State Con Law Case of the Week: The Myth of the Floor

As we’ve repeatedly discussed on this blog, state constitutions protect many of the same rights as the U.S. Constitution but are often interpreted to do so at a higher level. That’s a pretty basic understanding of state constitutionalism, and it’s correct. But commentators often go one step further and assert that the U.S. Constitution provides a “floor” that state constitutions cannot be interpreted go below but can go above. That’s a long running myth of state constitutions that’s proven remarkably durable. It’s also a myth that one might think public interest attorneys like me would want to keep alive. However, it perpetuates an understanding of state constitutions and rights that can actually be harmful to liberty. I do my part in this post to further a little myth busting.

Let me explain with a case the Massachusetts Supreme Judicial Court issued this week, Commonwealth v. DeJesus. The case concerned an illegal search the police made, without a warrant, of a home’s basement. The police suspected that the defendant, DeJesus, was there in possession of a firearm. The tipoff that this might be true was that they had seen a video on social media of DeJesus holding a gun, and as a convicted felon his possession of that gun would be illegal. The police found him there and prosecuted him.

The search itself, however, was pretty suspect. It was in a private home without a warrant and there was no emergency. That’s usually a violation of either the Fourth Amendment or any state constitution’s equivalent. But, it wasn’t the defendant’s home. The rights of non-residents to illegal searches and seizures of homes is a painfully confusing area where it can matter if the defendant was staying there overnight versus just a couple hours and is bound up with whether the defendant has a reasonable expectation of privacy. DeJesus made defenses under the Fourth Amendment and Article 14 of the Massachusetts Constitution. Article 14 is actually older than the Fourth Amendment and has been in the state constitution since John Adams wrote much of it and the state ratified it in 1780. It reads:

Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure; and no warrant ought to be issued but in cases, and with the formalities prescribed by the laws.

In the past the Supreme Judicial Court has interpreted this to require a separate standing requirement for criminal defendants on top of the claim that an illegal search or seizure violated the defendant’s reasonable expectation of privacy. This can come up where evidence incriminating the defendant (and that the defendant tries to have the court suppress) is obtained from a third party. The court noted that the U.S. Supreme Court got rid of this separate standing test over four decades ago in 1978. Thus, this mean that in some situations the test under Article 14 could be more restrictive, i.e. more favorable to the government, than under the Fourth Amendment. It turned out not to matter in this case because the court found the defendant had no reasonable expectation of privacy of being in the basement anyway. But it in any case took the opportunity to correct its precedent and announced there no longer was a separate standing requirement under Article 14. (Confused? It’s ok, again, the technicalities of these kinds of search and seizure cases are often extremely confusing. The point here is the court didn’t want the state constitution more restrictive than the Fourth Amendment.)

Now, the court didn’t justify this change by saying that Article 14 had been wrongly interpreted or that its original meaning doesn’t require a standing test or even that changing morals in society necessitated the change. It simply said it had to do so because “the Massachusetts Constitution may not provide less protection to defendants than the Federal Constitution.” For this point it cited a 1980 law review article by a former Massachusetts Supreme Judicial Court justice which said “The state court is bound by federal requirements and may invoke the state constitution only to provide greater safeguards.”

There are two things going on here, and it’s important to tease them out. First, as a practical matter a state constitution cannot make the protections of the U.S. Constitution any lower as long as the defendant (or plaintiff, in the case of a civil rights lawsuit) raises both the U.S. constitutional provision and the Massachusetts provision. It’s unlikely that a criminal defense lawyer wouldn’t raise the various provisions of the U.S. Bill of Rights in a typical criminal defense if also raising the state constitution, so it hardly ever is an issue, although it’s conceptually possible. But, second, there’s no reason why a state constitution itself has to protect just as much as the U.S. Constitution does, let alone just as much as the U.S. Supreme Court happens to have interpreted it to protect. Article 14’s meaning doesn’t change depending on what the Fourth Amendment, a provision which was adopted after Article 14, in 1791, and wasn’t even applied to the states until the Fourteenth Amendment, in 1868, or recognized as applying by the Supreme Court until 1961. And it certainly didn’t change on the standing point we just discussed in 1978 just because a group of nine justices on a different court interpreting this different legal provision in a different constitution changed their minds.

This brings us to the floor and ceiling myth. Again, as a practical matter, especially when we’re talking about criminal defendants who have every incentive to raise every state and federal defense they can think of, whether the state constitution can be interpreted to provide less protection than the U.S. Constitution doesn’t make a difference because they still have the U.S. Constitution to help their defense. But that doesn’t mean that state constitutions can’t separately be interpreted to provide less. For example, the Colorado Supreme Court interpreted the Colorado Constitution’s right to keep and bear arms to provide arguably less protection than the Second Amendment, even after the Second Amendment had been applied to the states. This is more likely to actually be an issue where a plaintiff brings a civil rights lawsuit under a state constitution and doesn’t bring parallel federal claims (which happened in the Colorado case). Many others have written about this issue, so I won’t give more analysis here, but for a good argument on how state constitutions have separate meanings not tied to the U.S. Constitution, or how it’s interpreted, see some of Judge Jeffrey Sutton’s work. Here’s an interview our friend Professor Ilya Somin gave of him that gets into the point a few years ago.

Some of you may be wondering “Why are you of all people arguing that state constitutions can be less protective than the U.S. Constitution? That doesn’t help advance the cause of liberty or help public interest clients.” Because although in certain cases asserting that state constitutions can’t go below the federal “floor” may make a good argument, in the long run it demeans the importance of state constitutions and undermines cases where we argue a state constitutional provision is more protective, or even where provisions are litigated that aren’t even in the U.S. Constitution. If state constitutions are only seen as supplements to the federal version, that undermines their separate status as sovereign expressions of the people to protect the rights of those people. Instead they’re simply auxiliaries to the U.S. Supreme Court, bending part of their meaning (the “floor”) to what that court says at any given time. Long term I fear that even when the U.S. Constitution has nothing to do with a case—such as when interpreting an explicit separation of powers clause, something many states have but is absent in the U.S. Constitution—this view causes state courts to first look to what the federal courts have said about a subject, warping what should be an independent question.

Instead, it’s better to see state constitutions as their own thing. If they don’t protect liberty to as high a degree as the U.S. Constitution, then defendants and plaintiffs can always use it. But when state constitutions do provide more protection those same defendants and plaintiffs shouldn’t have to worry about the meaning of the two being linked. State constitutions are different things. And that’s ok.

Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.