The Other Constitutions

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Children of immigrants pledging allegiance to the flag in a classroom on Ellis Island, 1940s

In a law review article published over forty years ago, Supreme Court Justice William J. Brennan argued that state constitutions are a “font of individual liberties” and that their protections, in matters like search and seizures and the right to a jury trial, often extend beyond the protections of federal law.* In 51 Imperfect Solutions: States and the Making of American Constitutional Law, Jeffrey Sutton, a well-respected judge who sits on the United States Court of Appeals for the Sixth Circuit, endorses Brennan’s thesis and provides four examples in which state constitutional protections were or are more robust than federal ones. These examples demonstrate that the law may be best served if proponents of a new or expanded right give priority to a claim based on their state constitution, and that state judiciaries can set an example for the federal judiciary. Each of them—as well as a fifth example, regarding partisan gerrymandering, that Judge Sutton does not take up but is also worthy of study—merits separate discussion.

The first example involves the equality and adequacy of funding for public education. In Brown v. Board of Education (1954), the Supreme Court removed a major barrier to equal educational opportunities by prohibiting the segregation of public schools, but it left in place the financial obstacle faced by poor school districts unable to provide their students with an education comparable to that offered by wealthier districts. In San Antonio Independent School District v. Rodriguez (1973), over the dissent of four justices, including Thurgood Marshall, the Court rejected a challenge to Texas’s school-financing system, which was based on local property taxes and thus created wealth-based barriers to equal educational opportunities in Texas’s public schools.

The plaintiffs received no relief in their federal case, but in three cases in the 1980s and 1990s the Supreme Court of Texas held that the state’s school-financing system violated the Texas Constitution. Courts in other states, like New Jersey and Ohio, have similarly held that their state constitutions require some measure of equal funding among school districts, demonstrating that state constitutions sometimes offer greater protections than the US Constitution does.

In the second example, Sutton traces the development of the rule requiring that evidence obtained by unconstitutional means be excluded from a trial (the “exclusionary rule”) and the subsequent development of the good-faith exception to that rule. In Mapp v. Ohio (1961), the Supreme Court, noting the states’ “impressive” experience with such a rule, established that the exclusionary rule applies to evidence obtained as a result of an unreasonable search or seizure. Twenty-three years later, the Court established a good-faith exception to the exclusionary rule so that, if police officers reasonably rely on a warrant that is later found to be invalid, the evidence obtained pursuant to that…


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