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 IncorporationFifth (except requirement for Grand Jury)Eighth (except ban on excessive bail or fines)

Non-Incorporated:Second, Third, Seventh

Application of Bill of Rights to StatesAmend Right Supreme Court Case First Speech Gitlow v. New York (1925)

Press Near v. Minnesota (1931)

Assembly DeJonge v. Oregon (1937)

Free Exercise of Religion

Cantwell v. Connecticut (1940)

Establishment of Religion

Everson v. Board of Education (1947)

Fourth Search & Seizure Wolf v. Colorado (1949)

Exclusionary Rule Mapp v. Ohio (1961)

Application of Bill of Rights to StatesRight Supreme Court Case and Year

Fifth Just Compensation Chicago, Burlington, & Quincy RR. v. Chicago (1897)

Self-Incrimination Malloy v. Hogan (1964)

Double Jeopardy Benton v. Maryland (1969)Sixth Public Trial In re Oliver (1948)

Assistance of Counsel

Gideon v. Wainwright (1963)

Confrontation Pointer v. Texas (1965)Impartial Jury Parker v. Gladden (1966)Speedy Trial Klopfer v. No. Carolina (1967)Jury Trial Duncan v. Louisiana (1968)

William Brennan"State Constitutions and the Protection of

Individual Rights.” Harvard Law Rev. 1977Saw retrenchment at federal level after civil

rights/liberties gains of 1960sAdvocated expansion of rights at state level

through interpretation of state constitutional provisions, which were often stronger

US Constitution - Religious Freedom

1st AmendmentCongress shall make no law

respecting an establishment of religion, or prohibiting the free exercise thereof;

UT Constitution - Religious FreedomArticle 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.

US Constitution – Bearing Arms

2nd AmendmentA 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.

UT Constitution – Bearing ArmsArticle I, Section 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.

Michigan v. Long (1983)

MI police search Long’s car/ find drugsMI 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 PinelloGay 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