Broad Readings of State Bill of Rights Provisions:

I mention below that state courts may read Bill of Rights provisions differently than the analogous federal provision is read. Sometimes the text clearly mandates this, in which case I take it that many advocates of judicial restraint wouldn’t object. For instance, many state right to bear arms provisions explicitly secure an individual right to have arms for self-defense; whatever you think of the proper interpretation of the Second Amendment, state courts have to interpret those provisions as barring at least some gun controls. Likewise, some states, including California and Florida, have an expressly secured “right to privacy”; one may debate what that should mean, but one can’t complain that the judges who enforce such a right to privacy under the state constitution are just making it up.

But what if the text is vague or ambiguous? Should people who fault the U.S. Supreme Court for reading federal Bill of Rights provisions too broadly — especially when they strike down legislative enactments — do the same as to the state supreme courts reading state Bill of Rights provisions too broadly?

The answer could of course be yes: One could argue that such state decisions illegitimately interfere with the democratic will, as expressed by the state legislature. One could also argue that such different interpretations may cause some confusion, and one could appeal to the U.S. Supreme Court’s authority to argue that the state court’s decision intepreting similar constitutional language is mistaken. (As I note below, state courts are legally entitled to interpret state provisions differently from similarly worded federal provisions, but critics may argue that those interpretations are erroneous, and may call on the U.S. Supreme Court Justices’ authority to buttress those arguments.)

But here are three reasons why we should be less worried about state judges’ broad readings of vague or ambiguous constitutional language — I’m not saying “not worried at all,” since some such readings may still be viewed as wrong for various reasons, but less worried, for instance if the case is close and there’s a plausible argument that the state constitutional provision should indeed be read to restrict the state legislature:

1. We often hear complaints about unelected judges imposing their views on the democratic process. But in many states (most, I think), state supreme court judges are elected, and can be voted out of office (though that rarely happens, and sometimes the system is set up to minimize the chances of that, for instance by barring contested races and only providing for a Yes or No vote, as in California). They may not be elected on a platform of imposing their own views on the law; but their election — and possibility of electoral removal — does, I think, give their decisions more democratic legitimacy.

2. We also sometimes hear complaints about a state’s law being invalidated by the will of those nine Justices in Washington, who may have very different views than the state’s residents do. This cultural disconnect argument is a harder (though not impossible) argument to make against state supreme court Justices.

3. A related argument is that when the U.S. Supreme Court invalidates a state law on Bill of Rights grounds, it sets the law in stone for the 50 states, and prevents useful state-by-state experimentation (with innovative police procedures, for instances). This argument doesn’t apply to state supreme court decisions.

4. Federal constitutional decisions are very hard to dislodge through the democratic process — it (usually) takes a 2/3 vote in each house of Congress, and then the votes of 3/4 of the state legislatures. But state constitutional decisions can often be changed by a simple majority vote of the people (though that varies from state to state) preceded by a vote of the state Legislature (though sometimes that has to be a supermajority, or two successive majorities in successive sessions) or a citizens’ petition with a suitable number of signatures. So if the state supreme court interprets a provision in a way that the people dislike, they can change it with less difficulty than they can as to the federal constitution.

Again, one can surely criticize state court decisions on various grounds, for instance that they are illogical, or inconsistent with the provision’s text, original meaning, or historical interpretation. I have, for instance, criticized a Nevada Supreme Court’s state constitutional decision related to taxes, and I don’t agree with the Massachusetts Supreme Judicial Court’s same-sex marriage decision, just to give two examples. And one even when the text is vague or ambiguous, one can argue that state courts should err on the side of giving the legislature more flexibility. But I do think that the four points cited above make this latter argument less persuasive (though don’t by any means entirely defeat it) as to state constitutional decisions than it is as to federal constitutional decisions.