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2008 Cal. Sup. Ct. Hist. Soc'y Newsl. 1 (2008)

handle is hein.journals/casrecths2008 and id is 1 raw text is: THE CALIFORNIA SUPREME COURT J Historical Society NEWSLETTER - SPRING/SUMMER 2008 The California Supreme Court and State Constitutional Rights-The Early Years BY JOSEPH R. GRODIN, PROFESSOR, UC HASTINGS COLLEGE OF THE LAW; ASSOCIATE JUSTICE, CALIFORNIA SUPREME COURT (RET.) Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution., The proposition that the California Constitution is a source of rights independent of the federal Con- stitution was not new in 1974, when the state Consti- tution was amended to make that proposition explicit. Indeed, the framers of the state Constitution would have been astonished to Learn otherwise. In 1849, when the delegates to the first state constitutional con- vention adopted as the first article of their enterprise a Declaration of Rights, the United States Supreme Court had already made clear, in Barron v. Baltimore, that the federal Bill of Rights restricted only the national government, and did not limit state author- ity. Article I, section 10 of the federal Constitution prohibited states from enacting certain laws, including bills of attainder, ex post facto laws, and laws impair- ing the obligation of contract, and the high court held that certain state regulations in derogation of federal authority were impliedly prohibited, but otherwise the original federal Constitution provided little or no sup- port for citizens claiming rights against their state. And while the 13th, 14th, and 15th Amendments to the federal Constitution cearly did apply to the states, the high court in the Staughter-House Cases held only a few years after their adoption that they had only very limited scope, rendering them virtually meaningtess outside the area of race discrimination. And so, in 1879 when the delegates to the sec- ond state constitutional convention reiterated article I they, too, had to assume that, except within that limited area, the rights of state citizens against their government would be pro- tected by the Constitution they were adopting, or not at all. Indeed, a proposal to add language declaring the United States Constitution to be the great charter of our liberties was met with denunciation and rejec- tion: We had state char- ters before there was any Joseph R. Grodin Constitution of the United States observed one delegate; The state constitu- tion is as much or more the charter of our liberties declared another; reliance on the federal Constitution as the principal author of liberties would be a mistake historically, a mistake in law, and it is a blunder all around. The delegates contented themsetves with a declaration that the State of California is an insepa- rabte part of the Union, and the United States Consti- tution is the supreme law of the land. It was not until the new century and Loch- ner v. New York that the high court established the proposition that the Due Process Clause of the 14th Amendment contained substantive protection against deprivation of economic liberty, and the broader incor- poration of portions of the Bill of Rights into the 14th Amendment came Later, and only bit by bit.2 Mean- while, with respect to actions by state government, the state Constitution was pretty much the only game in town. Article I of the California Constitution, Declara- tion of Rights, was the first substantive item on the NEWSLETTER . SPRING/SUMMER 2008

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