Still Living After Fifty Years: A Census of Judicial Review Under the Pennsylvania Constitution of 1968
140 Pages Posted: 27 Sep 2018
Date Written: September 23, 2018
The year 2018 marked the fiftieth anniversary of the Pennsylvania Constitution of 1968. The time seems ripe, therefore, to explore the Pennsylvania Supreme Court’s exercise of judicial review under the 1968 Pennsylvania Constitution. This Article constitutes the first such comprehensive exploration.
The Article begins with an historical overview of the evolution of the Pennsylvania Constitution, culminating in the Constitution of 1968. It then presents a census of the 372 cases in which the Pennsylvania Supreme Court has vindicated distinctive Pennsylvania Constitutional rights under the Constitution of 1968 .
Analysis of these cases leads to three conclusions:
1. Exercise of independent constitutional review is not a once-in-a-lifetime or once-in-a-decade experience under the 1968 Constitution. Over half a century, the Pennsylvania Supreme Court has exercised independent review on average in seven cases a year. It has invalidated or modified statutes in light of the demands of the Pennsylvania Constitution at an aggregate rate of more than twice a year. Independent review is not the province of an idiosyncratic group of jurists. Thirty-two Justices have authored opinions undertaking independent constitutional review, and twenty-five have deployed the 1968 Constitution to review statutes. Among the sitting Justices, only Justice Mundy has not yet authored such an opinion.
2. Pennsylvania's 1968 constitution contains provisions that parallel the wording of federal guarantees, provisions that address similar norms in congruent wording, and provisions that are wholly disanalogous to federal provisions. Independent review of actions by prosecutors, courts and law enforcement officers in the area of criminal procedure has focused on provisions whose text directly parallels federal provisions, prominently Pennsylvania's protections against unreasonable searches and seizures and its guaranties regarding the rights of the accused in criminal prosecutions. By contrast, independent constitutional review of statutes rests mainly on state constitutional provisions that are congruent with federal provisions but not precisely parallel, and on provisions that have no federal counterparts.
3. The Pennsylvania Constitution is not, as the late Justice Scalia would have it, "dead, dead, dead." The Pennsylvania Supreme Court has engaged in a continuing process of judicial statesmanship that looks to text, history, structure, and ongoing doctrinal elaboration to bring evolving constitutional traditions and values to bear on the issues confronting the Commonwealth. This process is not always unanimous, nor without contention, but it is exactly what the people of the Commonwealth had reason to expect when they reenacted the constitution in 1968.
Appendix C sets forth the census of cases in a form that provides lawyers, judges, and scholars with a resource that can be deployed in research, advocacy, and analysis.
Keywords: Constitutional law, state constitutions, Pennsylvania Constitution, judicial review, state courts, new judicial federalism, constitutional interpretation, legislation, independent constitutional review, constitutional claims, frequency of judicial review, empirical research
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