State Bills of Rights

[Paul Finkelman]

Just a short addition to Saul's comments.  Not so very long ago people argued
about the original intent of judicial review. Was it intended? Did it exist?
Scholars found a few early cases here and there, and eventually the profession
moved on; perhaps conservatives who had initially challenged judicial review in
the '70s no longer worried about it since they now controlled the Supreme
Court. I don't have any interest in raising that issue again. But I think it is
instructive on the state bills of rights.  If we are uncertain as to whether
there was judicial review, how could we see the state bills of rights as Eugene
does.  Who would enforce these rights against the legislature?  The Courts?
Not if there was no judicial review at the state level.  There were surely some
precedent for judicial review at the state level but not in every state; and
legal culture was different then; state courts in the 1780s and 1790s did not
cite other states very often.

I raise this only to reinforce Saul Cornell's notion that state bills of rights
were often merely statements of general principle, rather than "law" as we
think of law  today.

Consider Sec. 2 of the Va. Dec. of Rights  "That all power is vest in, and
consequently derived from, the people; that magistrates are their trustees and
servants, and at all times amenable to them."  How would we _enforce_ such a
provision?  What would it mean.  Does "all times" meand 24/7?  Wake up that
judge at 3:00 a.m. to "get your rights?"

Or Sec. 5 "that members of the [legislative and executive branches]  may be
restrined from oppression, by feeling and participating the burdens od hte
people, they should, at fixed periods, be reduced to a private station...." Now
this gives amunition to the term limits folks. But, how do we enforce it?  Sue
for removal of those who hold office _too long_? And what is _too long_?
Since the bill of rights does not say what the rotation should be, this is
simply a general principle, set out to guide the state.

And how would be deal with Sec. 7, which says the power of suspending laws
"ought not to be exercised."  Is "ought" an enforceable term?

Same in Sec. 9; "excessive bail ought not be required, nor excessive fines
imposed ...."  Does the ought only modify "bail" or apply to fines as well?  Is
"ought" enforceable, or merely a recommendation.

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Paul Finkelman
Chapman Distinguished Professor
University of Tulsa College of Law
3120 East Fourth Place
Tulsa, OK  74104

918-631-3706
Fax 918-631-2194

E-mail:  paul-finkelman at utulsa.edu



Saul Cornell wrote:

> I find Eugene's repeated claims that because something was in a state bill
> of rights that it was a claim against state government profoundly
> anachronistic.  Consider the PA Declaration of Rights claim that the people
> have the sole and exclusive right of  governing and regulating the internal
> police of the  state. How could that be read as a claim against the
> state?  As Jack Rakove and others have insisted,  state bills of rights
> "were meant to guide it [the legislature]  in exercising its discretionary
> authority rather than restrain legislative power by creating an armory of
> judicially enforceable rights."  Eugene's claims about state bills of
> rights project a modern individual rights consciousness back onto
> constitutional documents that were a product of a radically different
> world. It seems that this is one of the main problems with law office
> history and recent legal scholarship on the Second Amendment.   If Eugene
> wants to claim that this is how we ought to read such claims that is fine.
> Claiming that history supports this view is simply false
>
> Saul Cornell
> Associate Professor Of History
> The Ohio State University
> 230 West 17th Ave
> Columbus, OH 43210
>
> Office Phone: (614) 292-7858
> Fax: (614) 292-2282
> URL: http://people.history.ohio-state.edu/cornell.14/

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