Now it's the states' turn to set standards for individual rights
EVERY American schoolboy knows that the United States Constitution is the supreme law of the land and that the Supreme Court interprets the Constitution. So naturally that court is the ultimate protector of individual liberties, isn't it?
Sometimes, but not always.
A new-old concept is resurfacing: The 50 states, through their own courts and constitutions, can also set standards guaranteeing individual rights. In fact, many civil libertarians argue that with a conservative Supreme Court sitting in Washington, state courts may be more effective in this role than the federal courts.
There's something reassuring about this. The concept of strong state laws and judges devoted to protecting their citizens is in line with the thinking of America's Founding Fathers. State constitutions have their roots in Colonial charters and practices.
But there is also something troubling about state standards of justice. If, for example, rights of the accused are more fully defined in New York than in California, or protections against racial discrimination are less rigid in Alabama than Connecticut, the inequities can be startling. What should be done?
* Minimum standards for all states in the area of individual rights (they are largely in effect now) must be maintained.
* States that wish to exceed the minimum federal standards should be permitted to do so. This is not common practice today, however. In fact, the Supreme Court has tended to reverse or water down state court decisions involving individual liberties.
State-court judges, lawyers, and legal experts met recently in an unprecedented gathering under the aegis of the National Center for State Courts in Williamsburg, Va. The conference cited recent Supreme Court decisions which curb the rights of criminal defendants and set some new limits on freedom of speech and the press. The conference also called for a revitalization of state laws to counter such ''lopsided federalism'' and its erosion of individual liberties.
The tide has turned from the time when the liberal Earl Warren court struck down state-tolerated ''racism, sexism, and imposition on the rights of the accused,'' says Stanley Mosk, a veteran justice of California's highest court and a participant at the Williamsburg conference. Now, with a more conservative high tribunal in Washington, Justice Mosk insists that states must become the prime guarantors of individual rights based on state law.
Hans A. Linde, of Oregon's Supreme Court, agrees. Also needed, he says, is a ''new generation of lawyers and law students (trained) to see the importance of state constitutional law.'' Justice Linde admonishes state courts to rely more on their own jurisprudence, and less on federal law, in rendering decisions. ''Save constitutional law for when you really need it,'' he adds, explaining that, when this is done, there may be no grounds for an appeal to federal authorities.
Two recent examples amplify his point:
* In a New Jersey case, the state's highest court threw out evidence obtained when school officials searched for drugs in students' lockers without first obtaining warrants. The court ruled that the students' rights were violated by improper search and seizure, a decision based on the Constitution rather than on state law. The case has been appealed to the US Supreme Court, which could very well reverse the decision.
* On the other hand, the state of Washington's high court recently issued an apparently appeal-proof decision. It struck down a trial-court decree barring broadcast of tapes used as evidence in a trial. Justice Robert F. Utter based the ruling solely on the state's constitution, which gives every person the right to ''speak, write and publish on all subjects . . . .'' That provision is an example of state constitutional protections that exceed federal guarantees. Documents in other states also speak to rights never mentioned in the US Constitution - including environmental protections, educational guarantees, and equality of women.
Law professor A. E. Dick Howard of the University of Virginia regards state constitutions as the ''cornerstone of the American system. They are a useful mirror . . . ,'' he adds, ''and reflect the political trends of an era.'' But they can also be used at times to limit rights as well as expand them, he warns.
Obviously, a balance is needed. States must hold their own on civil liberties when the federal tilt goes too far in the other direction. Their constitutions offer flexibility; they are frequently altered through initiatives and other means. But the federal Constitution, which is seldom changed, must always stand tall as a basic protector of individual rights.