Wednesday, January 4, 2012
Arthur Leavens (Western New England University School of Law) has posted State Constitutionalism: State-Court Deference or Dissonance? (Western New England Law Review, Vol. 33, p. 81, 2011) on SSRN. Here is the abstract:
This Article focuses on the debate concerning state constitutional expansion of criminal-procedure protections. It examines two such rights: (1) the protection against unreasonable searches and seizures; and (2) the right to the assistance of counsel in defending a criminal case. Each of these rights is embodied in both the federal and most, if not all, state constitutions. Each right is thus doubly applicable to the states, first, through the federal version by virtue of its incorporation into the Fourteenth Amendment’s due process protection and, second, through the state constitution’s version of the cognate right. So focused, the question is, what deference if any does a state court owe the Supreme Court in interpreting state constitutional provisions protecting against unreasonable searches and seizures and affording the criminally accused the right to counsel?
This Article explores the question of deference in the context of a particular state, Massachusetts, employing that focus for three reasons. First, the Commonwealth’s Declaration of Rights — which has remained virtually unchanged since its adoption in 1780 — served as a principal model for the federal Bill of Rights, leaving no doubt but that textually and historically the federal and state provisions at issue here are essentially the same. This poses the interpretive question most starkly; in each case, we are considering federal and state versions of what was to their respective framers the same normative protection. Second, unlike most state court judges, the justices of the Massachusetts Supreme Judicial Court are appointed and have lifetime tenure, putting them in the same, politically-insulated position as their federal counterparts. This poses the issue of decisional legitimacy in bold relief, forcing consideration of the counter-majoritarian aspects of judicial review. Finally, the Supreme Judicial Court has been quite active over the past three decades in this area of state constitutionalism, much of this activity in the area of criminal procedure. Its jurisprudence in state constitutionalism is thus well rehearsed and provides a good backdrop for this discussion of such state-court decision making.