Rights Under State Constitutions Vs. Federal Constitutions:

Reader Robert Woolley writes:

Why did the Missouri Supreme Court, in the juvenile death-penalty case (State ex rel. Simmons v. Roper (112 S.W.3d 397)), invoke the federal 8th amendment, rather than using Missouri’s own state constitutional provision of the same language?

The Missouri justices had to go through pages of rhetoric to explain its justification for concluding that the US Supreme Court “would” now overrule its own 1989 Stanford precedent. They happen to have guessed correctly, as it turned out, but I can’t figure out why they did it that way.
It seems like a politically and legally risky move, virtually inviting reversal, if they have guessed the higher court’s mood incorrectly. And whether they guessed right or now, they were pretty clearly violating principles of how precedent should work. But had they decided the case on the Missouri constitution, the decision would be essentially immune from reversal by any federal court.
The Missouri court clearly had that option, as evidenced by
this footnote [20:] “Because the Eighth and Fourteenth Amendments afford Mr. Simmons relief, this Court need not reach Mr. Simmons’ alternative argument that, even if his execution is not barred by the Eighth Amendment, it is barred by article 1, section 21 of the Missouri Constitution.”
In the face of a fairly recent, directly contradictory holding of the supreme court, why take the uphill, against-the-wind path, when they could by fiat interpret the state constitution to achieve the desired result, and be done with it, with much less hand-waving justification needed, and no chance of reversal?

I had the same question myself.

First, a bit of background: Recall that there are 51 Constitutions in the U.S. — one federal and 50 state (I set aside D.C. and the Territories). Each of them has a Bill of Rights.

When a state government is dealing with its citizens, it must follow both the federal Constitution and the state Constitution. It follows that the person litigating against the state can win if he can prevail under either the federal or the state provision. And state courts may interpret provisions of the state Bill of Rights more protectively than courts have interpreted the federal Bill of Rights, either because the provision’s text or history is different, or just because they think the federal provision has been interpreted incorrectly, and they don’t want to perpetuate that error in reading the state constitution.

What’s more, the state’s highest court (usually but not always called the state Supreme Court) is the ultimate expositor of the meaning of the state constitution. The U.S. Supreme Court may not reverse the state court’s judgment on that question — it may not say “Well, you think your state constitution’s Cruel and Unusual Punishment Clause means one thing, but we disagree, and we’re higher than you are.” As to the meaning of state constitutional provisions (and state statutes), the U.S. Supreme Court is not higher than the state supreme court; the U.S. Supreme Court may reverse state decisions when they violate someone else’s federally secured rights, but not just because the Court disagrees with the interpretation of state law. In fact, many states have read state free speech provisions, freedom from search and seizure provisions, right to bear arms provisions, non-impairment of contracts provisions, and other provisions more broadly than similar federal provisions have been read.

With that background, on to the reader’s question. I have two guesses (assuming that the state constitutional claim wasn’t foreclosed either by the litigant’s failure to properly raise it or by contrary state precedent — a fair assumption given the note the reader quotes):

1. The Missouri Justices wanted to insulate their decision from revision by a state constitutional amendment. State voters can pretty easily revise state constitutional decisions, by simply enacting an amendment that modifies the underlying clause, for instance to say that “however, an execution shall not be considered Cruel or Unusual Punishment on the grounds of the person’s age, if his or her age is 16 or above.” The amendment wouldn’t change the result in Simmons’ case, but it would change the result for the future. Such amendments often (I don’t know the Missouri rule) just require a majority vote of the voting public, and a majority in the state legislature (or some number of signatures from the public instead of the legislative majority).

2. The Missouri Justices wanted to prompt the Court to revisit the case. Then, if the Court affirmed (as it did), they would have helped make a national rule. And if the Court reversed, then they might have been able to decide based on the Missouri Constitution on remand (though then their decision might be even less popular with Missouri voters, if Missouri voters worry about such things, because it would be a departure from an influential institution’s very recently expressed views, not just the views that institution expressed a decade ago).

It’s also possible that the Missouri Justices just turned to the federal constitution out of force of habit. Many lawyers don’t think of raising state constitutional arguments — something I try to remedy for the future in my constitutional law classes — and some state supreme court Justices might have a similar mindset. But I doubt it; here it’s pretty obvious that the Missouri Justices at least knew of the option. (If Missouri courts have recently done a good deal of state constitutional law, something that I don’t know, then it would be even less plausible that they turned to the federal question reflexively.)