State and Federal Courts
Martin v. Hunter’s Lessee (1816)
Judges of equal learning and integrity, in
different states, might differently
interpret a statute, or a treaty of the
United States, or even the constitution
itself: If there were no revising authority
to control these jarring and discordant
judgments, and harmonize them into
uniformity [continued]
Martin v. Hunter’s Lessee (1816)
[continued]
the laws, the treaties, and the
constitution of the United States would
be different in different states, and
might, perhaps, never have precisely the
same construction, obligation, or
efficacy, in any two states.
Barron v. Baltimore (1835)
• Bill of Rights only applies to
federal government
• Adopted for fear that federal
government threatened those
rights already recognized by
states
Slaughterhouse Cases (1873)
The 14th Amendment only protects
rights held by individuals as federal
citizens, not as state citizens. Cannot
replicate basic rights of free speech,
defendants’ rights, etc as those are
protected by states
Incorporated Amendments
Complete Incorporation:
First, Fourth, Sixth, Ninth
Partial Incorporation
Fifth (except requirement for Grand Jury)
Eighth (except ban on excessive bail or fines)
Non-Incorporated:
Second, Third, Seventh
Application of Bill of Rights to States
Amend
First
Fourth
Right
Supreme Court Case
Speech
Gitlow v. New York (1925)
Press
Near v. Minnesota (1931)
Assembly
DeJonge v. Oregon (1937)
Free Exercise of
Religion
Establishment of
Religion
Search & Seizure
Cantwell v. Connecticut
(1940)
Everson v. Board of
Education (1947)
Wolf v. Colorado (1949)
Exclusionary Rule
Mapp v. Ohio (1961)
Application of Bill of Rights to States
Fifth
Sixth
Right
Supreme Court Case and Year
Just Compensation
Chicago, Burlington, & Quincy
RR. v. Chicago (1897)
Self-Incrimination
Malloy v. Hogan (1964)
Double Jeopardy
Public Trial
Assistance of
Counsel
Benton v. Maryland (1969)
In re Oliver (1948)
Gideon v. Wainwright (1963)
Confrontation
Impartial Jury
Speedy Trial
Jury Trial
Pointer v. Texas (1965)
Parker v. Gladden (1966)
Klopfer v. No. Carolina (1967)
Duncan v. Louisiana (1968)
William Brennan
"State Constitutions and the Protection of
Individual Rights.” Harvard Law Rev. 1977
Saw retrenchment at federal level after civil
rights/liberties gains of 1960s
Advocated expansion of rights at state level
through interpretation of state
constitutional provisions, which were
often stronger
US Constitution - Religious Freedom
1st Amendment
Congress shall make no law respecting an
establishment of religion, or prohibiting
the free exercise thereof;
UT Constitution - Religious Freedom
Article I, Section 4. [Religious liberty.]
The rights of conscience shall never be infringed.
The State shall make no law respecting an
establishment of religion or prohibiting the free
exercise thereof; no religious test shall be
required as a qualification for any office of
public trust or for any vote at any election; nor
shall any person be incompetent as a witness or
juror on account of religious belief or the
absence thereof. [continued]
UT Constitution - Religious Freedom
Article I, Section 4. [Religious liberty.]
[continued]
There shall be no union of Church and State,
nor shall any church dominate the State or
interfere with its functions. No public money
or property shall be appropriated for or
applied to any religious worship, exercise or
instruction, or for the support of any
ecclesiastical establishment.
U.S. v. UT Constitution - Gun Rights
US, Amendment 2:
A well regulated militia, being
necessary to the security of a free
state, the right of the people to keep
and bear arms, shall not be infringed.
U.S. v. UT Constitution - Gun Rights
Utah, Article I, Sec. 6 [Right to bear arms.]
The individual right of the people to
keep and bear arms for security and
defense of self, family, others, property,
or the state, as well as for other lawful
purposes shall not be infringed; but
nothing herein shall prevent the
Legislature from defining the lawful use
of arms.
Utah vs. U.S. Constitution - Gender Equality
UT Constitution, Article IV, Section 1.
The rights of citizens of the State of Utah to
vote and hold office shall not be denied or
abridged on account of sex. Both male and
female citizens of this State shall enjoy
equally all civil, political and religious rights
and privileges.
U.S. Constitution
Just Kidding!
Michigan v. Long (1983)
MI police search Long’s car/ find drugs
MI Supreme Court finds search
illegitimate, seemingly relies on
federal 4th Amendment cases, rather
than MI Constitution, but reaches
different result than U.S. Sup Ct
Michigan v. Long (1983)
O’Connor’s Majority Opinion:
“we find that we have jurisdiction in the
absence of a plain statement that the
decision below rested on an adequate
and independent state ground.”
Michigan v. Long (1983)
Stevens dissent:
If the Finnish police had arrested a
Finnish citizen for possession of
marihuana, and the Finnish courts had
turned him loose, no American would
have standing to object …
Michigan v. Long - Stevens dissent:
In this case, the State of Michigan has
arrested one of its citizens and the
Michigan Supreme Court has decided
to turn him loose … Michigan simply
provided greater protection to one of
its citizens than some other State
might provide or, indeed, than this
Court might require throughout the
country.
Daniel Pinello
Gay Rights and American Law
• What is the myth of parity?
• Why would we believe in it?
• Does it hold up?
Same sex marriage and states