2231, 2245, 411 N.E.2d 1274, 1282 (death penalty contrary to prevailing standards of decency in Massachusetts, as evidenced by absence of any use of death penalty in Commonwealth since 1948).

The explication of standards such as these demonstrates that the discovery of unique individual rights in a state constitution does not spring from pure intuition but, rather, from a process that is reasonable and reasoned. This process does not require presumptive weight to be accorded the federal experience, just an intelligent awareness and assessment of that experience. 3 See, e.g., General Assembly, 90 N.J. at 381-384, 448 A.2d 438. The enumerated criteria, which are synthesized from a burgeoning body of authority, are essentially illustrative, rather than exhaustive. They share a common thread-that distinc

3To the extent that Justice Pashman suggests in his concurring opinion that this approach establishes a presumption in favor of federal constitutional interpretations, supra at 960, no decision of this Court has recognized such a presumption, and nothing in this opinion or in the majority opinion, as I read it, calls for or encourages the establishment of such a presumption.

Discussion Notes

1. The approach taken by Justice Handler in his concurring opinion was adopted by a unanimous New Jersey Supreme Court in State v. Williams, 93 N.J. 39, 459 A.2d 641 (1983). See also State v. Gunwall, 106 Wash. 2d 54, 61-63, 720 P. 2d 808, 811-13 (1986), where the Washington Supreme Court adopted "nonexclusive neutral crite

Robert F. Williams, "In the Supreme Court's Shadow: Legitimacy of State Rejection of Supreme Court Reasoning and Result"

South Carolina Law Review 35 (Spring 1984): 385-88. 1984 South Carolina Law Review. Reprinted by permission.

III. Legitimacy of State Judicial Disagreement with the United States Supreme Court

[U]nmistakably, a high state court judge and a United States Supreme Court Justice must often look at the same case with different eyeglasses.

Justice William J. Brennan, Jr.152
United States Supreme Court

tive and identifiable attributes of a state government, its laws and its people justify recourse to the state constitution as an independent source for recognizing and protecting individual rights.

II

Applying these principles to this case, I am satisfied that adequate grounds exist for invoking the State Constitution. New Jersey's long history of statutory and legal protection for telephonic communications makes independent resort to the State charter appropriate in the face of conflicting federal law.

The question then becomes whether there exists a right cognizable under our State Constitution to protect the privacy of telephone billing records. As I have already explained, I would invoke the State charter as an independent source for protecting individual rights when there are sound reasons grounded in State law, tradition or policy to do so. I find such reasons present in this case.

ria," noting that it would "consider these criteria to the end that our decision will be made for well founded legal reasons and not by merely substituting our notion of justice for that of... the United States Supreme Court."

2. Is there a difference between lawyers using the factor approach as an advocacy tactic and judges using it to decide cases?

A. Criteria for Disagreement with the
United States Supreme Court

The development of criteria to justify a state court decision rejecting a Supreme Court interpretation of a similar or identical federal constitutional question can, in the long run, impede independent state constitutional interpretation...

Another example of New Jersey's criteria justification is Justice Handler's concurring opinion in State v. Hunt.... Justice Handler's Hunt opinion portrays the state constitution as a "fall-back" source of rights to which state courts may "resort" under certain circumstances. But the Justice cautioned:

There is a danger, however, in state courts turning uncritically to their state con

152 Brennan, State Supreme Court Judge Versus United States Supreme Court Justice: A Change in Function and Perspective, 19 U. Fla.L.Rev. 225, 227 (1966). See also Brennan, Some Aspects of Federalism, 39 N. Y.U.L. Rev. 945, 949 (1964), where Justice Brennan posits that the roles of state supreme court justices and United States Supreme Court Justices, even in the same case, are functionally different.

stitutions for convenient solutions to problems not readily or obviously found elsewhere. The The erosion or dilution of constitutional doctrine may be the eventual result of such an expedient approach.

It is therefore appropriate, in my estimation, to identify and explain standards or criteria for determining when to invoke our State Constitution as an independent source for protecting individual right.

Justice Handler listed seven criteria or standards that would justify a result different from the Supreme Court's (1) textual differences in the constitutions; (2) "legislative history" of the provision indicating a broader meaning than the federal provision; (3) state law predating the Supreme Court decision; (4) differences in federal and state structure; (5) subject matter of particular state or local interest; (6) particular state history or traditions; and (7) public attitudes in the state. He concluded that reliance on such criteria demonstrates that a divergent state constitutional interpretation "does not spring from pure intuition but, rather, from a process that is reasonable and reasoned."

Justice Handler denied that his analysis created a presumption in favor of the Supreme Court result, 164 but Justice Pashman in a separate concurrence disagreed.165 Importantly, Justice Pashman observed that such a presumption limits a state court's authority to interpret its constitution.166

The New Jersey Supreme Court thus appears to require some objectively verifiable difference between state and federal constitutional analysis— whether textual, decisional, or historical-to justify a state court's interpretational divergence. This view

184Id.,n.3, 405 A.2d at 967 n.3 (Handler, J., concurring). In a recent article, Justice Handler stated: "I wrote separately in Hunt to express my view that resort to the state constitution as an independent source for protecting individual rights is most appropriate when supported by sound reasons of state law, policy or tradition." Handler, Expounding the State Constitution, 35 RUTGERS L.REV. 197, 204 (1983). See also id. at 206 n.29; State v. Williams, 93 N.J. 39, 57, 459 A.2d 641, 650 (1983) (“We have not hesitated to recognize and vindicate individual rights under the State Constitution where our own constitutional history, legal traditions, strong public policy and special state concerns warrant such action.") 165 Hunt, 91 N.J. at 346 n.1, 348, 450 A.2d at 960 n.1, 962 (Pashman J., concurring). See also Right to Choose v. Byrne, 91 N.J. 287, 332-33, 450 A.2d 925, 949 (1982) (Pashman, J., concurring in part and dissenting in part).

166"Although the factors listed [by Justice Handler] are potentially broad, they impose clear limits." Hunt, 91 N.J. at 354, 450 A.2d at 960 (Pashman, J., concurring). See also State v. Caouette, 446 A.2d 1120, 1122 (Me. 1982) (federal constitutional interpretations do not limit state constitutional rights).

implies that in the absence of one or more of the criteria identified, it is illegitimate for a state court to reject the reasoning or result of a Supreme Court decision.

Thus, the New Jersey approach treats the Supreme Court's reasoning and result as presumptively correct 168 for state constitutional analysis. As a result of this presumption, the state court is compelled to explain, in terms of the identified criteria, why it is not following the Supreme Court precedent. 169 A constitutional interpretation "that will stand the test of detached criticism"170 is not enough. Justification in this manner raises several critical issues: (1) Is disagreement over substantive constitutional interpretation illegitimate? (2) Does the persuasive power of Supreme Court decisions depend upon the Court's institutional position or the soundness of its reasoning? Since the New Jersey view places a high value on the institutional aspect of constitutional interpretation at the expense of independent state constitutional jurisprudence, it is submitted that this approach attributes too much to Supreme Court decisions.

The type of criteria, factors, and standards listed by the New Jersey Justices and other commentators171 reflect circumstances under which state courts have interpreted their constitutions to provide more extensive rights than their federal counterpart. They properly serve as important guides for courts and advocates. 172 But they should not serve as limitations on state court authority to disagree with Supreme Court constitutional analysis even if none of the factors are present.

168 See supra notes 164-166 and accompanying text. Justice Linde refers to the notion of presumptive validity as a “non sequitur." State v. Kennedy, 295 Or. 260, ___, 666 P.2d 1316, 1322 (1983).

169 See Note, supra note 16, at 318: "The court must convince the legal community and the citizenry at large that it was justified in its disagreements with the Supreme Court and the state constitution supports different outcomes." (footnote omitted).

170 Howard, supra, note 65, at 934. But see Linde, supra note 22, at 248 (citing the importance of constitution decisions even when they are vulnerable to academic criticism). 171 See, e.g., Galie, The Other Supreme Courts, supra note 2; Howard, supra note 65, at 934-44; Williams, supra note 2, at 185-91, Developments in the Law, supra note 2, at 1330 n. 27. Several commentators have presented similar factors as "criteria." See, e.g., Deukmejian and Thompson, supra note 19, at 986-96; Note, supra note 16, at 318-19. 172 Justice Linde has stated that "to make an independent argument under the state clause takes homework-in texts, in history, in alternative approaches to analysis. It is not enough to ask the state court to reject a Supreme Court opinion on the comparable federal clause merely because one prefers the opposite result." Linde, First Things First, supra note 55, at 392.

Robert F. Williams, "Methodology Problems in Enforcing State Constitutional Rights"

Georgia State University Law Review

3 (Fall/Winter 1986-87): 165-171. 1987 Georgia State University Law Review. Reprinted by permission.

C. The Power of United States Supreme Court Decisions:

The Mistaken Premise

Most of the methodological problems state courts encounter when interpreting state rights which are analogous to those contained in the federal Bill of Rights arise, in Justice Linde's words, from "the non sequitur that the United States Supreme Court's decisions under such a text not only deserve respect but presumptively fix its correct meaning also in state constitutions."97 The often unstated premise that United States Supreme Court interpretations of the federal Bill of Rights are presumptively correct for interpreting analogous state provisions is simply wrong. But it still exerts a significant amount of intuitive force upon lawyers and judges grappling with problems of state constitutional interpretation. It is important, therefore, to understand the sources of this mistaken premise.

First, the premise is based on our conception of the power and authority of the United States Supreme Court in our legal system. Most judges and legal practitioners, as well as members of the media, formed their attitudes about the United States Supreme Court when it was recognizing rights. Federal constitutional decisions recognizing new constitutional rights are extremely powerful. Under the Supremacy Clause, these decisions have the power to reach into every single trial court in the country because state judges must follow them. Based on this experience, it is an odd feeling for lawyers and state

97 State v. Kennedy, 295 Or. 260, 270, 666 P.2d 1316, 1322 (1983). Justice Brennan noted in 1977 that United States Supreme Court decisions rejecting claimed rights under the Federal Constitution "are not, and should not be, dispositive of questions regarding rights guaranteed by counterpart provisions of state law. Accordingly, such decisions are not mechanically applicable to state law issues, and state court judges and the members of the bar seriously err if they so treat them." Brennan, supra note 62, at 502. See also Beasley, supra note 15, at 414 ("The virtual piggybacking of the state clause onto the federal clause renders the former a parasite instead of an independent source of authority.").

judges to think about having a "choice" as to whether they must follow decisions of the United States Supreme Court. But, in fact, state courts do have a choice as to whether to follow decisions rejecting asserted federal constitutional rights.

It is critical to remember that it is very different for the Supreme Court to hold that people have certain rights that must be respected under the federal Constitution than for it to hold that people do not have such rights. Because both are decisions of the United States Supreme Court, however, judges and lawyers "feel" both kinds of decisions should have the same force. Upon closer examination, however, it is clear that just because some action is not prohibited by the federal Constitution, it is not therefore automatically" "authorized' in the absence of contrary state law, for the Constitution only limits the actions of state officials; authority to take these actions must be found in state law." "102

The justices of the United States Supreme Court have been referred to as "teachers in a vital national seminar."103 But their lessons, like those of all teachers, differ. When they teach us that the federal Constitution does not provide certain rights, the issues are not foreclosed at the state level under the state constitution. Justice Brennan advised:

[S]tate court judges, and also practitioners, do well to scrutinize constitutional decisions by federal courts, for only if they are found to be logically persuasive and wellreasoned, paying due regard to precedent and the policies underlying specific constitutional guarantees, may they properly claim persuasive weight as guideposts when interpreting counterpart state guarantees.105

For this reason, I have referred to United States Supreme Court decisions holding against asserted federal constitutional rights as "the middle of an evolving process of constitutional decisionmaking in our federal system."106 Despite this clear distinction between Supreme Court cases which recognize rights and those which do not recognize rights, there still remains a certain aura of correctness to all decisions of

102State v. Scharf, 288 Or. 451, 454, 605 P.2d 690, 691 (1980) (emphasis added). Justice Linde's point in this opinion is very important and should shift attention away from limits on actions in either the state or federal constitutions, to the underlying authority for such action. This can be a very different kind of argument, often shifting the focus from constitutional law to statutory law.

103 Rostow, The Democratic Character of Judicial Review, 66 Harv.L.Rev. 193, 208 (1952). See also Note, Of Laboratories and Liberties: State Court Protection of Political and Civil Rights, 10 Ga.L.Rev. 533 (1976) (discussing impact of United States Supreme Court decisions and potential future state activism).

105 Brennan, supra note 62, at 502. 106 Williams, supra note 21, at 360.

the United States Supreme Court. 107 This can, unfortunately, lead to what Nebraska Justice Thomas M. Shanahan has recently called a "pavlovian conditioned reflex in an uncritical adoption of federal decisions...."108 The only way to combat this mistaken premise, often so powerful it is like a reflex, is to understand clearly its origins and work to overcome its force upon the legal system.

Secondly, many of the leading decisions in the socalled reemergence of state constitutional law have inadvertently contributed to bolstering the mistaken premise. As a matter of methodology, many of these decisions initially focus on the United States Supreme Court decision holding against the asserted federal constitutional right and then seek to try to explain why the outcome should be different under the state constitution. No one would consider such an approach in an area in which the state constitutional right at issue had no federal analogue. It is understandable, in light of the position and prestige of the United States Supreme Court in our legal system, that this is the way legal arguments unfold in these cases. It is understandable that lawyers arguing cases, or judges writing opinions to justify their decisions, point to differences in text or history justifying different results under the state constitution. The problem with this approach, however, is that it seems to lend validity to the mistaken premise. In other words, it seems to ascribe a presumptive validity to the U.S. Supreme Court decision and to make it appear that only on the basis of some objective factor or criterion is a state court justified in "disagreeing" with the United States Supreme Court. Thus, the focus of the state court opinion becomes the grounds or reasons for not following the Supreme Court rather than a reasoned elaboration of state constitutional doctrine.

This emerging "criteria" approach, while very appealing to lawyers and judges, is one that should be avoided because the underlying premise on which it is based is invalid. Decisions of the United States Supreme Court declining to recognize rights should not be accorded special weight in state constitutional interpretation. They should not carry any presumptive validity.... This is because, as mentioned earlier, federalism and other institutional concerns either explicitly or implicitly, pervade Supreme Court decisions declining to recognize rights against states.

107 In the words of Justice Shirley Abrahamson of the Wisconsin Supreme Court, there is "an understandable human tendency on the part of state judges to view a United States Supreme Court decision on a particular topic as the absolute, final truth." Abrahamson, supra note 1, at 964, quoted in Linde, supra note 29, at 177.

108 State v. Havlat, 222 Neb. 554, 573, 385 N.W.2d 436, 447 (1986) (Shanahan, J., dissenting).

Thus, such decisions must always be viewed as partially attributable to "under-enforcement" of the federal Bill of Rights against the states, and therefore, not of precedential value for state constitutional interpretation beyond the persuasiveness of their reasoning.

Professor Sager has recently provided an additional argument against this mistaken premise by pointing out the influence of "strategic" considerations in judicial enforcement of constitutional provisions, 127 noting that "they may in some instances lead to withholding the recognition of rights."128 Strategic concerns may, however, be more pronounced at the federal level, leading Professor Sager to conclude:

In light of the substantial strategic element in the composition of constitutional rules, the sensitivity of strategic concerns to variations in the political and social climate, the differences in the regulatory scope of the federal and state judiciaries, the diversity of state institutions, and the special familiarity of state judges with the actual working of those institutions, variations among state and federal constitutional rules ought to be both expected and welcomed.129

These factors make it particularly important for state courts to look first to their own constitutional provisions and judicial doctrines which pre-date incorporation of federal Bill of Rights provisions. Secondly, they must look to state constitutional decisions in other jurisdictions for further guidance. United States Supreme Court decisions rejecting asserted federal constitutional rights should persuade state courts confronting similar claims under their state constitutions only by their reasoning, discounted for federalism or strategic concerns, or any other type of deference to the states. The decisions should not be followed merely because of the United States Supreme Court's institutional position as the highest court in the land for the resolution of federal constitutional claims.

127"[T]o what extent, if any, should state judges faced with claims under provisions of their state constitutions feel themselves bound to defer to Supreme Court interpretations of equivalent federal constitutional provisions?" Sager, Foreword: State Courts and the Strategic Space Between the Norms and Rules of Constitutional Law, 63 Tex.L.Rev. 959, 959 (1985).

128 Id. at 971.

129 Id. at 976. See also Keiter, An Essay on Wyoming Constitutional Interpretation, 21 Land & Water L. Rev. 527, 532-35 (1986) (discussing the institutional reasons for the United States Supreme Court's narrow view of standing and concluding that, "[t]hese institutional differences between the federal and state courts suggest that active judicial review of public law issues at the state level is not as troublesome theoretically as it is at the federal level").

Judith S. Kaye, "Dual Constitutionalism in Practice and Principle"

The Record of the Association of the
Bar of the City of New York
42 (April 1987): 285.

Reprinted in St. John's Law Review

61 (Spring 1987): 399.

1987 The Record of the Association of the Bar of the City of New York.

Reprinted by permission.

In this year of celebration of the federal Constitution's 200th anniversary, we appropriately also focus attention on the New York Constitution, adopted ten years earlier. Given that we have both a state and federal Constitution, a state and federal Bill of Rights, and state and federal courts that are sworn to uphold them, the relation and accommodation between the two is naturally a subject of interest.

Of particular concern are provisions that are parallel if not identical in both constitutions, including, for example, such significant protections of the Bill of Rights as the right of free speech; the right to counsel, due process and equal protection of the law; and the protection against unreasonable searches and seizures. Should state courts decide such common issues on a state or federal basis? Should they read their own constitutions to provide greater protection than found under the equivalent provisions of the federal charter, or should they simply conform to federal precedents? I would like to explore these questions both as a matter of history and as a matter of theory.

I

Much has been written on the recent emergence of state constitutional law. The literature indicates that, more often now, state courts are deciding that standards set by the United States Supreme Court under the federal Constitution do not satisfy the more rigorous requirements of similar provisions of state constitutions, as to which state courts are in general the final arbiters. Some describe this as a new judicial federalism; others, more pejoratively, as an unprincipled reaction to particular criminal law decisions and perceived directions of the Supreme Court.

History tells us that, whether in civil or criminal matters, the independent protection of individual rights under state constitutions is not new; nor is it an illegitimate assumption of authority by state courts. Ironically, in this bicentennial year, the emergence of state constitutional law is in many respects a return to a philosophy of federalism similar-although admittedly not identical-to that of the framers.

In short, as a historical matter, state constitutions exist and function independently of the federal Constitution. As the New York Court of Appeals concluded in 1911, Supreme Court interpretations of the fourteenth amendment are simply not "controlling of our construction of our own Constitution."19 Decades after the adoption of the fourteenth amendment, state and federal courts continued to function as a partnership of equals in the protection of constitutional rights.

This same fundamental dualism has more recently sparked the heightened interest in state constitutional law, but now it is the state courts that are expressing dissatisfaction with the Supreme Court's role in the enforcement of constitutional rights. While state courts interpreting parallel provisions of their charters may have been satisfied in particular cases that the federal floor also established their own ceiling, reformulation of the floor cannot help but bring the rest of the structure into question. The point to be drawn from history, however, is that in a system of government that is founded upon dual sovereignties, independent state court adjudications based on state constitutions-two layers of constitutional protection—are hardly revolutionary or illegitimate.

II

Against this background, I would like to turn to New York State in particular.

As an expression of inviolable principle and fundamental law, the New York Constitution is a curious document-particularly when compared with the United States Constitution. I mean this in two respects.

First, the State Constitution is long and filled with detail, like a volume of miscellaneous statutes, specifying even-as a matter of constitutional dimension-the width of certain ski trails. The article dealing with local finances (article VIII) is longer than the entire federal Constitution. Since its enactment 210 years ago, it has swelled in size and scope, particularly in the aftermath of the Depression, as part of the amendments of 1938. Provisions relating to barge canals, elimination of railroad grade crossings, social welfare and returning veterans reflect paramount concerns at given moments in the rich history of this State, alongside the abiding concern in our extensive Bill of Rights and throughout the constitution for fundamental rights and individual liberty.

19Ives v. South Buffalo Ry. Co., 201 N.Y. 271, 317, 94 N.E. 431, 448 (1911).