State Constitutions Coming First

Anthony Sanders · October 8, 2022

The U.S. Constitution is, of course, the “supreme Law of the Land.” (Art. VI § 2.) But that doesn’t mean it needs to be the first constitution interpreted in court. If a state court is interpreting its own constitution in a way that disposes with a case, that often means it doesn’t need to also rule on a parallel U.S. Constitution claim. For example, suppose an entrepreneur is challenging a sign ordinance that prevents her from advertising her home-based business from her property. She goes to court and argues the ordinance violates the First Amendment and the free speech guarantee of her state’s constitution. If the court finds that the ordinance is unconstitutional under the state guarantee, it doesn’t then need to proceed to the First Amendment’s application. This would especially be true on appeal, at a state supreme court. (Trial courts often dispose of everything before them, to properly save time and resources, as everything often gets appealed anyway.)

This method may seem pretty obvious, but it’s actually not how most state high courts adjudicate cases. Sometimes they rule on the state constitutional claim first, but often they go straight to the top. There’s pros-and-cons to this and I wouldn’t say a court should never do it (some U.S. Supreme Court victories for liberty have resulted from this!) but on the whole this approach leads to stunting the development of state constitutional law, and the chance of state courts recognizing where a state constitution protects more liberty than the U.S. version. Kind of like the loudmouth in a class: If the teacher’s always calling on him, then the other kids get less of a chance to speak.

There are exceptions, however. Oregon’s is a state high court that as a rule addresses the state constitutional issue first. And New Hampshire has done the same. This method was on display a couple weeks ago at its supreme court in State v. Warren.

Warren featured an all-too-common example of the regressive nature of fines and fees in our criminal justice system. The defendant was charged with driving on a suspended license. He was sentenced to jail time, but the need to actually go behind bars was suspended as long as he paid a fine of $620. After he failed to pay the amount due was increased and the prosecutor moved to have his jail sentence imposed. And then he did manage to pay the fine (plus the additional fees), but the prosecutor moved forward with the request for jail time anyway. At the subsequent hearing Warren wasn’t represented by an attorney and it was unclear from what he said in court whether he didn’t initially pay the fine because he couldn’t afford it or just because he ignored it or forgot about it. In any case, however, the prosecutor pressed forward with the request to impose jail time, which was granted. The court later did give Warren a lawyer and after future proceedings he appealed (the procedures were more complicated than that, but that’s the gist of it).

It’s established (but often ignored) law that someone can’t be incarcerated for not paying a fine if they can’t afford to pay it. Warren was certainly at risk of being put behind bars at his hearing where he was unrepresented and advice from counsel likely would have helped him better make his case to the court that he couldn’t afford the fine and fees when they were originally due. The question the New Hampshire Supreme Court addressed was did this lack of counsel prejudice his claim that he couldn’t afford to pay the fine. He raised claims under the Sixth Amendment of the U.S. Constitution and Article I, Section 15 of the New Hampshire Constitution.

The Section 15, amended to add this language in 1966, is much more specific than the Sixth Amendment about granting a defendant a lawyer if in peril of going behind bars. It states:

“. . . Every person held to answer in any crime or offense punishable by deprivation of liberty shall have the right to counsel at the expense of the state if need is shown . . .”

The court stated at the outset of its constitutional analysis that in interpreting Section 15 it could refer to federal cases interpreting the Sixth Amendment for assistance on the scope of the right to counsel, but “only to aid our analysis.” It then went forward with a pretty straightforward inquiry on whether Warren’s Section 15 rights were violated, concluding that they were and that he should have been provided counsel at the hearing.

At the end it then stated “Because the defendant prevails on his claim under the State Constitution, we need not address his claim under the Federal Constitution.” Now, it’s likely that the court would have come to the same result under the Sixth Amendment. The court didn’t point to a divergence between its interpretation of Section 15 and federal caselaw, and many of the principles it cited seem interchangeable. What’s the big deal then?

Well, most importantly, if in the future the U.S. Supreme Court changes its interpretation of the Sixth Amendment’s right to counsel that won’t affect the precedential value of Warren. If Warren were simply a Sixth Amendment holding then the moment the U.S. Supremes hand down a new interpretation weakening the right to counsel, New Hampshire prosecutors would run to the courthouse and argue Warren is no longer good law. Further, they might even do this if the Warren court simply said “we’d apply the same analysis under the Sixth Amendment.” That’s because the prosecutors might argue that the new case undermined Warren’s foundation as it stood on the same level as the Sixth Amendment. And that certainly shouldn’t be the case for Section 15, given how textually more protective it is of indigent defendants.

Therefore, keeping the ruling of a case on the state constitution alone can help to add to the (often sparse) law on the state version and keeps robust the “two ways to win” protection of liberty that our dual federal and state constitutional system offers. At the very least, keeping a state high court’s federal and state holdings distinct—and not intertwined as they all-too-often are—allows for this development.

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