Forgotten Law and Judicial Duty

I. INTRODUCTION It was honor to be invited to attend the Symposium and sit on the panel for The Reemergence of State Constitutional Law and the State High Courts in the 21st Century. I enjoyed the panel discussion very much and believe that our work will result in the development of law that will be helpful to courts in addressing issues that the coming decades will likely thrust upon the judiciary. It is said that [t]here is nothing new except what is (1) In examining the reemergence of law, we are exploring forgotten This idea of forgotten law is illustrated by Arkansas case concerning what constitutes an 'infamous crime' for purposes of removing elected official from office. (2) The appellee relied on federal cases in arguing that a crime is infamous only if it is punishable by more than one year of imprisonment. (3) However, the origin of the federal rule argued by the appellee is a United States Supreme Court case (4) decided in 1885, more than ten years after adoption of the most recent Arkansas Constitution, and after infamous crime had already been defined in Arkansas. (5) In response to the appellee's argument, the State offered earlier law, including language from constitutions dating to 1836. (6) This law provided that it was the nature of the crime rather than the length of imprisonment imposed that made it infamous. (7) The State prevailed. (8) Thus, while one may be predisposed by familiarity with federal law to apply it, law may instead properly determine the question. The wonderment attending the occasional decision of a high court perceived as affirming a former federal interpretation of a right, or expanding a right, also illustrates that applicable law has been forgotten. The obligation of courts to interpret and apply law is obvious; the perception giving rise to wonderment results from the federal courts being seen since the 1950s and 1960s as the primary legal forum for the development of several areas of the It must be remembered that federal courts only apply what is mandated by federal law; other law is available and applicable in courts. In 1977, Justice William J. Brennan, Jr., concluded that undue reliance on federal law arose when decisions of the United States Supreme Court during the 1960s federalized many rights and liberties. (9) According to Justice Brennan, this resulted in courts failing to see any reason to consider what protections might be afforded under (10) What Justice Brennan characterized as federalized largely finds its genesis in a determination by the United States Supreme Court that the challenges the Court faced in the 1950s and 1960s required that it apply the Fourteenth Amendment as it had not been applied before. (11) He describes this as the Court having returned to ... fundamental promises. (12) Thus, the United States Supreme Court did then just as we are doing today--examining new legal issues in light of all the applicable Justice Brennan warned that state courts cannot rest when they have afforded their citizens the full protections of the [F]ederal (13) He cautioned against unthinking reliance on federal (14) The Arkansas Supreme Court recently stated that w]ithout question, a slavish following of federal precedent would render this court's opinions merely a mirror image of federal jurisprudence, which would carry with it a certain abrogation of our duty to interpret our own constitution and follow our own law. (15) As Chief Justice Shirley Abrahamson of the Wisconsin Supreme Court noted in 1982, the language in constitutions is often drawn from the language in constitutions of other states rather than from the language of the Federal Constitution. (16) This necessarily means that the language in constitutions is typically different than that found in the Federal Constitution. …