Counterfeit Interpretations of State Constitutions in Criminal Procedure

Abstract:     
During the past thirty years a new kind of interpretation of state constitutions has emerged. Beginning in the middle of the 1970's, many states began to analyze their state constitutions, especially in the criminal procedure area, in a way ostensibly designed to become independent of the dominance of the United States Supreme Court. This is frequently called the "New Federalism" and most often takes the form of finding that a state constitutional provision affords protection when United States Supreme Court has determined that the federal constitution provides none.

In the past thirty years, twenty-two states have specifically held that their state constitutions provide greater protection than the federal constitution in the criminal procedure area. But this "independent state constitutional analysis" is fake. It has not been independent at all. It has been entirely driven by reactions to decisions of the United States Supreme Court and employs the values and method of analysis of that court. As such, the state court judges, while claiming to develop an independent body of law, are in reality simply casting themselves as adjunct justices of the United States Supreme Court.

I will argue that these relatively recent interpretations are counterfeit. I use the term "counterfeit" in order to convey a core idea. It is not that these interpretations are worthless, or for that matter wrong. Instead, I mean that these recent state court claims to develop an independent state constitutional analysis in the criminal procedure area are really only pale imitations of the decisions and of the values and the methods of analysis of the United States Supreme Court. As such, they are not independent at all. The state courts are simply passing off these counterfeit decisions as though they were based on their own state law. For the most part, however, they are not. All of the states had their own history and precedent with regard to their constitutions and with the issues the new interpretations address. Yet, for the most part, the "New Federalism" by simply mimicking federal law caused these to be completely ignored.

Number of Pages in PDF File: 59

Keywords: state constitutional law, criminal procedure, new federalism, search & seizure

Accepted Paper Series