Posted by Eugene Volokh:
Broad Readings of State Bill of Rights Provisions:
I mention below that [1]state courts may read Bill of Rights
provisions differently than the analogous federal provision is read.
Sometimes the text clearly mandates this, in which case I take it that
many advocates of judicial restraint wouldn't object. For instance,
many [2]state right to bear arms provisions explicitly secure an
individual right to have arms for self-defense; whatever you think of
the proper interpretation of the Second Amendment, state courts have
to interpret those provisions as barring at least some gun controls.
Likewise, some states, including California and Florida, have an
expressly secured "right to privacy"; one may debate what that should
mean, but one can't complain that the judges who enforce such a right
to privacy under the state constitution are just making it up.
But what if the text is vague or ambiguous? Should people who fault
the U.S. Supreme Court for reading federal Bill of Rights provisions
too broadly -- especially when they strike down legislative enactments
-- do the same as to the state supreme courts reading state Bill of
Rights provisions too broadly?
The answer could of course be yes: One could argue that such state
decisions illegitimately interfere with the democratic will, as
expressed by the state legislature. One could also argue that such
different interpretations may cause some confusion, and one could
appeal to the U.S. Supreme Court's authority to argue that the state
court's decision intepreting similar constitutional language is
mistaken. (As I note below, state courts are legally entitled to
interpret state provisions differently from similarly worded federal
provisions, but critics may argue that those interpretations are
erroneous, and may call on the U.S. Supreme Court Justices' authority
to buttress those arguments.)
But here are three reasons why we should be less worried about state
judges' broad readings of vague or ambiguous constitutional language
-- I'm not saying "not worried at all," since some such readings may
still be viewed as wrong for various reasons, but less worried, for
instance if the case is close and there's a plausible argument that
the state constitutional provision should indeed be read to restrict
the state legislature:
1. We often hear complaints about unelected judges imposing their
views on the democratic process. But in many states (most, I
think), state supreme court judges are elected, and can be voted
out of office (though that rarely happens, and sometimes the
system is set up to minimize the chances of that, for instance by
barring contested races and only providing for a Yes or No vote,
as in California). They may not be elected on a platform of
imposing their own views on the law; but their election -- and
possibility of electoral removal -- does, I think, give their
decisions more democratic legitimacy.
2. We also sometimes hear complaints about a state's law being
invalidated by the will of those nine Justices in Washington, who
may have very different views than the state's residents do. This
cultural disconnect argument is a harder (though not impossible)
argument to make against state supreme court Justices.
3. A related argument is that when the U.S. Supreme Court invalidates
a state law on Bill of Rights grounds, it sets the law in stone
for the 50 states, and prevents useful state-by-state
experimentation (with innovative police procedures, for
instances). This argument doesn't apply to state supreme court
decisions.
4. Federal constitutional decisions are very hard to dislodge through
the democratic process -- it (usually) takes a 2/3 vote in each
house of Congress, and then the votes of 3/4 of the state
legislatures. But state constitutional decisions can often be
changed by a simple majority vote of the people (though that
varies from state to state) preceded by a vote of the state
Legislature (though sometimes that has to be a supermajority, or
two successive majorities in successive sessions) or a citizens'
petition with a suitable number of signatures. So if the state
supreme court interprets a provision in a way that the people
dislike, they can change it with less difficulty than they can as
to the federal constitution.
Again, one can surely criticize state court decisions on various
grounds, for instance that they are illogical, or inconsistent with
the provision's text, original meaning, or historical interpretation.
I have, for instance, criticized a Nevada Supreme Court's state
constitutional decision related to taxes, and I don't agree with the
Massachusetts Supreme Judicial Court's same-sex marriage decision,
just to give two examples. And one even when the text is vague or
ambiguous, one can argue that state courts should err on the side of
giving the legislature more flexibility. But I do think that the four
points cited above make this latter argument less persuasive (though
don't by any means entirely defeat it) as to state constitutional
decisions than it is as to federal constitutional decisions.
References
1. http://volokh.com/archives/archive_2005_02_27-2005_03_05.shtml#1109779243
2. http://www1.law.ucla.edu/~volokh/beararms/statecon.htm
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