Results from the Laboratories of Democracy: Evaluating the Substantive Open Courts Clause as Found in State Constitutions

By McGinley, Patrick John | Albany Law Review, Summer 2019 | Go to article overview

Results from the Laboratories of Democracy: Evaluating the Substantive Open Courts Clause as Found in State Constitutions


McGinley, Patrick John, Albany Law Review


INTRODUCTION

Scholars continue to debate how well state courts answer the call to be laboratories of democracy by interpreting their state constitutions as a source of novel and greater civil rights and liberties. (1) The "laboratory of democracy" is a call to state courts to honor the full panoply of federal rights (2) that all states must observe under the U.S. Constitution's Supremacy Clause, (3) yet simultaneously, to expand rights beyond federal minimums, (4) using an adequate and independent state law basis. (5)

The call is not new. In the 1930's, scholars published books, and the Yale Law Journal and Harvard Law Review both commented upon these books, proclaiming "an emerging pattern of... a new federalism in which the central government becomes something like the guardian of standards in areas of activity in large part administered by local governments." (6) Then in 1948, Justice Brandeis that "[i]t is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." (7) In 1970, the arguments for the primacy of state constitutional law by Oregon Supreme Court Justice Hans Linde, who some call the '"intellectual godfather' of state constitutional law," (8) took hold upon the Oregon state courts. (9) In Oregon, and in just a few other states, independent state constitutional law jurisprudence bloomed. (10)

Then in 1977, William Joseph Brennan, Jr., who was an Associate Justice of the United States Supreme Court from 1956 to 1990, made perhaps the most famous call for the growth of independent state constitutional law jurisprudence. (11) To encourage each state to become a "laboratory of democracy," Justice Brennan wrote the following in a 1977 issue of the Harvard Law Review:

[S]tate courts no less than federal are and ought to be the guardians 
of our liberties.
But the point I want to stress here is that state courts cannot rest 
when they have afforded their citizens the full protections of the 
federal Constitution. State constitutions, too, are a font of 
individual liberties, their protections often extending beyond those 
required by the [United States] Supreme Court's interpretation of 
federal law....
....
... [S]tate courts that rest their decisions wholly or even partly on 
state law need not apply federal principles....
... Prior to the adoption of the federal Constitution, each of the 
rights eventually recognized in the federal Bill of Rights had 
previously been protected in one or more state constitutions. And prior 
to the adoption of the fourteenth amendment [to the United States 
Constitution], these state bills of rights, independently interpreted, 
were the primary restraints on state action since the federal Bill of 
Rights had been held inapplicable.
The essential point I am making... is simply that the decisions of the 
[United States Supreme] Court are not, and should not be, dispositive 
of questions regarding rights guaranteed by counterpart provisions of 
state law. (12)

More than forty years has passed since Justice Brennan reissued the call to each state to interpret its state constitution as a laboratory of democracy. (13) So the call is old enough (14) and renowned enough. (15) A sufficient number of states have answered the call, (16) and sufficient time has passed (17) for us to check in on the progress of our "laboratories of democracy."

One experiment in the laboratories of democracy finds substantive rights established by the states' constitutions' "open courts" or "remedies" clauses. (18) Unlike the Federal Constitution, many state constitutions contain such a clause. (19) Generally, these Open Courts Clauses require state courts to be open to every person for the redress of any injury. (20) One of the longest-tenured chief justices of the Supreme Court of Texas once opined that "[o]f all the rights guaranteed by state constitutions but absent from the federal Bill of Rights, the right to a remedy through open access to the courts may be the most important. …

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