Brennan's Epiphany: The Necessity of Invoking State Constitutions to Protect Freedom

I. INTRODUCTION Thirty years ago, Justice William J. Brennan Jr., in a seminal Harvard Law Review article, issued a clarion call to liberal activists to couple their litigation efforts in federal courts with similar efforts in state courts to seek expansive interpretation of state constitutional provisions.1 Brennan was concerned that activism of Warren Court was coming to an end, to be replaced by an era of retrenchment in rights recognized under federal Constitution. He pointed out that state constitutions provide an additional layer of constitutional rights and in many cases more expansive protection for those rights.2 The federal Constitution provides baseline for protection of constitutional rights that state courts are free to surpass in construing their own constitutions.3 Brennan urged that [t]he legal revolution which has brought federal law to fore must not be allowed to inhibit independent protective force of state law-for without it, full realization of our liberties cannot be guaranteed.4 Liberal activists heeded call, with such success that between 1970 and 1984, by Brennan's own count in a second law review article in 1986, state courts handed down over 250 published opinions holding that constitutional minimums set by United States Supreme Court were insufficient to satisfy more stringent requirements of state constitutional law.5 Although Brennan was a liberal, his prescription transcends ideological lines. Today, conservatives and libertarians who have litigated gainfully under federal Constitution since 1980s6 find themselves in a situation similar to one Justice Brennan occupied in 1977, when it appeared that federal jurisprudential trends he favored might have run their course. Curiously, although most conservative and libertarian legal activists are strong proponents of federalism, overwhelming majority of cases filed by lawyers of that philosophical bent have been federal lawsuits under federal Constitution, with state litigation relegated largely to afterthought. Those who seek greater protection of private property rights and economic liberties may find state constitutions to be more congenial to their aims than federal Constitution as interpreted by U.S. Supreme Court. Many constitutions provide greater textual protections of individual rights than federal Constitution, as well as greater constraints on government power.7 But those state constitutional guarantees are unlikely to be fully vindicated unless legal advocates are prepared to systematically engage them. Justice Brennan's call to action to liberal activists in 1977 applies with equal, if not greater, weight to conservative and libertarian activists three decades later. II. BRENNAN'S EPIPHANY It is rare for legal advocates on right to look to Justice Brennan for insight and inspiration. But conservatives and libertarians would do well to examine carefully his writings about proper and vital role of state courts and constitutions in protecting individual rights in our federal system. His views are well-grounded in constitutional history and practical experience, and although his words initially were directed at liberal activists, by 1986 he was speaking directly to conservatives as well, with tremendous prescience. Justice Brennan was one of foremost architects of Warren Court's expansion of rights under Bill of Rights, applied to states under Due Process and Equal Protection Clauses of Fourteenth Amendment-an amendment he aptly considered a modern Magna Carta.8 For many years, he focused heavily on federal constitutional rights and on duty of state as well as federal courts to enforce those rights. In a law review article written in 1964, during heyday of Warren era, Brennan urged state courts to broadly interpret federal law, because the fundamental obligation to administer federal law rests on both [federal and state] courts, which possess an identity of underlying purpose. …