Interpreting State Constitutions - Again, 9-5-2010

 I never handle goodbyes very well. I get arrested, I think the honorable thing is to resign from the Bar, resignation is accepted, but I cannot turn loose the law. I regret losing a bunch of law review articles when I lost my office computer. They all pertained to state constitutional law.

I am reading a review of Samuel Moyn's Human Rights in History (The Nation, August 30/September 6, 2010) when I reach this sentence and American state constitutional law comes booming back in my mind:

From another view, however, the postwar moment gave the antique idea of declaring rights as altogether new cast: neither a genuine limitiation of perogative, as in the Anglo-American tradition, nor a statement of first principles, as in the French, the Universal Declaration emerged as an afterthought to the fundamentals of world goernment it did nothing to effect...

I see here why we have such trouble understanding state Bills of Rights. I believe state Bills of Rights have a different relationship with their constitutions than what the federal Bill of Rights has with the federal Constitution. This belief derives from a decision of the Indiana Supreme Court, Beebe v. State [ 6 Ind. 501 (1855). sch 3/23.] In that case, Justice Stuart remarked that Article I, Section 1 was a gloss on the whole of Indiana's Constitution.

I will presume the distance between gloss and statement of principles is not far. How many provisions of state Bills of Rights make more sense as having also the quality of a statement of principles.

I do not suggest they exist merely as an important set of principles. I say they limit governmental power. Principles having teeth and a bite.

State Bills of Rights create an area for private action within the community. I do not think adding to this idea they are also statement of principles detracts from this. I think it adds to my original thought.

Would that I had access to John Adams, Chancellor Kent, and Justice Story, that I make more concrete and scholarly basis for my thesis - or its ruin. I recall reading the debates on Indiana's Article I, Section, 1that the issues were as much policy as law. The debates over the early state constitution might yield more information relevant to the purposes of their bills of rights.

For anyone interested in the subject, feel free to run with these ideas. I think state constitutions have been too limited to merely instrumental uses without any general theory of their purpose in themselves, or how they operate in our federal system. It is not enough to point to the Supremacy Clause, the Tenth Amendment, and the Fourteenth Amendment. I do not see being able to carry these ideas any further, for all I think here is an issue needed examination.

sch

[Haste makes waste. I will also offer a faulty memory for items omitted from the above. First, in addition to the state Bill of Rights creating a space for the community which is not to be invaded by the government, the state Bills of Rights create criteria for evaluating, for interpreting, the whole of the state constitution. Today, I thought there was something missing. I skimmed over Beebe, and found what I overlooked before:

 We proceed to examine the express limitations. The 'first section of the first article declares, that “all men are endowed by their Creator with certain unalienable rights t that among these are life, liberty and the pursuit of hap piness.” Under our constitution, then, we all have some rights that have not been surrendered, which are consequently reserved, and which government can not deprive us of unless we shall first forfeit them by our crimes; and to secure to us the enjoyment of those rights is the great aim and end of the constitution itself.

It thus appears conceded that rights existed anterior to the constitution; that we did not derive them from it, but established it to secure to us the enjoyment of them. And it here becomes important to ascertain with some degree of precision what these reserved natural rights are. To do this we must have recourse to the common law, as the section was undoubtedly inserted in the constitution with reference to it. Counsel, in the argument of this cause, on the part of the state, it is true, deny the existence of any such rights in Indiana. Our answer is, the constitution above quoted has settled the point here; and a legislature, acting under that instrument, is estopped by its solemn declaration to deny the existence of the natural rights there asserted. That assertion, while it remains, is binding within the territory of Indiana. When the people of the state shall become satisfied that it is founded in *511mistake, they can meet in their sovereign capacity, strike it from their organic law, and insert the contrary, that they are without natural rights, and at the mercy of the legislature., We may properly here observe, that added to these restrictive "provisions of the bill of rights, in the old constitution, was-the following:

“ Sec. 24. To guard against any encroachment on the rights herein retained, we declare that everything in this article is excepted out of the general powers of government, and shall forever remain inviolate.”

The new constitution does not contain this section; but that constitution did not intend to weaken the restraints designed for the protection of the people, and the section quoted was omitted because the expressly declared reservations in the bill of rights were necessarily taken from the absolute power of the legislature without such declaratory section. And it should be here remarked, that it is not said these rights are reserved to be used without restraint. Each individual being equally entitled to their exercise, the right of each operates as a check upon the right of every'other, compelling mutual regard for those of each, and subjecting each to punishment by the judiciary, under legislative regulations, for violating the equal right of every other, and giving the injured in all cases redress by law. And further provisions of the constitution, which must be construed together with that quoted, confer powers, such as taxation, &c., on the legislature relative to these rights. Such powers may be exercised.

At 510 -11, Justice Perkins's opinion. sch 3/23/23.]