January 07, 2006
CLS 1Ls, Heed Will's Words
January 7, 2006 02:56 PM
SCOTUS's cert. grant for a Utah search-and-seizure case prompts Will Baude to muse on the dearth of knowledge and experience among attorneys in briefing arguments that rely on state constitutions:
Maybe most modern lawyers simply don't know how to brief a plausible constitutional argument that doesn't involve case law. Constitutional law courses focus almost exclusively (if not exclusively) on decisions of the Supreme Court and the odd lower court (and some of them are very odd indeed). You might get a nod to Jackson's Bank Veto, but what First-Year Con. Law student learns how to brief a legal argument to a court on a constitutional issue that cites only things like the original history and plain text of the provision, traditions of the people of the state, and so on? If states want their state constitutions taken seriously, they might do well to provide a bit of a helping hand, and demonstrate how it could be done.
My partner in editing
devised a moot court problem that focuses entirely on the South Carolina state constitution's provision for divorce and the statute putting that provision into effect. As family law, this is admittedly an area where the federal constitution and courts have been relatively silent, as opposed to the "independent state constitutional jurisprudence [...] based on searches-and-seizures and the other criminal procedure amendments" that overlaps and potentially conflicts with 4th Amendment jurisprudence. Nonetheless, this hypothetical will provide a rare opportunity to make arguments based precisely on "original history and plain text of the provision, traditions of the people of the state" (keep any Southern incest jokes to a minimum, kids) as well as some state caselaw.
That's wonderful! Is the moot court finished yet? What did the results look like?
The American Bar Foundation in 1978 published "Sources of Our Liberties, Documentary Origins of Individual Liberties in the United States Constitution and Bill of Rights", edited by Richard L. Perry, with a revised edition published in 1991 by William S. Hein & Co., Inc. Seven of the original 13 states enacted constitutions prior to the US Constitution. Presumably the framers of the US Constitution benefited immensely from the frameworks of these earlier constitutions. Keeping in mind that the Bill of Rights imposed limitations on the federal government and not the states, rights set forth in the state constitutions would apply for each state, until the Civil War Amendments and the limited incorporation of the Bill of Rights to limit states as well. The US Constitution is of course not part of the original history of the constitutions of these states. But perhaps the comparatively more readable US Constitution, and decisions thereunder, serve as a more appropriate guide in construing rights contained in these state constitutions. To the extent that the Bill of Rights is incorporated into the 14th Amendment, presumably state constitutions cannot limit but can perhaps broaden rights. Some state courts have indeed provided greater individual rights than provided under the incorporated Bill of Rights, e.g. Massachusetts with same sex marriage. But the point that Will Baude raises results, in my view, not from the failure of lawyers' briefings but from the failure of state judges to recognize and attempt to distinguish rights differences under the US Constitution and that state's constitution. That might result in judicial heavy lifting.