Legal Intelligencer: Don’t Settle for the Minimum: Finding Constitutional Claims Closer to Home

Nearly a century ago, U.S. Spureme Court Justice Louis D. Brandeis praised the tradition of federalism in his dissent in New State Ice v. Liebmann, which popularized the term “laboratory of democracy.” Brandeis underscored that states, using their sovereign power, have the freedom to experiment with new legislation that responds to the evolving needs of their citizens. Decades later, in his dissent in Michigan v. Mosley, Justice William Brennan advanced Brandeis’ thesis by calling on state courts to impose higher standards and afford greater protections to civil liberties under their state constitutions than the U.S. Constitution. He reiterated his call two years later in the Harvard Law Review, urging lawyers and others to look to state constitutions for broader protections of individual rights than the U.S. Supreme Court was then finding the U.S. Constitution to guarantee.

The U.S. Constitution, which remains the bedrock of American civil rights, serves to establish a minimum level of protection that states are bound to uphold. Some state constitutions provide more expansive and detailed protections for state residents—meaning that rather than treating state constitutional claims as an afterthought, litigants can center their claims on state constitutions when those state constitutions offer more favorable grounds to secure their rights.

The U.S. Constitution vs. State Constitutions

It is important to understand that the Constitution was deliberately drafted to be a minimalist document, providing only foundational rights. In contrast, state constitutions can be more comprehensive and responsive to issues specific to the contexts of those states. The U.S. Supreme Court has repeatedly recognized that state courts can expand individual rights for citizens of those states and provide greater protections under state law than those afforded by the Constitution. See e.g., Arkansas v. Sullivan, 532 U.S. 769 (2001) (per curiam). The doctrine of federalism also empowers states to set their course within constitutional limits, providing a crucial counterbalance to federal authority.

Historical factors are often a major reason for states’ constitutions to offer greater protections for civil liberties. State constitutions were drafted with an awareness of local issues and concerns, and thus often go beyond the U.S. Constitution in addressing local priorities. State constitutions are also more responsive by virtue of being more easily amended: the process of amending the U.S. Constitution is famously difficult and time-consuming, requiring two-thirds of both houses of Congress to pass a proposed amendment, and the ratification of that amendment by the legislatures of three-fourths of the states. In contrast, there are multiple paths to amending state constitutions, making change much more easily achievable at the state level than the federal level. The average state constitution has 115 amendments, as opposed to the 27 amendments of the U.S. Constitution.

Some Key Areas Where State Constitutions Excel

One prominent area where state constitutions frequently offer superior protections is privacy rights. The Constitution does not explicitly mention the right to privacy, though the U.S. Supreme Court has inferred this right from various amendments. See Griswold v. Connecticut, 381 US 479 (1965). However, many state constitutions explicitly guarantee the right to privacy, often allowing plaintiffs to prevail in cases where they would have no recourse under the Constitution. For example, the right to privacy was added to the California state constitution’s list of inalienable rights in 1972, which states that “all people by nature” are entitled to a right to privacy. Individuals in California have a private right of action against invasion of privacy. See Hill v. National Collegiate Athletic Association, 865 P.2d 633 (Cal. 1994). In White v. Davis, 533 P.2d 222 (Cal. 1975), the California Supreme Court found that the Los Angeles Police Department’s alleged infiltration of UCLA courses and organizations to create dossiers on students and professors, without any suspicion of illegal activity, presented prima facie violation of the state constitutional right of privacy.

Adjacent to privacy rights, searches and seizures are another area where protections under state constitutions can surpass federal guarantees. The Fourth Amendment provides basic protections against unreasonable searches and seizures, but many state constitutions, including Pennsylvania’s state constitution, have gone further. The Pennsylvania Supreme Court has construed the state constitution as providing a greater guarantee of privacy than the Fourth Amendment in several circumstances. For example, in Theodore v. Delaware Valley School District, 836 A.2d 76 (Pa. 2003), the court explained that the cases decided under Article I, Section 8, the state analogue to the federal Fourth Amendment, have “recognized a strong notion of privacy, which is greater than that of the Fourth Amendment.” The court further explained that invoking Article I, Section 8 brings a “greater degree of scrutiny to all searches” based on the unique policy concerns safeguarding the individual right to privacy in Pennsylvania. The court departed from the Supreme Court’s interpretation of the Fourth Amendment and relied on the state constitution, finding that a school district’s policy of suspicionless drug and alcohol testing for students participating in extracurricular activities was unconstitutional unless the school district could show both a compelling need for the searches and that the testing effectively mitigated substance abuse. Similarly, in the suppression context, the court in Commonwealth v. Matos, 672 A.2d 769 (Pa. 1996), rejected the Supreme Court’s Fourth Amendment interpretation from California v. Hodari D, 499 U.S. 621 (1991)—which held that a fleeing suspect is not considered “seized” unless physically restrained or compliant with police commands—as incompatible with the privacy rights guaranteed by the state constitution. Instead, the court concluded that the privacy protections in Article I, Section 8 of the state constitution require a broader understanding of seizure. It ruled that police pursuit without probable cause or reasonable suspicion qualifies as a seizure, necessitating the suppression of any contraband discarded by the defendant during the chase.

Considerations for Litigants

State constitutions remain a critical and often underused avenue for protecting individual rights. The appeal of state constitutional claims lies in the more tailored protections they offer. Unlike the often narrow interpretations of the Constitution, state constitutions may provide rights that align more closely with a litigant’s needs. For example, state constitutional privacy protections can be a game-changer in cases involving emerging technologies, where federal protections may lag behind.

Moreover, state supreme courts’ autonomy to interpret state constitutions independently of the federal judiciary allows for more innovative legal reasoning, particularly when it comes to interpreting provisions that do not exist in the Constitution. For plaintiffs, this can mean a higher likelihood of success, especially when state jurisprudence has developed favorable precedents.

Leveraging state constitutional protections requires strategic acumen, and litigants and their lawyers must be well-versed in the nuances of state law. However, for those willing to invest their time and expertise, the potential rewards can be significant, especially when federal constitutional protections are subject to ideological swings in the Supreme Court. State constitutions can serve as a robust shield for liberty, preserving justice and empowering litigants in ways consonant with the founding spirit of American democracy.

Practitioners who challenge states from engaging in conduct that violates individuals’ rights under the U.S. Constitution should look to the state constitution for potential violations. State constitutions could provide only, if not the main, recourse when the Constitution’s minimum threshold might fall short.

Edward T. Kang is the managing member of Kang Haggerty. He devotes the majority of his practice to business litigation and other litigation involving business entities. Contact him at ekang@kanghaggerty.com.

Reprinted with permission from the November 27, 2024 edition of “The Legal Intelligencer” © 2024 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.