Second, while the federal Constitution has been amended only twenty-six times in its entire history, the State Constitution has been amended often, for the most part in isolated fragments initiated by the legislature and thereafter approved by the People at a general election. The Constitution has also been extensively revised as the consequence of constitutional conventions, although the 1938 Convention was the only one in this century to have its major work accepted; the reports of the 1915 and 1967 Conventions were entirely rejected by the voters. Additionally, as the constitution itself directs, every twenty years, and whenever the legislature provides, the people are asked at a general election, “Shall there be a convention to revise the constitution and amend the same?"39

The combination of high detail and accessibility of the amendment process gives our Constitution a distinctive New York character. It is a product and expression of this State.

While current interest centers on the common provisions of our two constitutions, to proceed right to that issue ignores the fact that the people of this State have chosen to "constitutionalize” a great number of other matters in the Bill of Rights and throughout the State Constitution. Fortuitously, the heightened interest in concurrent provisions has drawn attention as well to the many matters uniquely part of the state charter.

I will not linger long on a recitation of the provisions of the State Constitution that have no specific analogue or counterpart in the federal document. No one would question that, though other considerations such as due process or equal protection may also be implicated, these singular provisions must at some point be analyzed as a matter of state law.

Our State Constitution provides, for example, the right to a free education40 and declares that the aid, care and support of the needy are public concerns.41 It directs that provision be made for the protection and promotion of public health, and it recognizes that the legislature in its discretion may provide for low-rent housing and nursing home accommodations for persons of low income.42 It specifies that environmental conservation is a policy of this State, and mandates that adequate provision be made for abatement of pollution and noise.43 As a matter of constitutional directive, certain executive rules and regulations cannot be enforced until they have been publicly filed.44 The benefits of membership in a state pension or retirement system may not be im

paired,45 and the jurisdiction of the Appellate Divisions to hear appeals may not be diminished.46 The Bill of Rights bars the abrogation of a cause of action for wrongful death; it guarantees the right of workers to the prevailing wage, and to organize and bargain collectively; and it provides for workers' compensation.47

Given its laborious detail, our Constitution may not in every phrase ring with the majesty of Chief Justice Marshall's declaration: "it is a constitution we are expounding."48 But it is a constitution we are expounding, and its commands are therefore entitled to the particular deference that courts are obliged to accord matters of constitutional magnitude. To borrow former Chief Judge Breitel's eloquent words, in overturning the moratorium on enforcement of city obligations as violative of the state constitutional requirement of a pledge of faith and credit: “it is a Constitution that is being interpreted and as a Constitution it would serve little of its purpose if all that it promised, like the elegantly phrased Constitutions of some totalitarian or dictatorial Nations, was an ideal to be worshipped when not needed and debased when crucial."49

One cannot help but wonder, reading our constitution, why some seemingly everyday matters were elevated to a place in that document of fundamental law and, even beyond, enshrined in its Bill of Rights. Many of these matters were and are the subject of state statutes, some additionally the subject of federal statutes. They were nonetheless purposefully placed in our State Constitution-within an ambit of special deference and protection-in many instances to declare the existence of a right and correlative commitment by the State, to put them beyond repeal by the legislature, and to insure that derivative legislation involving the expenditure of state money and credit would not be cast out as unconstitutional by the judiciary. The People have declared to the courts and others that, as part of the Constitution, these matters stand above the miscellaneous statutes as their expression of what they consider to be particularly important and not subject to revision except by them.

This being so as to the provisions that have no federal analogue or counterpart, no less can be said of the provisions of our State Constitution that do have a parallel in the federal Constitution. These provisions have obviously also been placed, and re

45N.Y. Const. art. V, sec. 7.... 46N. Y. Const. art. VI, sec. 4(k)....

47N. Y. Const. art. I, sec. 16 (wrongful death); id. sec. 17 (labor); id. sec. 18 (workers' compensation).

48 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819).

49 Flushing Nat'l Bank v. Municipal Assistance Corp., 40 N.Y.2d 731, 739, 358 N.E.2d 848, 854, 390 N.Y.S.2d 22, 28 (1976).

tained, in our Constitution as an expression of the significance they have within this State.

Thus, despite perceived or even actual identity of texts, there may in particular instances be principled basis for broader protection within this State because of our history in adopting or applying a clause, or for other reasons. While language differences between the two constitutions may determine that there is a need for independent analysis, where our Constitution is at issue, the fact that there is no language difference does not spell the end of state judicial review. It invites inquiry into matters of history, tradition, policy and other special state concerns.

IV

I would like to shift the focus from the historical and practical to the theoretical by asking, is independent state court adjudication of parallel protections supported by a cohesive theory, or is this merely a passing disagreement with particular decisions of the United States Supreme Court?

Currently, a great debate rages in the law as to how a constitution should be interpreted. Some insist that it must be read by the intent of the framers; others assert that intent of the framers cannot be controlling, and that the document must be interpreted in light of prevailing attitudes and modern values. It occurs to me that this issue, as well as the one at hand, both propel us to an even more fundamental inquiry. We can answer the question of how to interpret a constitution, whether state or federal, only by first understanding what, in a real sense, a constitution is.

The very word "constitution," in common understanding, means the most basic structure of a thing, how it is constituted. The English regarded themselves as having a constitution long before the Colonials began drawing up constitutions for themselves on paper, yet the English constitution has never been written down in a single document. That the English can speak of their unwritten constitution helps to underscore exactly what a constitution means. A community's constitution is its basic make-up, the source, delineation and delimitation of rights and powers within that society, the collective assessment of the rules of the game under which the process of decision-making and exercise of power within that community will proceed. As the very basis of a living community, a constitution is necessarily a thing of that community.

The essential difference between English and American constitutionalism is not that American constitutions are written. Rather, it is that the English constitution is founded upon a concept of parliamentary supremacy. Under English theory, constitutional sovereignty resides in Parliament. The laws enacted by Parliament, though restrained by tra

ditions and principles, are perforce within the constitution. Our nation, by contrast, is rooted in a concept that sovereignty resides in the People. Thus it is possible that our designated lawmakers can at times enact laws that fall outside the basic law established by the People. Where the people are sovereign, their conception of their constitution exists apart from, and above, ordinary legislative enactments.

The day-to-day function of a constitution, however, goes further. It is a fact of human nature, and of the democratic process, that our actions-both as individuals and as a community-sometimes conflict with our most basic, or overarching, values. Therefore, what we set out to embody in a constitution are those values we do not wish to sacrifice to more transient choices. Our constitutional values can of course be explicitly changed, but amendments are accomplished only through extraordinary political processes-the approval of two successive legislatures followed by a popular referendum in the case of the New York Constitution,74 and the approval of twothirds of both House of Congress and three-fourths of the states in the case of the federal charter.75 A constitution, in short, is that set of values to which we have bound ourselves, the values that transcend even our currently made choices-or, in the words of James Madison, the values that "counteract the impulses of interest and passion."76

This is no abstraction but rather a reflection of the most abiding reality of both our past and present. We talk a great deal about the constitutional shield provided the People against the government, but in a democracy the threats to our values often have popular support. The Constitution throughout history has been called upon to protect long venerated values that are momentarily abandoned or neglected.

It is a function of constitutional law, then, to preserve a community's overarching values in the face of its transient choices. And it is a significant function of the courts to ascertain and identify these most basic values, and flag them when they are at risk. As Judge Cardozo aptly wrote in The Nature of the Judicial Process:

The restraining power of the judiciary does not manifest its chief worth in the few cases in which the legislature has gone beyond the lines that mark the limits of discretion. Rather shall we find its chief worth in making vocal and audible the ideals that might otherwise be silenced, in giving them continuity of life and of expression, in guiding and directing choice within the limits

74N. Y. Const. art. XIX. 75U.S. Const. art. V.

76 Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), reprinted in The Writings of James Madison 273 (G. Hunt ed. 1904).

where choice ranges. This function should preserve to the courts the power that now belongs to them, if only the power is exercised with insight into social values, and with suppleness of adaption to changing social needs.77

What many, most notably Justice Hugo Black, have sought in a jurisprudence of original intent-the protection of civil liberties by fixing us to an a priori commitment to them-cannot realistically be achieved in that manner. The right to a fair trial or free speech does not exist today simply because a group of framers two centuries ago intended them to exist. They can and do exist today because we mean them to, even though at times we may do or say otherwise. The overarching values of the past can and surely do inform our inquiry into what values make up our "constitution" today. We are, after all, interpreting a text, not inventing one. Moreover, we look to the past because our most basic values, when they change, tend to do so very slowly, and then by a process of evolution. But interpreting a constitution cannot stop with values of the past. It necessarily involves as well a community's present values-identifying the values that a community has declared should limit the ordinary processes of its government.

All of this speaks with particular force, and has special relevance, to the subject of state constitutions.

Where a provision has been adopted into a state constitution from the federal charter, intent-based interpretation would obviously be unusually difficult. When dealing with intentions of several distinct groups of framers and amenders, are we to look to the intent of the federal framers, or the intent that the state framers believed-perhaps erroneously-the federal framers held? Or did the state framers intend something altogether different? A text-based "contemporary values" approach fares no better. If we read the words of all the constitutions of this nation in terms of what those words mean today, it is hard to argue that the same words have any different definition anywhere. Obviously, if there is any variation across this nation it is not in the definition of the words themselves, it is in the concepts they embody.

It should be immediately apparent that the Constitution established by New York under threat of British invasion in 1777, and painstakingly reviewed

77B. Cardozo, The Nature of the Judicial Process 94 (1921).

and amended throughout the ensuing centuries, reflects its own values, which may or may not be identical to those held elsewhere.

Indeed, the history that has shaped the values of this State is different in many respects from that which has shaped the consensus in other states, not to mention our nation as a whole. Many states today espouse cultural values distinctively their own. Alaska, for instance, is unique in its constitutional guarantee of the right to possess marijuana in one's home.79 If it is the judiciary's duty to look at what a "constitution" represents in order to determine what it says, and if what a constitution represents is that community's most basic, overarching values, then it is only right to interpret a state constitution independently of others, even where concepts are expressed in the same words. An independent interpretation of course does not mean that identical clauses will invariably be read differently, or more broadly, than their federal counterparts or those of sister states. The Supreme Court, in reading the federal Constitution, must lay out a minimal rule for a diverse nation, with due concern for principles of federalism. State courts, even when working with the same basic provisions, have a different focus, which is to fashion workable rules for a narrower, more specific range of people and situations. Their solutions thus may at times be identical to the federal solutions, but they are not necessarily so.

Practical considerations support this theory. State courts are generally closer to the public, to the legal institutions and environments within the state, and to the public policy process. This both shapes their strategic judgments and renders any erroneous assessments they may make more readily redressable by the People. Moreover, building a coherent body of law-one that is not merely reacting to particular Supreme Court decisions, or waiting on the Supreme Court to flesh out the contours of a developing right—has the advantage of furthering predictability and stability in our state law.

In short, the development of an independent body of state constitutional doctrine not only has deep historical roots but also is theoretically sound.

79 See Ravin v. State, 537 P.2d 494, 511 (Alaska 1975). The court in part based its holding on article I, section 22 of the Alaska Constitution, which states: "The right of the people to privacy is recognized and shall not be infringed." See id. at 500-04.

reasonable under the Fourth Amendment. In State v. Florance, 527 P. 2d 1202 (Or. 1974) the Oregon Supreme Court was urged to invalidate such a search

under its own constitution despite Robinson. It declined, noting:

Indeed, the views of this court have in some respects been contrary to those expressed in Robinson, as indicated by its past decisions. However, we have previously stated in State v. Cloman, supra, 254 Or. at 15, 456 P.2d at 74, consistent with the rule of Robinson, that: "The searched person's privacy has already been partially invaded by the arrest; therefore, the search does not have the personal impact that it otherwise might have."

There are good reasons why state courts should follow the decisions of the Supreme Court of the United States on questions affecting the Constitution of the United States and the rights of citizens under the provisions of that Constitution, as well as under identical or almost identical provisions of state constitutions, as in this case. See State v. Matthews, 216 N.W.2d 90, 105 (N.D.1974), Erickstad, C. J., concurring specially. See also People v. Norman, 112 Cal.Rptr. 43, 49-50 (Cal.App. 1974), and People v. Cannon, 18 Ill.App.3d 781, 310 N.E.2d 673, 676 (1974). Cf. State v. McDaniel, supra, 115 Or. at 216, 231 P. 965.

The law of search and seizure is badly in need of simplification for law enforcement personnel, lawyers and judges, provided, of course, that this may be done in such a manner as not to violate the constitutional rights of the individual. The rationale of the rule excluding illegally obtained evidence in state

Discussion Notes

1. Regarding the reception of Robinson by state courts, see Richard D. Harmon and Terry J. Helbush, "Robinson at Large in the Fifty States: A Continuation of the State Bill of Rights Debate in the Search and Seizure Context," Golden Gate Law Review 5 (Winter 1974): 1; Catherine Hancock, "State Court Activism and Searches Incident to Arrest," Virginia Law Review 68 (May 1982): 1085.

2. In People v. Gonzalez, 62 N.Y.2d 386, 389-90, 465 N.E.2d 823, 825 (1984) Judge Simons of the New York Court of Appeals stated: "We deem it desirable to keep the law of this State consistent with the Supreme Court's rulings on inventory searches...." Judge Wachtler, dissenting, contended that the United States Supreme Court decisions were distinguishable, and noted

court proceedings, as established by the Supreme Court of the United States in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), is that such a rule will act as a deterrent upon illegal searches by law officers.

It is true that this "exclusionary" rule has been criticized, including the underlying assumption that it acts as such a deterrent. . . . While this rule is in effect, however, and in order that it may have such a deterrent effect it is important, for the guidance of law officers, that the rule be as clear and simple as may be reasonably possible, consistent with the constitutional rights of the individual.

The rule stated in United States v. Robinson, supra, is a simplification. Not adopting the rule of Robinson would add further confusion in that there would then be an "Oregon rule" and a "federal rule." Federal and state law officers frequently work together and in many instances do not know whether their efforts will result in a federal or a state prosecution or both. In these instances two different rules would cause confusion.

For these reasons, we overrule our previous decision in State v. O'Neal, supra, and other previous decisions to the same effect to the extent that they are contrary to the rule which we now adopt. This is consistent with the views of most of the state courts which have as of this date considered the rule of Robinson. Most of such courts quote that rule or cite that decision with apparent approval.

"It is often difficult enough to follow the Supreme Court's decisions in the Fourth Amendment area without also trying to anticipate them." 62 N.Y.2d at 392, 465 N.E.2d at 826. See also People v. P.J. Video, 68 N.Y. 2d 296, 501 N.E. 2d 556 (1986).

3. Is evidence that is seized in violation of state constitutional protections but not equivalent federal constitutional protections available for use in federal prosecutions? See Jill E. Fisch, "Turf Wars: Federal/State Cooperation and the Reverse Silver Platter Doctrine," Criminal Law Bulletin 23 (December 1987): 509.

4. Are there areas other than search and seizure where arguments for uniformity could be made?

5. Where the relevant United States Supreme Court decisions recognize rights, is there any similar argument about "uniformity"?

Earl M. Maltz,

"The Dark Side of State Court Activism"

Texas Law Review

63 (March/April 1985): 995.

1985 Texas Law Review.

Reprinted by permission.

I. Introduction

Discussions of state constitutional law too often focus on the relationship between the United States Supreme Court and its state counterparts. The arguments center on the question of whether the Court's decisions of federal constitutional questions are in any sense binding on courts deciding analogous state constitutional issues. Proponents of state court activism have argued vigorously that in interpreting their own constitutions, state courts legitimately may diverge from the authoritative interpretations of analogous provisions of the federal constitution. On this point activists are on firm ground; generally accepted legal conventions clearly establish the independence of state court judges on issues of state law.

This conclusion, however, marks only the beginning of the inquiry. For merely establishing the independence of the state judiciary from the Supreme Court does not demonstrate that state court activism is desirable. To address the latter problem one must confront the basic structural issue that pervades any analysis of judicial review-the question of the proper relationship between state courts and the other branches of state government.

Evaluation of this relationship usually is undertaken from one of two perspectives-interpretive or noninterpretive. Interpretivist courts seek primarily to divine and implement the intent of the framers of their state constitutions. Noninterpretivist courts, on the other hand, draw upon other sources to identify values relevant to constitutional review of a given law. This article argues that the existing governmental structure undercuts the arguments supporting noninterpretive state court review.

1. Interpretive Review-When judges practice interpretive review, they seek to implement the intent of the constitution framers. In effect, this replaces one set of institutional constraints with another. Rather than being constrained by the conventions of statutory interpretation in constructing the intent of the drafters of a statute, the judge is constrained by similar principles of interpretive review in

his quest to discover the intent of those who drafted the constitutional language. Thus, for example, in enforcing a constitutional provision that limits interest rates a judge can hardly be seen as imposing his views as to the justice of such limits; he is viewed more realistically as simply effectuating the views of those who drafted the provision.

2. Noninterpretive Review-In contrast, specific policy preferences are much more influential when judges practice noninterpretive review. Admittedly, most proposed structures for noninterpretive review would place important constraints on judicial action; typically, judges are admonished to strike down legislative action that is inconsistent with democratic theory, conventional morality, or some similarly defined set of values. Unlike the conventions underlying interpretive review, however, none of the theories of noninterpretive review reflect a societal consensus on the appropriate role of the judiciary. As a result, judges must rely on their individual perceptions of justice and fundamental fairness to choose among the various competing approaches to noninterpretive review.

III. The Costs of Noninterpretive
State Review

The exercise of independent noninterpretive review by state courts generates a variety of institutional costs. Among the foremost are those associated with loss of governmental flexibility, uncertainty regarding the state of the law, and the duplication of functions performed by other branches of government.

A. Loss of Flexibility

Ironically, noninterpretivists often cite the need for flexibility as a reason for advocating a more activist judicial posture. They argue that the problems and mores of society change over time and that the rights and responsibilities of government toward the citizenry ought to change accordingly. By binding the judiciary to the intent of the drafters of the constitution, interpretive review would prevent courts from making necessary adjustments in constitutional rights in reaction to changing conditions.

The flaw in this analysis is its focus on the judiciary in isolation from the remainder of the government structure. Society as a whole does not care whether adjustments in the role of government are made by the courts or by legislatures. Indeed, ultimate authority for making these adjustments historically has lain not with the courts but with the other branches of government. Admittedly, the state courts have been important participants in the process