Letting States Do It

LIBERALS are becoming increasingly concerned that the federal judiciary, including the United States Supreme Court, is chipping away at the rights of individuals. And prospects of even more conservative federal jurists appointed by President Bush raise questions about the future of privacy protections, such as the right to an abortion, the right to refuse medication, and the right to observe religious practices.

The obvious premise is that liberal judges expand individual rights and that conservative judges roll them back or contain them. This is often true, but a blanket assumption is not. For instance, the heyday for liberal civil-rights rulings came under the leadership of Chief Justice Earl Warren in the 1950s and 1960s.

It was the Warren court's successors, however, who first struck a claim for the place of women in the workplace and reinforced freedom of speech in decisions defending the press and the rights of political dissenters. Chief Justice Warren Burger and current Cheif Justice William Rehnquist and their largely conservative associate justices have by no means shut the door on civil liberties. What they have done in many cases is to balance the rights of individuals against the rights of the public at large.

This weighing of rights has resulted in allowing states greater latitude in passing laws restricting abortion; rejecting affirmative action plans that result in reverse discrimination against racial minorities; and restricting religious worship, such as that practiced by American Indians, if it conflicts with public policy. These trends have sent liberals running for relief in an unlikely place: state capitols.

The so-called New Federalism, under which state constitutions are more protective of individual rights than interpretations of federal law, is a relatively new phenomenon in American government.

It quietly took root almost two decades ago when liberal state judges, including Oregon Supreme Court Justice Hans Linde, took the lead to shore up rights afforded by state constitutions in the face of rising conservativism in the federal court system.

Professor Ronald K.L. Collins, an authority on state constitutions, says that over the past 20 years state high courts have issued more than 600 opinions in which they relied on state constitutions to provide broader protections for individuals than federal law. These decisions range from school funding to search-and-seizure rules and privacy-related abortion rights. States that bolstered individual rights beyond federal protections include California, Florida, Massachusetts, New Jersey, New York, and Texas.

Retired Chief Justice Edward Hennessey of the Massachusetts Supreme Judicial Court wrote recently that the US Supreme Court recognizes the rights of states to extend protections to the individual under state constitutions.

US Supreme Court Associate Justice William Brennan, points out Justice Hennessey, has said that the federal constitution ``provides only a floor for civil rights protection.'' Justice Brennan also stressed the ``importance of state ventures above the federal minimums.''

Does this mean that while a conservative political trend continues among the federal judiciary, individuals will be better protected by state law than the US Constitution? Hopefully not. On the eve of the bicentennial of the Bill of Rights, it would be ironic to downplay the effectiveness of its protections to individuals.

State covenants and statutes are not meant to supersede the Constitution's first 10 amendments. They may expand on interpretation and, in some instances, balance the influence of federal opinions.

It is sometimes argued that states are closer to the will of the people than the federal government. It should also be realized that state legislatures are susceptible to political pressures and may be persuaded by powerful interest groups to change state constitutions. The US Constitution, including the Bill of Rights, is less likely to change under political pressure.

The New Federalism is an interesting, if not necessary development. Let us not write off, however, the Bill of Rights and its endurance under all political regimes.