Discussion Notes

1. Two well-known commentators on interstate compacts made the following observations on the theory of Justice Reed's concurring opinion in the principal case:

If this construction were to be accepted, the government of a state, by making a compact with another state, could in effect amend the state constitution without regard to the requirements for amendment, such as ratification by popular referendum; similarly a state government could accomplish by compact what it could not by statute under the constitution of the state.

Frederick L. Zimmermann and Mitchell Wendell, "The Interstate Compact and Dyer v. Sims," Columbia Law Review 51 (December 1951): 937. See also, Ibid, at 943 n. 61. See also Felix Frankfurter and James M. Landis, "The Compact Clause of the Constitution-A Study in Interstate Adjustments," Yale Law Journal 34 (May 1925): 685.

For an exhaustive survey of the history of the Compact Clause and its interpretation, especially as to which "compacts" must be approved by Congress, see U.S. Steel Corp. v. Multistate Tax Commission, 434 U.S. 452 (1978).

2. Was the compact involved in Dyer v. Sims just between states? Can states enter compacts with the federal government? See Frank P. Grad, "Federal-State Compact: A New Experiment in Cooperative Federalism," Columbia Law Review 63 (May 1963): 825.

3. In Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92 (1938) the Supreme Court held that state constitutional provisions on water rights must give way to "federal common law." Why would a state put rules about water rights in its constitution?

4. See generally Marian E. Ridgeway, Interstate Compacts: A Question of Federalism (Carbondale: Southern Illinois University Press, 1971); Weldon V. Barton, Interstate Compacts in The Political Process (Chapel Hill: University of North Carolina Press, 1965).

Monrad Paulsen observed in 1951:

Although state constitutions contain full statements of our civil liberties, on the whole the record of state court guardianship of "First Amendment Freedoms" is disappointing. . . . If our liberties are not protected in Des Moines the only hope is in Washington.1

All state constitutions contain a series of protections or specified rights for individuals. Most of the original state constitutions contained such provisions, and the federal Bill of Rights was to a certain extent patterned on them.2 Interestingly, the state bills of rights appear at the beginning of the constitution, rather than at the end as is true with the federal Constitution. This structural difference in state constitutions can be significant.3

Many state constitutional protections use phrases such as "due process of law," or "unreasonable search and seizure," identical to federal constitutional protections. Others use similar language, and still others have no counterparts at all in the federal constitution. These state constitutional provisions are usually referred to as Declarations of Rights. What is their function in the federal system and how do they relate to the federal Bill of Rights? Must words have the same "meaning" when used in both the federal and state constitutions?

The "rediscovery" of state constitutional protections beginning in the 1970s, where state courts began deciding cases based on state rather than federal constitutional provisions, presents one of the

most interesting and challenging facets of constitutional law.

In 1986 United State Supreme Court Justice William J. Brennan, Jr. noted:

Rediscovery by state supreme courts of the broader protections afforded their own citizens by their state constitutions . . . is probably the most important development in constitutional jurisprudence of our times.*

Even the federal Bill of Rights' origins in state constitutions and earlier colonial and English legal materials had been more or less forgotten until recently. In 1975 Justice Stanley Mosk of California had to remind the bar and bench:

It is a fiction too long accepted that provisions in state constitutions textually identical to the Bill of Rights were intended to mirror their federal counterpart. The lesson of history is otherwise: the Bill of Rights was based upon the corresponding provisions of the first state constitutions, rather than the

reverse.

People v. Brisendine, 119 Cal. Rptr. 315, 329, 531 P.2d 1099, 1113, 13 Cal.3d 528, 550 (1975).

-ENDNOTES

'Monrad G. Paulsen, “State Constitutions, State Courts and First Amendment Freedoms," Vanderbilt Law Review 4 (April 1951): 642.

2A. E. Dick Howard, The Road from Runnymede: Magna Carta and Constitutionalism in America (Charlottesville: University of Virginia Press, 1968); Richard L. Perry, ed., Sources of Our Liberties (Chicago: American Bar Foundation, 1959); Edward Dumbauld, "State Precedents for the Bill of Rights," Journal of Public Law 7 (Fall 1958): 323.

3Daniel Elazar, "The Principles and Traditions Underlying State Constitutions," Publius: The Journal of Federalism 12 (Winter 1982): 15 ("Most immediately, their place at the beginning of the constitution is intended to announce that the protection of rights is the first task of government, indeed,

its raison d'etre."); State v. Tapply, 124 N.H. 318, 325, 470 A.2d 900, 904-05 (1983).

"National Law Journal, September 29, 1986, Special Section at S-1.

Barron v. Mayor

and City Council of Baltimore 32 U.S. 243 (1833)

Mr. Chief Justice MARSHALL delivered the opinion of the court:

The plaintiff in error contends that [this matter] comes within that clause in the fifth amendment to the Constitution which inhibits the taking of private property for public use without just compensation. He insists that this amendment, being in favor of the liberty of the citizen, ought to be so construed as to restrain the legislative power of a State, as well as that of the United States. If this proposition be untrue, the court can take no jurisdiction of the cause.

The question thus presented is, we think, of great importance, but not of much difficulty.

The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation, and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily applicable to the government created by the instrument. They are limitations of power granted in the instru

ment itself; not of distinct governments, framed by different persons and for different purposes.

If these propositions be correct, the fifth amendment must be understood as restraining the power of the general government, not as applicable to the States. In their several constitutions they have imposed such restrictions on their respective governments as their own wisdom suggested; such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no farther than they are supposed to have a common interest.

If the original Constitution, in the ninth and tenth sections of the first article, draws this plain and marked line of discrimination between the limitations it imposes on the powers of the general government and on those of the States; if in every inhibition intended to act on State power, words are employed which directly express that intent, some strong reason must be assigned for departing from this safe and judicious course in framing the amendments, before that departure can be assumed.

We search in vain for that reason. . . . Had the framers of these amendments intended them to be limitations on the powers of the State governments they would have imitated the framers of the original Constitution, and have expressed that intention. Had Congress engaged in the extraordinary occupation of improving the constitutions of the several States by affording the people additional protection from the exercise of power by their own governments in matters which concerned themselves alone, they would