As the federal judiciary, most notably the Supreme Court, becomes increasingly conservative, civil libertarian and civil rights groups have begun to look to the states, rather than federal courts, to seek protection of individual rights and liberties. Indeed, the supreme courts in some states already represent the venue of choice for issues especially involving privacy and criminal law.
The doctrine of states' rights has conventionally been associated with opposition to the federal government's entry into areas, education for example, which some believe should be left to local control. After the Supreme Court's famous 1954 desegregation decision, the Eisenhower administration was committed to the desegregation of elementary and secondary schools. The response from those states refusing to desegregate willingly was typical: the federal government had no right to interfere in the education of their young people.
Ironically, state's rights has now flip-flopped: Liberals are more likely to be the ones looking to state, not federal, support.
This reliance on the states to protect rights and liberties is known as the "new federalism," a suggestion rooted in an article written 15 years ago by then-Justice William J. Brennan Jr. in the Harvard Law Review.
During his 34-year tenure on the Supreme Court, Justice Brennan was one of the court's most liberal members. In 1977, Mr. Brennan argued that perhaps the Supreme Court was no longer occupying a central place as the protector of individual rights as it had done throughout the 1950s and '60s. "Of late," he wrote, "more and more state courts are construing state constitutional counterparts of provisions of the Bill of Rights as guaranteeing citizens of their states even more protection than the federal provisions."
Nowhere has this become truer than in the area of privacy, an area which today is practically synonymous with the debate over abortion.
Roe vs. Wade in 1973 guaranteed a woman's constitutional right to an abortion in the first trimester of her pregnancy. Two years ago, however, the Supreme Court in Webster vs. Reproductive Health Services upheld several provisions of a Missouri law restricting a woman's right to an abortion, and just last spring in Rust vs. Sullivan the court ruled as constitutional a federal regulation prohibiting employees of federally funded family-planning clinics from advising their clients of the abortion option.
One result of this was state action: during last year's session of the Maryland General Assembly, the legislature passed, and the governor signed into law, one of the most liberal pro-choice measures in the nation, protecting a woman's right to an abortion as outlined in Roe vs. Wade.
Meantime, in a 1980 Supreme Court decision, the justices ruled in a narrowly split decision that while women may have a right to an abortion in the first trimester of their pregnancy, poor women do not have a constitutional right to receive Medicaid funding for it. (Medicaid is a program of federal and state payment for medical services for the poor). Since that time, state supreme courts in Massachusetts, New Jersey, Michigan and California have held that state Medicaid funds may indeed compensate a poor women's cost of an abortion.
Another area of privacy has to do with sexual relationships. In Bowers vs. Hardwick in 1986, for example, the Supreme Court held as constitutional a Georgia law prohibiting certain illicit sex acts, in this case sodomy, between two consenting adults. A police officer had a warrant to arrest Michael Hardwick on a charge of drinking in public and was told to look in his room for him. Entering Mr. Hardwick's room, he found him in bed with another man.
Since that time, several state supreme courts (notably those in ,, New York, Pennsylvania, Kentucky, Texas, and Michigan) have overturned similar laws in their states, citing their own state constitutions as upholding the right of consenting adults to engage in these activities.
Privacy is not the only arena for active state action overriding the reach of the Supreme Court's narrowing of rights and liberties. The eighth amendment, for example, prohibits punishments which are cruel and unusual. In 1989, the Supreme Court upheld the verdict of death in the case of Johnny Penry, an adult, who was found guilty of a capital murder. Mr. Penry had the mental capacity of a six and a half year old. This case in effect said that mentally retarded adults could be condemned to death if convicted of capital crimes.
The Georgia supreme court ruled later that year that the execution of mentally retarded individuals violated the constitution of that state.
The same trend may be found in state supreme court rulings in other areas of criminal law. For example, in 1984 in United States vs. Leon, the court established for the first time the "good faith" exception to the exclusionary rule, a judge-made rule barring from trial certain evidence obtained either without a search warrant or when the warrant was issued without the fourth amendment's required "probable cause."
North Carolina's courts rejected this view and instead refuse to consider evidence found during a search where the warrant is defective.
Presidents Reagan and Bush promised that if elected, they would nominate to the federal judiciary and the Supreme Court those whose record promised a narrow, law-and-order reading of the Constitution. For the past ten years, the complexion of the courts has changed to reflect this change.
Well over half of the federal judiciary, for example, consists of Reagan or Bush-appointed judges, and of the Supreme Court's nine members, six are Reagan or Bush nominees, including the current Chief Justice William H. Rehnquist who had originally served as an associate justice. The others successfully nominated to the court over the past 10 years are Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy, David Souter and Clarence Thomas.
The federal judiciary is now more conservative than it has been in 50 years. Perhaps former Justice Brennan was right when he wrote in 1977 that "state constitutions too, are, a font of individual liberties, their protections often extending beyond those required by the Supreme Court's interpretation of federal law."
As a result, civil libertarians and civil rights activists now look more seriously than ever before to state legislatures and state supreme courts to protect the civil rights and individual liberties of the American people.
Jack Fruchtman Jr. directs the prelaw program and teaches politics at Towson State University.