Posted by Eugene Volokh:
Rights Under State Constitutions Vs. Federal Constitutions:
Reader Robert Woolley writes:
Why did the Missouri Supreme Court, in the juvenile death-penalty
case (State ex rel. Simmons v. Roper (112 S.W.3d 397)), invoke the
federal 8th amendment, rather than using Missouri's own state
constitutional provision of the same language?
The Missouri justices had to go through pages of rhetoric to
explain its justification for concluding that the US Supreme Court
"would" now overrule its own 1989 Stanford precedent. They happen
to have guessed correctly, as it turned out, but I can't figure out
why they did it that way. It seems like a politically and legally
risky move, virtually inviting reversal, if they have guessed the
higher court's mood incorrectly. And whether they guessed right or
now, they were pretty clearly violating principles of how precedent
should work. But had they decided the case on the Missouri
constitution, the decision would be essentially immune from
reversal by any federal court. The Missouri court clearly had that
option, as evidenced by this footnote [20:] "Because the Eighth and
Fourteenth Amendments afford Mr. Simmons relief, this Court need
not reach Mr. Simmons' alternative argument that, even if his
execution is not barred by the Eighth Amendment, it is barred by
article 1, section 21 of the Missouri Constitution." In the face of
a fairly recent, directly contradictory holding of the supreme
court, why take the uphill, against-the-wind path, when they could
by fiat interpret the state constitution to achieve the desired
result, and be done with it, with much less hand-waving
justification needed, and no chance of reversal?
I had the same question myself.
First, a bit of background: Recall that there are 51 Constitutions in
the U.S. -- one federal and 50 state (I set aside D.C. and the
Territories). Each of them has a Bill of Rights.
When a state government is dealing with its citizens, it must follow
both the federal Constitution and the state Constitution. It follows
that the person litigating against the state can win if he can prevail
under either the federal or the state provision. And state courts may
interpret provisions of the state Bill of Rights more protectively
than courts have interpreted the federal Bill of Rights, either
because the provision's text or history is different, or just because
they think the federal provision has been interpreted incorrectly, and
they don't want to perpetuate that error in reading the state
constitution.
What's more, the state's highest court (usually but not always called
the state Supreme Court) is the ultimate expositor of the meaning of
the state constitution. The U.S. Supreme Court may not reverse the
state court's judgment on that question -- it may not say "Well, you
think your state constitution's Cruel and Unusual Punishment Clause
means one thing, but we disagree, and we're higher than you are." As
to the meaning of state constitutional provisions (and state
statutes), the U.S. Supreme Court is not higher than the state supreme
court; the U.S. Supreme Court may reverse state decisions when they
violate someone else's federally secured rights, but not just because
the Court disagrees with the interpretation of state law. In fact,
many states have read state free speech provisions, freedom from
search and seizure provisions, right to bear arms provisions,
non-impairment of contracts provisions, and other provisions more
broadly than similar federal provisions have been read.
With that background, on to the reader's question. I have two guesses
(assuming that the state constitutional claim wasn't foreclosed either
by the litigant's failure to properly raise it or by contrary state
precedent -- a fair assumption given the note the reader quotes):
1. 1. The Missouri Justices wanted to insulate their decision from
revision by a state constitutional amendment. State voters can
pretty easily revise state constitutional decisions, by simply
enacting an amendment that modifies the underlying clause, for
instance to say that "however, an execution shall not be
considered Cruel or Unusual Punishment on the grounds of the
person's age, if his or her age is 16 or above." The amendment
wouldn't change the result in Simmons' case, but it would change
the result for the future. Such amendments often (I don't know the
Missouri rule) just require a majority vote of the voting public,
and a majority in the state legislature (or some number of
signatures from the public instead of the legislative majority).
2. 2. The Missouri Justices wanted to prompt the Court to revisit the
case. Then, if the Court affirmed (as it did), they would have
helped make a national rule. And if the Court reversed, then they
might have been able to decide based on the Missouri Constitution
on remand (though then their decision might be even less popular
with Missouri voters, if Missouri voters worry about such things,
because it would be a departure from an influential institution's
very recently expressed views, not just the views that institution
expressed a decade ago).
It's also possible that the Missouri Justices just turned to the
federal constitution out of force of habit. Many lawyers don't think
of raising state constitutional arguments -- something I try to remedy
for the future in my constitutional law classes -- and some state
supreme court Justices might have a similar mindset. But I doubt it;
here it's pretty obvious that the Missouri Justices at least knew of
the option. (If Missouri courts have recently done a good deal of
state constitutional law, something that I don't know, then it would
be even less plausible that they turned to the federal question
reflexively.)
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