bill of Rights.
The density of the relationship between Madison’slist and the final Bill of Rights appears to be about 60 per-cent stronger than either of them is with the list of amend-ments proposed by the state ratifying conventions. Ofcourse, the members of the ratifying conventions wereworking from expectations crest ed by their respectivestate constitutions and bills of rights, which explains thestrength of the relationship between their propuaals and
12 Intargovemmenti ParspectivelFall 1Wl
Madison’s Iisq but the significantly stronger relationshipbetween the state bills of rights and the U.S. Bill of Rightsindicates that, ultimately, the state documents were thebasis for the form and content of the national dmument.
A final mmparison between ~ble 2 and ~ble 3 indi-cates another connection between the state and nationaldocuments. The listing for the two tables is the same fortbe fmt 42 rights becauac these are, in each case, the rightscontsined in Mad~n’s propowd amendments in the orderin which he proposed them. However, the rights Iiated afternumber 42 vary in the two tables depending on the contentof the documents being -mined.
In T?ible3, rights 43-52 have a ve~ high density. Theyalso bappcn to be addressed srra~ully in the bndy of theU.S. Constitution proper, as are 55,61-65, and 81. In otherwords, many protilons commonly found in state balls ofrights had been addreased in the Constitution and did notneed to be included in the Bill of Rights. AIw, only a few ofthese pro~lons from the state blls of rights are duectly mn -tradicted by anything in the Constitution. me impmtance ofthe state institutions for the fedeml Constitution is thuseven stronger than is apparent from an examination of theBill of Rights alone. ff we look at the lit of proposals fromthe state rrdifying inventions, however, only eight are ad-dressed in the Constitution pro~r, whale at least ~ of theremaining proposals are directly contradicted by prntilonsin the Constitution. The state institutions and their respec-tive ballsof rights, not the amendments propsed by state ra-t~g WnventiOns, are the fimed~te SUUI= frOm whichthe U.S. Bill of Rights ws derived.
Conclusion
Students of American politics sometimes speak of thestat es as laboratories for innovative pulicies that, after aninitial trial by states, eventually form the basis for muchlegislation by the Congress. However, innovation inAmerican rights protection is usually portrayed as begin-ning with the U.S. Supreme Court and as being imped onthe states. Although there is considemble truth in this view,it holds pt’immily only for the perind of the 1940s to the197~. It is worth remembct’ing that the ve~ idea of a fittenbdl of rights attsched to a constitution, as well as the mntentof the US. Bill of Rights, were fti developed by the sts-tes–namely, the people of the ocigind 13states who wroteour frst constitutions.
Donald S. Lutz is professor of political science,Universi~ of Houston.
Notes1The authnr haa relied on the texts aa found in Richard L Percy,cd., Solt~es of Our Liberfies New York Asswlated CollegePresses for the Ameriran Bar Asmiation, 1959), pp. 11-22,73-75,and 245-250.
2See, for example, Perry, pp. 23-24.
3See Bernard Schwrtz, 77ie Gmaf Rig~~tsof Manki/~d:A Hi$tovof t/leBi// of Rigl]fs(New York, Chelsea House Publishers,1977),p. 197;as wellm Iting Brant, Tf]eBi// of Rig/t/s: 1/$Origi/t andMeani,fg (Indianapolis Bobbs Merrill Company, 1965), espe-cially chaptem 5 and 6.
4Annals of Cong=ss, Vol. 1,p. 436.
5The state constitutions and their respective state bills of rightscan be found in Francis N. ThoVe, cd., The Federd and State
Constitutions (Washington, DC. Government Printing Office,1W7), 7 Vols.
6Tborpc, pp. l~&1691 f.Maryland), 1W9-1893 (Mmachuxtts),and 2453-2457 New Hampshire).
1~P, pp. 3$W3S14(Virginia)and -W (Penmylvania)
Rights: The States and the Fedeml Government(continued fivm p.gr 5)
with “freedom of contract” and “pmpe~ rights.” GenemOy,these dtilons limited the efforts of the progressive statesto come to grips with the al prnblems of the industrialrevolution. The court inventti tbe doctrine of subatsntivedue prmess, which, as applied to the states, Iimitcd the pos-sibility of state Iegialation in such matters as regulation ofwages mrd houm or the organization of unions on thegrounds that such actions by their very nature violated thesubstsnce of rights. The Couti’s rtdinga did much to bringabout later federal intervention in those fields.
Beginning with Gif/ow v. New York, the U.S. SupremeCourt began to apply other provisions of the Bill of Rightsto the states, especially those relating to the First Amend-ment freedoms, particularly rights of free speech (laterexpanded to free expression) and church-state issues. Be-ginning in 1940, but most especially after Earl Warren be-came Chief Justice of the United States in 1953, the Courtbegan applying other articles of the Bill of Rights tn thestates, although still selectively, especially rights of priva-cy and rights associated with criminal justice and obscen-ity. In so doing, the court sought to achieve greater nation-al uniformity on rights matters. Since its high-water markin the late 1960s, the Court has had to draw back fromsome of its more far-reaching decisions to establish na-tional uniformity because they simply did not work.Prncedtrrally, they placed an intolerable burden on thenine justices, wbo had to sit almost as a Imal com’t on mat-tera which required adjudication witbin the states them-selves. From a larger perspective, the Court tried tocreate national standards where the great diversity of tbeUnited States, a plurslism upon which Americans pridethemselves, required other solutions.
Even more far-reaching was the Warren court’s inter-vention in state governmental processes. Whh landmarkdecisions on reapportionment, beginning with Baker v.Carr (1%2), federal court standards were applied, on Billnf Rights grounds, in an area that had always been left tostate political processes. Paradoxically, the political effectof those decisions was to strengthen state government bymaking it more responsive to the new needs of subufiia.In the 1970s, the Coufi entered into such traditionallystate fields as abortion. These and subsequent rulingsleave many constitutional lawyers with the feeling that theCoufi has turned matters on their head and that the con-stitut ional protect ions the Bill of Rights was designed toprovide for states, as well as individuals, have been con-signed to the political process.
Today, bnth the federal government and the states ac-tively pursue the protection of rights. U.S. SupremeCorrti intervention is more directed to fine tuning than tomassive change, while many state supreme courts keepraising rights standards on state constitutional grounds.
Doniel J. Elazor is director of the Center for theStudy of Federalism, Temple Universi@.
Intergovernmental Parspactiva/Fall 1991 13
~ ACIR P.bhcatlo.s ~
Interjrrrisdictional Taxand Policy Competition:Good or Bad for the Federal System?
What are the benefits and costs of interjurisdictir) nal competition?Does competition improve efficiency or lead to a less equitable system ofstate and local finance? Is competition a zero-sum game or does it expandpublic benefits for all parties? This report focuses on interstate and inter- Inter’jur’isdictional
local competition to synthesize the research that has been done during W and Pulicy Competition:
the last decade, examining various measures of competition, the federal- or Badfor the Federrd System?
role in setting the framework, types of tax and service competition, regu-Iatocy competition and competition for economic development. and howthe negative view of competition has changed since 1981.
M-177 1991 72 pages $10
@-—. ,lb,,~—.
Competition among State and Local Governments:Efficiency and Equity in American Federalism
American state and Iocal governments are the focusof increasingattention aswenear theendofthe 20th centu~. Since 1978, real federalaid has declined and more federal mandates have bee” imposed, whilestate and local poticymakers have faced continuing citizen concerns abouttaxes. Interest in the effects of competition among states and localgovernments has been sparked by these and other changes in the federalsystem. Governments make use of public service, tax, and regulato~policies in efforts to compete with each other. llre contributors takeafresh look at the effects of competition. Questions addressed include howcompetition affects the taxing, spending, and redistributive behavior ofgovernments, and competition for economic development. Two decadesago, policymakers and analysts were nearly uniform in decrying thedetrimental effects of competition on public service levels and taxsystems. Now, there is a growing realization that such competition can,under certain circumstances, have beneficial effects. The book was editedby Daphne A. Kenyon and John Kincaid and was published by The UrbanInstitute Press in cooperation with ACIR.
OP.1 1991 299 pp. $52.75 (cloth)$24.25 (paper)
(see page 57 for order form)
14 Intergovernmental Perspective/Fall 1991
The Legacyof
19th-CenturyState
Bills of Rights
Kermit L. Hall
In the past decade, state constitutions andtheir accompanying bills and declarations ofrights have stirred considerable attention.Much of this interest stems from a belief that, inthe face of an increasingly conservative U.S. Su-preme Court, state high-court judges can raisethe ceiling of rights well above the minimumfloor already provided by the federal courts.Former Supreme Court Justice W]lliam J.Brennan and Oregon Supreme Court JudgeHans Linde, for example, have inspired much ofthis enthusiasm for state constitutional law.1They frequently point to 19th century state con-stitutional history to demonstrate the advantageaof local control and state judicial review. Al-though this call for a revitalization of state-basedconstitutional rights has considerable meri~19th century state constitutional history had itsdarker side, one that raises concerns about howwell retinal rights can be protected throughstate constitutions and bills of rights.
Neglect of State Bills of RightsThe new attention to the state constitutional tradi.
tion is welcome, if for no other reason than it has beenneglected for so long. The story of our federal constitu-tional histoty has been explained from the top downrsther than the bottom up, a perspective encouraged bythe stability of the federal government and the difficultyof generalizing about constitutional developments in S0states. The United States, after all, has had only oneconstitutional convention (in Philadelphia in 1787] thestates have held more than 230 separate conventions.Since the beginning of tbe republic, there has never beena three-year period in which at least one state constitu-tional convention has not met. ‘I’he w states haveoperated under no fewer than 146 different constitutions,with most states having had two or more. Through 1988,more than 8,000 amendments have been proposed, andmore than 5.000 of these have been added to the organiclaws of the states.
The bills and declarations of rights connected withthese state documents were, after all, the first Americancharters of liberty. The Masaacbusetts Comtitution of17W is the oldest written constitution still in effect in themnrfem world. me drafters of the federal Bill of Rights,moreover, borrowed extensively from the early stat eezpecience, which in turn derived from the strongmvenantal tradition in the colonies. mat traditionincluded the Mayftower Compact of 1620, the chartera ofthe original colonies, and later the tovin covenants of thecolonial frontier. All of the rights eventually recognized inthe federal Bill of Rights had previously been spelled outin one or more of these early documents.
Limits of U.S. Bill uf RightsState bills of rights continued to be important in the
19th centuty, despite the presence of the first tenamendments to the new federal Constitution. Theframers of the U.S. Bill of Rights had an opportunity to
aPPly thOse rights protections to tbe states, but theydecided that the Bill of Rights should apply only againstthe federal government. James Madison, the architect ofboth the Constitution and the Bill of Rights, wasconvinced that state constitutions alone were inadequateto protect minority rights. Accordingly, he offered as partof his proposed Bill of Rights an amendment providingthat “No State shall infringe the right of trial by Juy incriminal cases, nor the right of conscience, nor thefreedom of speech or of the press.”z Because theseguarantees would go into the Constitution, Madisonbelieved that “independent triiumls of justice WI considerthemselves in a peculiar manner the guacdiins of those~ghtS,*J3M~&i~ ~ncl”ded that thk judicially e~O~ed
natioml restriction against the statca was essential if localmajorities were to be prevented from abusirrg minorityrights. The Senate, however, rejected hia pro~sal.
Throughout tbe 19th century, therefore, the Bill ofRights only limited the federal government. Chief JusticeJohn Marshall asnctioned this view in Barren v. Baltimore(1833); there the matter stood until ratification of tbe 14thAmendment in 1868. That amendment granted sign~l-cant new authority to the federal government to prevent
Intargovemmental ParsFtive/Fall 1991 15
the states from intec’fering with due prwess of law, equalprotection of the laws, and the privileges and icnmunities ofcitizens of the United States. ‘flee Supreme Court, however,mncluded that the state action protilon of the amendmentdid not incmpnrate (that is, bring under the scope of theamendment) the various guarantees of the Bill of Rights.me justices did not embmce the concept of tiem’pnrationuntl the 1920s, and even then, they did su only selectively.
For most of our history, therefore, state bills of rightshave been the primacy line of defense against governme-ntalinvasion of personal liberty. Wrenching any generalim-tions about these documents from the welter of 19thcentury state constitutional activity is complicated, in paflbecause it has been so little studied. Still, patterns doemerge, and those patterns caution us against relying toofully on state constitutional authority to safeguard liberty.
Pupular Consent and Cuntrol as Limits on Rights
Such prudence is in order because popular controland consent were the most important sources of 19thcentury state constitutions. Constitutions became lengthydocuments filled with seemingly endless details that madethem and their bills of rights less and leas statements of fun-damental principles and more and more super-legislation.For example, the decision by Wyoming constitution-makers in 18W to proaccii certain schuul tefitik af-fiied that whomever controlled the wurse of constitution.al change could also mold constitutionally mandatedrights. Politicians frustmted by the regular legislative prncessturned to constitutional conventions and the amendingprocess to secure social and economic objectives, a devel-opment that weakened the rhetorical power of bills ofrights. State constitutions became law cudes rather thanfundamental frames of government.
The comparative brevity of the federal Constitutionhas been a source of its strength, It is composed of approx-imately 7,400 word$ only the Vermont constitution isshorter, at an estimated 6,600 words. In 1776, the averagelength of state constitutions was 7,150 wordy by 1900, ithad ballooned to approximately 29,000 words, sumewhatgreater than the 27,00il-word average today. Nineteenthcentury state constitutions became remarkably pliabledocuments of mudest age, and they increasingly paled be-fore the federal Constitution as stable representations offundamental principles and timeless structures designedto distribute and protect rights fairly.
The emphasis on popular consent and control alsoeroded the independence of 19th century state supremecourts. The justices of the U.S. Supreme Court wereappointed for good behavio~ their independence enabledthem to promote the institution of judicial review and theconcept that the justices alone could conclusively inter-pret the federal Bill of Rights. The state appellatejudiciary developed in exactly the other way. Beginning inthe 1S40s, state constitutional reformers succeeded inmaking the bigbest judgeships in most of the stateselective offices of limited terms rather than appointivepositions held during goud behavior. Local majoritieswere able to control the xope of state ballsof rights throughthe pressures they brought to hear on elected judges as wellas the influence they exercised in constitutional conventionsand over the amending proces.
The result was considerable variety in the rightsenumerated in the state dwuments, often differinginterpretations of the mpe of those rights from state tostate, and even instances when ermmecated rights werenot enforced or were even litigated. For example, the U.S.Supreme Court heard few direct challenges to freedom ofspeech and press before World War I involving the states(or the Congress for that matter) because it refused toincorporate the Bill of Rights through the 14th Amend.ment. Under these circumstances, mnstitutioml protectionof speech fell reclusively understate bills of rights. Yet thereis only a handful of repotted cases dealing with freedom ofexpression dining the entire centucy, even though everystate constitution, in one form or another, protected theserights.4me rights that we mnsider the most fundamental todemocratic self-governance today were barely enforced as amatter of state constitutional law in the 19th century. In thepre-CivO War era, for example, many state mutis @thNofih and South) inte~reted the speech and pre~ clausesof their ccmstitutions in ways that muzzled ahnlitionist andanti-slavety advocates.
Religious Freedom
The status of religious freedom during the 19thcentury offers another example of the way in which statebills of rights often yielded before majority sncialpressures. Aa G. Alan ‘fkIT has explained, the newAnrericmr states did not an much guarantee freedom ofreligion as regularize the relationship between churchand state within their horders.s While state-establishedchurches persisted, early constitution-makers framed billsof rights that repudiated the colonial practices wherebygovernment either infringed on rights to worship in faithsother than the established church or collected taxes forthe established church. As ‘fkrr reminds us, the liberalPennsylvania Constitution of 1776set the standard for the19th century, although mme states adopted it sooner thanothers. The Pennsylvania document guaranteed that “allmen have a natural and indefeasible right to worshipAlmighty God according to the dictates of their ownconscience; that no man can of right be compelled toattend, erect, or support any place of worship, or tomaintain any ministry, against his consent.”b
Early 19th centucy constitution-makers also recog-nized the existence of Gud and the dependence of thestate on God’s favor. The New Jersey Constitution of1S44, for example, attributed both the civil and religiousliberty of the state to the guiding hand of Gti. Thisprovision, however, offered scant protection to nonbe-lievers, which is what its framers intended. The prevailingassumption was that government protected religiongenerally and Protestant Christianity in particular. Reli-gion clauses in state institutions reinforced the impacton religion of suciety and government while simulta-neously blunting the intmsion by government into thereligious sphere. Prevailing interpretations of state bills ofrights, therefore, permitted government officials toprosecute blasphemers of the Protestant church andmerchants who insisted on doing business on Sunday.
Beginning in the 1850s, the ethnic and religiousupheavals associated with immigration inspired state
16 Intergovernmenti Pers~tive/Fall 1991
constitution-makers to reformulate religion clauses. Theleaders of the emerging Roman Catholic church in NewYork City and Boston, for example, charged that publiceducation indoctrinated students in the Protestant ethicto the exclusion of other religious beliefs. Even moreimpmtant, they complained that public revenues shouldnot be used exclusively for schools that preached onlyProtestant learning. The Protestant majorities in stateconstitutional inventions and legislatures did not re-spond to these demands by redistributing funds; instead,they reformulated the religion and education provisionsof their constitutions to take account of the newcomerswhile maintaining Protestant hegemony. In almost everyinstance, eastern states adopted constitutional languagethat made it a matter of right that public funds could notbe diverted for denominational pu~oses and prohibitedschools that received those funds from carrying out anyreligious practices. Where the impact of immigration wasless direct, traditional practices continued. In thepost-Civil War period, for example, Mississippi retained aconstitutional requirement for Bible reading in achmls.Constitution-makers in other aouthem states embracedlanguage that either pemritted or required this practice inthe schools. ‘fIre decision to include such an item in theirbills of rights suggests that without them, the practiceswould probably have been prohibited.
Settlers in the trans-Mississippi West carried much oftheir eastern constitutional baggage with them, includingattitudes toward religious freedom. The Oregon Consti-tution of 1859, for example, closely paralleled its Indianacounterpart, including in almost exact fornr the Iattcr’sbill of rights. As the West matured, however, forces ofppular control and consent reacted to Incal circumstancesby leaving their own often unique impact on state balls ofrights. me Washington Constitution of lgE9 affiied theindependence of the West by declaring that public schunls“shall be forever free from sectarian control or inffuenm”and fotildding the qendbure of public money on any“religious worship, exercise or institution” or the “support ofany religious establishment.”~
MinorityRights
Western constitution-makers innovated in otherareas as well. Even as a territory, Wyoming in 1%9extended the right to vote to women; by the time the 19thAnrendment to the U.S. Constitution was ratfled in 1920,17 states west of the Mississippi River had authortiedfemale suffrage. One by one, the arid states of the farWest followed the example of Colorado in 1879, whenthat state’s constitution-makers declared water a publicproperty right to be distributed in the best interests of thepeople of the state. ~ken together, these developmentsunderscore the pragmatic and reactive nature of 19thcentury state protection of rights.
Popular consent and control also limited the sweep ofrights guaranteed to racial minorities. Peranns of African-Arnerican and Chinese descent suffered because of theirminority status, despite the constitutional wording guar-anteeing individual liberty. Constitutions drawn in thesouthern states, for example, included provisions that
enslaved African-Americans before the Civil War andsegregated them after Remnstmction. Chinese-Americ-ans in the West were systematically denied basic political,aucial, and economic rights. Popularly elected statesupreme court justices in both sections of the country didlittle to protect either group.
The traditions of constitutionally accepted 19thcentury discrimination died hard. Only the organizedlitigation efforts of the American Civil Liberties Uninn,the International hbor Defense, and the NationalAssuciatinn for the Advancement of Colored People inthe federal courts produced meaningful change in thiscentury. These organizations developed constitutionalstrategies that ultimately enlisted the national power ofindependent federal judges to break African-Americanand other minorities free of the grasp of oppressive statemajorities.
Judicial Independence vs. Popular ControlThe contemporary lessons to be drawn from the 19th
century histmy of state bills of rights are two-fold. Thefirst is that an important tradition of rights has esisted inthe states, and that tradition remains an inspiration tcday.Despite the majoritarian forces of consent and controland despite the degeneration of many state constitutionsinto law codes filled with super-legislation, these dncu-ments persist as bulwarks of individual liberty. Yet, if thestates have been, from time-to-time, creative laboratoriesfor the constitutional protection of individual rights, the19th century record alsu reminds us of their limitations.Because state constitutions rested su heavily on popularcnnsent and control, the judicially interpreted federal Billof Rights developed in this century as the best means ofprotecting local minorities in the states from politicallydominant majorities. Of course, we ignore state bills ofrights at our peril, as both Justice Brennan and JudgeLlnde have so wisely reminded us. Yet we should alsoheed Madison’s admonition of two centuries ago that thefederal Bill of Rights interpreted by an independentjudiciary provides the best possible protection for libertyin all of the states.
Kerrnit L. Hall isprofessorof history and law, Uni-versity of Flon”da.
Note~1WOliam J. Brennan, “State Constitutions and the Protection ofIndividual Rights,” Hmard Lmv tiim 90 (Janumy 1977)489-504; and Hans Linde, “Due Process of Lawmaking:Nebmka Law Reviw 55 (1976) 197-Z7.
2ASquoted in Kermit L Hall, cd., “Byand For tlle People”:‘ffleBi// of Rig/~tsi)l American His[oy (Arlington Heights. IllinoisHarlan Davidson Publishers, 1991), p. ~.
3Ibid., p. 20.‘We know more about the fate of the press than of speech in the
19th century, See Timothy W. Gleasnn, ‘f’6eWatchdogCo:rcept:7f1ePress and lhe Coufls in 19(11Ce,?t[:tyAtllerica (Ames IowaState UniversityPress, 1990).
5G. Alan Tam,“Religionunder State Constitutions.”Annals of~heAnlerican Academy of Fulitical and Social Scie,rce 496(March 1988) 65-75.
‘Ibid., p. M.7Constitution of the State of Washington, 1M9. Article 9,section 4.
lntergovornmen~PerspectivelFallIWI 17
Federal-StateRelations
in theHabeasCorpus
Process
Daniel E. Lungren
The often arcane process of federal habeascorpus review is an important component of ourcriminal justice system. Since 1867, this statu-tory process has permitted convicted state pris-oners to ask a federal court to determine wheth-er their constitutional rights may have beenviolated in the state process that resulted in“custody?’
At stake in the ha- mrpus prwes are decisions made tytwo snvereign mti systems. The fiit entaiIs the state com’rpr~as that prcdm%d a conviction and a sentence of con-firrement (which alau has been upheld by the state supremecourt and which the U.S. Supreme Court haa decided not toreview). ~ is the direct review pruss through which thestate aceka to enfom its ~ law.
me secmrd process involves the federal coufl reviewof whether any federal rights were violated during the firstprocess. This is the secondaty or collateral stage of review,
Not surprisingly, decisions made in this area of con-cument sovereignty can be the source of great friction be-tween the states and the federal government. Repeatedly,the U.S. Supreme Court has emphasized that feder-al-state relations and delicate federalism interests mustbe taken into account under this process.
Unfortunately. the fedeml habeas mrpus prrrcess is notworkins as itshould. Several studies. including that of a spe-cial committee chaired by former U.S. Supreme Court Jus-tice Letis F. Pnwell. Jr., have mncluded that the prncess isin dire need of reform because it permits unrreces%ry delayand repetitious litigation. LIn the cument mngrexsimral de-bate, a critical policy question is how best to reform thehabeas cm’pusprmss to deal tith these problems while be-ing sensitive to federalii cmrcems.z
On July 11, 191, the U.S. Senate, in an overwhelm-ing bipactimn vote, adopted legislation to redress theseproblems. One central feature of the reform legislationseeks to strike a proper federalism balance as state courtrulings are reviewed in federal coun. The “full and fairadjudication” standard involves the proper standard of re-view of state court judgments that are collaterally chal-lenged by state prisoners in federal court.
As the attorney general of our most pnpulous state, Ibelieve the full and fair adjudication propmal is perhaps thesingle mnst impmimrt prok]on in the much needed reformof the federal ha- corpus process. I have ken along-time advomte of this proposal, which k similar to legis-lation I repeatedly introduced and m-sponwred while amember of the House of Representatives? In 19S4,the Sen-ate alao approved a simiir pro-l by a vote of 67 to 9.4
The full and fair adjudimtion standard is central toany genuine reform bemuse it involves the essence, func-tion, and aeope of federal habeas corpus review. Specifi.tally, in our federal form of government, this reform pro-posal raises the issue of what review should be availableon a writ of federal habeas corpus filed after the state trial,state appeal, and state collateral prmeedlngs and cer-tiorari review by the United States Supreme Court. Putanother way, why shnuld matters fully and fairly decidedby competent state courts be subjected to relitigation inthe lower federal courts?
There are at least five reasons why the full and fair ad-judication standard is an essential part of any congres-sional reform.
1. Federalism Concerns/Deference to State Courts
The full and fair adjudication standard best fulfillsthe principles of federalism and respects the role andintegrity of state court processes. We cannot lose sightof the fact that in t he federal habeas proceeding. the en-forcement of state criminal lavis by the state irr state forumsk at stake. Moreover, in our federal fonrr of government,
18 Intergovemmenti PersWtive/Fall 1991
state comts are cuequal with thek fedeml counte~fis andhave the same obligation to apply constitutional and federalrights. To permit fcder’al intrusion and irrdependent relhiga-tion in lower federal @ur’tsof matter’aproperly and reawn-ably decided instate murt is to relegate state murts to merefact-finding commiaaions whose dectilons are subject to ulti-mte review and resolution by federal district courts andmums of appeal.
SimDlv stated. federal courts are not superior tostate co~r;s merely because the habeas cnrpus ;atute af-fords them the last word and oppnctunity for review. U.S.Supreme Court Justice Sandra Day CYConnor did not be-come a more competent judge when she made the transi-tion from the state courts to the federal judiciary. Nor didCalifornia Supreme Court Chief Justice Malcolm Lucasbecome less competent when he left the federal bench tojoin California’s highest court. Yet, current habeas corpusproceedings treat state and federal judges as if they werevastly different in their ability to interpret and apply con-stitutional law. Historically, state COUHShave been theprimary tribunals for adjudicating criminal laws. Federalintrusion into state court rulings should be the exception,not the norm.
The Congress should confront the matter squarely. Ifit concludes that state courts are unable to apply constitu-tional rights in as competent a manner as federal cmIrt–a proposition I wholly reject —then it should pecmit stateprosecutor to bring theu caaes in federal murt in the fmtinstance at tbe trial level. At least this would avoid duplica-tive rounds of litigation of the same iaaue.
Former state appellate court judge and now U.S. Su-preme Coufi Justice Sandra Day O’Connor recently dis-cussed the problem in this way
When a federal court decides independentlya question that has been decided by several statecoufls, it shows a lack of respect for those stateproceedings. Why do we allow relitigation ofthese claims in federal tour’t? The answer cannotbe that two rounds of review are better than one,because federal habeas does not involve the cu-mulation of judgments. Federal coml determina-tion of federal questions in habeas is indepen-dent of what the state courts determined, and isdispositive; the state court determinations arerendered a nullity. Independent federal court re-litigation of kues that have treenfil~ mdfairfy lifi-gated by state courts may help to achieve a measureof national uniformity, but it seems to me thatmuch of what motivates independent federalinquiry k the notion that federal murts are betterat deciding questions of federal law thmr are thestate comts. I wonder if ths k nece=rily truewhen it concerns the kinds of federal questions thatariae repeatedly in state crinrirml trials:
As a state judge, Sandra Day OConnor also notedthe importance of enhancing the role of our coequal judi-cial systems
If our nation’s bifurcated judicial system is tobe retained, as I am sure it will be, it is clear thatwe should strive to make both the federal and thestate systems strong, independent, and viable.
State coucts will undoubtedly continue in the fu-ture to litigate federal constitutional questions.State judges in assuming office take an oath tosupport the federal as well as the state constitu-tion. State judges do in fact rise to the wcasionwhen given the responsibility and opportunity to doW. It is a step in the right duection to defer to thestate courts and give finality to their judgments onfederal constitutioml questions where a @// andfair adjudication haa been given in the state court.’
2. Consistenttitlr Prior Standardof ReviewThe full and fair adjudication standard would
reinstate the standard for federal court review that hadlong been recognized by the Supreme Court. In oneopinion from 1944, the Com’t noted that a refus~l to deferto state courts is justtiled ordy “where reamt to state courtremedies has failed to afford full and fair adjudication ofthe federal contentions raised. either because in theparticular case the remedy afforded by state law proves inpractice unavailable or seriously inadequate.’” This ruleof deference should apply equally today.
3. Collateral Nature of RemedyThe full and fair adjudication standard is more
consistent with the collateral or secondav nature of thefederal habeas corpus process. We must keep in mind thatfederal habeas review occurs rrfier several stages ofjudicial review have already transpired. ACone commen-tator concisely posed the central question: “Must there befurther supetilon if the Supreme Court has had a chanceto review the caae [on dwect retiew] and has choacn not to,and if the federal district court finds [on mllateml review]that the state bas afforded fair prmes for the litigation offederal rights?”
The full and fair adjudication standard takes intoaccmrnt the secondmy nature of the habeav corpus remedybecmrae it respects tbe trial and appeal in the state forum astbe “rein event,” which haa alrmdy heen subject tocertiorari review by the U.S. Supreme Court. Aa the Courtbaa emphasized irr a related contti, “It must bc remem-bered that duect appl k the pcimaty avenue for review of amnviction or acntence. . The mle of fedeml habeaspreceedmgs, while important in aaauring that constitutionalrights are o~rved, k aecondmy and limited. Federal cnurtsare not forums in which to relhigate state tcials.’w
4. FederalHabeas ReviewRetainedContra~ to the assertion of opponents, the proposed
full and fair adjudication standard would not deprivefederal comts of post-conviction review. Federal habeasreview would be presetved in at least two importantrespects. State decisions would be open to relitigationwhenever an adequate remedy for considering anddeciding a prisoner’s claims had not been provided at thestate level. For example, federal review would beavailable if a state court clearly disregarded applicablefederal law. Second, and perhaps most significantly, thisdetermination would be made by the federal habeascorpus court. Consequently, under the full and fairadjudication standard, federal courts could still correctstate decisions that were decided unjustly. Under this
lntsrgovemman~ PampactivalFall 1S91 19
standard, federal courts would merely be relieved of theburden of reviewing issues that were fully and fairlyadjudicated in state court.
5. Conservation of Judicial Resources
me full and fair adjudication standard conservesalready scarce judicial resources for questions that trulywarrant reexamination. The standard protects the federalinterest in unifmm application of constitutional principlesat the wme time that it respects the role of state courts inour federal system.
The most effective manner to accommodate thedivergent interests affected by federal habeas corpusreview is under the full and fair adjudication standard.Only in this way may the integrity of state court processesbe preserved while criminal defendants retain a right offederal review of those infrequent state court rulings thatmay encroach on essential constitutional rights. In thisway, the original essence, function, and scope of federalhabeas corpus review may be attained,
Conclusion
The objective of the full and fair adjudicationstandard is to avoid relitigation of state court issues fullyand fairly resolved, un/ess truly warranted. The 1983 U.S.Senate report put it best:
Overturning a state judgment–often yearslater and after a defendant has been accorded thevarious remedies and layers of review available inthe state courts—should require a finding by thefederal habeas court that something moresubstan-tial was amiss in the state proceeding than a meredifference of opinion regarding a matter on whichjudges may reasonably disagree. 10
A reasonable “full and fair” standard attains theproper balance in federal-state relations in the habeascorpus area. This standard provides due deference tostate court decisions while preserving federal review ofrulings in vJhich constitutional violations may have oc-curred or in which U.S. Supreme Court precedent hasbeen disregarded. In this way, respect is afforded the cen-tral role of state courts in criminal justice and in our fcder-al system, and criminal defendants retain a right of federalreview for those instances where it is warranted,
D(:niel E. Lungren isAttornq General of Cnlfor-nia ondjrreviously served for ten years us n member ofCongress on the House Judiciary Committee. This isrm edited und updated ver$ion of his testimony beforethe House Judiciary Subcommittee on Civil and Con-siitutiorru[ Rights on June 27, 1991.
Notes‘Judicial Conierencc of the United States, Repoti a,td Pmpsalof tlle Ad Hoc Co,:l,)li(tee on Fedem[ Habeas CoIp!!sin CnpilalCases, August 23, 1989. [PowO Committee Report]
zSignificantly, the current habeas corpus reforms, including the“full and fair” standard, do not implicate Ihe (heat Writ in theConstitution, US. Constitution, art 1, 9, cI.2, but instead arematters ofstatttfo~ concern. Sec Powell Committee Report, p.4, n. 2: see also “Federal Habeas Corpus Renew of State
Judgments,” U,tivemity of Michigan Jol{md of Law 22 (19S9)901, 918-20. There ir no institutional right of Pcatanrictionfederal reviewof state murt judgmen~. In fact, a stotrlto~ right tofederal hakas corpus for state ptinen did not come intotitcncc until the Habsas Coipus Acf of 1867, Ch. 28, 14 Stat.w.
] See H.R. 1333, 100thCong., 1st Sex. (1987);H.R. 1127,99thCong., 1stSess.(1985);H.R. 2238,98th Cong,, 1stScsr.(1983);H.R. 6050, 97th Cong., 2d Sess. (1982); sce also H.R. 2151, titleVI, 98th Cong., 1st Sess. (1983); H.R. 7117, title III. 97th Cong.,2d Sess. (1982).
4S. 1763,98th Cong., 1st Sess., Congressional Rrcord, FehruaT 6,1984, S9778-9795,
5,’~aI Control of Cri”le.,, Speech by Justiw Sandra DayO’Connor at the Attorney Generaf’s Crime Summit, Washing-ton, DC, March 4, 191. @mphasis added.)
6Sandra Day O’Connor, ‘Trends in the Relationship &twenthe Federal and State Courts from the Pers~cdve of a StateCourt Judge: Wi//iam and MaIY I.UWRruiew 22 (1981) 801,814-15. (Emphasis in original.)
~Ex pmrte Hawk, 321 U.S. 114, 118 (1944).s Batur, “Finality in Criminal I.aw and Federal Hakas Corpus
for State Prisoners,” Haward Law Review 76 (1963) 441,524,9Barefmt v. Estelle, 463 U.S. 8s0, W7 (1983). (Emphasis added.)10s,R~p, NO.226,9gth Cong., 1st%. 26 (1983) @mphask added.)
State Regulation of Bankain an Era of Deregulation
Tfdspolicy rcprt examines the key intcrgovemmentaircgulatoV issues arising tim the changing economic andinstitutional stmcturc of the banking and financial scticesindur.t~, It review the history of bank regulation and ana-1- current isauea, focusing on the pup and scope of~WlatiOn and the efl=~ of deregulation on the operationof the Amerfcansystemof dual federal-state banking m~lation. The rc~rt afao evaluatca and mab mmmenda-tions on rcgulato~ pro~als.
A-1 10 1988 $10
State Taxation of Banka:Isauea and Options
This is the w~nd report in a two-part study of state regula-tion and taxation of banking. The study f-son taxationof banks, including rcvicwof constitutional and legal ku~,tax policy, defining a taxable entity, net inmme tm base,administration, and current practice.
M-1 88 1989 $10
State and Fedaral Regulation of Banking:A Roundtable Discussion
At the June 19M CommWon meeting, thu roundtabledi-ion was hefd to offer differing points of view oncurrent legislative pro~afa ~wming bank rsfpdation.The participant@ were James Che~n, American MnkcmAsmciation; David T Halw~n, New York State BankingDepartment; Sandra B. M&ray, ACIR; Kathleen CS’Day,Federal Resci-ve Board; and Keith Scarborough, Independ-ent Bankem -lation of America.
M-1 82 1988 $5
(m page 57 for order form)
20 Intergo.ernmenhl Perspecti.elFall 1WI
StateSupreme
Courtsin our
EvolvingFederalSystem
Ellen A. Peters
M ost scholarly writing about the role of srs-preme courts has taken as its model the Su-preme Court of the United States. From thevantage point of federalism, it is time to explorethe extent to which the federal model informsthe constitutional role of state supreme courts,to inquire whether state supreme courts aremerely minor versions, say, third cousins twiceremoved, of their federal counterpart.
Drawing on the Connecticut experience, I would like tosuggest that there are signWIcant systemic differences be-tween the pursuit of constitutional business in the Su-preme Court irr Washington and in the high coru’ts of thevarious states. Federal and state courts do not necessarily(1) share the same constitutional heritage, (2) operatewith the same degree of accountability for their constitu-tional decisions, (3) confront the same mix of cases ontheir judicial agenda, or(4) rely on the same methndolo~to reach their constitutional decisions.
Our Multifaceted Constitutional Heritage
Connecticut’s constitutional heritage, which pre-dates the federal Constitution, begins with a 1636constitutioml document known as the Fundamental Ordem.Only irr 1818did Connecticut adopt a constitution in a morefamiliar mndem fem.’ Even today, though. hth constitu-tions contirme to guide state constitutioml law.
Prior to 1818. late 18th century legal commentatorsuch as Judge Jesse Root, emphasized the responsibility ofcivil government, irr implementing the constitution adoptedby the people, to ensure “the advancement of order, peaceand happiness irr tiety, by protecting its membem in thequiet enjoyment of their natural, civil and religious rightsand liierties.”2 For the protection of the= well underst~human rights, mmmentrdora and mums invoked, withoutaign~lcant differentiation, common law, natural law, andstatutory principles, all of which they endowed with what wewould today call a constitutional penumbra.
At that time, the only textual basis for individualrights in Connecticut was a statuto~ declaration of rightsin the preamble to Ludlow’s Code of 1650.3Grounded inthe common law, the preamble was viewed as havingestablished an inviolable bulwark for the protection ofindividual rights. “Abridgements perpetrated by thegovernment were considered void on their face and courtswere to refuse to enforce them.”4
Even after adoption of the 1818 constitution, whichcontained a fomal bdl of rights, Connecticut courtsmntinued to look to statutory law as a wurce ofconstitutional prottiion. In Sfrrfev. Lorrrme,5we recentlyconcluded that Connecticut constitutional law, like thefederal rule of Te~ v. Ohio, pemits brief police detentions,tithout a warrant, for the purpose of an irrvestigationIiiited in wpe and time. The precise legal question waswhether such detentions violate the pro~lon, dating back toour 1818 institution, that “[n]o pemn shall be arrested,detairred or punished, wcept in cases clearly warranted bylaw.”b This provision has no counteprt in the federalConstitution. Inquiry into th~ section’s judicial history led usto the 1837case of Jachon v.Bu//och,7which had interpretedthe section’s “solicitude for personal liberty” by reference topre-1818 statutes as the authoritative “state of our law upnth~ subject, at the time of the adoption of the constitution ofth~ state, [which] has not shce been vmied.”s Siice then,statutory safeguards have continued to be recognized fortheir central role in implementing this state-guaranteedinstitutional right of personal Ilberty?
Connecticut’s history of recognized constitutionalrights is rooted in common law precepts as well as instatutory provisions. Well before 1818, Connecticut
Iniergovernmentiwrswtive/Fall 1s91 21
looked to natural law principles as a source of commonlaw rights to the assistance of counsel, the invalidation ofgeneral warrants, the exclusion of confidential statementsgiven by a prisoner to a prosecuting attorney, andprotection against double jeopardy. In Stare v. Stoddard, 10thatcommon law history was a basis for our decision that,contra~ to the federal constitutional holding in Moran v.Burbine,” Connecticut police must inform a custcdialsuspect that counsel has made himself available to offerpertinent legal assistance. We relied on a 1796 treatise,written by Zephaniah Swift, an early state chief justice,which described the Connecticut common law as provid-ing, for any person charged with a crime, “every possibleprivilege in making his defence, and manifesting hisinrmcence, by the instrumentality of counsel.”L2
Our mmmon law history also furnished the backgroundfor another recent ae, State v. Marsala. 13Rejecting thefederal mle of United States v. Leon, we constmcd our stateinstitutional provision that “no warrant . shall issuewithout probable rause’”4 to preclude a gd faith exceptionto our state Uclusionaty rule for searches and seizures thatare not properly supported by a warrant.
The multifaceted nature of Connecticut constitution-al history provides our state constitutional law with astarting point that is different from federal institutionallaw.” A constitutional tradition that does not draw hardlines of separation between constitutional, statutory, andcommon law precepts serves to emphasize that, even inconstitutional law, a state court must cast a wide net insearching for guidance to resolve invariably troublesomeconstitutional controversies.
Our Heightened Awarenessof mat is Pnlitirally Digestible
To a far greater degree than our federal colleagues,state court judges are publicly accountable for theirdecisions. Eve~here in state government, aauntabil-ily and interbranch dialogue have become watchwordsfrom which judges are not exempt.
Structurally, in Connecticut, judges are appointed,not for life but for a renewable term of eight yearsrequiring legislative approval. ” Although judicial reap-pointments have been the norm rather than the excep-tion, although there is no documented connectionbetween non-reappointment and the rendering of acontroversial judgment, the dialogue that accompaniesthe reappointment process recurrently reminds judgesthat judicial conduct is publicly scrutinized. Functionally,the judiciay interacts with the legislature not only tonegotiate budgetaty matters, but also to plan jointly forthe administration of justice. Although, like the federalcourts, we do not give formal advisory opinions, membersof our legislature frequently consult with our judgesadministratively for advice about the scope and thedrafting of policy proposals. The perception that legisla-tors and judges are partners in the business of planning forthe welfare of the state reinforces, in wme measure, thepresumption that legislation is constitutional.
The difference in political climate for Connecticutjudges does not mean that judicial independence islacking. It does coexist, however, with a recognized role
for judicial interdependence that may engender a height-ened sensitivity to what is “politically digestible.”l~
Our Statute. Dominated AgendaThe signllcant cases that come to the Connecticut
supreme court follow a fairly predictable pattern: thedispositive issue will be a matter of state constitutional lawin about 5percent of the cases and of state common law inabout another 5 percent of our cases. All the other rasesbasically involve statutory construction. A judicial agendaw dominated by statuto~ construction may well prcducea spillover effect on the way in which judges view their rolethroughout their case load.
In responding to the steady stream of cases involvingstatuto~ construction, given the generality of thelanguage in which much legislation is rast, state courtsmust often turn to purposive interpretation to assist theirimplementation of the policy that tbe legislature hassought to put into place. Common law methtiolngy ishelpful in this assignment because it reminds judges thatstatutes, like cases. are inherently fact-bound. That is. thelegislature ordinarily responds to perceived evils, tostories of misfortune and unmet needs, which arenecessarily factual in their nature. Judges must thereforesearch for a legitimate accommodation between thepurpose of the legislation, to the extent that purpose isascertainable, and other relevant statuto~ enactmentsand common law principles that may be applicable to thefacts manifested in the dispute before the court.
me institutional significance of this judicial under-taking is underscored by the sobering reality that, despiterecurrent grumbling by legislators, the legislature rarelyoverturns the judicial construction of a state statute.Courts acting as surrogates for the legislature recognize,therefore, that their decisions, although reversible inprinciple, are ordinarily final in fact, This sense ofresponsibility for legislative undertakings may well damp-en judicial enthusiasm for constitutional intervention inderogation of legislative authority.
In contrast to the Supreme Court of the UnitedStates, although wc too have considemhle control overour docket, we do not operate within the constraints ofcertiorari slots. The U.S. Supreme Com’t, hmbardedwith applications for review, now grants certiorari in lessthan 9 percent of its discretionary docket.ls Hence, theCourt must neceswrily target, as worthy of certiorari,those cases that have transcendent national importance,especially in the constitutional arena, When so fewmeritorious appeals can be heard on certiorari, the initialdetermination that a particular appeal will enable theCourt to address a significant constitutional issue mustpredispose the Court to resolving that appeal on theground for which certiorari was granted. Scarce judicialresources counsel against “wasting” a certiorari slot bydeciding the mse on some other basis.
When appeals come to our court, we rarely havepreconceptions about the issues that the cases may raiseor the bases on which they are best resolved. In a courtthat values friendly collcgial interchange. our collec-tive wisdom exerts pressure to adopt the more limitedview to which more judges can subscribe. We are
22 IntergovernmentalParspectivelFall 1W1
confident that, guided by a cautiona~ footnote,important issues not addressed in any one case willreturn for decision on another day.
Our Common Law Method
~gether, these factom commend recourse to ammmon law methodology, even when we are engaged ininstitutional adjudication. This methodoloW, may have adifferent f~s than that which prevails in the U.S. SupremeComt, where principles used to elabmate constitutionalt~s bt the past “often acquired their weight in publicmomlity and . must be reinterpreted in terms of acontem~rmy understanding of that morality.”i9 In federalconstitutional law, “public morality” may have independentweight as a source of law separate from, and transcending,mmmon law methodolo~. In state coufls, even ane~ansive view of common law methodology is unlikely tomake ~litically digesd~le a cunstruct w overarching andhundless in its wpe.
Although the Connecticut experience with ccmsti-tutional adjudication is as yet too limited to commenditself to any grand exegesis, the record to date bearswitness to its common law origins. We have eschewedconstitutional confrontation whenever possible.Whether assessing the constitutionality of a statelemon law’s limitationson the right toa jury tria120or ofa statute granting broad visitation rights to grandpar-ents,21 we have withheld constitutional guidance in theabsence of a factual record precisely documenting thegrievance the parties wanted resolved.
Because even constitutionally driven statutoryinterpretation leaves room for legislative dialogue, wehave looked long and hard to find a creative accommo-dation between statutory language and constitutionalimperatives. In a recent right-to-die case, we searchedfor a statutory pattern that, despite inconsistencieswithin tbe legislation as a whole, allowed vindication ofthe privacy rights of a person in a permanent vegetativestate.22 Confronted by a statute that, contraty to recentConnecticut common law cases, extended the permissi-ble scope of counsel’s argument about damages, wefound a limiting construction that accomplished thepurpose of the legislation but recognized the constitu-tionally grounded judicial prerogative to control theconduct of trials.z] When, having exhausted the “pas-sive virtues,”zq we have reluctantly concluded thatconstitutional intervention is unavoidable, we havetried to craft judgments that are fact-specific and thatgive guidance for acceptable alternate ways and meansto accomplish the ends that the legislature—or theexecutive—has sought to implement.25
In undertaking constitutional adjudication, Con-necticut courts have found that history, reality testing,and experience counsel recourse to the methodology ofthe common law, to prudent step-by -step developmentsthat allow progress to be monitored, complaints to beheard, and mistakes to be corrected. Concerned aboutour lack of in-depth experience in constitutional law,unburdened by predispositions derived from scarcecertiorari slots, and cognizant of our inexperience in
discerning the boundaries of public morality, we havechosen not to compete with the U.S. Supreme Court ina search for overarching constitutional principles. Acase-by-case approach derived from the common law is,for us, a more appropriate model for dealing with theuncertain reach of state constitutional law.
Ellen A. Peters is Chief Justice, Connecticut Su-preme Court. This article is adapted from the FrankRowe Kenison lecture at the Franklin Pierce hw Cen -tec April 5, 1991.
Note~1Corm. Constitution of 1818, reprinted in B. Pmre. cd., T6eFedeml a!td Stale Co!tstitftlions, Colonial Chaiiem a,ld OIl?erO%anic Laws of ///e U,li(ed Stales (1878), Vol. 1. pp. 258-M.
2Root’s Repnrts (1789-1793), p. xvi3J.H. Trumbu 11.cd.. Pt!blic Records of t6e COIOJIYof Co!lr?ectic,,!.(1850), p. SW.
4C. Collier. “The Connecticut Declaration of Rights Iwfom theConstitution of 1816A Victim of Revolutionary Redefinition?Co/mecfic/fl Law Reuiew 15 (1982) 87, 94; see also H. Cohn adW Hmton, Connecticut FofdrConstitittions (1989J p. 18.
5216 Corm. 172, 579 A.2d 84 (19913).
6COnn. Constitution, art. 1, 9.712 Corm. 38 (1837). The case relied on the Connecticut
constitution to hold that a slave, brought to this state by herGeorgia slaveovmer, was a free person here.
812 Corm. 43.
9See, e.g., State v. Carroll , 131 Corm. 224,227-29, 38 A.2d 798(1944).
10206Co””. 157, 537 A.2d 446 (1988).IIM~r~””, Burbine, 475 U.S. 412, 106 S.Ct. 1135,89 L.Ed. 2.d410
(1986).12Z. Sti ft, A SyS[enJof Laws of (IteSlate of Cotrnectic!tl (1796), p.
399.13216co””. 150,579 A.2d 58 (1990).
14C0nn. COnstitutiun,art. 1,7.151tj~this ~“ltifamted heritage that provides a principled basis
for deciding to exercise our own constitutional judgment, evenwhen the U.S. Supreme Coml has reached a different result.Federal interpretations of the US. Constitution, althoughoften ~rsumive on their merits, cannot provide compellingprecedents for our inte~retation of our ow constitution, anymore than state statutory constructmns elsewhere can bind usas % constme enactments uf our own legislature. See E.Peters, “State Constitutional Law Federalism in the CommonLaw Tradition,” Mic6iga!t Law Rwiew 84 (1986) 583,593.
‘bConn. Constitution, art. 5, 2-4.17w~lli”gtOn, [jlt~p~li,rg IIleConstil{ition (19~), P. 19,ssee 58 U.S. LMVWeek 3144 (1990).
lqWellington, p. 85.20Motor ve~ic]e Ma”ufact”rem Association of the United
States, Inc. v. ONeiO, 203 Corm. 63,523 A.2d 486 (1987).11~brer”, Da~~, 214 Con”. 232, 571 A.2d 691 (1990).22Mcco””eII”, RverIy Enterprises Connecticut. Inc.. ~ COnn
692,553 A.2d 596 (1989).23Bafiholom~w”, ~hwimr, 217 Corm. 671, 587A. ~ 1014(191)24A]exa”der ~lcke], nrc Least Do!!gem)ts BInrIc6:Tire SIIP*IT7e
CoI(flat f)?eBarofPu/i(ics (M cd.) @ew Haven: Yale U nivet’sitvPress, 1986).
25see, ~,g,, Fre”~h v. Amalgamated ml Union 376. UAW. rn3
Co”n. 624,526 A.2d 861 (1987).
IntergovernmentalPwrspectivelFallIS91 23
~ntergovernmental
MandateRefomr BillsIntroduced in Congrass
Mandate Refief Enacted in New York
Provider Assessments
Negotiated Rulensakirrg Taking Hold
On September 16,1991,17 apnnaors in the House of Representatives introducedH.R. 3344 to establiah a National Commission nn Intergovernmental MandateRefomr. ~is bipartiwn mmmission would have 15 members representing thefederal, state, and local governments and other irrterests. It wonld have threeyears to document all fedesrd mandates, estimate their rests, establish csiteriafnrtotally or pasdally eliminatirrg mandates or refoming them to relieve financialburdens on state and local governments, and make recommendations to thePresident and the Congress.
Earlier, Rep. Doug Barnard, Jr., of Georgia intmdnced bills on the samesubject. H.R. 1546. known as the point of order bill, and H.R. IM7, the reim-bursement bill. are designed to ensure that federal legislation imposing costs onstate and Ineal governments is not passed without analysis and debate of theirconsequences. These bilIs would strengthen the analysis of costs that would beshifted to state and local governments, require reimbursement of certain costs,and give any House member the right to raise a pint of order against most billsthat would impose unreimbursed costs.
The New York legislature passed a “Mandate Relief Package” in the final hoursof the 1991 Iegialative session. ‘f’he bill (S.6325/A.S499B) targets the more than2,700 state mandates to Iw1 governments, and addresses other lncal gover-nmentfinance issues and problems as well. Major provisions (1) make it easier tofund state and federal mandates by authorizing new Incal revenue sources andliberalizing municipal bonding for those pu~ses; (2) remove cestain smallerprojects from mandated requirements by increasing the thresholds at whichmandates take effect; and (3) loosen administrative requirements, includingdeadlines for filing Iml Iawa, waiver of presentence investigations by mutualconsent, and the uae of funds for equipment replacement rather than repairallowances for public assistance recipients where mst effective.
In response to rapidly rising Medicaid costs, sevesal states have resorted to theuse of provider assessments, whwh include apee~lc taxes impnsed on selectedhealth care providers and volunta~ donations by these providers. These fundsare then used by the state to induce federal matching payments under Medicaid.Aecnrdisrg to the National Govemora’ Association, approximately 30 states usesome form of provider assessments. Estimates indlrate that at least $2.5blltion irrfederal matchirrg Medicaid eWenditures have resulted from these taxes anddonations. OMB Director Richard Damran has labeled provider asseaaments a“sham” used by the states to shift more of the rests of Medicaid from the states tothe federal government. On September 12, 1991, the Health Care FinancingAdministration issued “interim final” regulations prohibiting the use of specificprovider taxes; the congressional moratorium authotilng volunta~ donations isscheduled to expire in January 1992. States fear that the loaa of this financingflexibility will result in reductions in medical services.
The Negotiated RulemakirrgAct of 1990 (PL 101-M8) encourages all federalagencies to oae negotiated rulemaking to bring parties together before draftregulations are fommlated. ‘RVOrecent cases show how this prnceaa can work.
In August 1991, the Administration announced the auscesaful conclusion ofnegotiations on regulations under the Clean Air Act of 1990 concerning cleanfuels. The U.S. Em’ironmental Protection Agen~. oil companies, and environ-mental protection advocates agreed on the technical issues and overall structureof regulations to phase in cleaner burning alternative fuels for internal combus-tion engines over the next several yeara. Agreement was reached with tbe help ofan impartial mediator.
24 lntargovarnmenW Parspd!ve/Fall 1991
In September, President George Bush highlighted the agreement betweenEPA and the Navaho Generating Station SOmiles northeast of the Grand Can-yon. Under this negotiated agreement, sulfurous emissions from the plant will bereduced by 90 percent.
With respect to state$ the National Institute for D~ute Reanlution ~R)makes grants “to build statetide offices of mediation to help rewlve disputes wershe development, implementation, and enforcement of public pnlicy.” NIDR can bemntacted at lW1 L Street, W, Suite ~, Washington, DC ~36, (202) M-47d4.
Copyright Protections for State The U.S. Supreme Court held in FeistPublications, Inc. v. Rural TelephoneServiceand kl Data Bases? Co.,Inc.(1991) that the white pages of a certified telephone public utility compa.
ny’s directory are not entitled to copyright protection because they contain factsthat do not originate with an act of authorship. There must be at least a modicumof creativity. Subsequent to Feimand incorporating its rationale, a federal appealscourt in New York, while acknowledging that yellow page business directoriesshow enough creativity to warrant mpyright protection, has held that suchdirectories will now face bigher standards for proving copyright infringement.
Fei# does not affect federal government prcdrrcts because copyright protec-tion k not available, bu! the desiaion may affect state and Incal governments,whose employees may produce original works, the copyrights for which could beomed by the governments as employers. Given that governments have amassedlarge amounts of infomration, much of it computerized, the possibility of copy-right protection and now the portent of mpyright erosion are sign~lcant issues. Aprofoundly im~rtant cmrsideration iawhether state and lneal data bases, such asgeographic irrfomration systems (GIS) and those for computer-assisted massappraisal (CAMA), constitute public records in their entirety. For any portionsnot in fact public, issues aswiated with wpyright protection, and pnssibly costrecovery, need reexamination.
Anti. Crime Proposals Anti-crime bills moving through the Congress continue two intergovernmentalbefora the 102nd Congress trends in criminal justice: increased federal involvement and more emphasis on
law enforcement. ‘Ibugher sentencing, extension of the death penalty to 51crimes, and targeted federal law enforcement will allow federal authorities tomove more criminaI prosecutions out of state and lncal systems into the federalcriminal justice system. In addition, tough federal criminal laws create politicalpressure for states to enact equally stringent laws. In contrast, proposals to limitcriminaI appeaIs and to relax restrictions on introducing evidence will shift snmeindividual rights protection from the federal Constitution to state constitutions.
Although the bills include some treatment programs, they are weightedtoward law enforcement. Even a scholarship provision can be repaid only byworking in a state or local police force after graduation, not by working as aprobation officer, correctional guard, or court employee. The Senate’s pro-posed National Commission to Support Law Enforcement contains no judi-cial or correctional representation, nor is there any provision for appointingstate and local elected officials.
‘AVOsignificant mandates involve background checks and pnlice rights, Al-though the legislation may provide $lW million annually to help states comput-erize their recnrds to allow for instant background checks, if a state fails tocomputerize within six years, itmay lose half of its federal law enforcementfunds. The Senate passed a “Police Officers’ Bill of Rights Act,” which setsstandards for internal investigations of police activity. The enforcement provi-sion states that, ‘“Thesovereign immunity of a State shall not apply in the case ofa violation of the rights afforded by this section.” The bill would explicitlypreempt state laws or collective bargaining agreements, unless they are “sub-stantially similar to the rights afforded by this section.”
l-o~rnmen~ _tive/FsIl 1WI 25
Rural Amerisss Councilf%xamines Fedemtism
Peace Corps ProvidesMurfrtionRssoums
Couti Cases:PmPosition 13and Mail.Oder Sales Tax
The President’s Council on Rur’al America is holding seven hearioga across thenation to asaess federal nmd development programs. Of pmticutar interest arethe roles of the local, state, and federal governments in developing mral areas,regional aperation, and intergovernmental relations.The Council iaan out-growthof PresidentGeorge Bush’s 1950RuralDevelopment Initiative.It is ischaiiedbyWinthropRockefeller,fomrergovernorof Arkansas and expectstoforwardfinal rewmmendationsto the Presidentlater thisyear.
The Peace Corps has developed innovative programs designed to put volunteersto work on some of the mtion’s toughest problems. The gaal of two new pro-gmms is to improve the quafity of eduration in the United States.
Through the World WEe Schaals program, on-site volunteers send artifacts,letters, photogmphs, and other educational materials to classrwms, which aredesigrred to teach students ~ut other @untries and cultures. The goal of theprogmm is to promote the study of geography, stimulate international aware-ness, and encoumge voluntarism among young Americans. More than 6fl,~U.S. students participate in this progmm.
The FelIows/USA progmm consists of former vohrnteera who are purmingrnastera degrees funded through aeholacshlps. Tbeae fonrrer volunteer teach inAmerica’s inner cities, mral mill towns and Indian reservations. ~enty univer-sities are participating in the Peace Corps FellowsiUSA program, and the pro-gram k @anding to the fields of public health, the environment, business, andcommunity development. For more infrmnation, ecurtact the Peace Corps Officeof Intergovernmental Affairs at (~2) 606-3373.
The U.S. Supreme Cour’t has agreed to hear two cases of considerable interest tostate and local governments. In Nerd/inger v. Hahn, the court agreed to hear achallenge to California’s Proposition 13. Under this 1978 amendment to theCalifornia Constitution, property tm aaaeaaments were rolled back to their 1975levels, and year-to-year increaaes in those aaaesaments were limited to 2 percent.The annual increase in asaeaaments was effeetive untit the property changedownerabip, and the property was then asseased at cument levels with futureirrmeases limited to 2 percent of the higher base. The plaintiff argues thatProposition 13has resulted in large taxdisparitiesbetween long-term owrrera andrecent buyers of similar houses. The suit was rejected by the California Comi ofAppeals, and the Caliomia Supreme Court refused to hear the case.
In Quill Corporation v. North Ddrrta, the coufi agreed to reconsider the25-year-old decision irr National Bel[as Hess v. Illinois Department oftienue. InBsllas Hms, the Court ruled that the Constitution prnhhlts states from taxingsales by out-of-state mmpanies that do not have a physical presenee (nexus) inthe state. In recent yeara, mail order and direct marketing activities have in-sreased signifimntly. States argue that their home-based retail firms have tocollect the state sales tax and, therefore, are at a Wmpetitive d~dvantagerelative to direct marketers who are not required to collect these taxes. Thestates further mntend that urnsiderable revenue Ioases accrue as a result of thisdisparate treatment (estimated at $3 billion).
Several states revised their statutes to make sales by these out-of-stateretailers subject to a use tas, the counterpart to the sales tax levied on in-statefins. The North Dakota Supreme Court mled that circumstances have changedsufficiently that the Be(/as Hess d~ion should no longer be blndlng. The NorthDakota Supreme Coun held that the Quill Corporation, with no ‘bricks andmortar” presence in North Dakota, could be forced to collect a use tax on goedssold to customers in the state. North Dakota is supported in a brief by 22 otherstates that have asked the Court to reconsider Bellas Hess.
26 Intargovsmmantal Par6PcUvs/Fall 1%1
SupremeCourts
in Conflict:The Drama ofDisagreement
Stanley H. Friedelbaum
With the advent of the Burger Court in1969 and the opening of an era of judicial mod-eration, fears were expressed by some observersthat the libertarian advances of the Warrenyears (1953-1969) would be reversed or signifi-cantly weakened. Consequently, a “new” judi-cial federalism, occasioned by the revitalizationof state constitutional law, began to take on theaura of reality. There was increased recognitionin the early 1970s that a reliance on state bills ofrights might be required, though perhaps notpreferred, if the U.S. Supreme Court embarkedon a deliberate course of setting aside recentprecedents. That such negative results nevercame to pass either in the numbers predicted orto the extent expected did not deter a conscious,albeit halting, return to the states as a preven-tive measure, if not an act of political faith.
To the surprise of many court watchers, a renewed empha-sis on state constitutional law met with broad approvalfrom the U.S. Supreme Court’s liberal and conservativemembers. The notion of state decisions predicated on in-dependent and adequate state grounds is well known. As-suming that all preconditions have been fulfilled, a statecourt holding so premised is essentially immunized fromSupreme Comt review. Intervention by the nation’s high-est court would not only be untowar@ it would also be inthe nature of an advisory opinion long precluded bycmr-vention and, as the Court bas strongly intimated, by theConstitution itself. Thus. judicial federalism should notbe viewed as a novel invention but as a descriptive termfor established practices that have been revived in acontempora~ setting.
A recent New Jersey refuse disposal case, whichinvolved search and seizure law and privacy rights. offers avivid example of a clash between opposing outlooks in thesupreme courts of the nation and a state. Salientdifferences, as represented and e~lored by the statecourt, provide an unusual glimpse of divergent philoso-phies set out with glaring candor. Of close to 5~ casesnationwide in which state mums have construed their stateconstitutional provisions to provide guarantees moresubstantial than their federal counterparts, few havereflected the artlessness displayed here.
1s Curbside mash Private?
The problems associated with wlid waste manage-ment, it appears, are not limited to such issues as thedeclining availability of landfill sites and assessments ofthe utility and environmental impact of incinerators. Amuch-publicized curbside disposal case, Ca/ifomia v.Greenwood (1988),1 decided by the U.S. Supreme Court,had sustained against Fourth Amendment challenges apolice search of garbage left out for collection. Bycontrast, a New Jersey case, State v. Hempe/e (1990),2produced opposite results. Based on provisions of thestate constitution analogous to the Fouctb Amendment,the state high court found official police action involving asimiir seizure to be unmnstitutional. In hth instances, thewste materials aought and subsequently examined led todrug-related prosecutions. Tbe strikingly different outcomesof the two cases reflected, in dramatic fashion, theincreasingly familiir dynamics of judicial federalism as it hascome to manifest itself during the past several decades.
AO the mme, it cmsdnues to be a noteworthy, if notwholly unqed event, when a state supreme mm’trejects the findings of the U.S. Supreme Comi in a caseremarkably similar in its factual details. The event isespecially impressive when no more than two yeara haveelapsed since the federal case was decided and no more thantwo members of the nation’s highest comt have d~sented.
The Greenwood DecisionAt issue in Greenwood were the reach and magnitude
of a reasonable-e~ectation-of-priva~ analysis derivedfrom a series of precedents dating from the Warren Courtera. The case involved the controversial exclusionaV rule,so-railed abandonment theory, and, most significantly,the nature of privacy interests within the constitutionalframework. It was the latter, tied to narrow interpreta-
lntergovemmenM Perswtive/Fsll 1W1 27
tions of the Fourth Amendment, that prompted arestrained view of individual rights by the U.S. SupremeCourt and an enlargement of the permissible confinesof police intrusion. Therein lay the core of the dilemmaand the marked differences in judicial outlook inWashington and Trenton.
Justice Byron White, who wrote for the Court inGreenwood, readily admitted that the states are free toimpose more rigorous state constitutional restraints onpolice conduct than those prescribed in federal standards.But, within tbe contours of the Fourth Arrrendment, hedeclined to extend any protection to trash set out onpublic streets for collection. A warrantless search andseizure was not proscribed, White declared, becausethose accused had failed to demonstrate conclusively a“subjective expectation of privacy in their garbage thatWiety awepts as oLjectively reawnable.” Instead, he&sewed, the trash had been e~sed to general public-tiny by those who placed it at the curb. It followed thattbe pnlice were not precluded from in.~ecting the contentsany more than were members of the public whoseinquisitiveness might be attributed to myriad motives.
Justice William Brennan, joined by Justice Thur.good Marshall, dissented in Greenwood. Brennan tookexception to the Court’s assertion that the respondenthad relinquished any privacy expectation regarding thematerials left for disposal. In language reminiscent ofnatural law philosophy, Brennan predicted that societywould be “shocked” to learn of the Court’s restrictedconception of privacy rights; that the scrutiny sanc-tioned was “contrary to commonly accepted notions ofcivilized behavior”; and that the theory espoused wascontrary to the Framers’ understanding of “unreason-able searches” within the meaning of the FourthAmendment. No less protection extends to garbagebags set out for waste disposal, Brennan averred, thanto personal effects transported from place to place. Theexpectation of privacy remains undiminished regard-less of the contents of the containers selected, he said,and dilution of that expectation endangers individualliberty generally and disregards an exacting adherenceto the Fourth Amendment’s privacy requirement.
Hempele
The New Jersey Supreme Court, in Sfafe v. Hempele,rejected the U.S. Supreme Court’s findings in Ca/ifomiav. Greenwood. In a 5-to-2 ruling, a majority relied, as it hason previous occasions, on counterpart provisions of thestate constitution purportedly affording citizens moree~ansive privaq rights than those found in the FourthAmendment. The majority made it clear that the federalcases cited were being referred to only for advisoryreasons, not to compel the result reached by the court.This statement no doubt was included to ensure that therequirements of Michigan v. Long (1983)3 had beenfollowed scrupulously. Its wording connoted that the statecase was grounded in documented explicitness and,therefore, that the “plain statement” rule formulated bythe U.S. Supreme Court had been met. Otherwise, thepossibility always existed that the U.S. Supreme Court
might have been persuaded to review and probablyreverse the state court’s decision.
By reference to specific examples, the New Jerseycuurt emphasized the personal nature of trash and howmuch it reveals about the intimate life and habits of thosewho place it at the curb for dispo=l. Justice Robert L.Clifford, who wrote for the court, asserted that a “free andcivilized society should comport itself with more decency”than to permit the exposure of “vestiges of a person’s mostprivate affairs.” Surely the state should not be entitled tomeddle without adequate cause into waste pr~ucts of itscitizens’ lives. “There is a difference,” as tbe courtperceived it, “between a homeless person scavenging forfood and clothes, and an officer of tbe state scrutinizingthe contents of a garbage bag for incriminating materials.”
Nevertheless. the marked departures from Greenwdinjected elements of uncertainty into the decisional ralculus.Clifford twk pins to repeat the traditional rationaleunderlying the dnct rine of irrdepcndent state grounds. Hestressed that the U.S. Supreme Court establishes no morethan the’’floor”of constitutional protection; that, if thenation’s highest court serves as a “polestar” of constitu-tional doctrine, the state court still must bear “Itimateresponsibility forguaranteeing the rights of its citizens,and that, in fact, historic considerations militate infavor of state constitutions as the principal sourcessafeguarding individual liberties. To avoid the possibil.ity, however remote, that state grounds might notemerge unequivocally as the controlling basis of thedecision, Clifford made plain that federal precedentsserved only for purposes of guidance.
Other curious, if not always trifling, asides appearedin the judicial text and its lines of reasoning. Although itsewed little purpose, either for law enforcement agentsor for doctrinal symmetry, Clifford differentiated theessentials of search and seizure. The latter apparently didnot compromise privacy interests, and so the policeneeded no cause to justify seizure. It was the nature of thesearch that remained critical, and that search required awarrant based on probable cause. In addition, to assurecritics that recently introduced recycling programs wouldnot be unduly encumbered, Clifford, by way of dicta,suggested that the rigorous warrant requirements asso-ciated with criminal investigations need “ot extend tocompliance searches under environmental recycling laws.Such inspections, he noted, might not be as intrusive assearches seeking to sustain possible charges of violationsof criminal law.
ff the majority opinion at times disclosed a defensivetone, Justice Marie Ganiald~ in dissent, tuuk issue not onlywith the broadly ba~d e~ectation of privacy espnused bythe murt but also tith presumed encroachments onaccepted principles of judicial federalism. Regarding theformer, she indicated her inability to discover a “unique”New Jersey state attitude toward trash. Garibaldi foundthe court’s plea for enhanced priva~ protection of trashnot justified by “sound policy reasons.”
To like effect, Justice Daniel O’Her” ““ted hisdisagreement with the majority’s wide-ranging version ofprivaq interests, although he acknowledged his revulsion
28 Intergovernmental Perspecti.e/Fall 1591
to the idea of peranns “snooping around’ in his owngarbage. His snle concession (and the reason for a limitedconcurrence) was that the U.S. Supreme Court mighthave “drawn the line a bit tm far” in Greenwood. Perhapsmore signfilcantly, O’Hem went on to join Garibaldi inobjecting to the state court’s mvalier treatment of theU.S. Supreme Court’s ruling. Thus, both dissenterscnnveyed misgivings mnceming the majority’s views,which, weighed on a nationwide ~le, took on exceptionalscope and breadth.
The Legitimacy of Judicial Federalism
Aa O’Hem phrased it, Hempele was “not aboutgarbage” but “about the values of federalism.” Indeed, itis the latter that will be debated in New Jersey andelsewhere as contemporary judicial federalism continuesto develop. Excessive provincialism has long been one ofthe banes of a growing progression of cases that premise“advances” on state constitutional language, often repli-cating or closely paralleling their federal counterparts. InNew Jersey, departures from federal noms at times havebeen more eqansively adaptive, venturesome, andcontroversial than in most other states.
Fears of what O’Hem referred to as “personalizing]constitutional dnctrine” and what Garibaldi termedbreaches of accepted “divergence criteria” were ex-pressed in the Hempele dissents. There were somberovertones of old-style, purposeful evasion, recalling statecourt reactions to the early schonl desegregation cases ofthe Warren Court years. Blatantly contrary results, likethose in Hempele, threaten to squander reserves of publictrust and good will that sustain occasional thrusts ofjudicial activism. The benefits to be gained do not alwaysoutweigh the losses of influence and status that may beincurred and that may endanger the ever fragile fabric ofjudicial review.
Lest it be assumed that overt conflict typifies judicialfederalism, a cursory examination of the case law beliessuch a supposition. Most state decisions still parallel U.S.Supreme Corrfi judgments, often with little more thantrifling changes needed to adapt to altered factualcontexts. Where departures do occur, these tend to beinconsiderable or to modify rsther than to promote abruptdeviations from accepted precedents. Other options,apart from conflict, remain available.
A cooperative framework of mutual interactionemphasizes reciprocity and a process of drawing on thecontributions of federal and state courts. Examples ofeffective collaboration attest to the opportunities af-forded creative judges in a system of judicial federalism.Unlike the conflict model, stress is placed on cnncectedactions toward common objectives rather than on discordas the dominant theme.
In San Antonio Independent School District v. Rodri-guez (1973),4 the U.S. Supreme Court rejected efforts toprompt a continuing resort to the federal courts as ameans of invalidating inequitable state school fundingschemes. Justice Lewis Powell, who wrote for the Court,
declined to designate in constitutional terms a presumedright to an education as fundamental or to treat pnverty asa suspect class. Instead, he included a “cautiona~postscript” raising doubts concerning financing provisionswhile enmuraging the states to devise refoms and toprnceed toward their implementation. Without intrusivefederal initiatives or mandatosy prescriptions, a numberof states, initially California and New Jersey, introducedmajor alterations in their school funding statutes, oftenwith far-reaching ramifications for taxation and aiddistributions
Less positively conceived and motivated, judicialchoices of federal or state constitutional predicates mayreflect a “raw” result orientation and, in effect, projec-tions of the polit ical impact and possibly adverse effects ofdifficult cases. When in Bakke v. Regents of University ofCa/ifomia (1976),6 the California Supreme Court electedto posit its findings on the 14th Amendment rather thanon the State constitution. it was difficult to avoid theconclusion that judicial “buck passing” had been aparamount consideration. To like effect, the New JerseySupreme Court’s selection of the Fourth Amendment in ayouthful drug offender case, State in the Interest of TL. O.(1983),7 strikes the observer as a similar effort to shuntresponsibility to the U.S. Supreme Court. For less obviousreasnns, the New Jersey com’t, despite an activisttradition, had previously turned to the federal Constitu-tion as a basis for sustaining the state’s Sunday closinglaws in Vomado, Inc. v. Hy/and (1978).8 Comparable bluelaw statutes had been set aside elsewhere by reference tostate constitutional provisions.
Conclusion
Overt conflict, as in Hempe/e, furnishes elements ofdrama that attract widespread attention and interest.However, the choices assmiated with judicial federalismare multifarious in their reach and effects. Indeed, theyrank among a profusion of feasible alternatives open toadroit judges. The American system of federalismmncededly is intricate and at times perplexing, albeitever-challenging and, if constructively administered,richly rewarding in its scope and variety.
Stanley H. Friedelbaum is professor of politicalscience and director of the Bums Center for Strrte Con-stitutional Studies, Rutgers Universi~,
Notes186 U.S. 35 (1988).
220N.]. lg2, 576A.2d 793(1990).363 U.S. 1032(1983).411 U.S. 1(1973).
sAdditional examples of a t~irectional prncess appear inStanley H. Friedelbaum, “Reactive Responses The Comple-mentary Role of Federal and State Courts,” P,tblit:s: 77zeJottn7uJof Fedemfism17(Winter 1987) 33-50.
‘ 53 P.2d 1152(Cal. 1976).763A.2d 934(N.J. 1983).
890 A.2d W (N.]. 1978).
IntergovernmentalParspacUvelFall 1WI 29
~ ACIR Publlcatlons ~
Coordinating Water Resources in the Federal System:The Groundwater-Surface Water Connection
All types of governments have roles to play in improving water re-source coordination. One of the most important of those roles is tochange laws and policies that obstruct more efficient resource use. Aconsensus favoring coordinated use of groundwater and smface water—conjunctive management—has arisen in the past decade.This policyre-portcontainscontrastingperspectivesnn groundwater use and manage-ment, and an analysis of institutional arrangements and intergovernmentalrelations. The re~ri ident ~les barders to better mrdinat ion and su~estschanges that the federal and state governments can make to eliminate thosebarriers.
A-118 1991 152 pages $15
Significant Features of Fiscal Federalism.1991 Edition. Volume II.
This volume of Significant Features presents data on revenues andexpenditures for the federal, state, and local governments. New in thisedition are tables on state and local debt and state volume caps on pri-vate-act ivity bonds, state and local public employee retirement systems,federal Medimid matching ratios and state Medicaid espenditrrres, andeducation aid and sources of schwl district revenue. SignificantFeaturescontains abroad picture of changes in the government’s role in the econ-omy from 1929 through 1989. Alsn presented are changes in the composi-tion of espenditrrres and revenues from 1952 through 1989and in the lev-el and relative importance of federal grants to state and local govern-ments from 1952 through 1993.
M.176.11 1991 340 pages $22.50
(see page 57 for order fonrr)
30 Intergovemmenti PersWtive/Fall IW1
The Stateand Federal
Bills of Rights:Partners
and Rivalsin Liberty
John K]ncaid
Our commemoration of the bicentennial ofthe U.S. Bill of R]ghts comes when the prospectsfor spreading popular democracy and humanrights throughout the world are greater than atany time in history. The world has crossed athreshold where it is ever more necessary forgovernments to explain why they do not protectrights rather than for individuals to explainwhy they should have rights. There is still a longway to go before rights and democracy are real-ized eve~here, but the balance now seemstipped in their favor.
This is a revolution in which Americans-who, by birthand ancest~, represent peoples from evety comer of theworld—have played, and will continue to play, no smallrole. The bicentennial of the U.S. Bill of Rights, coming atthis moment in history, is an especially opportune time toreflect on America’s rights traditions. The occasion is alsoa reminder that, in the words of seversl state constitu-tions “Afrequent recurrence to fundamental principles isessential to the security of individual rights and the perpe-tuity of free government.”
State Bills of Rights in the Shadowof U.S. Bill nf Rights
AIthough the nation’s attention in 1991 is rightlyfocused on the U.S. Bill of Rights, this document is notthe only constitutional enumeration of rights in ourfederal system. Each of the 50 state constitutions containsa declaration of rights. Indeed. state bills nt’ rightspreceded the U.S. Bill of Rights.
In light of the attention given to the U.S. Bill ofRights during the past 60 yearn, however, many Ameri-cans are apparently unaware of their state constitutionand bill of rights. The public responses shown in ~ble 1toquestions asked on ACIRS 19S8 and 1991 pnlls providestartling evidence of the state of civic knowledge. Yet,state declarations of rights are fundamental pillars ofliberty in our federal system, and their relevance to thestruggles to define, protect, and extend rights at home andabroad is bot h historical and cent empora~.
Early Relevance of State BilIs nf Rights
The U.S. Bill of Rights was derived from the rightsenumerated in most of the flint state constitutionsadopted from 1776 to 1789. The Virginia Declaration ofRights (June 12, 1776), drsfted largely by George Mason,was especially a mudel for the first part of the Declarationof Independence, for other state declarations of rights,and for the U.S. Bill of Rights. Mason, moreover, wasamong the prominent founders who advocated a bill ofrights for the U.S. Constitution. Thus, the U.S. Bill ofRights is a home-grown product ronted in the native soilof state constitutions.
Because the U.S. Bill of Rights was not approved bythe Congress until September 25, 17S9, America’s stateconstitutions and declarations of rights, along with theDeclaration of Independence, also served as mudelscirculated throughout Europe (with the help of TomPsine, among others) during the revolutionary era thatproduced the French Declaration of the Rights of Manand the Citizen (August 26, 1789). Unfortunately, theFrench Revolution plunged into terror and despotism, afate that did not befall any American state.
‘fb the extent that rights were protected in the UnitedStates from 1776 to 1925 (150 years), they were protectedalmost entirely under the state bills of rights, not the U.S.Bill of Rights. From 1791 to 1925, the U.S. Bill of Rightswas generslly understood to apply only to actions of thefedersl government, and because the fedeml governmentexercised relatively limited domestic powers vis-a-vis thestates for most of that period, the U.S. Bill of Rights did notfigure prominently in American liie and jurisprudence.
Intergovernmental Persmtive/Fall 1S91 31
Table 1Public Awareness of State Constitutions
In Addition to the United States Constitution,Do You Know If Your State Has Its Own Constitution,Or Does Your State Not Have Its Own Constitution?
(1991)
Haa its own constitution 52%Dms not have its mm constitution 11Don’t knowiNo ans~r 37
Does Your State Have Its Own Constitution,Or Does It Rely on the United States Constitution
for Its Governing Powers?(19ss)
State has own mnstitutiun 4470Relies on US. Constitution 19State hm M and relia on US. Comtitutiun (volunteered) 5Don’t knowlNo answer 32
Does the Constitution of Your StateHave a Bill of Rights or Some Other Provisions
mat Protect Individcral Rights, Like Freedom of Religionand Freedom of Speech?
(1988)
Yes 56%No 6Don’t knowlNo answr 38
In those days, Americans did not litigate rights to theextent prevalent today, nor did they refine and expandrights in ways common today, Instead, state bills of rights,in conjunction with electoral processes and constitutionalretilon, helped create cliates of opinion and behavior thatgenerally limited government and pecpetcrated publicawareness of rights. State balls of rights played the primaryconstitutional role because state and lM1 governmentswere the primary governments irr people’s lives.
The State Past in Lightof the Natinnal Rights Revolution
In recent decades, however, it has frequently beensaid that the U.S. Bill of Rights properly superseded thestate bills nf rights in this century because state rightsprotection was abominable, as exemplified by slavery andthen legalized racial segregation. ~is view has merit, upto a point, though it is also misleading because it judgesthe state constitutional experience, but not necessarilythe federal constitutional e~erience, against the extraor-dinary rights revolution of the 19WS.
The new and unprecedented reliance on the U.S. Billof Rights that developed after World War II representedmuch more than a shift of certain rights protections fromthe states to the federal government; it represented anexpansion and transformation of our understanding ofrights. It was a cultural revolution for which federalinstitutions, especially the U.S. Supreme Court, wereneeded to effect social change nationwide.
However much particular states pioneered woman’ssuffrage, land rights, labor rights, and other rights, somerights could not be protected in certain states, and no state
or group of states could mandate protection of a rightagainst all states. Also, some problems, such as racialsegregation and discrimination, escaped the nets of boththe federal and state bills of rights. Although legallyconfined to a minority of states and the federal capital,segregation was nevertheless virtually universal becauseracism was embedded in the majority culture. As a result,even tuday’s efforts to eradicate discrimination under theU.S. Bill of Rights have been difficult, requiring extraor-dinary judicial action as well as concerted sncial, political,and educational efforts.
me U.S. Bill of Rights, then, is not intrinsicallysuperior to state bills of rights; in fact. its limited reachmakes it inferior in some respects, at least in the absenceof judicial amplification. Instead, the U.S. Bill of Rights,as the natinnal enumeration of certain basic rights,became the necessa~ vehicle for effecting a nationwiderights revolution, one that radically altered and expandedour conceptions of rights.
Early State vs. Federal Rights ProtectionLooking back through the lens of this revolution,
therefore, it seems easy to say that state declarations ofrights were not very effective. Yet, even if the standards ofprotection under state bills of rights were generally,thnugh not always, inferior to today’s standards, com-pared to the rights afforded most peoples around theworld in that day, the United States was, for most citizens,a free, open, and increasingly prosperous society, one thatattracted unprecedented migrations of millions of immi-grants seeking freedom and opportunity. There was alargely free and diverse press, a multiplicity of religiousdenominations, a plethora of voluntaty associations, andgradually expanding rights with respect to the suffrage,working conditions, and other matteca.
Protection under the U.S. Bill uf Rights was notdistinctly better. In some ways, it was worse. Federal rightsprotections in the countty’s vast territories, for example,were not uniformly superior to those in the states, Adifferent picture was once conveyed by TV westernsshowing “good guy” federal marshals and U.S. cavahysubduing the “bad guys,” especially Indians and corruptsheriffs, but today we know that the real picture was oftenquite different. In any event, the people of mostterritories believed that their rights would be enhanced bybecoming states as quickly as possible.
T’he federal government also was responsible forrelations with Native Americans; yet, the U.S. Bill ofRights did not stop federal policies of Indian conquest andremoval from nearly extinguishing the Native Americanpopulation by the end of the 19th century. The federalgovernment then conferred citizenship on the dwindlingtribes without their express consent and tried to dissolvethe tribes as sovereign governments.
Althnugh northern courts were often friendly tufugitive slaves, the secnnd time in history the U.S.Supreme Court exercised its judicial review power theCourt ruled that both before and after ratification of theU.S. Constitution and Bill of Rights, black people were“beings of an inferior order” having “no rights which anywhite man was bound to respect” (Dred Sco//, 1857). The
32 IntergovernmentalPerspective/Fall1WI
Civil War amendments to the U.S. Constitution gave thefederal government authority to protect the rights ofblack Americans in the states; yet, for snme 80 years, thefederal government failed to do so, and in 1896, the U.S.Supreme Coufi upheld “separate but equal” racialsegregation (Ples~ v. Fe~sorr).
The Court also upheld many protections of propertyrights (mainly business rights) against the states whilestriking down a number of attempts by states to protectfarmers and laborers against the depredations of theurban-industrial revolution. From the Alien and SeditionAc~s (1798), moreover, to the Palmer raids of 1919-1920,the internment of Japanese Americsns (1942-1944), theInternal Security Act of 1950, and the FBI of the Hooveryears, the federal government engaged in its own fores ofrights suppression.
However painful these memories, their recollectionputs things in perspective. State rights protection was not,and need not be, invariably inferior to federal rights pro-tection. Any bill of rights can be, in tbe words of The Fedr’r-a/is/, a mere “parchment barrier” unless it is backed byproper government action, citizen vigilance, and the gen-eral culture of a free people. Prior tothecontemporaVrights revolution, bills of rights were not as far-reaching aswe want them to be teday. Yet, even so, from the Revolu-tionaV War, when the United States became a weak andinsignflcant nation, through World War II, when theUnited States became the world’s dominant and mostprosperous power, the many rights enjoyed by mostAmericans were grounded primarily in their state consti-tutions.
Nationalization of the U.S. Bill of Rights
Only in 1925 (Gi[/ow v. New York) did the U.S.Supreme Court begin to argue earnestly that theFom’teenth Amendment (1S68) “incorporated” the U.S.Bill of Rights, that is, applied the U.S. Bill of Rights tostate and Iocalgovemment action as well as to federalgovernment action.
Incorporation opened the door for a rights revolutionin two key ways. First, it allowed reformers to focus on onehigh court rather than 48 (and then 50)highcourt–acourt that k beyond the reach of individual states,especially those practicing the most egregious rightssuppression, a court whose justices are not elected orremoved easily, a court where only five votes are neededto win a case, and a court whose decisions bind the nation.Second, it extended the reach of the U.S. Supreme Courtfar beyond its historically circumded federal otilt. Giventhat state courts di~se of more than 98 percent of thenation’s judicial business, incopmtion opened a vast newfield from which the Supreme Court could select cases.
Under incorporation, federal judicial expansions ofrights began timidly during the 1930s, picked up during the1940s and 1950s, and reached a crescendo during the1960s, but began to taper off after Roe v. Wade (1973).Additional rights protections bave continued, however.especially through congressional-presidential action (e.g.,the Americans with Disabilities Act of 1990).
In retrospect, the loss of confidence in state bills ofrights occasioned by the nationalization of the U.S. Bill of
Rights was shortsighted. The perind of aggressive federalrights expansion under the U.S. Supreme Com’t wasrelatively short, about 30 years. The prior centu~-and-a-half history of the Court did not lend confidence tothe view that the Coufi utuld be convected into aperpetually moving eights machine. Initially, the Courtitself was an obstacle to expansive rights protection byprogressive states. The Comt, moreover, has not chosento incorporate all the rights enumerated in the U.S. Bill ofRights. Unforeseen, too, was the passage of nationalrights protection into controversial areas (as exemplfledbydebates over criminal rights, abortion, and’’politicalcorrectness”) where public conceptions of rights oftendivide along various and crosscutting lines rather thantraditional race and class lines. This shortsightedness alsoviolated a cardinal federal principle, namely. the value ofredundancy, of not putting all the eggsin one basket.
The New Judicial Federalism
However, one, perhaps ironic, result of the change inU.S. Supreme Com’t policy, which some observers call a“retreat” from rights, has been a gradual “rediscnvecy” ofstate bills of rights and an increasing reliance on thosedocuments for rights protection. Acting on “independentand adequate” state constitutional grounds, a state highcourt can grant greater rights protection under its statedeclaration of rights than the U.S. Supreme Court iswilling to grant under thesame orasimilar provision ofthe U.S. Bill of Rights. Since 1975, there bave probablybeen more than 5(SIsuch state comt decisions.
Thus, tcday, under what bas been called “thenewjudicial federalism,” U.S. Supreme Court interpretationsof the U.S. Bill of Rights establish minimum nationalstandards, or floors, of protection. States cannot fallbelow the fluor, but they csn elevate rights above the floorand also lay floors where the U.S. Supreme Court orfederal statutes have not provided protection. Relianceun the 50 state bills of rights and the U.S. Bill of Rights,therefore, now helps, in ways not quite true in tbe past, topromote that “double security” of “the rights of thepeople,” of wbicb James Madisun spuke (Federa{i$l 51)with respect to the federal system as a whole.
Continuing Relevance of State Bills uf Klghts
State bdlsof rights are institutionally relevant onceagain, but in new ways and on a new plane. The new plane isthe fluur established by U.S. Supreme Court interpretationsof the U.S. Bill of Rights. Gone is the dml federalkt medelof rights protection in which the federal and state bfils ofrights each applied only to their own sphere of government.Gone also is the national supremscy model initially impliedby the nationalmtion of the U.S. Bill of Rights.
State bills of rights continue to be relevant andincreasingly important in a number of ways.
For one, they provide alternatives to the U.S. Bill ofRights, thus allowing a range of forum shopping in whichpersons seek the judicial arena more likely to yield theirdesired result.
Second, state bills of rights can afford greater rightsprotection than the U.S. Bill of Rights where state courtselect to exceed a federal rights standard.
Intergovernmental Perspective/Fall 1WI 33
Third, state bills of rights can provide protections notavailable under the U.S. Bill of Rights. State declarationsof rights are often longer and more detailed than theirfederal counterpart, covering areas, such as privacy,woman’s rights, and environmental rights, not specflcallyenumerated in the U.S. Bill of Rights.
Fourth, state ballsof rights permit e~erimentation andimrovation in ways not alwaya available to the U.S. SupremeCourt because of the natioml impact of its decisions.
Ftith, state bills of rights allow for gradualism andeducation in the spread of rights, thus increasing thepossibility of public acceptance of new ideas. A U.S.Supreme Court decision has nationwide impact and maystrike the public like a thunderbolt, thus producingpressure for the Court to backtrack, which it has done onmany occasions. A seesaw course of dccisionmakingundermines confidence in the Court and conveys theimpression that rights are merely partisan.
Of course, the new judicial federalism does notnecessarily mean widespread expansions of rights, Statecourts will often be happy to rest on the federal floo~some may drop from previous heights to bring rights backdown to the federal floo~ and some will experienceperiodic pressure from voters aroused by state judicialactivism. Furthermore, some state expansions of rightswill go in unexpected directions. In the summer of 1991,for example, the Pennsylvania Supreme Court voidedPhiladelphia’s historic-buildings presemation law on theground that it violated the “takings clause” of the stateconstitution. The court found in the state declaration ofrights a higher standard of protection for private propertyrights than the U.S. Supreme Court found in the U.S. Billof Rights 13 years ago.
An interesting facet of the new judicial federalism iswhether a state declaration of rights can be enforcedagainst the federal government in what one scholar hascalled “inverse incorporation.”1 If a state has a highercriminal rights standard, or if it has an environmentalright not found in the U.S. Constitution, can the stateenforce such rights against federal agents or agencies, atleast within its own borders?
Federalist Rights Protection
This new judicial federalism is one of the morepromising innovations in American federalism developedin recent years. At once, it addresses two fundamentalissuex (1) rights protection and (2) a basic goal offederalism, namely, unity and diversity. The U.S. Bill ofRights provides foracommon rights regime, while thestate bills of rights provide for supplementary diversity.
Diversity may be hard to visualize because rights areusually thought of as universal. But there are sharpdisagreements over some rights, and it is the specificapplications of generally enumerated rights (e.g., free-dom of speech) that often provoke controver~. Althoughcertain rights (or their application) may not get into thecommon national pool under the new judicial federalism,
unlike a national supremacy regime, rejection by the U.S.Supreme Court does not obliterate the right or render itunenforceable by the states. Instead, rights not admittedto the common pool or expelled from that ml can beenforced by states.
This arrangement poses a difficult question: Whatrights are so fundamental as to demand enforcementeverywhere, and what rights can be allowed to varyaccording to local preferences or conditions? Thisquestion can be addressed by the people and by thefederal and state comts. Although the U.S. SupremeCourt is the ultimate forum for reflecting a nationalconsensus or deciding that a moral imperative is so greatas to override public opinion, the state com’ts remainforums for testing and refining rights ideas that mayspread throughout the states or later find inclusion in thecommon national pool.
International Implications
This mixlel is potentially useful for countries seekingto establish a federal system. Rights are now paramountissues in these countries, but historic diversity and ethnicanimosities often make unity elusive. The new judicialfederalism, however, offers possibilities of at leastreaching compromises between unity and diversity byembedding certain basic rights in the national constitu-tion, applicable to all persons in the country, and thenallowing the constituent governments to guarantee otherrights according to custom and preference. At first, thenumber of rights included in the common poul may besmall, but over time, the number is likely to increase aspeople become more comfortable with democratic coexis-tence and as individual rights establish deeper roots,
There are alternative models, such as the “notwith.standing” clause in Canada’s Constitution. This clause,which has been used three times thus far, allows provincesto opt out of provisions of the Charter of Rights andFreedoms for five-year, renewable perinds. This approachmay be politically necessary in some countries, but itundermines the idea that certain rights are so fundamen-tal as to command protection by all governments for allpersons at all times. It also weakens a bond of unity byreducing pressure to establish a unifying national consen.sus around a core of fundamental rights from which nogovernment can opt out.
The new judicial federalism does compel attention tofundamental rights that are to be enforced throughout afederation and that are to define the character and unityof the people of a federation, even while the diversity andlocal self-government that make a federal system desir-able still allow rights to find various expressions inconstituent constitutions.
Errdnote
1Vinent Martin Bonventre, “Beyond the Reemergent—’In.verse Incorporation’ and Other Projects for State Constitution.al Law,” A/ba,~ Law Revirw 53 (Winter 1989) 415-418.
34 IntergovernmentiPeraWtive/Fa.111991
SelectedRights
Enumeratedin State
Constitutions
Mark L. Glasser and John Kincaid
A complete understanding of the back-ground and context of the U.S. Bill of R]ghts, ofthe rights valued by Americans, and of the di-versity of rights protections attempted in theUnited States requires knowledge of the rightsenumerated in the 50 state constitutions. Tothis end, we set out to tabulate the rights speci-fied in the state constitutions, a task that quicklybecame monumental. The number and varietyof rights enumerated in state constitutions areextraordina~ consequently, the following tableis a selected list of those rights.
SCOPEANQLIMIISOF Tm~LIST
The table contains rights found in the 50 stateconstitutions as of 1988-1990. Consequently, some revi-sions and deletions of tights occurring after 1988 are notaccounted for in the table, nor are all rights statementsthat may have been added to state constitutions after1988. These omissions are not fatal, however, becauserights are altered much less frequently than other stateconstitutional provisions (see page 45).
Not all rights in state constitutions are found in thedeclarations of righty many are interspersed throughoutthe documents. To prepare the table, therefore, wereviewed each state’s entire constitution.
The provisions we included and excluded are subjectto different interpretations. Many provisions protectrights, either directly or indirectly, but are not worded asexplicit rights protections in the manner of the declara-tion of rights. We chose to include, therefore. allprovisions of the declaration of rights. comparahl ywordedprovisions in other parts of the constitution, and provi-sions that confer a right or power on individuals (e.g.,initiative, referendum, and recall).
Wcluded are rights-like duectives to the legislature,such as a pro~lon found in five state institutions directingenactment of a drect pdmmy election law. Akn excludedare d~ectives not previously viewed as rights but now viewedas such by some state high courts, such as state provision of“a thorough and efficient” edumtion for all children.
We also excluded policy declarations. such asdetailed regulatory provisions and procedural rulesthat serve to protect rights; and rights pertaining tolocal governments and to citizens as residents of localgovernment. Finally, because it was not feasible toreview court cases in every state, we may have omittedprovisions that do not look like rights but have beeninterpreted as such by some state courts.
An argument can certainly be made for including allor most of the kinds of provisions cited ahnve. To havedone so, however, would have made the selection processeven more difficult and tbe table much longer. WhatAlexander Hamitton said of the U.S. Constitution can alsobe said of a state constitution, namely, that the entiredecument & in effect, a bfll of rights.
In compiling the table, we endeavored to take intoaccount variable wordings of the same right. In somecases, slashes appear in an ent~ to show differentwordings among state constitutions. In other cases, welisted similar rights separately because the differentwording may make some substantive difference in thenature or scope of the tight.
Another consideration is that we excluded allqualications of particular sights. For example, 40 of tbe47 constitutions that explicitly enumerate freedom ofspeech add the fotlowing qualflcat ion: “Persons maybeheld responsible for abuse of this right” (e.g.. libel). Mostrights provisions, however, have no qualifications.
For each right listed in the table, we show the numberof state constitutions in which it was found. Where a rightwas found in only one constitution, we identify that state.
IntergovernmentalPerspective/Fall1S91 35
Every effort has been made to provide an accurateinventory, based on the criteria outlined above, and for anaccurate count; however, we cannot discount the possibil-ity of error. If there are errors, they are probably small,that is, overlooking one right in a particular constitution.
Lastly, one drawback of the tabulation is that it doesnot show state-by-state data and, therefore, regionalvariations and other patterns in state constitutional rightsprotections. However, we hope to present such atabulation in the future.
Po,NWTo KEEPINMn~~
1, Not all rights actnally enjoyed by the citizens of a stateare listed in the constitution. An unlisted right is notnecessarily unprotected. For example, only theLouisiana and Rhode Island constitutions spectiy thata person charged with a crime is presumed innocentuntil proven guilty yet, this presumption is thebedrock of jurisprudence in every state and federaljurisdiction.
There may be several reasons for not listing aright. For one, it may be au taken for gsanted andwidely respected that constitution-makers may notdeem it neceswry to list the right. Second, manyrights are protected by statute or by judicial elabora-tion of an already enumerated right. This is probablyespecially true of the contemporary era in whichcourts have been active in expanding rights andreformers have argued that state constitutions shonldnot be cluttered with details. Third, given the U.S.Supreme Court’s application of most of the provisionsof the U.S. BiIl of Rights to state and local gover-nments,there has been less pressure to include in stateconstitutions rights alrmdy protected under the U.S.Constitution. Finally, of mume, an unlisted right maymean that a state dues not ‘vmntto recognize the right.This is true of the op~sed rights suppmted andrejected by propnents and oppnents of tirtion.
2. In this respect, an unlisted right may not be protected,or may not be protected as well as a listed right. Giventhe ways in which courts and legislatures interpretconstitutions today, the idea of keeping thesedocuments short may not always be advisable, Ifcitizens want to protect a particular right or to protectit in a certain way, it maybe necessary to include it inthe constitution with careful wording.
3. Of course, not all rights enumerated in a constitutionare actually protected, or protected satisfactorily, bythe body poIitic. There are many such examples inAmerican histo~; so this point need not be elabo.rated here.
Overall, however, the protection of rights has im-proved considerably in the second half of this century.Now that rights are taken much more seriously, and nowthat state declarations of rights have assumed a new sig.nificance in judicial federalism, it is all the more impor-tant that citizens pay attention to the rights enumerated intheir state constitution as well as to those listed in the U.S.Bill of Rights.
State declarations of rights may also be more relevantthan the U.S. Bill of Rights to emerging demwraciesabroad because the U.S. Bill of Rights was originallyintended to apply to a national government having onlylimited, delegated powers. Much like emerging post-Colonial and post.authoritarian democracies tnday, statedeclarations nf rights were crafted by people who wereliberating themselves from mlonialism and tyranny andwho were creating full-fledged, plena~ governments fortheir new democratic republics. ~gether. moreover. botbthe U.S. Bill of Rights and state declarations of rightsprovide useful models for emerging federal democracies.
TMILE0~ SELgCT~LISTATECONSTITWIO~ALR]GM~sWhat follows is a listing and tabulation of state
constitutional rights provisions. T’bese rights are orga.nized into ten categories. and each category is introducedby a brief narrative.
1. Fundamental PrinciplesUnlike the U.S. Constitution. where the Bill of
Rights constitutes the first ten amendments. stateconstitutions start with a declaration of rights, Indeed, inearly America, the declaration was usually called “theconstitution.” The rest of the document was merely “theframe of government.”
The preambles to most state constitutions reftect twoenduring characteristics of ,4meri~ns: their belief inpopular sovereignty and their faith in a Supreme Being.Most preambles suggest that while the people aresovereign with respect to their government, God is theultimate xnvereign, Popular and divine sovereignty arelinked to rights in several ways, the most important ofwhich is the idea that tights exist above and beforegovernment. Government does not grant rights; it isestablished to protect rights pnssessed by individuals byvirtue of nature and nature’s Grid,
The U.S. Constitution does not contain a divineinvncatiun for much the same reaxuns it did not begin witha declaration of rights. The Constitution did “ot establisha plena~ government to lift individuals out of a state ofnature. It established a government based on the consentof the people of the existing states, and it established agovernment of only limited, delegated powers–anoverarching special district government, so to speak, tohandle such general matters as defense and interstate andforeign commerce.
After the preamble, state declarations of rightsordinarily (1) affirm natural or inalienable rights, (2)proclaim the natural equality and independence of allpersons (“men” being the common term in the past), (3)confirm the sovereignty of the people, (4) declare thatgovernment derives its just powers only from the consentof the people, and (5) stipulate that government existsonIy to secure the common gnud of the people. Ax thetable shows, small numbers of states provide for addition-al statements of principle.
11.Basic Rights nf Human FreedomIn this section, we list what can be regarded as basic,
general rights of human freedom. The four rights mostoverwhelmingly stipulated are (1) freedom of religion
36 IntergovernmentalPerspective/Fall 1991
(found in all 50 constitutions, though worded somewhatdifferently), (2) freedom of speech (47), (3) freedom of thepress (47), and (4) the right to bear arms (42). No othersuch basic freedom comes close to these four in terms ofprevalence.
It should be noted that in six states both freedom ofthe !Jress and freedom of soeech are essentially Drotected. .und~r one of these pr~visions. Thus, all 50 stateconstitutions guarantee both freedoms. In terms of thedebate over whether the militia clause in the SecondAmendment to the U.S. Constitution limits the right tobear arms enumerated therein, it is interesting to notethat only two state constitutions (Alaska and Florida) linkthis right to the militia. The Florida Constitution,however, also links this right to self-defense.
111.Rights to Participate in Governance
This section lists rights to participate in governmentand its activities. The most basic right here, of course, isthe suffrage, which is detailed in evety state constitution,Today, however, the right to vote is largely governed bythe U.S. Constitution, although all such protections (e.g.,woman suffrage) were first provided in various stateconstitutions before the U.S. Constitution was amendedto inmqrorate them.
A second basic right, provided in all but the DelawareConstitution, is the right of the people to ratify or rejectconstitutional amendments. The third most prevalentright to participate is the right to peaceably assemble andpetition government (48 states),
W. Rights against ~ranny
The rights listed in this section can be said to protectpersuns and their republic against various forms of tymnnyand against government discrimination. T’beprotection mostwidely -led here (all but New York) ia that the militmybe kept ‘<instrict subrdmation to civil puwer.”
The next most widely enumerated protections are (1)no taking of private property without just compensation(48 states); (2) no unreasonable searches and seizures(48) (3) procedural rules for warrants (48); (4) no govern-ment establishments of religion (46); (5) no ex post factolaws (44); (6) no special privileges, monopolies, or otherexclusive establishments by government (43J (7) no depri.vation of life, liberty, or property without due process oflaw (42); (8) no quartering of soldiers in private homeswithout owner consent or due process in time of war (40);(9) no impairment of the obligations of contracts (39); and(10) the right of the people to alter, reform, or abolishtheir government (37),
Although only 17 state constitutions have an e~licit“equal protection of the laws” clause, provisions in all ofthe state constitutions add up, in effect, to such aprovision. This concept is reflected as well in theprovisions in most state constitutions requiring equitable,nondiscriminatory property taxation.
V Rights in Civil and Criminal Proceedings
This section lists individual rights pertaining to civiland criminal proceedings. Most of these rights protectpersons accused of a crime, persons on trial, and persons
convicted of a crime. The rights most widely protectedhere are (1) non-suspension of habeas corpus (48 states),(2) no excessive bail (48), (3) no self-incrimination (47), (4)no excessive fines (47), (5) executive authority to grantreprieves and pardons (47), and (6) no cruel and/orunusual punishment (46).
The rights next most widely protected are (1) the rightto be informed of charges (45 states), (2) right to a speedyand public trial (44), (3) right to confront witnesses (43),(4) no double jeopardy (42), (5) no imprisonment for debt(41), (6) right to subpoena witnesses (41), (7) right to bail(40), (8) procedural rules governing the bringing ofcharges (40), (9) rights to access to the coutis (39), and (10)limits on treason convictions and/or punishment (37). Itshould be noted that 14 of the 16 rights cited above arealso in the U.S. Constitution.
Finally, this section reveals the addi:ion in recentyears of rights for victims of crime. In some states, such asCalifornia, the constitution contains a Victims, Bill “fRights. We have not detailed these rights here, but theyinclude such provisions as rights to be present at variousproceedings, to be informed of various proceedings anddecisions, and to be heard when relevant.
Vf. Natural Resources and Environment
Most state constitutions, especially those of thewestern states, contain provisions governing water,minerals, and other natural resources; however, most ofthese provisions take the form of declarations of statepnlicy, directives to the legislature, and specific regula-tions. Although these provisions serve to define andprotect rights, we have included in the table only thoseprovisions that are arguably framed as rights, Cmrse-quently, the small numbers of states indicated hereshould not be taken to mean that most states or stateconstitutions do not address these matters.
Similarly, only a small number of state constitutionsexplicitly enumerate environmental rights. ‘f ’bcreareprobably two other reasons for this small number. First,environmental protection has only recently become aprominent public policy concern; hence, it has thus farescaped most rounds of constitutional revision. Second,berause reformers have long argued that constitutionsshould be kept shufi and free of “legislative” detail, moststates have provided for environmental protection bystatute rather than by constitutional revision or amend-ment. Ttms, while all states provide for environmentalprotection, only a few states have embedded environmen-tal protection in their constitution.
VII.Occupational Rights
Most of the rights in this section stem from theurban-industrial era. A few stem from the more recent eraof the rights revolution when nondiscrimination became aprominent issue.
Again, however, the small numbers of state cmrstitu-tions represented in this section can be accounted for bythe reasons for ncnrinclusion given above. f)ccupationalrights are much more often spectiled by statute than byconstitutional provision, and, today. most occupationalrights are covered by federal law.
Intergovernmenti Perspective/Fall 1591 37
_—
VIII.Other KlghtsThe two rightslisted here govern private sector be-
havior and do not fit neatly into the other categories.Again, the sparseness of this section can probably be ac-counted for by the fact that these matters are more oftencoveredbystatute (federaland)orstate)thanbyconstitu-tional provision.
IX. Limits on RightsIt may mme as a surpriseto find that a numberof
state constitutionsmntain what are, arguably,limits onrights. Many of these limits reflect long-standing culturalstruggles in Americanhistoryand are aimed primarilyatwhat the majorityculture has broadlyregardedas “al-iens”—namely,black Americans,non-English speakers,atheists, pnlygamkts,communists,Ku KIu Klan mem-bers, non-citizens, and out-of-state residents. Of course,many oft hese limits have been voided under wlor of theU.S. Constitution, and others have fallen into disuse. Plu-ral marriages, for example, exist openly in the four statesthat constitutionally prohibit them Acizona, Idaho, OkIa-homa, and Utah. --
Two of the limits uresented in this section arecontroversial today, and ~ould not be defined as limits bytheir advocates. Those who support English as a state’sofficial language do not regard these provisions as limitingrights, but those who oppose these provisions do regardthem as limits on rights. Similarly, those who oppose
abortion regard prohibitions on tbe use of public funds topay for abortions as a step toward providing greater rightsprotection for unbnm children. Those who op~se theseprovisions regard them as limits on the rights of women.
~ree limits in this section prise a tension betweenindividual rights and the right of the@ politic to mot outand prmte ccimiial behavior, mainly government mr-ruption. ‘f’hcaeprotilons essentiallycompeltestimonyfrnmpe~ns having knowledge of mrmpt government acts.
X. Resewed Rights
One question arising from the adoption of a hill ofeights is whether rights not mentioned in the declarationare nonexistent or unprotected. TOcnver this contingency,the U.S. Bill of Rights and 33 state declarations of rightsprovide that eights not enumerated are neverthelessretained by the people. The other provisions in thissection have a similar thrcrst, except that they pertain tothe rights of the people of the several states to retainself-government vis-a-via the fedecal government.
MarkL Glasser compiled the data andp~md thetables dunrrg hk Summer 1991 intem.rh~ at ACIR. Hek a gnrciuate stadent at the Schcwl of Urban and Public~airs, Carnegie Mellon Universi@ John Kincaid is er-ecutive director of the Advkory Commission on Inter-governmental Relatins.
Selected State Constitutional Rights
I. Declarations of Pn”nciplePreamble We the People the Pcuple of. ..1Preamble Ditine invxation (e.g., grateful to Gcd).All persons have natural right to
LifeLibertyEnjoyin#Defending lives and Iibcrtiespursuit nf happineaaEniovment of rewarda of one’s own industcy~tiiring, ~sessing, protecting propertyAcquiring, ~sscssing, protecting reputationPm’suing and obtaining safetypursuing and obtaining privacyObtaining objects suitable to their condition
without injmy to other’sFreely communicate their thoughts and opinicmrA clean and healthtil environmentPumue life’s basic necessities.
All men are by nature~m equally freelinde~ndentand have certain inalienable rights.
All persons are equal and entitled to equal rights,Opptiunities, and protection under law.
All fcec men, when they fomr a sccial mmpact, have
4543
13
;32
:4
17CADE
3MTMT
n
6
4equal righ~.
All ~mns have currespnnding obligations tn the people Sand to the state.
When men enter into a society they sm’render up some NHof their natural rights to that ~ety in order to emucethe protection of othen; and tithout such an equiwlent,the ;urrender is void.
Defense and protection of the State and of the U.S. is NYan obligation of all persons tithin the State.
All political Focver is inherentlvested in the people. 43
Gnwmments deriw just mm fmm cumcnt of the Ppk/ 33All govcmment originates with the people and isfounded upon their will only.
Go=mment is at all times accountablelamenable to the 5people.
The end of gmmment k to -m the *tcncc of the MAbody plitk, tn pmtcct it, and to fumkh the itiividuakwho compmc it with the lm%r of enjoying in safetyand tranquility tbcir natural rightr and the bkasin~ of life.
Govemmenta are established to protect and maintain 6individual rieh~.
All gmmment ~ i&titutcd solely for the @ of the people 4flaa a wholel for benefit, security, and protection of the~oplelproperty.
All constitutional Sovemment is intended to promote the MOgeneral welfare of the pople.
Sole object and only legitimate end of government is to ALprotect the citizn in enjoyment of life, Iihfiy, andpmprty, and when gommment wmcs otkr functtimit is usm’pation and oppression.
Absolute and arbitrary pnwr over tbe lives, liberty and 2property of freemen exists nowhere in a republic, noteven in the largest majority.
Tbe faith of the people stands pledged to presemtion of TXa republican form of govcmment.
Doctrine of non-resistance against arbitrary pu%r and 3OPPresion is absurd, slavish, and destructive of thegccd and happ!ness nf mankind.
A bequent rccumncc to futiamental principles ia esntial 13to security of individual rights and perpetuity of freegovernment.
State is an i~pmble pm of the American Unio~ US. 12Constitution is the supreme law of the land.
3S Intergovernmenbl Perspective/Fall lW1
Every citizen of the state owes paramount allegiance to the 3Constitution and government of the US.
The provisions of the US. Constitution, and of the state, 2aPPIY= Wo % in times of war as in times of peace.
11 Basic Rizhts @ Human Freedom
No slaveryor involuntary servitude.’The dignity of the human bing is inviolable. M2;Free ~ti of religio~tim or natura~ right to mmhip 4S
awrding to mnsciencelLibetty of con%ienw. 1Perfect toleration of religious sentiment requiredl 2n
No inhabitant of state molested for religious wmhipor lack thereof.
AO pemns are equaOy entitled to protection in their MDreligious liberty.
No pwer shall be vested in any magistrate that shall 14interfere with, or control rights of, conscienw in freeexercise of religious mnhip.
Freedom of s~h. 1 47Freedom of press’/Freedom to w?ite and publish on all 47
suhjecti.Shie!d protection for new pe~m against contempt for not CA
revealing mnfidential murces.To promote inditiual dignity, communications that portray IL
criminality, deprarity or lack of virtue in, or that inciteviolence, hatred, abuse or hostility toward, a person orgroup bcause of religious, racial, ethnic, national orregional affiliation are mndemned.
Right of the people to presem, foster, and promote their LAresmctive historic. Iineuistic and cultural orieins isre&gnized. -
Right of people to keep and tiar arms .Pumuant to militia.Pursuant to selfdefenselstate defense.Pumuant to hunting and recreational use.
No law imping Iimn.sure, registration or special taxationon -mhip or -ion of timartns or ammunition.
No law to ~nnit confiscation of firearms.Right oft he people to privacy is recognized and shall not
be infringed,No unreasonable invasions of privacy.Emigration shall not h prohibited.People of state disclaim all right and tide to Indian lands.All Ian& @ or held by any Indian or Indian trib shall
remain under absolute jurisdiction and control of theUS. Congress, and continued in full for= and effectuntil rewked by mwnt of U.S. and ~ple of the stak.
No state taxes on land or pro~rty within IndianReservations.
III. Rights 10 Participate in Governance
Basic Electoral Rights
Right to vote not to k denied due toRace, alor, previous rendition of servitude’SexzFailure to pay FO tax or any taxzAge @rsons age 18 and older~Property qualificationResidenm on US. land tithin the state
92
326
ID
ID4
IL
:7
AZ
464
37
Religion 2Every Indian, residing on tribal reservations and otheiwise 2
qualified, shall be an elector in all munty, state, andnational elections.
No IN of residence for king employed in WMW of US., 11a student in any institution of learning, kpt at any almshou% or other public asylum at public e~ense,or confined in any public jail or prison.
Every elector in military or naval service of US. or of the 5state may exercise the right of suffrage at such placeand under such regulations as provided by law.
Right to appeal to judge of county concerning denial of, 4or error in, voter registration.
No loss of residen= for temporaV absence from statel 10absen~ on business of state or United States.
All elections shall & fme and equallopenl held often. 27People have right to cauw their public officers to return to 2
private life, and to fill vamncies by mnain and regularelections and appointments,
Guarantee of wte by ballotiother method ptihd by law.Guarantee of secret brdlotlvote.Guarantee of absentee ballot fvote.No ~mn~o Wwr, civil or military, shall at any time
interfere to prevent free exerci% of right of suffrage.Electom privileged from amst.No ekctor obliged to perform milita~ duty on election day.
Rights to Alrer ConstitutionPenple may propose and enact constitutional
amendmentslconvention by initiative.Constitutional initiative limited to legislative article.Peopk must appmw comtitutionaiamendmenivpmpd
by Iegislaturelwnvention.People must be asked at specified intervals if they desire
constitutional mnvention.No institutional anvention called by legislature unless
questiotilaw providing for such convention are fimtapproved by people on referendum vote,
Constdutlonal conventions shall have plenary -r toamend or R* mmtitution, subject only to mtifi=tionby ~ople. No call for a convention shall limit pownof convention.
Initiative, Referendum, and RecallPeople may pro~e and enact law by initiative.People may approve or reject acts of legislature by
referendum.People may recall elected officials,
Other Participation RightsPeople have right to instruct their repre%ntatives.People have right to make knom their opinions to their
renre%ntatives.Right-to peamably assemble and petition govemmentl
mnsult for wmmon gal.’For redress of grievances, and for amending, strengthening
and preserving the lam, the legislature ought to befrequently convened.
Public has right to expect government agencies to affordsuch reasonable op~rtunity for citizen participationin the operation of agencies prior to final decisionsas may & provided by law.
No pewn shall be denied right to okm deliberationof public bodia and examine public d~menh, exceptin - atablkbed by law.
Power of grand juries to investigate and makerewmmendations abut public welfare or safety shallnever be sus~nded.
One or more grand juries shall be drawn and summonedat least one a year in each munty.
Right to serve on jury not denied ticause okSexRaceColorNational originReligion -
No person inampetent to be witne%ljuror because ofreligious kliefllack thereof.
312s2116
2s9
16
IL49
13
30
2
2325
15
174
4s
2
MT
4
AK
CA
5NCNCNC
217
lntergovernmenW Perspective/Fall 1S91 39
—
Women shall not be compelled to serve on juries/Court 2shall excuse any wman who requests exemptionbefore being swm in s a juror.
No retigiow tesVqualification for public offidemployment. 1 30No disqualification to enjoy public office by reason of sex, 5No property qualification to enjoy public office, 6Appointment of alI membm of administrative boards and MO
wmmissions and of all departments and division headsand all the employees thereof shall be made withoutregard to race, creed, color, or national origin.
Civil service appointments and promotions based on 12meritla.scertained by competitive examination.
No person who has gained permanent status in classified f.Astate or city service shall & subjected to disciplinaryaction except for cauz expressed in writing. Suchemployee shall have right of ap~al,
No classified employee shall be discriminated against 2because of his plitical or religious &liefs, sex, or race.Such employee shall have right to ap~al.
No officer or emplo~ in cbi.ssitiedservim shall participate LAor engage in Wlitiml activity; ex~pt to exercise hisright as a citizen to e~ress his opinion privatelyand to cast his vote as he desires,
Membemhipin stateflccal retirement sptems is mntractual 5relationship,
Accrued benefits of statellxal retirement systems shall 5not be diminished or impaired.
W Rights against ~rannyand Government Discrimination
Equal Protection of Laws
No state shall deprive any Wrson of equal protection 17of laW.3
All lam of general nature have uniform o~ration. 12Rights of all persons under 18 yearn shall include, MT
but are not limited to, all the fundamental rightsof the institution unlessspecificallyprecludedby la~,
No ~rson to be denied enjoyment of any civilor political MEright due to
Race or color 14Creed 6Sex (ERA) 15National orizin 10Physicallme;tal disabilityReligion
316
SWial origin MTPolitical ideas MTDiscrimination by another person 2Dtimination by any firm, co~ration, or association 2Discrimination by any agency/suMivision of, 2
or the stateIn access to public areas, amommdations, and facilities, f,A
every ~rson shall be free from discrimination basedon raw, religion, or national anwt~, and from arbitra~,capricious, or unreasonable discrimination ba%don age, sex, or physical condition.
No citizen denied enlistment in any military organization 2in the state nor segregated therein because of race,religious principles, or ancestry.
Swial status of citizens shall never be the subject of GAIegislatio”.
No distinction or classification of public scbccd pupils on 6account of race or color,
No person shall be refused admission to any public 2educational institution on acmunt of sex, raw, creed,religion, political beliefs, or national origin.
Nopupil aignedor transprted toanypublic educational COinstitution to achieve racial balanm.
Nolawgranting anytitizen, cl=ofcitizens ormrporation 13(other than municipal) privileges or immunitiesnot equally granted to all citizens or m~rations.
No citizen disfranchised or deprived of any rights 3and privileges secured toothercitize”s,
All individuals, wociations, and mprations have 7equal rights to have persons and proWrty transportedover any railroad in the state.
Power of taxation shall be exercised in a just and equitable NCmanner.
Alltaxes shalibe uniform upon sameclassofpro~rty 27within territorial Iimitsof taxing authority.
Sballkuniform andeaual basis ofvaluation and rate 16oftaxation ofallpr;~rty subject to taxation.
Tmesonpro~rty to reassessed inprowrtion to value 12of property.
Property in the state to be taxed at the same rate. ALForeignemlresident aliens who are bona tide residents 8
of thestate enjoy smerigbtsin ~pect to enjoyment,and inheritance ofproperty asnative born residents.
Noncitizens have same pro~rty tights as citizens. CAEvery ~rson has right to acquire. own, mntrol, me, 1A
enjoy. protect. and dis~se of private proprty,I.andsand other proWrty belonging tocitizens of the U.S, 10
residing tithout the slate sball never be tmedat higherrate than lands and other property hlongingto residents of state,
f!iti~ns ofeach state entitled toallprivikge and immunitis Oof citizens in several states.3
All citimm of U.S., residents of the state, w declared GAcitizens of thestate; andwpmt%ted in fullenjo~entofrighb, privileges, andimmunities duesucbcitiznship.
Nodktinction shall kmadekWn citiZmofotbers~tm 2and territories of U.S, in reference to purchase,enjoyment or descent of property.
Personal and Prope~ Rights
Nostate shall make orenforce lawabridging privileges SCand immunities of citizens of U.S.3
No deprivation of life, Iitxrty, or prope~ without due 42p- of law.2
&mix of Wli@~mof thesta& shall newr& abridged, 4orwconsttued mtopennit w~ratiom tamnduct theirbusiness in such a manner as to infringe umn tbe riehts. .of individuals.
No administrative agency shall inqmse a sentence ofimptinment, noranyother ~naltywpt mpmvidedby [8W.
No pe~n shall & finally tiund by judicial or quasi-judicialdecision of an administrative agency affecting privatetights mpt endue notice andoppotinity totikard.
No mmmission shall & issued creating spcial tem~rarycriminal tribunals totryparticular individualsor particular classes of cases.
2
Sc
PA
No la& impairing obligation of antracts? 39Any prevision of a mntract, expres or implied, made by any OK
pemn, by wticb any of tbe kneti& of this Constitutionis wught to be waived, shall be null and mid.
Rights, privileges, and immunities, civil, political, NMad religim, guaranteed by tbe Treaty of G“adalu~Hidalgo shall be inviolate.
No private pro~rty to be takenldamaged for publid 46private use whbout just compensation mnsentof Owner.l
Noprivate property to betake” forprivate use without 17consent of omerltithout just com~nsation.
Noperson deprived oftitle toanestate orinterest in real HIproperty by another ~~n claiming actual, mntinuous,bmtik, exclusi~, open, and notoricms -ion of suchhinds, except to real property of five acres or more.
40 intergovernmental PersWtive/Fall 1991
No private pro~rty to k taken or sold for payment of 4mrporate debt of municipality.
No person’s particular services shall k demanded 3without just compensation.
No unreasonable searches and seizures of citizens and 4SpssessiOns.l
No unreasonable searches and seizures of private NYmmmunications.
No c.erson shall be disturbed in his urivate affairs, ‘2.=or his home invaded, without a~thority of law.
No viarrants except for probable cause and sup~rted 47by oath or affirmation.l
Warrants must k plain and person s~citic.l 46Homestead protection. 24No taxation of pau~rs for supprt of the government. MDMarried wman’s separate property right/Wife not liable 9
for husband’s debt.Prowrty cnvned before marriage or acquired during marriage 10
by gift, will, or inheritance is separate prowrty.No distinction btween married women and married men 2
in holding, cimtml, dispc6ition, or encumkring of property.No divorce shall be granted by the General Assembly. 6
No Exclusive Establishments
No law granting ii-revocably any privilege, franchi% 22or immunity.
Penxtuideslentailmentslmonowlies arc mntraw to genius 18“of free government, and sh;ll never be aOo&d. -
No man, or set of men, is entitled to exclusive separate 7public emoluments or privileges but in mnsidcrationof public seti=s.
No granting of titles of nobility.2 8No heredita~ emoluments, privileges, or po%rs shall be 17
granted or mnferred,No law of primogeniture or entailments. TXNo office shall k created, appointment to which shall be 9
longer time than during gd behaviorl term of yearn.No establishment of religioniNo public money or pro~rty 35
appropriated for o! applied to any religious wmhip,exercise or Instmctlon, or to support of any religiousestablishment.
No preference given by law to any religious 2sdenominationlEach shall have equal Pwers, rights,and privileges.
No sectarian instmction in public schmls. 9No student of public school may k denied the right W
to ~rsonal and private contemplation, meditationor pmyer nor shall any student be quired or encouragedto engage in any given contemplation, meditationor prayer as part of the curriculum.
No religious or political test for teachem or students 8in public schools.
No pmon shall be compelled to wnhip or support 26any religious assmiation.
No person shall in time of peace be required to perform TNany sen’ie to the public on any day set apartby his religion as a day of rest.
Nothing shall prohibit or require making reference to a MDbelief in, reliance upon, or invoking tbe aid of Godor a Supreme Being in any governmental or publicdocument, proceeding, activity, ceremony, schoolinstitution or place.
Protections against Overt Tyranny
People have right to secure and sustain public trust m,against abuse.
No powr of suspending law in state shall & exercised 19except by legislature.
No law to k p~d, the taking effect of which shall be INmade to de~nd on anv authority, exevt as givenin cansdtutlon. -
Inhabitant of the state are mt mnmlled by any other law NHthan tbme which thev. or their revre%ntative WY,have given their mntint. “
.
The ~ople shall not be taxed without the cnnsentof them%lves or their representatives.
-r to tax shall be wted in legislati~/ shall be m-for public PUWS only.
Power to t= shall not be surrendered or suspendedby grant or cnntractldelegated to primte coprationsor a~ociations.
Poner to tm m~rations and mrporate p~~ shall notfx surrende~d or suspended by any contractor grant.
Suits may & brought against tbe state.Citizen of any county, city, or town may tile suit for self
and others to protect inhabitants thereof againstenforcement of any illegal exactions.
No bills of attainder.l 30NOex ~t facto law. 1 44No retros~ctive onths. MDNo quartering of soldieml~rsons in private homes
without owner consent or due Dr=ss of law in time
11
8
18
7
14AR
of w.’No person kcause of religious creed or opinion shall &
exempt tim military duty except on mnditiom providedh. Inw.-, .
No conscientious objector wm~lled to do militia dutylin time of fxace.
No standing army.In time of Pace.WeO regulated militia is proper and natural defense
of a free government.No person shall be subject to corporal punishment under
military law, except such as are employed in the armyor naq, or in militia when in actual setice in timeof war or public danger.
No armed plice force, detective agency, or armed myof men to& bmugbt into state to suppress domesticviolenm except by application of k&lattIE, or executiwwhen legislature cannot be convened.
Militay shall k in strict sufwrdination to civil powr.Persons going to, returning from, or on militia duty are
privileged from arrest.To guard against transgressions of high PWI’S being
delegated, w declare that everything in Bill of Rightsis excepted out of general PWI’S of government,and shall remain inviolate, and all Iaus mntrary thereto,or to following provisions are void.
People have at all times inalienable tight to alter, reform,or ahlish their government in such manner as theythink e~ed]ent.
VRighls in Civil and Criminal Proceedings
Initiation of Proceedings
Oath, or affirmation, shall be as such as shall & mostconsistent with and binding on the conscienceof pemn to whom oath or affirmation is administered.
All murts shall be open.Every ~rson, for any injury done him, shall have
a judicial remedy by due prmss of law.Right of action to recover damages for injuriesllnjuries
resulting in death shall never be abrogated.Right to & informed ofldemand nature and cause
of accusationlto have copy thereo f.’Every person charged with a crime is presumed innocent
until proven guilty.
40
2
17
4205
8
5
496
6
37
10
2637
2
45
2
Intergovernmental PerspctiveIFall 1991 41
No ~rson to be abused/treated with unnewssa~ rigor 6in being arrested, while under arrest, or in prison,
No self-incrimination. 47A wife shall not& mm~lled to @tify against her husband, UT
nor a husband against his wife,Right to munsel for de fense.l 23Grand jury p=%ntment or indictment required for capital 15
or infamous crime.lInformation or indictment required for criminal 24
prosecutionl felony.No pemon shall be held to answr for criminal offense 2
without due process of law.No pemn shall be held to ans~r for any crime, punishable 2
by death or life imptinment, unla on probable caux,shown at hearing.
Right to preliminary examination shall not be denied LAin felony cases except when nccused is indictedby grand jury.
No person tried for capital or other infamous crime except 2on information duly filed.
No person to be prosecuted for felony by information 5without preliminary examination before magistrateor having wived same.
No person prosecuted by information of public prosecutor IDafter grand jury hm ignored charge.
No person, for any indictable offense, shall be prweded 4against criminally by information.
No person shall be arrested or detained except in cases CTclearly warranted by law.
Pemn unable to undemtand English who is charged with a 2crime has right to interpreter throughout prwedings.
Privilege oftitofha&ti m~usshall notksus~nded.l 4SEWW uemn retrained of hs Ii&rtv is entitled to a remedv NC
(o “inquire into lawfulness ther~of.The tit of habem mrpus shall & ~ntable of right, kly
and without cmtlin the most easy, cheap, expeditiousand ample manner.
Right to bail.lEverv ue~n chareed with a crime shall be entitled to
p;trial releas; on reasonable renditions,No ex~sive bail.l
Conduct of Proceedings
No accused person before final judgement com~lledto advance money or fees to secure criminal rights.
Right to trial by ju~.For all ctimeslFor all cases in lawFor mmmonlcivil law cases ahve certain dollar
amOuntlFor cases subiectine any mrson to caDital
punishm~nt - “ ‘Right to trial by caurt in civil cases where matten of fact
‘are at issue: if parties agree.Right to speedy and public trial by an impartial jury.lRight and justim shall be administered openly, without sale, 36
denial, or delaylprejudi~.No wmmission of oyer and terminer, or jail delivev, DE
4
4UFL
4s
4
10296
NH
6
AA
shall b issued.Right of ew~ citizen to be tried by judges m f~e, impmial 2
and independent as the lot of humanity will admit.Trial to be held in state/muntv where crime w mmmitted 31
by impartial jury.’ -No person shall be subject to the same person for both SC
protection and adjudication.Accused shall have right of voir dire examination of LA
pmpcctive juron and to challenge jumm peremptorily.Right to petition for change of trial venue. 9
Right to testify in one’s own behalffb ~monally present 36with counsel.
Right to furnish all proofs favorable to accused. 4Right to subpoena witnesses.l 41Right to confront witne~s, t 43Witnesses shall not k unreasonable detained~o XISO” 10
imprisoned longer than ne~~a”ry to secure te~timonyby depsition.
Witneses shall not be wnfined with urisonem. 2Right of all persons to fair and just t~eatment”in legislative AK
and executive investigations.No person to be cnmmitted % person of unsound mind 2
except on mm~tent medical or psychiatric testimony,
Outcomes of Proceedings
Right to appeal in all cases. 9No double jeopard .1Y 42No ex~ssive fines, 47No law may limit amount of damages to be recovered 9
for causing death or injury to Pemonf property.Estates of three wh{>destroy their own lives shall descend 8
or vest as in case of natural death.No imprisonment for debt. 41No imprisonment for failure to pay tine in criminal case IL
unle% afforded adequate time to make payment,in installments if neasary, and unless person haswillfully failed to make payment.
No imprisonment for militia fine in peawtime.No indefinite imprisonment. 2No cruel andlor unusual punishment. 1 46No whipping allowd as punishment for crime. GAAll penalties determined hth aarding to seriousness 7
of crime and objective to restore offender to usefulcitizensbiplproportioned to offense.
Penal administration shall & based on principle of 6reformation and need to protect publidnot vindictivejustice.
In mmtmction of jaik, proper regal shall be had to health 3of nrisnne m.. . .. . ... ..
Legislature shall, by law, provide for employment and 6mupation of prisone n/No prisoner required to ~rkwhere hi labor or prcduct shall fx mntracted to any firm,~rson, or association,
Friends and counsel may at pro~r seasons have acsess DEto those confined,
No minor under age 18 maybe mnfined in same section 2of any jail or prison with adult prisoners.
No conviction shall wrk corruption of bld or forfeiture 27of estate.
No provision shall be cnnstrued as prohibiting im~sition MAof the punishment of death.
No law shall be enacted providing for the &nalty of death. MILimits on treason conviction andlor punishment,l 37No citizen shall be outlawed. 6No citizen shall be transported out of state for any offense 11
comnlitted within statelexiledl banished.tiecutivelwhh approval of hard may grant reprieves, 47
paroles, commutations, andlor pardons.’Executiveltith approval of kard may remit tines 26
and forfeitures.Victims’ rights/Bill of rights, 5
W. Natural ResourcesEach pemn ha right to a clean and healthful entimnment, 2
including mntml of pollution and an~~tion. protectionand enhancement of natural resourms.
People shall have the right to clean air and wter, freedom MAfrom excessive and unnecessary noise, and the natural,scenic, historiq and esthetic qualities of their envimnmen~
42 lntergovernmenM Parsp%ctive/Fall1991
and protection of the Fople in their right to themmmtion, dewlopment, and utilimdon of agricultural,mineral, forest, water, air, and other natural resourcesk declared to& a public PUPW.
The pople have a right to clean air, pure wter, and PAto the preservation of the natural, ~nic, historic,and esthetic values of the environment. State’s publicnatural resources are the wmmon proprty of all thepeople, including generations yet to mme. Commonwealthshall m~m and maintain these for the knefitof the people.
Cowmtion and dewtiment of all the naNral mum TKof the state includin~ the mntml, storing, pmrvationand distribution of water, streams, rivers, forests,and navigation of inland and coastal wates amdeclared public rights and duties.
The state and each prson shall maintain and improve MTa clean and healthful environment in the statefor present and future generations.
Law and ~gulatiom gemming w or dupal of natural AKm= apply equally to all pe~ns similarly situated.
Feudal tenures of every description am prohibited. 3No [e&or grant of aW”culNral lands, mting any ~nt 2
or ~rvim, shall be valid for more than a peti of yem.All *tine rich@ tow of anv uaten in state for all uxful 4
“ -,
or kneficlal pu~ses ar; hereby rewgnizedand confirmed.
All surfa~ and Subsurfam waters reserved to the @oplefor mmmon use are subject to appropriation.
Right to divert unappropriated waters of every naturalstream for beneficial use shall never be denied exwptwhen demanded by the public interest.
Priority of appropriation of wter shall give prior right,Right to natural wtem limited to that rewnably ~uired
for kneficial use.Riparian rights attach to no more flow than reasonable
and beneficial uses.Common law doctrine of riparian water rights shall not
obtain or be of any force or effect.Necessity of uater for domestic use and for irrigation
PU- in the state k deckued to be a natural uant.U% of ~ter of eve~ natural stream within the state
is dedicated to the moDle of the state for kneficialpu~ses. “ “
Rights, title, and interest in and to all water for thedevelopment of wter powr sites, which state nowowns or may acquire, shall be held in ~~tuity.
The state asserts its ownership to the beds and shoresof all navigable wtem in the state. The w of wdtemfor irrigation, mining, and manufacturing purposesshall be deemed a public use.
No citizen of U.S. or ~sident of state to be denied freeaas to navigable or public waters of state.
State shall have ancurrent jurisdiction on all riversand lakes burdering the state, and all navigable wtemshall be common highwys and forever freeto inhabitants of the state and citizens of the U.S.
An equal participation in the free navigation of theMk.skippi is one of the inhe~nt rights of tti citi%nsof the state.
Wherever occurrinc in their natural state. tish. wildlife.and watem are wd to the people for ammon W.
People shall ha= right to tish upon and tim public landsand wtem thereof.
All fisheries in the wa waters of the state not includingany fish pond, artificial enclosure, or state-licensedmariculture operation shall & free to the public,subject to vested rights and right of state to regulatethe same.
2
NE
63
CA
AZ
NE
m
OR
WA
4
w
TN
AK
CA
HI
No exclusive right or special privilege of fishery shall&created or authorized in natural wten.
The natural oyster &ds, rocks, and shoals in the mtemof the Common%alth shall not be leased, rented,or sold but shall be held in trust for the benefitof the Fople.
People shall continue to enjoy and freely exercise all therights of iisbeiy and the privikgEs of the shore, to whichthey have ken entitled under the charter and usagesof the state: and thev shall & secure in their rightsto the use and enjo~ment of the natural resour&sof the state with due regard for the preservationof their values.
All public natural resoures are held in tmst by the statefor the benefit of the people.
People of the state are declared to possess the ult imatepro~rty in and to all lands within the jurisdictionof the state.
The salt sprin~, al. oil, minemk. or other naturalmm on or mntained in the land belongingto the state shall never be alienated.
Dimvey and appropriation shall be bask for ~tablishinga right in minerak ~rved ~ the staa prior dtive~,I@tiin, and filing as ptibed by law, shall atablkha prior right to these minerals and also a prior rightto Wrmits. leases. and transferable licenses for theirextraction
No pemn shall k involuntarily divested of right to useof uaters. interest in lands. or improvements effectingeither, ex”mpt for superior ‘~neti~ial u% or public “purpuse and then only with just mm fxnsationand by operation of law,
VfI. Occupational Rights
The labor of human ftcin~ is not a commcditynor an article of commerce and shall never bew mnsidered or construed.
Rights of labor shall haw just protection through the lawcalculated to secure to the latmrer pro~r rewrdsfor his service and to promote the industrial %Ifareof the state.
All wage e~m in the state employed in factoria, mines,wrkshops, or by mrpurations, shall be paidfor their labr in Iatil money.
Eight-hour wrkdayAll employment by, or on behalf of, state
or any Wlitical subdivisionWvate sector employment (injurious or dangerous
jobs)No lahrer, in employ of a mntractor or sukntractor
engaged in ~rfonnance of any public Wrk, shall kPermitted to work for more than five dnys
in any week,Paid I= than the rate of wges pretiling in same
trade or occupation in I@lity where suchDublic wrk is situated.
Child labr~No child under age employed during public
school houm.-No child under age employed underground
in mineslany hazardous occupation.No child under age in factorieslwrkshops.
No contractual immunity of employer from liabilityfor negligenw.
Common law dwtri~ of fellow servant, so fw as it affectsliability of a master for injuries to his semnt by otherservants of master, is forever abrogated.
AK
VA
RI
HI
2
NE
AK
AK
NY
WY
KY
9
co
NY
NY
AZ
7
ND2
2
Intergovernmental PerspectivelFall i WI 43
Right of employees or employen to pay into a state 4or other system of insurance for compensationfor injuries to employees,
Labor “black lists” prohibited, 3Right to wrmo pe~n to fx denied employment&W 7
of membership or non-memkrship in any labororganization.
Right to bargain collectively through Iahr organization 3shall not be abridged.
Persons in private employment shall have the right 2to organize for purpose of collective bargaining.
Persons in public employment shall have tbe right HIto organize for purpose of collective bargaining,as provided by law,
Pemn in public employment shall baw the right to orga.im, NJprent to and make known to the state, or any politicalsubdivisions or agencies, their @evanm and pro~alsthrough representatives of their chmsing,
Person not to be disqualified from entering or pumuing a CAbusina, profaion, ~tion, or employment becauxof W, race, creed, mlor, or national or ethnic ori~”.
Every chi~n of tbe state shall be free to obtain employment NDwherever ~ible, and any ~mn, co~ration, or agentthereof, maliciously intetiering or hindering in any WY,any citizen from obtaining or c“joying employmentalready obtained, fmm any other m~ration or ~mn,sb~ll be deemed guilty of misdemeanor.
No discrimination i“ hiring or promotion practices ILby any employer on azount of ram, calor, creed,national ancestry, W, or phpical or mental handimp,
WII. Other Rights
No di.xrimination in sale or rental of pm~rly o“ account ILof race, cnlor, creed, national ancestry, sex, or ph~icalor mental handicap
Any person may, by will, bequeath all or any portion MSof bis estate to any charitable, religious, educational,or uvil institution, subject to statutoV rights of s“rvitingspouses and minor children,
IX fimits on Rights
No person wbo advocates, or wbo aids or belongs 4to any party or organization or association whichadvocates, tbe overthrow by force or violenceof the government of tbe U.S. or the state shall bequalified to hold any public office of trust or profitunder this constitution.
Secret fwlitical societies shall not be tolerated, NCConstitution dms not prohibit state from granting AK
preferences, on basis of state residence, to residentsof state over nonresidents to extent permittedby U.S. Constitution.
Rights of aliens in reference to purchase, enjoyment, 6or descent of property may be regulated by Iaw/Ownership by aliens prohibited,
No ~~n not a citizen or wrd of tbe U.S. shall k employed 3upn or in connection with any state, county or municipalmrk or employment,
Public employees have no right to strike. mPublic schmling shall always be conducted in English. AKEnglish fluency required to hold state office. AKEnglish is official Iang”age of state. 6English and Hawaiian are official languages of tbe state. HINo individual, co~oration, or assxiation allowed AK
to purchase more than 1~ acres of agricultural landor more than 64ft acres of grazing Ia”d.
Polygamous or plural marriages, or plygamous mbabitation, 4are forever prohibited.
No public funds will be used to pay for any abortion, 3tigislafure shall newr p= any law to authorim or legalize AL
any marriage betwen any white ~rson a“d a “egro,or descendant of a negro.
Tbe marriage of a white person titb a negro or mulatto, SCor peson wbo shall have one-eigbtb or more negroblocd, shall k unlawful and void.
No unmarried wman shall legally consent to sexual Scintercourse who shall not have attained the ageof fourteen yearn.
Any ~rson hating knowledge or pmsession of facts OKthat tend to establisb guilt of any other ~rsonor mrwration under tbe lam of the state shall not k_ fmm giving mtimony or ptiucing evidenmon grounds that it may incriminate them.
In trials of contested elections and investigations 5of elections, no person may withhold testimonyon ground of ~lf-incrimination, but testimony maynot be used against person,
Person having knowledge of bribery or illegal rebating 7cannot be excused from testimony. but cannot beprosecuted on testimony (i.e., immunity).
No soldier. sailor, or marine in tbc military service 13of tbe United States shall aufuire residence by reasonof being stationed in this state,
No pe~n who denies the being of Gcd shall hold any civil 4officeh mmpetent to testify as witness in court
No person wbo denies the being of Almighty Gcd, is not NCqualified to wte, andfor is mnviti of felony or treasonbavine not bxn restoti to rigbb, shall be d~ualitiedfrom ~olding public offiw. <
No prson wbo fights or participates in a duel shall bold 9any office in lbe statel for ~ricd of tc” yearn.
Any rights created for tbe timt time by Deckuation of Rights ILshall be prospective and not retroactive.
X Resewed Rights
Rights not enumerated are retained by the people.l 33Rights guaranteed by state constitution not dependent CA
on those guaranteed by United States Co”stit”tion,Powrs not delegated to U.S. or denied the states are 4
reserved to the states or to the people.lPeople of the state have sole and exclusive right 7
of governing themselves as a free, sovereign,and independent slate,
The state k free and indefxnde.t, subject only to tbe U.S. MOConstitution; all pro~ed amendments to tbe U.S.Constitution qualifying or affecting individual libertiesof tbe ~ople or impairing local self.go~rnmentshould & submitted to conventions of tbe people.
People wrve tbe right to control own destiny, to nu~re HIintegrity of tbe pople and culture, and to presewequality of life desired.
‘fkble Notes:
1This provision or a similar provision is also found in the U.S.Constitution and applies to tbe U.S. government.
2This provision is also found in tbe U.S. Constitution, and ite~licitly applies btb to the U.S. government and to the stategovernments (and their local governments). Tbe num~r nextto tbe right indicates tbe numkr of state constitutions havingthe same or a similar provision.
3This provision is found in tbe US. Constitution and appliesonly to the state governments (and their local governments). Itdoes not explicitly apply to tbe U.S. government.
44 Intergovernmental Perspective/Fall 1991
AmendingState Billsof Rights:Do Voters
ReduceRights?
Janice C. May
The renewed attention to state constitutionsduring the past 20 years has raised questionsabout the impact of formal amendment and re-vision processes on the viability of these char-ters as protectors of individual rights. A primaryreason why questions have arisen is that stateconstitutions are amended frequently. “Amen-domania” is a term that has been applied bysome critics to the hundreds of amendmentsregularly proposed and added to state constitu-tions. Constant tinkering with a state’s funda-mental law may not, therefore, augur well forthe permanency of rights.
A key concern is the role of the voter, who possesses thesovereign power to decide the fate of constitutionalamendments referred by the legislature or by a mnven-tion (and in Florida by commissions). Under the constitu-tional initiative prmess available in 17 states (only one ofwhich uses the indirect form), voters may propose andadopt amendments independently of the legislature or aconvention. Although the U.S. Constitution provides afloor of protection for certain cigbts, are state constitu-tional rights imperiled by procedures that allow continualesposure to public opinion? Can the “majority” bc trustedto protect “minority rights”?
ArI analysis of state constitutional amendmentsreferred to the voters can shed considerable light on thesequestions. In this article, such an analysis will be made onthe basis of surveys conducted by the author and the lateAlbert L. Sturm.’
Infrequent Klghts Amendments
The first important finding is that state bills of rightshave been smended relatively infrequently. From 1970through lM, approximately 155 rights amendments wereproposed, of which 126 were added to bills of rights< Thisis an average of 3.0 proposals and 2.5 adoptions for eachstate, or about one adoption per state every eight years.Of the 11 major articles of state charters, the bill of rightsranked near the bottom with respect to the total numberof constitutional amendment proposals (ninth) andadoptions (eighth). Eqressed in another way, amend-ments to bills of rights accounted for about 5 percent ofproposals and 7 percent of adoptions. The fact that rightsproposals enjoyed the highest rate of adoption among thearticles (82 percent) explains the somewhat largerproportion of rights measures radfied by the voters.
Interest in amending bills of rights as measured bythe number of propositions on ballots was slightlyhigher in the 1970s than in the 1980s (75 proposals and60 adoptions in the 1970s compared to 68 proposals and59 adoptions in the 1980s). The biennium showing themost activity during the past 20 years was 1972-73—26propositions, of which 22 were ratified.
An exception to the slight downward trend in the1980s was an increase in the number of constitutionalinitiatives to amend state bills of rights. While only fivesuch propositions were on the ballot in the 1970s, of whichtwo were approved, the number in the next decade grewto eight, almost a four-fold increase, with seven adop-tions. In 1990, five more initiatives were voted on, and twowere approved. This jump in the popularity of theinitiative is signflcant, but the numbers are small. Thedevice has been used sparingly to change rights.’ Thirteenproposals and nine adoptions over 11 years (1980-1990)amounts to under one proposal and well under oneadoption on average for the 17 states having the initiative.
Counting only amendments to state bills of rightsunderstates somewhat the extent to which bills of rightshave been changed. By custom. new constitutions andcertain other major revisions are not counted as amend-ments, Suffice it to say that even with the addition nfrevisions the changes in bills of rights are far from being aflood. The general pattern exhibited by the seven new
Intargovemmentd Parspactive/Fall 1991 45
constitutions adopted during the past 21 years has beenone of retention of traditional rights, editorial improve.ments, and additions of a few new rights.4 In summary,then, “amendomania” has not affected state bills of rightsnearly as much as it bas affected other sections of stateconstitutions.
Do Voters Expandor ContractRights?Of greaterinterestthan the numberof amendments
is whether the trend has been toward expansion orcontraction of rights and whether certain rights are morepopular than others.
From 1970 through 1985, thelargest categoTofrightsamendments (icluding rights identical or similar to those instate balls of rights but lmted in other articles) mncemedcriminal justices All but a few of these reduced rights, andmost passed. The second largest group, however, mnsistedofantid-ination measures, mostly equal rights amend-ments @RAs), which were expansive. Most of these wereapproved by voters. Coupled with other proposals indifferent categories, the amendments that expanded rightscame close to parity tith those that contracted them, Hrights from new institutions were added, the balance wouldbe on the side of qansion in 1970-1985.
During the past five years, criminal justice proposalsand various kinds of antidiscrimination measures andrelated items have dominated the rights scene. Together,they made up 61 percent of both propsals and adoptions.Other rights amendments revered a medley of topi~ manyof mhor im~rtance. Again, though, depending in pafi onhow one classifies amendments, voters qanded rightsabut as often as they contacted them during 19t?6-lM.What follows is a detailed d~ssion of these activities.
CriminalJustice RightsCriminal justice measures constituted the largest
single groupof rightspropositionsin 1986-1990,but wereproportionately less numerous than in 1970-1985(one-thirdof the total ratherthan43percent).However,the approvalrate of 90 percentwas somewhathigher.
The most important substantive difference from1970-1985wasthe largercontingentof eight proposalsinseven states giving rights to victims of crime (tilzona,California-2, Florida, Michigan, Rhode Island, Texas,Washington). Only the California Victims’ Bill of Rightshad been on the ballot before 1986. Seven of the eightvictims’ rights propositions were adopted. The measuresrepresent a new direction for criminal justice, one that hasdrawn considerable national and international support.(Fody-four states have adopted statutory provisions onvictims’ rights). AObut three of the propusals (California-2,Arizona) may be regarded as expansive because their intentis to add new rights for victims “to the went that theserights do not interfere with the cunstitutioml rights of theaccused” (as ~re~d in the Florida measure).
Seven other measures in six states (Illinois, Mississip-pi, New Mexico, Oklahoma, Rhode Island-2, Utah), allpassing muster with the voters, cut back on the right to bailand are therefore classified as diminishing rights. Theremaining five criminal justice propositions, uf which fourpassed, will be regarded as rights neutral because they
involved changes in structure or law enforcement policy,or they mixed rights reductions with expansions.s
Antidlscrimirmtiern MeaS”reSme number of antidiwcimination measures de-
creased after 1985. Only two EM were on the ballot aVermont proposition that failed at the polls and a RhedeIsland proposal that included “cace, gender, or handicap,”which passed. Other developments were favorable tominorities and women, but were largely symbolic. Themost ambitious of these was an editorial revision of theentire Maine Constitution to render it gender neutral,which was ratified by the voters in 1988. Quite a few otherstate charters have been edited for this propose. but notthe whole document. Three successful amendmentsremoved vestiges of segregation: the repeal of an‘<interposition” amendment that directed the Arkansaslegislature to oppose the “Un-Constit”tionaV whoolsegregation roses (Brow v. Board of Education). and theremoval of two Mississippi provisions. one fotilddinginterracial maniage and the other requirin8 segregation ofptin inmates.
Abortion RightsIn contrast to 1970-1985, seven abortion measures
were on the ballot in 19M-1990 (.Arkansas-2, Colorado,Massachusetts, Oregon-2, Rhode Island); all but onewere designed to restrict women’s rights to abortion. Fiveof the six were defeated by voters. The only successfulmeasure was an Arkansas amendment prohibiting publicfunds for abortion. These anti-abortion propomls areclasstiled as rights restricting because they are intended toconstrain a right currently articulated by the U.S.Supreme Court and supported by many citizens. Theseventh measure, which failed, was a Colorado initiativeto repeal a ban on public funding of abortions. However, itshould be noted that the U.S. Supreme Com’t has “otrecognized a right to a publicly funded abortion (althoughseveral state courts have done SU), and from a pro-lifeperspective, any provision to restrict abortion is rightse~anding.
Language RightsA group of five “English Only” amendments repre-
sented tbe only new categoty of importance since 1985.me Nebraska Constitution was amended in 1920for thispm’pose.) All were approved (Alabama, tilzona, Califor-nia, Colorado, Florida). Although their language appearsbenign, except for the Arizona proposition, which wasdeclared unconstitutional by a federal district court in1988,7promoting English as the official language is oftenthought of as a retreat from language rights for minorities.AO the English measures, therefore, will be classified asdiminishing rights, although it is not yet evident that theseamendments will in fact reduce rights, and, with thepossible exception of the Arizona provision. they do notexplicitly take away an existing right.
Tnrt ReformFour amendments concerned tort reform or regula-
tion (tiLzona-2, Florida, Montana), but only the Montanaproposal was adopted. Because these propusals can be
46 IntergovernmentalPerspective/Fsll 1991
considered as limiting access to the courts, an expresslyprotected right in some state constitutions, they will heclassfled as contracting rights.
Gun Control
Sk propositions dealt with the right to keep and beararms, and all were accepted by the voters (Delaware,s Flo-rida, Maine, New Mexico, Nebraska, West Virginia). Un-like the others, the Florida proposition requires athree-day waiting pericd before purchasing handguns.One view held by some constitutional analysts is that theright to bear arms is a collective rather than an individualright. However, amendments can be considered rights ex-pansive if the intent is to establish a clear individual right.The propositions are so classified here, except for the Flo-rida measure, which is treated as a police regulation of anindividual right.
Gvil JUW Trials
Another group of four amendments dealt with jurytrials in civil cases (Hawaii, Minnesota, New Hamp-shire-2). These are, at most, minor restrictions on theright toaju~trial. TWicaOy, they raise the value of theamount in controversy or allow smaller juries, or both. Allwon at the polls, except a New Hampshire propositionthat would have left changes up to the legislature.
Miscellaneous
Of the remaining amendments, three major provi-sions dealt with freedom of speech (Rhode Island) and theenvironment (Rhode Island, Kentucky). AO of thesepassed and are classified as expansive. Two other propo-sals involved sovereign immunity relaxation (Georgia-2)that might increase rights, one of which failed. An Alaskaproposition awarding preference to its own residents wasrat~led andcanbe regarded as restrictive. Another fiveamendments were excluded from classification forvari-ous reasons a one-word change (Wisconsin), dual office-holding (Ma~land), class~led property tax Wyoming), adrinking age regulation (Montana), and two highly techni-cal “takings clauses” (Oklahoma, South Dakota). One ofthe takings proposals was defeated, but all the others won.
Vnters Restrict Criminal Rightshut Not Necessarily Other Rights
Combining the various propomls that were classifiedas reducing or expanding rights yields the followingresults: 30 restrictive and 22 expansive proposaly 20restrictive and 19 expansive adoptions.9 Although therestrictive propositions were more numerous, theadop-tion rate of the e~ansive measures was higher (% percentto 66 percent), thus leading to a virtual tie between theexpansive and restrictive measures. Of the major catego-ries, criminal justice measures accounted for 33 percent ofthe rights-reducing propositions and 45 percent of theiradoptions. The English language and abortion measureswere sligbdy more numerous than the crime propositionsamong the restrictive proposals (36 percent), but fewerwere adopted (30 percent). Hence, concern for crime isthe major suurce of rights-reducing measures approved bythe voters. Antidiscrimination propositions (including
one pro-choice abortion item) amounted to 31 percent ofthe expansive proposals and 26 percent of the adoptions.
It is also of interest that, unlike the 1970.1985 period,half (15 of 30) of the restrictive proposals and 40 percent (8of 20)of the adoptions during 1986-1990 were constitu-tional initiatives.l” Although the number of initiatives wassmaO (17), they contributed a disproportionate share ofthe rights-reducing measures.
Again, however, it should be noted that one mn reachdifferent conclusions depending on how one classifies therights measures. If the anti-aboction measures areclassified as rights expanding and if all but one (Arizona)of the “English only” measures are classfled as neutral,then one will conclude that there were 20 restrictive and27expansive proposals, and 14restrictive and20expan-sive adoptions. Thus, from this perspective, votersexpanded rights more often than they contracted them.
Nailing State Courts to the Federal Floor
Amendments to state constitutions have occasionallyoverturned state court rulings on rights, and a fewamendments have taken a stand on “the new judicialfederalism” (state judicial interpretation of state constitu-tional rights independently of the national document).During 1970-1985, at least six court rulings were singledout for rejection by amendments; in addition, voters inCalifornia and Florida adopted “luckstep’’prepositionsmandating that their state courts not exceed standards setby the U.S. Supreme Court in certain rights cases. ” Evenso, California voters also approved in 1974 a clearstatement that rights under the state constitution “are notdependent on those guaranteed by the U.S. Constitution”(&. 1, Sec. 24). - -
Since 1985, the most significant development was theratification in June 1990 by the California electorate ofProposition 115, the Crime Victims Justice Reform Act. Aconstitutional initiative, the proposal launched a full-acale attack on the new judicial federalism in criminalcases. For the first time in California history, the state’scourts may have been required to give up their power tointefpret the rights of “criminal defendants” under thestate’s fundamental law and, in essence, “delegate” it tothe federal courts. EWressing the view that defendants’rights “had been unnecessarily expanded far beyond thatwhich is required by the U.S. Constitution,” the proposi-tion directed the California courts to construe 12enumerated rights, such as due process and privacy,“consistent with the U.S. Constitution” and nor toconstrue the state’s charter to “afford greater rights tocriminal defendants than those afforded by tbe U.S.Constitution.” The state supreme court estimated thatthe mandates in Proposition 115 would eliminate at least32 rights, and one commentator stated that ICO casesdeveloped over a span of 40 years would be overturned.~2
Calling the provisions “devastating,” the CaliforniaSupreme Court, in Raven v. Deukrnejian, struck themdown as an unconstitutional “revisit~n” of the stateconstitution instead of an “amendment,” to whichCalifornia constitutional initiatives must be limited. ChiefJustice Malcolm Lucas argued that tbe measure was a
lntergovernmenM Perspective/Fatl 1991 47
.—
“qualitative” revision because it would change the basicframework of the state’s judicial and constitutional systemby “substantially altering the substance and integrity of thestate constitution as a daument of independent force andeffect” and by depriving courts of their basic functions. mecourl left standing three new sections to the bifl of rightsincoprated in Proposition 115. One, which has alw beendeacribcd as hktoric, confers on the mate for the fit timethe rights of due prmess and to a speedy and pubJic trial.The other changes would overturn at least three ca.ses.]3
At the general election of 1990, California votersrejected Proposition 129, a constitutional initiative thatincluded a provision “reenacting” Proposition 115, butwith a proviso that a woman’s right to reproductive choicewould continue to be protected under the right to priva~in the state constitution.
Another major event relating to the new judicialfederalism was the adoption in 1986 of a Rhode Islandproposition holding that state constitutional rights are notdependent on the U.S. Constitution, In an ironic twist,considering Proposition 115, the voters also approved new“equal protection” and “due process” clauses taken fromthe US. Constitution to ensure that the Rhcde Island courtswould be able to interpret them independently and morebroadly than the U.S. Supreme Coufi’s interpretation of theU,s, con~titution,l~ It iS difficult to predict whether mOre
states will support the new judicial federalkm by amend-ment, but it seems likely that more attempts wO1be made tolimit state mutts to federal standards in criminal roses.
Conclusion
On balance, the state constitutional amendment pro.cess has not been a threat to state bills of rights, althoughthere may be some long-inn cause for concern. For onething, the process is used relatively infrequently to changebills of rights. Second, voters approve proposals expand-ing rights in about equal measure to those reducing them.Among the rights-expanding propositions put to votersduring tbe past 21 years, a large number of antidiscrimina-tion amendments (mainly ERAa) were adopted to providemore protection for women and minorities than that af-forded by the U.S. Constitution. Of the rights-reducingmeasures adopted by the voters, it is significant that al-most half concerned crime.
In this respect, the question of whether voters mn betrusted to protect rights is misguided. The desire to nar-row the rights of the accused is pervasive, reaching as itdoes right into the Congress, the White House, and theU.S. Supreme Court. In other words, voters thus far havenot been signflcantly out of step with many political lead-ers and judges.
The experience with Proposition 115 also sheds lighton the controversial constitutional initiative. Variouschecks provide safeguards against misuse of the initiative,which in recent years has been the source of about half ofthe proposals limiting rights. The judicial check “kickedin” to hold unconstitutional tbe most far-reaching provi-sions of Proposition 115. Thus, while the state constitu-tional amendment process may leave many citizens feel-ing uneasy about the ability of state charters to guaranteerights, the process does allow the public to participate, toforge new tights, and to define rights in controversial ar-
eas such as abortion. In our federal democracy, this pro-cess is not only a very desirable attribute but also the SOV.ereign prerogative of the people.
Notes1Pcimary data wre provided by official sources in e“ety state.All but tbe 1990data have been included in biennial sucveys ofstate constitutions published in ?rIe tik of the Statss(Lexington, Kentucky The Council of State Governments).
zThe numbers apply to state bills of rights only and not to rightsl~ated in other articles of state constitutions. Rights incorpo-rated in new constitutions and certain other “general revisions”are also excluded.
3Sce Janice C. May, “The Cumtitutional Initiati% A Tbrcat toRigh@?” in Stanley H. Friedelba”tn, cd., H,,,non Rjg/lrJ in theStafes:Nw Dimc(ions i,?Co/l$/ill/lionu/ Po/iWnl&ingwa@n,Cunnectiat Grcenti Press,19SS]p. la. Fmm 19C6to 1%,only 25 rights meaaurer wrc pa by mmtitutional initiatiw.
4Albert L Sturm, “The Development of American StateConstitutions; P#:bliits:The Joltmal of Fedemlism 12 (Winter1982) 87,
5Janiw C. May. “Constitutional Amendment and RevisionRevisited; Pttbli,[s: T/!eJo!tnla/of Fedem/isnl 17(W]nter 1987):17@176.
6Regarded as structural changes rather than as rights wre threegrand jury propition.r (South Carolina) m passed, Ameaaure on forfeiture of property in civil praccedingr for “SCinlaw enforcement waa considered law enforcement plicy@uisiana); it pined. A right to a juty measure that includedbth restrictive and expansive features (Oklahoma) ~drop~d; it passed. The preposition also included civil trials,but will be classified as criminal,
1Yniguez v. Mofford, 7W F Supp. ~ (lW) Umu-tilchalleng= to the Colorado ad Florida ame”dmenh ~E notbmcd on the language & in the me~urcs. Scc Montero v.Meyer, S61 E2d 603 (19SS)and Delgado v. Smith, S61 E2d 1469(19s47)
8In Delaware, amendments are not referred to the voters. Theyare, however, publisbed before a general election that occurs&twcen the twu sessions at which the legislature must approveamendments before their final adoption,
gThe 30 rcstrictim pmpcaals uew 3 time victims, 7 bail, 6ahrtion, 5 English, 4 tortr and 4 civil jury, and 1 Alaska residentpreference. The 22 cxpamiw pm~ak WE 5 crime titims, 6antidtirimination, 1 abortion, 5 arms, 2 environment, 1 speech,and 2 wvereign immunity. Restrictive mem”rcs adopted ww 2crime victims,7 bail, 1abrtion, 5 English, 1tom, 3 civiljuries, and1 Alaska residenm. Adoptions of cxpansiw measum WE: 5time victims, 5 antidkcrimination, 5 arms, 2 environment, 1mvcreign immunity, and 1 speech.
lL’There~tri~tive ~nstit”tio”al initiative prowak wre: 3 crimetictims (Arizona, California-2), 4 English (California, Arizona,Culorado, Ftorida), 4 torts (Arizona-2, Ftorida, Montana), and4 abortion (Arkansas.2, Oregon-2). The adoptions were 2crime victims (Arizona, California), 4 English, 1 torts (Mon-tan), and 1 abortion (Arkansas).
IIMay, ‘,Co”stitutlonal Amendment and Rerision,” PP. 175-1’7612see Rave” v. De”kmej ian, 801 J?2d 1077(CA 1990) and Gerald
E Uclmen, “The California Constitution after Prowition115,” EmeEi,,g Issiles in Stale Constilt,tio,zol Law 3 ( lMY 61.
,35ee“~opmltio” 11SThe Crime Victims JUsticc Reform &t,”Pacific Law Jot,n,ol 22 (1991) 1018.1027.
,,co”~tjtution of the State of Rhode Island and ProvidencePlantations. Ann. Ed. Art. 1.Sec. 24. The commentary reads inpart ‘This resolution adds to the Constitution a cmtcept thatthe state Constitution is to be inte~ reted as expanding and notlimiting i“divid”al rights, even though similar rights in thefederal Constitution may & more narrowly de fined,”
48 Intergovernmental Perspective/Fall 1%1
The CanadianConstitutional
Crisis:Who’s Right
on Rights?
Robert C. Vlpond
w bile Americans celebrate the bicenten-nial of the ratification of the U.S. Bill of Rights,Canadians face what is arguably the most seri-ous constitutional crisis in their history. Popu-lar support in Quebec for some form of sover-eignty has risen dramatically, reaching 60percent in some polls, and the Quebec govern-ment is under enormous pressure to put thesovereignty question to a general referendum in1992. Several protest parties have parlayed abudding tax revolt, anti-French sentiment, andregional dissatisfaction into an important po-litical force in English Canada. The unaccept-able treatment of aboriginal peoples has be-come an important constitutional issue. Andthe federal government, led by Prime MinisterBrian Mulroney, is deeply unpopular; it willhave a difficult time leading the country out ofthe constitutional bog as long as its position inthe polls remains roughly at the level of primeinterest rates.1 What has gone wrong, and whatare the prospects for a resolution within the ex-isting federal framework?
The Confederation Settlement of 1867
‘fhe basic answer to the first question is that theconsensus that sustained the Canadian federation formore than a centmy is now vety much in question. Whenthe federation was fomred in 1S67, its architects set downtwo non-negotiable conditions for suwess.2 One was topreempt the kind of constitutional crisis that led to theU.S. Civil Wav the other was to overcome the domesticpolitical deadl~k that had dogged the combined territo~of Upper and Lower Canada (ontario and Quebec) fOrthe previous two dersdes. The solution to this doubleproblem, set out in the British North America Act of 1867,was to create a centralized but still federal union.
On the one hand, John A. Macdonald, the principalarchitect and Canada’s first Prime Minister, proclaimedthat he and his colleagues had corrected the “errors” ofthe U.S. Constitution by granting the national gover-nment “all the great powers of sovercignt y“-including theunqualified power to regulate trade and commerce, thepower to make and enforce the criminal law, and a broadresidual power to control other matters not e~resslydelegated to the national government.
On the other hand, the various provinces (originallyfour, now ten) were given “exclusive” power to legislateon matters concerning “property and civil rights.” Theintention here was to provincialize most of the thornylinguistic, educational, and religious issues that dividedOntario and Quebec. Aa Macdonald put it, the BritishNorth America Act created “a happy medium” betweenoutright centralization (which would never have beenaccepted, especially in Quebec) and e~ansive decentral-ization (which, the U.S. Civil War demonstrated, was to beavoided at all costs).
Balancing Individual and Provincial RightsThe Confederation settlement involved a compro-
mise between two visions of federalism; it also embodiedtwo approaches to rights protection. Some of theCanadian “Fathers” sounded remarkably like JamesMadimn at his most centralist moments. LAe Madison, theyargued that the federal government must have a veto overprovincial legislation, ktb to protect federal jurisdictionfrom provincial incursions and to protect individual andminority rights within the provinces. The difference is thatwhere Madimn was forced to jettison his propsal for anational veto, the Canadmns ended up recycling the oldimperial power of “diasllowancc” to do the job.
Other “Fathers” interpreted provincial autonomy asa means to protect a collective right to self-government.This argument had special force in Quebec, where thedanger of cultural assimilation into Anglo-Saxon NorthAmerica was apparent. Hence, provincial sovereigntyover such sensitive matters as language and religion wasseen as providing the best hope for ensuring the survivalof the French-Canadian community or nation. But theargument for collective rights caught on in other provinces,too, especially Ontario, where provincial officials defendedtheir autonomy over Iwl affairs in temrs of a community’s
lntargovernmenW Parspactive/Fail 1991 49
.—
basic right to self-government. W styled, provincial rightsbecame a legitimate, indeed fundamental, constitutionalvalue in Canada at the very moment the doctrine of states’rights fell from grace in the United States.
It was no easy matter to steer a middle coursebetween the competing claims of national and provincialpower, and of individual and collective rights. The courtshad to address numerous jurisdictional disputes, and thefederal government’s liberal use of the veto power in theyears after Confederation produced a concerted cam-paign to protect provincial self-government from the“autocratic and tyrannical prerogatives” of John A,Macdonald and his “Star Chamber sitting in 0ttawa.”3
Yet, even at its mnst discordant moments, theConfederation settlement held, in part because individ-ual and collective rights were not seen as mutuallyexclusive, Centralists could not reject the principle ofprovincial autonomy completely because they keenlyappreciated the political advantages of consigningrehg]ous and linguistic controversies to the provinces,(As a Member of Parliament once put it, provincialautonomy was politically useful because it sewed as aconstitutional “firebreak,” preventing sectional dis-putes from spreading throughout the country.) Fortheir part, provincial autonomist did not deny theimportance of protecting individual liberty. Indeed,they (like the Antifederalists in the United States)argued that fully self-governing provincial communi-ties would best protect individual liberty because theyare closer to thepeopleand betterable to accommodateclaims of diversity. That recognition alone helped torestrain their more doctrinaire impulses.
Polarization over Individual and Provincial Rights
By tbe 1960s, hnwever, this complex federal compro-mise had begun tu wear thin. The 196!)s produced twopolitical phenomena that have profoundly affected thecourse of Canadian federalism. First, a political andeconomic elite in Quebec became eager to take positivesteps to protect the collective identity of Quebeckers andto increase Quebec’s leverage in an array of policy areas.’Second, Pierre Trudeau, who rose tn national prominenceas the foe of Quebec nationalism, as Prime Ministerchampioned the ‘<entrenchment” of a constitutionalCharter of Rights, including language rights, as one way tustcm the nationalist tides
The simultaneous rise of Quebec nationalism andPierre Trudeau propelled Quebec and Canadian politicsin quite different directions. In Quebec, successivegovernments acted to secure the position of tbe Frenchlanguage in the workplace, in the market, and in schnolsby restricting the use of English. In Ottawa, the federalgovernment embraced bilingualism and sought to extendindividual linguistic choice in education and governmentservices throughout the country. In Quebec, the Liberalgovernment of Robert Bourasm gave way in 1976 to thenationalist Parti Qucbccois and to PQ’s plan to hold areferendum on sovereignty-association. In 1978, the
Trudeau government responded by announcing its inten-tion to proceed with major constitutional change, with CIrwithout the support of the provincial governments,including Quebec. The federal government was ultimate-ly persuaded to abandon its unilateral approach toconstitutional refnrm. However, when the Charter ofRights and Freedoms finally emerged, in 1982, as part of alarger constitutional package, Quebec refused to sign on.Yet, the Charter of Rights applies to Quebec law, eventhough the government and legislature of Quebec havenever consented to its enactments
Quebec’s Sign Law
As the constitutional agenda in Canada bas broad-ened and diverged over tbe years, constitutional debatebas become more crrnfrontational. as thnugb the values atstake are mutually exclusive and resistant to compromise,There are plenty of examples of polarization, but none ismore vivid than Quebec’s attempt to protect thedominance of French in the marketplace. In December1988, the Supreme Court of Canada struck down cnresections of Quebec’s Bill 101, the Charter of the FrenchLanguage, which required the exclusive use of French uncommercial signs and pusters, and in company names. TheCourt held that commercial expression is a “fundamentalfreedom” which, if limited as Quebec wanted to limit it,would threaten ‘<an important aspect of individualself-fulfillment and personal autonomy,”7
Two days after the ruling, Robert Bourassa, thePremier of Quebec, announced that be intended tointroduce new legislation into the Quebec NationalAssembly that would require the use of unilingual,French-only signs outside stores but permit the use ofbilingual signs indoors, under certain fairly stringentconditions. Even then, Bourassa was criticized forgiving away too much. Forced to defend the newlegislation, better known as Bill 178, Bourassa went outof his way to argue that he had broken free from thetraditional mold of compromise and half-measures.Those who thnught he had done too little should note,he said, that “fort hefirst time in thehistoryof Quebecapremier went so far as to suspend civil liberties, toprotect and defend the French language.”s
At the time he introduced Bill 178, Bourassamaintained that his solution was consistent with the spiritof the Supreme Court’s decision. However, in order toforeclose future legal challenges to the law, Quebec’sNational Assembly invoked the “notwithstanding” clauseof the Charter of Rights, a unique provision of Canada’sConstitution, which essentially permits provincial legisla-tures to override certain rights protected by the Charter.
In an extraordinary parliamentary outburst, PrimeMinister Mulroney took dead aim at the overrideprovision, calling it “that major fatal flaw nf [theconstitutional settlement of] 1981, which reduces yourrights and mine.’q Mulroney showed little ‘sympathy forthe view that the override is a distinctively Canadian wayof reconciling judicial review and democratic accountabil -
50 Intergovernmental PersWtivelFall 1991
ity, and individual and collective rights.io He was of theview, rather, that the override provision “holds [individualrights] hostage.” A “constitution that does not protect theinalienable and imprescriptible individual rights of indi-vidual Canadians,” he concluded, “is not worth the paperit is written on.”11
Failure of the Meech Lake Accord
The acrimonious debate over Quebec’s sign law isespecially sign~lcant because, in the end, the episodehelped scuttle the Meech Lake Accord.’z The accord wasintended to “bring Quebec into the constitutional family”by amending the Constitution Act of 1982’3 to make itmore consistent with Quebec’s understanding of its placein the federation. The proposed amendments—amongthem, a clause recognizing Quebec as a “distinct society”within Canada and another limiting the federal spendingpower in areas of exclusive provincial jurisdiction-werenegotiated between the Prime Minister and the tenprovincial premiers in tbe spring of 1987. ~ become law,the amendments required ratification by the House ofCommons, the Senate, and all ten provincial legislatureswithin three years.
This is where the accord ran into trouble. The“distinct society” clause was generaIIy unpopular inEnglish Canada, and the Quebec government’s reactionto the Supreme Coufi’s sign law decision reinforcedsuspicions in some quarters that Quebec might use the“distinct suciely” clause to abridge individual rights.Having failed to win approval in two legislatures (Manito-ba and Newfoundland), tbe accord lapsed in June lM,leaving behind resurgent nationalism in Quebec, widespreadbitterness (on all sides) abut tbe prncess of cmrstitutionalreform and, above all, profound uncertainty.
Where Do We Go From Here?
The basic and extremely uncomfortable question thusremainx If it proved impossible to meet Quebec’sminimum conditions for constitutional renewal throughthe Meecb Lake Accord, is there reason to expectrapprochement within the current constitutional stmc-ture?
Ironically, the difficulty of sorting out direct conflictsbetween individual and collective rights may be the leastof our problems. Sut’vey data reveal that there may bemore common ground between Quebeckers and EnglishCanadians than is commonly assumed.1” Quebeckers arenot sign~lcantly less “rights conscious” than EnglishCanadians. Quebeckers show strong suppofl for individu-al rights, including minority language rights, as long asthese rights claims are not perceived to threaten Quebec’s“national existence” (which is what happened in thecontroversy surrounding the sign law). In short, if a waycan be found to disentangle rights claims from thepowerful symbols of national identity, it maybe possible tofind consensus between the two communities.
The real sticking point may turn out to be the mosttraditional of federal prnblems, tbe ditilon of puwers, for
here there appears to be little common ground. For at Icastthe past decade, Quebec has consistently demanded greatermntrol over a bread set of policy areas. The failure toaddress this demand was one of the reasuns Quebec refusedto sign the Constitution Act of 1982.Now, tbe death of theMeech bke -rd, which included ~me decentraltiigfeatures, has only upped the ante. At its 1991convention. forinstance, tbe hberal Wrty of Quebec passed rewlutionscalliig for a restructuring of the federation to give Quebecexclusive ju~iction over some 22 subjects, including theenvironment, ener~, research and development, andunemplo~ent irrsrmmce.1sWhereas optilon in the rest ofCanada appears to run agairrst massive decentmlization, inQuebec, sume such decentralization seems to be theminiium condition for remaining in the fcderatinn.
One way out might be to create an “asymmetrical”federal system, allowing Quebec the greater legislativepower it demands while preserving elsewhere the moredominant federal presence apparently desired by the restof the country. But this, too. will be hard to sell because itcontradicts the powerful principle of provincial equality.Tted 10 tbe egalitarian spirit of the Charter of Rights, theclaim that all provinces must be treated equally becameone of the major objections to the Meech Lake tird. Theattempt to cmrstitutionalize Quebec’s distinctnex touched araw neme in English Canada, and there is little evidencethat this egalitarianism has lost force in English Canada.
Conclusion
Someone once remarked that the difference betweenAmericans and Canadians is that Americans are foreverlooking back to their Civil War, while Canadians areconstantly looking ahead tn theirs.’b This is a clever quip,but it is also misleading. The problem in Canada is notsimply that Quebec has changed, that it may chnose toleave an otherwise stable Canadian ~lity, and that itsdeparture will be resisted. The problem, rather, is that therest of Canada has changed, too, in ways that strain itsrelationship with Quebec. English Canadians have beendeeply affected by the Charter of Rights and Freedoms.They are more given than before to view policy questionsin terms of rights. ~ey are more impatient with thetraditional, elite-dominated constitutional process thanthey used to be. They are more convinced than ever thattheir national representative institutions do not performas well as they should. And they appear to be more willingto place other matters (such as the claims nf aboriginalpeoples) on the constitutional agenda.” In that sense,Canada’s constitutional difficulties look more like amarriage on the rocks than a war about to happen. Like atroubled marriage, the partners appear torn between thedifferences that separate them and the realization thatdivorce could have its own serious drawbacks. And like atroubled marriage, it will take large doses of patience,tolerance, and good wil[ to get things back on track.
Roberl C. fipond is an associuteprofessor ofpolit-ical science, Universi@ of Toronto.
Intergovernmental Pera~tive/Fall 1991 51
.—
Notes
‘1 ows the quip to my ralleague, Richard Simeon
zFor a more elaborate account of the Confederation settlement,see Ro&rt C. Vipond, Libe~ and Conlmuniw: CanadiatlFederalism and the Fai[[treof the Corlstillltion (Albany StateUniversity of New York Pres, 1991), ch. 2.
3Cited in L;be~ and Commitniw, p. 79.
4For an excellent account of Ibe Quiet Revolution in Quehc,see Kenneth McRoberts, Quebec: Social C/]ange arid Po/itica/Cri$i$(Toronto McClelland & Stewart, 1988).
5See Stephen ClarkSon and Christina McCall, Tn[deati and O)[rTimes @oronto McClelland & Stewart, 1990).
6Tbe story of these institutional negotiations is told in RoyRomanow, John Whyte and Howard Lreson, CanadaNofwitl,sta,!ding: Tl,e Making of the Constitution 1976-1982(’foronto: Camwell, 1984).
7Ford v. Que&c (Attorney General) (1989) D.L.R. (4th). 577.
8TO!IJ,lIOGlobe a,ld Mail, March 15, 1989
Iosee for i“~tanm, peter RUMelland Paul Weiler, “Don’t scraPthe overrideclause,it’saveryCanadian salution,” TorontoStar,June 4, 1989.
,, HoUSeof commons Debates, April 6, 1989.
12For ~ ~~ aw”m of the politics of tbe mfd, scc David Milne,The Canadian Constitution (Tom.to James Lnrimer, 1991)
13me Comtimtion At of 19S2includm the Charter of Rights, a
mmplm formula for ametiing tbe ronrtitution, a statement ofaboriginal rights, a commitment -ming equali~tion andrrgional disparities, and a prevision for greater pmrincial wntmlovrr the management of nonrcnmble natural mums.
14seepa”] snjderm~n, Joseph Fletcher, Peter Russell,and philipTetlcck, “Political Culture and the problems of DoubleStandards Mars and Elite Attitudes toward I,anguage Rightsin the Canadian Cbnrter of Rights and Freedoms, ” CanadianJo!(mal of Polirical Science (June 1989) 259-Z4.
Issee A Q1(c&cFmc fo Cl?LW~t.,&tter know as the AOaire
Report, Report of tbe Constitutional Committee of tbeQuekc Liberal Party, January 1991.
16Pa”,snide~m~”,H.D. Forks, and lan Mclzer. “partY 1~Yalty
and Electoral Volatility,” in Syltia Flashevkin, cd.. CanadianPo[ilical Belraviour ~’ronto Metbuen, 1985), p, 124.
9Canada, Parliament, House of Commons Debates, April 6, 17Tbe ~~t ~tatement of this argument is by Akin Cairns,
1989, 153. Disruptions (Toronto McClelland & SteMrt, 1991),
1988 State Fiscal Capacity and EffortACIR developed the Representative ~ System ~S) and the Representative Revenue System (RRS) to
improve on available measures of state fiscal capacity and effort. These measurss show state and localgovernment mpacity to collect tax as wall as nontsx revenue. W!th 1988 .St@e Hscd Capocify and E~oti,ACIR—in conjunction with Price Waterhouse—continues its tradition of providing information on the relativeeconomic well-being and fiil performance of the states.
CI Why use the RTS and RRS?
They measure govemments’potential abilities to raise revenues relative to a national averageThey are compwkensive, measuring tax and nontax wurcesThey are the onfy indicators that measure firral capacity on a revenue-by-revenue basisTheympture states’ opportunities fortuqortation by eatinrating actual tas and nontax revenue bases
and applying average tax rates
D 19SS State Fisral Capacity and Effort–
Contains tables and graphs on ~ and RRS baa amnged both by revenue base and by stateDiscusses recent changes in states’ f=l capacitiesCompares ~S and RRS with other capacity measuresProvides detaiJs on the methodologyIncludes historical data
M-170 1990 $20
1988 RTS and RRS DiskThedkk contains the set of text and revenue bsses used in the book along with progrsms (f..otus 1-2-3)
creating RTS and RRS spreadsheets. Accompanying documentation qlairrs the contents options, andcommands. The disk k intended to be used with the book.
1990 $20
(we psge 57 for order from)
A Billof Rights
for Australia?
Brian Galligan
When Australia federated in 1901, it did soon the basis of a constitution modeled closely onthat of the United States. Jurisdiction was di-vided between the new national government,called ‘the Commonwealth,” and the states,which had been independent and self-governingcolonies, by enumerating the Commonwealth’sheads of power and guaranteeing the residualto the states. The legislature was constituted ona bicameral basis, with a House of Representa-tives elected by the people from single-memberconstituencies, and with a Senate having virtu-ally co-equal power elected by the people of thestates with an equal number of senators foreach of the six states. A powerful court, calledthe High Court, was established as the thirdbranch of government for the prima~ purposeof exercising judicial review. Indeed, the Ameri-can federal Constitution was “an incomparablemodel” for the Australian founders. As an emi-nent previous Australian Chief Justice, SirOwen Dixon, remarked “They could not escapefrom its fascination. Its contemplation dampedthe shouldering tires of their originality.”l
me Australian founders departed from the American mod-el, however, in several important ways.‘Ibey retained the ex-ecutive form of parliamentary reapnnaible government,which located the real aecutive primarily in the House ofRepresentatives, a fact that ensured its effective primacyover the Semte, and overlaid th~ with the fomral trappingsof cmrstitutioml momrchy. In addition, they exhewed acmrstitutional bill of rights for reasons that were closelylinked with their preference for re~nslble govemment–namely, that the combmed prncesses of parliamentaV representative democracy and reaponslhle government werecmrsidered a sufficient guarantee of individual rights.
This position is quite alien to American sentiment,which is informed by liberal assumptions abut theindividual and wariness toward popular democracy. TheAustralian institutional tradition is premised on a morepositive view of representative democraq and on a faithin the ability of democratic processes to protect individualrights. Interestingly. the Australian case against a bill ofrights was put most eloquently by Australia’s greatestLiberal Prinre Mirdster, Sir Rnbert Menzies, in a lecture atthe University of Viiginia in 1%7, after he had redred frompoliti~. Aa Menzies esplaiied it, the people’s control overthe executive through a parliament of elected representa-tives dviates the need for a bill of rights
With us, a Minister is not just a nominee ofthe head of the government. He is and must bea Member of Parliament, elected as such, andanswerable to Members of Parliament at everysitting. He is appointed by a Prime Ministersimilarly elected and open to regular question.Should a Minister do something which isthought to violate fundamental human free-dom he can be promptly brought to account inParliament. If bis Government supprts him, theGovernment may be attacked, and if neces~ de-feated. And if that, as it nomrally would, leads to anew General Election, the people wifl~ress theirjudgment at the polling Wths.
In short, government in a democraq is regarded by usas the ultimate guarantee of justice and individual rights.2
Although this was the orthodox view up to that time,the argument would hardly have convinced Menzies’American audience then, or large numbers of Australianstoday. Nor, even at that time, did Menzies’ defense of theAustralii system take sufficient account of the iron grip ofparty dwipliie and executive dominance over Parliament.
By and large, Australians have long been quite smugabout how well rights are protected in their country. Forexample, Fin Crisp claimed in his leading text onAustralian politics “There has been an extraordinarysolidity and general pervasiveness of civil liberties duringthis century . . . . Australian governments normally live asquietly and unobtrusively as they may in the civil libertiesfield, even tolerating much very free and hostile speechand much possibly subversive fringe activity.’” Suchoptimism has been based on confidence in the democraticprocesses of responsible government and in our commonlaw heritage, supplemented by a national sense of decencyand fairness that is thought to characterize public life.
Intergovernmental PerspectivelFall 1991 53
Hence, according to this majority view, Australia has hadno need for bills or charters of rights, which have beenincreasingly adopted by comparable countries.
Australia’s Rejection of a Bill of Rights
Since World War II, however, there has been ~contra~ minority view that is crit ical of Aust ralia’s recordin protecting minority rights and skeptical of reliance onestablished parliamenta~ and legal means. Curiously,this has been led by the Australian Labor party, whichjuxtaposed its call for an entrenched bill of rights with itstraditional commitment to centralizing power throughabolishing federalism and the Senate. Dr. Herbert V.Evatt, Attorney General in the wartime Labor govern-ment and previously a judge of the High Court ofAustralia, had added the two key Atlantic Charterfreedoms of speech and religion to help sell the 1944“Powers” referendum that would have greatly expandedthe Commonwealth’s powers for postwar reconstruction,but to no avail, After the acsre from Menzies’ attempt toban the Communist pm’tyand to deal harahly with suspectedCommunists, Evatt had the fedem.1Lahr party adopt a bdlof rights plank in 1951. But with Labr out of fedeml officefor more than two decades, there could be no attempt atimplementation.
During the 1970s and 1980s, the Whitlam (1972-1975)and Hawke (1983-present) Labor governments madethree abortive attempts to pass a statutory bill of rights.4The first, proposed by Attorney General Lionel Mu~hyin 1973, was the most ambitious. It followed fairly closelythe wording of the International Cove”ant On Civil andPolitical Rights, to which Australia was a signatory, andwas intended to bind the states by means of the externalaffairs power of the Constitution. This was never testedbecause the biO was abandoned in the face of stiff
OPPOsitiOnin the lead-up tOthe 1974election. The secondattempt at a statutory bill of rights was made by GarthEvans in 1984 after a broad interpretation of the externalaffairs power had been confirmed by the High Court inthe 1983 Tafmanian Dam case. This was a weaker versionof the Murphy legislation, “a shield rather than a sword,”but it was abandoned after strong criticism by some statepremiers and interest 8roups in tbe 1984 electioncampaign. Lionel Bowen, who replaced Evans as Attor-ney General, proposed a third and weaker bill in 1985,butthis too was savagely attacked and defeated in the Senate.
Meanwhile, Bowen had turned the more substantialquestion of an entrenched bill of rights over to ahand-picked Constitutional Commission that was chargedwith recommending an overhaul of the Constitution forthe 1988 Bicentenaty of white settlement in Australia. Inits final report, the commission proposed that anextensive bill of rights be added to the Constitution as anew chapter,s Meanwhile, in order to cash in on thesupposed euphoria of the BicentenaV, the Labor govern-ment put some prelimina~ proposals to referendum thatincluded the extension to the states of three existing rightsthat already applied to the Commonwealth—trial by jury,freedom nf religion, and fair terms for persons whoseproperty is acquired by government. All the 1988
proposals were defeated by voters, with tbe rightsproposal receiving only 31 percent support and winningthe dubious distinction of being the least popular of anyproposal ever put to the Australian people.c Thisovem’helming defeat of what were in effect mcdestextensions of existing constitutional rights defeated anyprospects of implementing the Commission’s ambitiousrecommendation for entrenching a full-bndied bill ofrights in the Constitution.
These initiatives by federal Labor governments for astatutory bill of rights or further entrenching rights in theConstitution have been defeated by a combination offactors: spoiling partisanship from the opposition parties,half-hearted commitment and political ineptness on theLabor side, opposition by state governments, antagonismfrom various interest groups, and widespread indifferencefrom the public. It should be noted that other piecemealinitiatives for protecting rights have been implemented,including the establishment of special cnmmissinns andofficers in most states, as well as new Commonwealthlegislation against racial and sexual discrimination,Moreover, the checks and balances embodied in thefederal division of powers, a written constitution, thebicameral legislature (with the Senate now invariably notcontrolled by the government party), and judicial reviewby an independent Court add up to a powerful ~stem ofinstitutional restraint on gOvemment.7
Going against the mend in Comparable CountriesIn rejecting a bill of rights, however, Australia is going
against a strong international trend. Canada experimentedwith a statuto~ bill of rights in 1960, then entrenched anelaborate Charter of Rights and Freedoms in its con~tit”.[ion in 1982. Since then, the Canadian charter has had apowerful impact on Canadian public life, with thejudicia~ having a field day as social policymakers. NewZealand, despite being a unitary country, has followed theCanadian model, Its Labor government introduced a billof rights into Parliament in 1985, and finally passed awatered down version in 1990. Britain has becomeincreasingly subject to the European Convention onHuman Rights, with periodic scrutiny of its laws by theEuropean Commission and some notable adverse deci-sions by the European Court of Justice.
Does it matter that Australia has rejected a bill ofrights? The Chief Justice of the High Court, Sir AnthonyMason, thinks so and in 1988 announced that he hadchanged bis mind in favor of a bill of rights beca”~eAustralia was going against the international trend andgetting out of step with comparable countries likeCanada. Other jurists concerned about threats to judicialindependence from an increasingly dominant executivebranch favor a bill of rights as a means of enhancing thepower and prestige of the judicia~.
But the question should turn on how well rights arerespected and protected in Australia. If Australians aresensitive aboul rights, and if rights are relatively wellprotected by the existing patchwc)rk of Commonwealthand state institutions and laws, A“stralia”s need to knOwthat in order to hold their heads high in the internationalcommunity. Attcrnatively, if Australia is a natinn of
54 Intergovernmental Perspective/Fall 1991
rednecks with deficient machinery forprotectingrigh ts,we also need to know that in order to take remedialaction. It is not sufficient to assume that we are a luckycountry in being heirs to the best of Westminsterparliamentary practice and the common law, and inbeing the beneficiaries of an indigenous culture offairness and justice. There are too many exceptions tothe contrary, such as the past treatment of aboriginalpeople and the previous Bjelke.Petersen regime’sdisdain for civil liberties in Queensland.
Australian Attitudes toward Rights
The question of whether Australia should have abill of rights is to some extent a secondary one. The priorquestions of how sensitive Australians are toward rightsand how well rights are protected under existingarrangements have received far less attention than theydeserve.
Whether Australia needs a bill of rights is properly amatter of institutional adequacy and design, whereas theattitudes of Australians toward rights has to do with civicculture. If we could establish that Australians holdenlightened attitudes and sensitivities toward rights, wecould then tackle the issue of institutional adequacy anddesign. The answer might be “Yes, they are: or “Yes, withsome modifications or additions,” or “No, we need a bill ofrights.” It is perfectly mnceivable that, with the appropri-ate political culture, Australians could make a differentinstitutional system work quite effectively for protectingrights. On the other hand, if Australians do not respectrights, then it is unlikely that changing the institutionswould fm things up, although the proponents of a bill ofrights claim that it would have an educative effect,Nevertheless, civic culture is more important thaninstitutional arrangements. We are all too familiar withcountries that have bills of rights in their constitutions butaPPalling records in actually respecting rights.
What a bill of rights does is to shift responsibility forrights issues from political to legal elites. This has theeffect of politicizing the judiciary and legalizing publicpolicy because judges have the last say on such key issuesas whether women should have abortions and, if W, up towhat stage of pregnancy; whether compulsory retirementon the basis of age is discriminatory; what constitutesfreedom of speech; and how police should deal withsuspects. In evaluating such a switch, Australians need totake account of the institutional aptitudes of andconstraints on, legislative and judicial bodies for dealingwith such matters. In addition, the possible differences inattitudes between citizens and elites and between politicaland legal elites are also sign~lcant. The fact is that, apartfrom the highly charged and partisan debates over Lubor’sproposals for bills of rights, we know very little about whatAustralian citizens or elites think about rights and howthey arrive at decisions on rights issues that usuallyinvolve balancing conflicting principles.
~ke toleration, for example, which underlies respectfor rights in a pluralist society. How tolerant areAustralians? Some observers would emphasize, on thepositive side, the success of the massive postwar migration
program, abolition of a “White Australia” policy in the1970s, the adoption of multiculturalism, and, since the1%7 referendum that gave the Commonwealth gover-nment a specific power to make laws with respect toAborigines, fairer treatment of aboriginal people. Othera,however, would claim that Australians have a large andpersistent streak of intolerance, which is evident in racistand stist views that have widespread pnprdar suppmi andstrong public articulation. The truth lies probably morewith the former than with the latter.
‘ftaditionally, Australians have been favorablydisposed to state action in large segments of social andeconomic life, and are considered less individualisticand entrepreneurial than Americans. Compared toCanadians, however, Australians appear more populistand radically democratic. According to one line ofreasoning, this means that Australians are less tolerantand supportive of unpopular groups. But is this thecase? Are Australians prone to conformist with peerpressure and to authoritarianism from governments?Or do they have a Iarrikin streak of anarchism? Howfirmly do citizens adhere to their views on rights againstpressures of authority and conformity?
It is commonly aaid that Australian political culture isa radical “fragment” of British society, and that itspolitical culture is essentially Benthamite in nature, witha concern for law and good government at the expense ofliberty and individual freedom. By contrast, Americanpolitical culture, representing an 18th century “fragment”of British snciety, is concerned with liberty, and withpersonal rights and freedoms. Canada is said tn bedifferent again, with a strong “~ry touch” of traditionalconsewatism. But this has not been tested in anyempirical way.
A further issue for civil liberties in Australia is statedifferences. Australia is a federal country. Importantmatters, such as criminal law and police, and large parts ofsocial policy and aboriginal affairs, are under statejurisdiction. According to popular stereotypes, there arestate differences, but are these grounded in politicalculture? Do they matter for individual rights andfreedoms? Some have argued that there are significantdifferences in state political cultures, but most observersassume that Australian political culture is fairly homoge-neous. This issue has obvious implications for thequestion of a bill of rights for Australia: do we need anational regime for protecting rights because some statesare deficient? If so, is that possible given tbe extent ofstat e clifferences?
mere are many more questions here than answers,but they do need to be addressed if Australians are to havean informed public debate over protecting rights andwhether Australia needs a bill of rights. A researchproject to survey the attitudes of Australians towardrights, funded by the Australian National University’sResearch School of Social Sciences and the New SouthWales Law Foundation, is under way. It will provideempirical data on Australian citizen and elite attitudesand, because of a strong comparative component, on howAustralians compare with Canadians.g
Intsrgovammental Perspective/Fall 1991 55
An Issue for the 1990s
Meanwhile, the issue of whether Australia shouldhave a bill of rights has been put back squarely on thepublic agenda by the Sydney Constitutional CentenaryConference marking the anniversary of the firstFederation Conference, which produced an earlierdraft of tbe Australian Constitution in 1891, Meeting inApril of this year and comprised of leading citizens fromacross the spectrum of Australian public life, thisConstitutional Conference identified 12 key issues forreview, with a view to possible constitutional reform, inthe decade leading up to the constitutional centenary.Topping the list was “Guarantees of Basic Rights,”regarding which the Conference said:
There was strong support for a guarantee ofbasic rights in some form, entrenching basicrights, and especially basic democratic rights.This would also have an important symbolic func-tion. But achieving this would require broad sup-poti from the Australian community, and wouldnecessarily be part of a long-term process of edu-cation and discussion.9
~us, the question of whether Australia should adoptaconstitutional bill of rigbtsis alive one for the 1990s.And just as tbe American federal model proved an incom-parable one for Australian constitution-makers ltHlyearsafter the American founding, the United States Bill ofRights and 50 state bills of rights might well have the sameattraction 200 years on.
Brian Gallignn is depufy director of the FederalismReseorch Centec Research School of Social Sciences,Australian Notional Universi&.
Notes
‘Owen Dixon, “The Law and the Constitution,” in JestingPilaleand 0t6er Papers and Addresses (fvfelburne Law hkCompany, 1965), p. 44.
2R0&rt Menzies, Central Power in 16e Austmlian Common-weuJf/7(hndon Ca.rsall, 1967), P. 54.
3L E Crisp, At(stm/ia)r Nadona/ Goven~)?!en/,4th Ed. @el-buurne Longman Cheshire, 1978), p. 134.
4Brian GaOigan, “Australia’s Rejection of a Bill of Rights,”Joftnzal of Co)?!:?ro,zwealll?Co,,?pamtive Polidcs 28 (November1990) 3436s.
‘Constitutional Commission, Fi!zal Report, Vol. 1 (CanberraAustralian Government Publishing Service, 1988), ch. 9
6Brian GaOigan, “The 1988 Referendums and Australia’sRecord on Constitutional Change,’’ Pa!iiamentaiy Affairs43(October 1990) 497-506.
1 , Rainer Knopff and John Uhr, “Australian Federal-ism and the Debate over a Bill of Rights,” Publim: 77reJoL#malof Fedem/ism ZO(FaO 1990) 53-67.
‘The Australian Rights Survey is @reparable to that of therecent Canadian Rights Project and uses the Computer-Assisted Telephone Interview system developd by MerrillShank of Berkeley.
‘Constitutional CentenaT Cunferencc, Statenlent (SydneyApril 1991).
Public AttitudesToward
Federal Mandates
ACIR’S20fh annualpollon governmentsand taxes, released in September, foundmixed views about the appropriatenessoffederalmandates.
When asked if the federal governmentwas rightin passinga law mandating betterpay and overtime benefits for local em-ployees,60 percentofthe respondentssaidthat each local government should makethose decisions; only 30 percent said thefederal governmentwas rightinpassingthemandate. On the other hand, 61 percentagreed that the federal government wasright to mandate that state governmentsprovidemore healthcare forthe poor. Inthiscase, only30 percentsaidthe stategovern-mentshoulddecide the levelof services.Oncleaningup waterways, 71 percent thoughtthe federal governmentwas rightto requirethat local governments improve the treat-ment of wastewater ratherthan allowinglo-cal governmentsto settreatmentstandards(22 percent).
Whetheror notthe respondentsagreedwith the federal mandates, most of thembelievethe costs should be shared. On lo-cal pay and benefits, 47 percent said thefederal and localgovernmentseach shouldpay part of the cost; 59 percent said thefederal and state governments shouldshare the costs of providing federally re-quiredhealthcare services;and 62 percentsaid the federal and local governmentsshouldsharethe costof federalwastewatertreatment standards.
ACIR also asked questionsabout inter-governmental cooperation; the worst tax;the governmentthat givescitizensthe mostfor their money; the government thatspendst~dollars mostwisely;stateconsti-tutions;and the balance of power betweenfederal, state, and local governments.
The report on the poll, Changing Pub-lic Attitudes on Governments and Taxes,7991, is aveileble from ACIR, 800 KStreet, NW, South Building, Suite 450,Washington, DC 20575; (202) 653-5640.Report S-20. $10.
56 Intergovernmental Perspective/Fall 1991
Publications of the Advisory Commission on Intergovernmental Relations(not advertised elsewhere in this publication)
The Structure of State Aid to Elementary and Secondary Education, M-175,1991,72pp. $10.00Representative Expenditure= Addressing the Neglected Dimension of Fiscal Capacity, M-174, 1991,132pp. $20.00Intergovernmental Regulation of Telecommunications, A-115, 1990,48pp. $10State and Local Initiatives on Productivity, TechnoloW, and Innovation:
Enhancing a National Resource for International Competitiveness, A-114, 199i3,174 pp. $25.~Mandates: Cases in Stste-f.ocal Relations, M-173, lM, 60 pp. $10.00State Constitutional Law Cases and Materials with 1990-91Supplement, M-159S,1990,528pp. $30.m
Supplement Only, M-172,1990,56 pp. $7.00A Catalog of Federal Grant-in-Aid Programs to State and heal Governments: Grants Funded FV 1989, M-167, 19S9,40 pp. 10.00State Constitutions in the Federal System: Selected Issues and Opportunities for State Initiatives, A-113, 1989, 1~ pp. $15.00Residential Community Association* Questions and Answers for Public Ofticials, M-166, 19S9,40 pp. $5.00Residential Community Associations: Private Governments in tbe Intergovernmental System? A-112, 19S9, 12S pp. $10.00Disability Rights Mandates: Federal and State Compliance with Employment Protections
and Arcbitectursl Barrier Removal, A-111, 1989, 136 pp. $10.00Hearings on Constitutional Reform of Federalism: Statements by State and bcal
Government Association Representatives, M-164, 19S9,60 pp. $5.00Assisting tbe Homeless: State and fAcal Responses in an Era of I,imited Resources, M-161. 1988.160 pp. $Io.ooDevolution of Federal Aid H,gbway Programs: Cases in State-Imcal Relations and Issues in State law, M-160, 1988.60 pp. $5.fS2Metropolitan Organization: The St. f.euis Case, M-158, 1988, 176 pp. $10.CKIInterjurisdictional Competition in tbe Federal System: A Roundtsble Discussion, M-157, 19SS,32 pp. $5.W
ACIR PUBLICATION AND DISKETTE ORDER FORM
Mark your selections on this form and returnW3TH CHECK OR MONEY ORDER to
ACIRPublimtions WOK Street, NW, South Building, Suite 450, Washington, DC 20575
ALL ORDERS MUST BE PREPAID
Report Quantity Price Amount Report Quantity Price Amount
M~177 _M-176-H _M-176-IM-175 _M-174 _M-173M-172 _M-171 _M-170 _M-16S _M-167 _M-166 _M-164 _M-162 _M-161 _M-160 _M-159S _M-15S _M-157 _RTS & RRS Diskett-19ss _
$10$22.50$20$10$20$10
$7$7.50
$20$10$10$5$5$5
$io
$$$10
$5
$20
A-118A-117A-115A-114A-113A-112A-IllA-11OSR-11SR-9S-20OP-1 (cloth)
(paper)
$15$10$10$25$15$10$10$10$10
$%$52.75$24.25
State. Local Finance Diskettes:S&L Set $295
X3.X9S&; 09 $110S&L 8S $75S&L 87 $50State S3-S6 $25 each
TotalEnclosed
Name
(please type or print)0r8anirati0n/Com pany
Address
City, State, Zip
lntergovernmenhlPsrsp9Ctive/FdllWl 57
Code Enforcement
STATEAND k.L GOV&RNME~~Co~~sSTWTEGIESFOR h.L Er.IFuw~~~~~,County and Municipal Study Commis-sion, 115West State Street, Trenton, NJ08625, lW, 118 pp.
This report considers four majorareas of local code enforcement andtheir relation to housing constructionand maintenance in New Jersey —uni-form construction cnde, and health,housing, and local planning and zoningcodes. The commission found thatwhile state enforcing agencies may actadministratively to ensure compliancewith standards or approvals, local agen-cies have no such power. The commis.sion recommends that municipalitiesbe given adequate enforcement author-ity in local planning matters. The com-mission also recommends that a cerdfi-mte of continued tiupancy be requitedat resale or re-rental of one- and two-fa-mily home$ that, where psslble, the de-velopment permit pr~ess be delegatedto the smallest government able andwilling to undertake the re~nslbility;and that IM1 health agencies be able toleW administrative fines for ention.mental health violations.
Ecunomic Development
WHO BENEFITSFSOMSTATEANDb~LECONOMICDEVEWQMENTPOLICIES?By Ticn-othy J. Bafiik. W,E. Upjohn Inst itute forEmployment Research, 3@ S. West-nedge Avenue, Ralamazm, MI 4W7-3308, 1991, 365 pp. $29 (cloth). $19@aper).
Over the past 20 years, governorsand mayors have assumed responsibil-ity for economic development. Whilemany regions have experienced highunemployment and declining realwages, federal action to deal with theseeconomic problems has been con-strained by budget deficits and a con-servative political philosophy, andstate and local governments have hadto act. State and Incal programs havegrown enormously in recent years, butcritics question their effectiveness. Dothey attract jobs? If so, do these jobs
provide benefits to the unemployed orjust to landowners? Are these pro-grams a zero-sum game, helping onearea at the expense of others? Thisbook provides a comprehensive reviewof recent evidence that state and localtax and public service policies can af-fect job growth. The author presentsnew empirical etidence that job growthcreates lower unemployment, higher la-borforce participation, higher real estateprices, and better occupational opport-unities.He also argues that regional com-petition for jobs may benefit the mtion.
Federalism
THE S,A,E OPAM&RIC~~FE~EMLISMIWO.IWI,AN AN.UAL REVIEW OF THE AM..IcA~FEDBSALSYS~EMPublius, Department ofPolitical Science, University of NorthTexas, Denton, TX 76203-5338, Sum-mer 1991. 228 pp. $25 (subscription).$10 (single issues).
Following an ovewiew essay thatcovers deficit reduction, judicial feder-alism, sorting out and turnovers, feder.alism and the states, and comparativefederalism, this issue includes reviewsof the savings and loan bailout and bankregulation, mandates and preemption,federalism in the 10lst Congress, judicialdesegregation remedies, the governorsand the National Guard, education re-form, clean air plicies in California, andstate f-l stmtegies.
Finance
INDICATORSOFSCCIAL.4NDECONOMICD[sp~~l.TIES IN SOUTH FLORIDA.South FloridaRegional Planning Council, 344 HoOy-wond Boulevard, Suite 140, Hollywocrd,FL 33021, 1991.119 pp.
This report is a survey and analysisof indicators of social and economicdisparity in housing, health care, em.ployment, and edumtion. The reputt re-tiews the issues and indicators in relationto national contexts and federal ~licies,followed by regional trends, a regionalforecast, and ~licy and planning recoin.mendations. Information for the reportwas collected from the state mandatedlocal comprehensive plans, lncal and
national data bases, other studies, andgovernment officials, policymakers,~nd community leaders.
Scmth Florida is mm~sed of threeccmnties @reward, Dade, and Monroe)tith a Modulation of 3.3 million. Thereare 57-m~nicipalities, including two ofFlorida’s major metrnpcditan areas(Miami-Hialeah and Fort Lauderda]e.HoOywonc-Pompano Beach).
IntergovernmentalFiscal Relations
CATAm OFSTATSAND FEDERALPnm~sAIDING NEW YORK.SkAL GOVERNME~~S.Legislative Commission on State-tilRelations, Agenq Building 4, 14thFloor, Albany, NY 12248,1991.418 pp.
This volume was compiled from asurvey of New York and U.S. agenciesto aid the commission in evaluating thestate system of local aid, the division ofresponsibilities bet ween state and localgovernments, state mandates, and statelimits on local taxing and borrowing,For state fiscal year IWO-lWI. $20 bil.lion of $28 billion in planned disburse-ments from the state General Fundwere class~led as grants to local gov-ernments. State aid provides 25 per-cent of aggregate local revenues, andstate and luI governments rely onfederal funds fur abnut 15.8 percent oftotal revenue. The individual profies in-clude information about progmm ad.ministration, the award process, methndof apportionment, and annual appropri.ations and dtiursements,
CAT.W OFSTA~~ASSIST.NC6TOkAL Go..ERNMENTS4THEDITION.Illinois Commis-sion on Intergovernmental Cunpemtion,707 Stratton Building, Springfield, IL627M, 1991.349 pp.
This catalog was compiled from asurvey of state agencies on state aid tolocal governments. The relationshipbetween the state of Illinois and morethan .5,600 luI governments andspecial districts (excluding schnol dis-tricts) involves the transfer of over $3.5billion per year. Federal and statefunds are distributed to Iwal unitsfrom many state agencies. The state
58 lntergovemmen~ PerspectivelFall1991
funds 160 financial programs, sharesstate revenues with Incal jurisdictions(income tax, personal property re-placement tax, and motor fuel taxrevenues), and provides sala~ subsi-dies and bonuses to local officials. Thecatalog alacr includes data on statetechnical assistance programs. Eachsummary includes a program descrip-tion, eligibility, fiscal data, and sourcesof additional information.
GENEWL STATEAID TO SCHCOD. bGlSM-TOR.SHANDBCOK.Illinois Commission onIntergovernmental Cooperation, 707Stratton Building, Springfield, IL62706, 1991.54 pp.
General state aid to e[ementa~and seconda~ schools is based on aguaranteed minimum amount or foun-dation. When a district does not havesufficient tax base to provide the stateguaranteed foundation from a “rea-aunable tax effort,” the state makes uptbe difference. The aid is distributed bya formula and the amount for each dis-trict depends on attendance, tax base,and tax effort. In tbe 1989-1990 schoolyear, general state aid accounted forabout 62 percent of all state dollarssent to echool districts and for about 25percent of funds received by schuul dis-tricts from all sources. ?be repnfl cOn-tains sections on components of generalstate aid, the aid formula, summary ofgeneral state aid calcrdations, examplesof different calculation metbads, fomu-Ia revenue, geographic characteristics ofgeneral sate aid, and aid amounts by dk-trict and county.
lnterjurisdictional Competition
COMPETITIONAMONOSTATEANOhAL Gov-ernment%EmcIENcvANDEQUITYINAMERT-CANFEDERALISM.Edited by Daphne A.Kenyon and John Kincaid. The UrbanInstitute Press, in cooperation withACIR. ACIR Publications, 800 KStreet, NW, South Building Suite 450,Washin ton, DC 20575, 1991.299 pp.
t$52.75 cloth). $24.25 (paper).
American state and local gover-nmentsare tbe focus of increasing atten-tion as we near the end of the 20th cen-tury. Since 1978, real federal aid hasdeclined and more federal mandateshave been imposed, while state and lo-cal poli~makers have faced continuingcitizen concerns about taxes. Interestin the effects of competition amongstates and local governments has beensparked by these and other changes inthe federal system. Governments
make use of public service, tax, andregulatory policies in efforts to cOm-pete with each other. The contributorstake a fresh look at the effects of com-petition. Questions addressed includehow competition affects the taxing,spending, and redistributive behaviorof governments, and competition foreconomic development. Two decadesago, pnlicymakers and analysts werenearly uniform in decrying the detri-mental effects of competition on publicservice levels and tax systems. Now,there is a growing realization that suchcompetition can, under certain circum.stances, have beneficial effects.
State Government
TEN W~= TO lhIFROVESTATEMANA~ehIENTAND SEWICES MAN~GBWSN7GUIDE No, 7.Coalition to Improve Management inState and Local Government, Sch~lof Urban and Public Affairs, CarnegieMellon University, Pittsburgh, PA15213-3890, 1991.40 pp. $10.
The purpose of the guide is to pro-vide governors, their staffs, depart-ment heads, and legislators with checklists of executive and administrativeinitiatives that have been found to besuccessful in improving state govern-ment. The states have become a pow-erful force in the federal system. Thisreflects the shift of leadership fromWashington to the state capitols due to(1) fiscal constraints in all gOvem-ments, requiring new approaches bystates to raising revenues and control-ling outlays; (2) the emergence of manynew problems and service demandsthat require state solutions; and (3) theresidual powers of the states. Proposalsare made for the basic requisites ofstate government, the executive man-agement role, the executive manage-ment team, cabinet and cabinet com-mittees, budgeting, the state planningagenq, an administrative managementprogram, energizing departments andagencies, developing an innomtive, pro-ductive workforce, and strengtheningstate capabiihies for wperative action.
Local Government
LOCALGM’6R~MENTAN lNTE~~~TIONALPErI.SPECTIVE.Edited by J. Owens and G.Panella. Elsevier Science PublishingCo., S?0. Box 882 Madison Square Sta-tion, New York, NY 10159,1991.~ pp.
The relationship between central,regional, and Iocul governments ischanging. Some governments are com-
mitted to decentralizing expendituresand revenues; others are adopting amore interventionist approach in localgovernment affairs. This book is basedon a conference to examine ways to im-prove state and local government oper-ations and how central governmentscan control development in local gov-emment expenditure. The main em-phasis was on state-local finance in de-veloped countries. The first part of thebook deals with tbe economic rationalefor decentralization, comparing differ-ent aystemsin selected OECD mem-ber countries and presenting a theoret-ical framework. Criteria for choosingbetween own taxes. shared taxe$ nontaxrevenues, and grants are anal~ed ia thesecond part, The third pan l~ksat thearguments for and against blink andcategorical grants. me final section ana-l~es lecal government finance in thecontext of macrrreconomi cpnlicy.
ACIR News(contin{,edJmm page 4)
State ACIRs Meet
The State ACIR Conference,hosted by the Louisiana ACIR, washeld in New Orleans, September11-12, 1991, in conjunction with theU.S. ACIR’S meeting. Commissionersand staff from the U.S. ACIR and Col-orado, Connecticut, Florida, Louisi-ana, Michigan, Missouri, New Jersey,New York, North Carolina, South Car-olina, Ohio, Utah, and Washingtonparticipated. A state representativefrom Kansas was present. Participantsalso included representatives of theU.S. Conference of Mayors, NationalLeague of Cities, National Aswciationof Towns and Townships, National As-sociation Of Counties, and NationalConference of State Legislatures. Top-ics of discussion included image andorganization of state ACIRS, joint proj-ects, the role of commission members,regionalism, and roles and relation-ships between ACIRS and state and lo-cal government associations.
E
ACIR Has MovedACIR has moved to Wch-
World Plaza, ~ K Street, NW,South Building, Suite 450, Wash-ington, D.C. 20575. (202)653-WO. FM (202)653-%29.
IntergovernmentalPsrspectivelFall1S1 59
Members of theU.S. Advisory Commission on Intergovernmental Relations
(October 1991)
Private Citizens
Daniel J. Elazar, Philadelphia, PennsylvaniaRobert, B. H~wkin<, ‘Jr.j”-Ch~ftihn, San Francisco,
-. ‘. CaliforniaMary Ellen Joyce, Arlington, Virginia
,.
Members of the U.S. Senate
Daniel K. Akoko, HawaiiDave Durenberger, Minnesota
Charles S. Robb, Virginia
Members of the U.S. House of Representatives
Donald M. Payne, New Jersey
Craig Thomas, WyomingTed Weiss, New York
Officers of the Executive Branch, U.S. Government
Debra Rae Anderson, Deputy Assistant to the President,Director of Intergovernmental Affairs
Samuel K, Skinner, Secretary of Transportation
Vocrrrrcy
Governors
John Ashcroft, MissouriBooth Gardner, Washington
George A. Sinner, North DakotaStan Stephens, Montana
Mayors
Victor H. Ashe, Knoxville, TennesseeRobert M. Isaac, Colorado Springs, Colorado
Joseph A. Leafe, Norfolk, VirginiaVfcrrncy
Members of State Legislatures
David E. Nething, North Dakota SenateSamuel B. Nunez, Jr., President, Louisiana Senate
Ted L. Strickland, Colorado Senate
Elected County Officials
Ann Klinger, Merced County, CaliforniaBoard of Supervisors
D. Michael Stewart, Salt Lake County, Utah,County Commission
Vacancy
ADVISORY COMMISSION ON INTERGOVERNMENTAL RELATIONS
LBULK RATE
WASHINGTON, DC 20575 U.S. POSTAGEPAID
OFFICIAL BUSINESS PERMIT 827
PENALW FOR PRIVATE USE, $300 WASHINGTON, DC