02 March 2005

Why Not Under State Constitutions?

Over at the Conspiracy, Eugene Volokh discusses why an issue might be decided under the federal constitution rather than a State's constitution.

The answer for this in Virginia would be easy: because there is no enforcement available for any right under the Virginia constitution. These rights are "co-extensive" with federal rights. In other words only federal rights will be enforced.

However, rumor has it that other States actually give meaning to the rights in their constitutions (go figure). EV offers a couple reasons why he thinks the Missouri Supreme Court decided the issue based upon the federal constitution rather than its own.

As a practical matter I'd offer one more: the availability of case law. Quite often State law may have only one or two cases concerning the issue you are arguing - if the issue is arcane enough it may have none. This can be maddening when you are trying to brief or appeal an issue. The solution? Use case law from other jurisdictions. Naturally, this approach is not going to find cases which directly address your issue under your State's constitution. However, with the great number of State appellate courts and federal circuits churning out decision after decision based on the federal constitution there will almost always be a couple courts which have opined upon your issue. I think this causes rights based arguments to almost always lead with the federal constitutional argument. There's just so much more to work with when addressing things federally.


Steve Minor said...

I'm not sure that I agree that "there is no enforcement available for any right under the Virginia constitution." The counter-example that comes to mind is an action for inverse condemnation, based on Article I, section 11, of the Virginia Constitution. See, e.g., Richmeade, L.P. v. City of Richmond, 267 Va. 598, 602, 594 S.E.2d 606, 609 (2004) ("an inverse condemnation action is a specific type of proceeding based on a constitutionally created right connected to the 'taking' or 'damaging' of property by the government."); Sheffield v. Department of Highways and Transp., 240 Va. 332, 334-335, 397 S.E.2d 802, 803 (1990) ("the constitutional provision is self-executing and the landowner may enforce the right to compensation in a common-law action").

Perhaps this is the exception that proves the rule. Another example that occurs to me is that at one time, prior to the anti-Lockhart amendments to the Virginia Code, it was something of an open question as to whether a state law wrongful discharge claim could be based on the Virginia Constitution. At some point I have seen what I believe was a bad opinion by Judge Osteen filling in somewhere in Virginia that seemed to say that could be done.

The gay-marriage case in Massachusetts was based primarily on state constitutional law, otherwise it would surely have been appealed to the U.S. Supreme Court. All attempts by conservatives to make a federal issue out of that decision have failed. Therein lies the primary reason for litigation under state constitutions - to avoid the U.S. Supreme Court and its precedents.

I'm less certain whether I agree that the rights under the Virginia Constitution are in every instance co-extensive with the parallel provisions of the federal Bill of Rights. Some elements of the Bill of Rights have not been incorporated by the Supreme Court into the Fourteenth Amendment (the Second, the Third, part of the Fifth relating to grand juries, and the Seventh) and so in those limited areas the chances may be greater that there is some variance between state and federal. Is there a constitutional right to a grand jury in Virginia? I doubt it, but I don't know the answer. There is, in federal court, at least for some cases.

Steve Minor said...
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Ken Lammers said...


When I say there are no rights under the Va. Constitution I am speaking of the rights in criminal matters.

In general, the procedural rules laid out in our constitution and statutes are followed but should they not be the appellate courts will not assign a meaningful remedy to them. These are refered to as rights without remedies. Only the federal rights have the exclusionary rule attached and therefore they are the only ones which are seriously worried about.

However, there are some rights which the General Assembly has put in place to which they have assigned remedies. The one which comes to mind is the speedy trial statute. If a person is not tried in a timely manner then the Legislature has written a law saying the case will be dismissed forever. The problem is that most of the time there is no remedy attached to State rights.