Judges on Judging: Views from the Bench

By David M. O'Brien | Go to book overview

25
First Things First: Rediscovering the States' Bills of Rights

HANS A. LINDE Justice, Oregon State Supreme Court

State bills of rights are first in two senses: first in time and first in logic.


HISTORY

It was not unheard of in 1776, long before the drafting of the Federal Constitution, for the revolutionaries of that day to declare in the charters of their new states that the liberty of the press should be inviolably preserved, or that warrants to search any place or to seize any person or property must be based on information under oath and describing the place or the person. Nor was it unusual in these charters to grant every criminal defendant a right to a speedy trial before an impartial jury, with the assistance of counsel, to confront and question the witnesses against him, not to be compelled to give evidence against himself, nor to be subjected to excessive bail or fines nor to cruel or unusual punishment. 1

By 1783, 13 states, all but Rhode Island, had adopted written constitutions. The majority of them contained most of the catalogue of civil liberties included in Virginia's Declaration of Rights, and Maryland's, and Delaware's, and Pennsylvania's. But they were by no means identical. 2 That was no accident. During the months preceding independence, political leaders debated the case for having the Continental Congress prepare uniform constitutions for the states. They finally rejected this idea in favor of calling upon each state to write a constitution satisfactory to itself. 3

Far from being the model for the states, the Federal Bill of Rights was added to the Constitution to meet demands for the same guarantees against the new central government that people had secured against their own local officials. Moreover, the states that adopted new constitutions during the following decades took their bills of rights from the preexisting state constitu

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