The Appeal of States

In replying to a recent email I was reminded of some notes I made previously on an “extreme federalist” theory of mine that I came up with in law school. The outline is below, along with elaboration in the email reply.

The Appeal of StatesUnder the “independent adequate state grounds” doctrine,

If a state court decision rests on “independent and adequate state grounds,” then regardless of how the U. S. Supreme Court resolved the federal issues presented in the case, the result of the case would remain unchanged. The Court has said that were it to accept jurisdiction in such a case, it would be rendering an advisory opinion in violation of the Constitution’s command that the federal judicial power is limited to real cases and controversies.

So if, say, in Connecticut the state high court were to have ruled that the New London taking was unconstitutional under the state takings clause and the federal takings clause, then even if the state court gave the wrong intepretation to the federal clause, there would be no reason for the feds to hear it–even if they overturned the state court ruling on the federal takings provision, the state court ruling against the taking would still be the same since it has independent and adequate state grounds to make this decision.

It has always bugged me that a state agency can appeal to the federal courts a state court’s interpretation of the federal constitution that is broader than the federal courts’ interpretation. It does not seem proper to me that a state is able to review a decision of its own state supreme court, in federal court–even if there is a federal question. Let’s say the state court throws out the conviction on the grounds that the state law violates the federal First Amendment.

Yet the U.S. Supreme Court does not itself interpret the protection of the First Amendment as broadly. Today, the prosecutor can appeal to the Supreme Court.

I am aware that prior to about 1913 (I think) that the Court did not typically hear such appeals, because there was no federal right denied. But this was not on jurisdictional grounds. In my view, the court has no jurisdiction to overturn a state supreme court holding which broadens a federal constituional provision. The main reason for my view is that the Constitution does not prevent states from protecting individual rights to a higher degree than the minimum level set by the Federal Constitution.

Indeed this is why the adequate and independent state grounds doctrine does not permit appeal if the state broadened the individual right in some other way, e.g. by its own constitutional provisions.

All the commentators today (except, as far as I can tell, Donald Bell) seem to question whether or the indep. & adequate state grounds is justifiable in restricting federal jurisdiction. But they all seem to take it for granted that, IF there is a state supreme court that rules in favor of a state indivdual citizen on federal constitutional (or legal) provisions, THEN there is federal question jurisdiction. It is that presumption that seems incorrect to me. I’d go so far as to say it is an unconstitutional exercise of jurisdiction for the Supreme Court to overturn a state court’s holding in this regard. That is because it simply does not violate the Constitution for a state to expand individual rights–no matter how the state does it.

For example, if a state enacts a mere statute or even a state constittuional provision protecting freedom of speech very broadly, this will not be reviewed by the Supreme Court. Nor, if the state prosecutor refuses to prosecute someone engaged in speech activity. Nor, if a common law rule were to develop. But what if the voters (or state legislators) vote for a state constitutional amendment or law based on their belief that the First Amendment is broader than the Supreme Court says it is? Why is that not reviewable, but it is reviewable if the state supreme court does it? What if I as a juror believe the first amendment is broader than the Supreme Ct says it is, and thus I refuse to convict a defendant. My grounds for refusal cannot be reviewed by the supreme court. Nor if I vote in favor of a state measure based on my interpretation of the First Amendment (which is at variance with hte feds).

I just do not see why it is the Feds business how a state decides to make policy, or how it expands individual rights protections. IF it does it by common law, by prosecutorial policy, by jury nullification, by state law or constitution, by referendum–all those are okay; but a court can’t do it.

Makes no sense to me. The distinction is arbitrary.

To put it starkly, a state court freeing an individual for any reason, simply does not violate the federal constitution because nothing in the federal constitution requires states to jail citizens. Thus, if a decision of a court against a prosecutor cannot violate the constitution, why is it a “federal question”? Why is it reviewable and reversable by the Court? Why does it have jurisdiction at all?

Now what reminded me of this was the following question that someone emailed me:

It would be interesting to know how the U.S. S.Ct. would have ruled if the Conn. S.Ct. had upheld the trial court on the grounds that it violated Art. 1, Sec. 11 of the Conn.Const. – “The property of no person shall be taken for public use, without just compensation therefor” – and New London, rather than Kelo, had appealed on the basis that its right of eminent domain under the U.S. Const. was greater than its right of eminent domain under the Conn. Const. In Pruneyard, the U.S. S.Ct. said that states could confer more expansive rights in their constitutions than were conferred by the U.S. Const. By implication, states could not confer a less expansive right than that conferred by the U.S. Const. (In Pruneyard both parties were private.) New London might argue that it had greater rights under the U.S. Const. than under the Conn. Const. That is essentially the position of the U.S. SCt in Pruneyard. That decision was logically inconsistent because it was, in part, a case involving different rights in conflict – propery rights v. free speech rights.

My reply follows:

I’m not sure I follow the twists and turns of your question. I assume you are saying the trial court ruled against the taking but the Conn S.Ct. overruled that, in essence saying the taking was consistent with both the Conn and Federal takings provisions.

If that is what you mean–then you are asking, if the Conn S Ct had overturned the takign on the grounds that it violated the STATE provision, then could New London have appealed it. I think the answer is a clear no. It is clearly permissible for states to give greater protections than teh fed constitution. Now I suppose that since the 2 provisions had diferent wordings, New London could try to argue that a broad interpretation by ConnS.Ct of the Connecticut taking provision is tantamount to an identical construction of the federal takings provision, and thus the constructions was subject to federal review. But I think that would not work.

If the Conn S. Ct had struck down the New London taking based on BOTH the Connecticut and US takings provisions, I think here, again, the Court probably would not hear it. Why? Because there is an equal and independent STATE ground to uphold the state ruling. It would not matter if the state court gave too broad a construction to the federal provision, because even if the S.Ct overturned this, the state decision would not change since it would still hav overturned the state law on state constitutional grounds.

Now: if the Conn S. Ct had overturned the conn taking based solely on its interpretation of the federal takings provision, then the law is that the S.Ct can review it, since it has jurisdiction over “federal questions.”

Coincidentally, I have written before (informally–no full article yet, but I have contemplated one)–on this very last topic. In my strict, or “extreme,” federalist view, in this case the S.Ct should have NO jurisdiction. The reason is because the Constitution at most places LIMITS on what the states can do. As is recognized, this is exactly why the states are able to have GREATER protection of rights.

But my view is that the state can provide greater protection in a number of ways. It could have its own constitutional provision, that is tighter than the feds’. Or, it could have its own courts construe its own constitutioanl provision, that is worded identially to the feds’, in a braoder fasion. Or, it could have its police simply refuse to enforce certain laws. Or, its juries might regularly overturn certain convitions. Or, the prosecutors might not act on it. Or, there might be a statute protecting the right. Or, a common law rule.

What busienss is it of the feds how the states give greater protection of rights?

So it seems to me another way is for hte state to give a broader construction to the fed’s own provisions. NOtice this is one branch of gov’t striking down the law of another branch of government for SOME reason. From the point of view of the feds, and the victim, the state is a black box that is acting as if the victim has greater rights than the feds recognize. This is permissible–so what does it matter WHY? Why is it even the feds’ buseinss?

In short: I believe state agencies should NEVER be able to appeal an action of their OWN GOVERNMENT to the feds–even if it is based on the calim that the sttae government (court, whatever) gave “too broad” a construction to the federal provision.

Consider this: suppose a state prosecutor BELIEVES the First Amendment gives greater protection to, say, commercial speech, than the Supreme Court has interpreted it. So he refuses to prosecute based on his own belief in the First Amendment’s meaning. Surely the Supreme court couldn’t review this. Why then, if a court does something similar? Or what if the legislators in the state enact a law to grant braod protection to commercial free speech because the legislators believe the First Amendment really means to do this and the Supremes have misconstrued it. Would their legislation itself be challengable just becaus it was based on an opinion of the legislators as to the meaning of the federal Constitution?

The point is: it violates the Constitution for a state to do something it prohibits. It does not violate th Constitution for the state to grant more rights than the Constitution grants. So no matter how this is done, why shoudl the fds have jurisdiction? THey should hear a case where the state is a party only to ensure the state is not violating the constitution. It does NOT violat the constitution for the state to have a certain view of the Constitution and to act on it.