This Constitution Day, Let’s Celebrate Our Other Constitutions

Tucker Arensberg, P.C.
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Tucker Arensberg, P.C.

In the United States, September 17 is Constitution Day, the day that we commemorate the signing of the United States Constitution by the delegates to the Constitutional Convention in Philadelphia. I think we know the story: from May 25 to September 17, 1787, the delegates from all thirteen states met in Philadelphia, Pennsylvania to amend the Articles of Confederation. In the end, they decided to scrap the Articles and created a new Constitution, which was sent out for ratification by the states. The Constitution officially became the law of the land on June 21, 1788, when New Hampshire became the ninth state to ratify the document.

This Constitution Day, however, let’s also take a moment to commemorate our other constitution, or more accurately other constitutions.

The Constitutions of the United States

The most incredible period of constitution-making in American, perhaps even world, history was between 1776 to 1787. During this period between the signing of the Declaration of Independence in 1776 and the signing of the Constitution in 1787, fourteen individual state constitutions were simultaneously drafted and re-drafted by the newly independent states.[1]

Among them, Pennsylvania drafted what would be described as the most “democratic” of the state constitutions. Drafted immediately after the excitement of Declaration of Independence, and dedicated to realizing notions of liberty in government, the Pennsylvania Constitution of 1776 was the most “radical” of the state constitutions, going so far as to establish a one-house legislature of members elected to one-year terms (meaning perpetual elections) and establishing a twelve-member council to serve as the executive (given the fear of having only one person serve as governor).[2] Alas, the 1776 Constitution would not prove sufficient for Pennsylvania, and it was replaced in 1790. In fact, Pennsylvania has enacted five constitutions throughout its statehood, with the most recent constitution having been enacted in 1968.

Continuing Relevance?

With the ratification of the federal Constitution, do state constitutions still have a purpose? Well, yes. We Americans are notoriously proud of our federal Constitution and there’s plenty of reasons why. The Constitution enshrines some of our favorite rights. Where would we be without our freedom of speech and religion, our right to keep and bear arms, our rights to privacy, to vote, to not be slaves, and to become citizens upon being born on U.S. soil. Some of you will snicker at this list of rights given their ubiquity in the news and the legal challenges our courts face in fleshing out the extent of these rights. However, the media attention only goes to show how important these rights are to us as a nation.

So, what do the states have to do with it? For one, state constitutions are historically important, as many of the structures of our national Constitution are borrowed from state constitutions, and many of the rights listed in our Bill of Rights are lifted from state constitutions.[3]

But beyond the historical relevance of the state constitutions, modern state constitutions are still relevant today, especially in Pennsylvania.

Two Shots

In his 2018 book, 51 Imperfect Solutions, Jeffrey Sutton, Chief Judge of the Cincinnati-based United States Court of Appeals for the Sixth Circuit, proposed an analogy.[4] Suppose a college basketball player is fouled and is therefore given two free throws. The game is tied, and the player needs to only make one shot to win the game. Now, what would be the public reaction if the coach ordered the player to only make one of his two free throws, foregoing the other?

Chief Judge Sutton chuckles at the implausibility of the analogy. Yet, this is what lawyers tend to do when arguing the major cases of constitutional importance. Constitutional lawyers, Chief Judge Sutton writes, will argue the constitutionality of an order or a statute under the federal Constitution, but say nothing of the state constitution. When they lose the case, they typically give up. The U.S. Supreme Court has spoken. Where else is there to go?

Turns out, there are tons of places to go – state constitutions, governed by state supreme courts, have the ability to grant more constitutional protection than our national Constitution. In fact, state supreme courts are not only free to explore an independent analysis of constitutional issues under their own state constitutions but are encouraged to do so by the U.S. Supreme Court![5]

Chief Judge Sutton’s book, then, is a reminder to constitutional lawyers – they have two shots. Don’t give up just because the first one misses!

The book is a breath of fresh air, especially in a time when the biggest legal cases of political importance, those dealing with everything from gun rights to abortion to searches and seizures, are decided by nine judges not subject to electoral scrutiny. Turns out, the buck does not always stop with the U.S. Supreme Court after all.  However, Chief Judge Sutton’s insight, while timely, is not new. In fact, Pennsylvania has been particularly active in developing its own, independent constitutional law.

Edmunds and Pennsylvania Constitutional Law

In 1991, the Supreme Court of Pennsylvania decided Commonwealth v. Edmunds, a case which revitalized Pennsylvania constitutional law by providing a new mode of analysis.[6] In Edmunds, the Pennsylvania Supreme Court examined the “good faith” exception to the “exclusionary rule.”

The “exclusionary rule” was developed by the United States Supreme Court in 1914. Provisions of the Bill of Rights (made applicable to the States by the 14th Amendment) protect against unreasonable searches and seizures and against self-incrimination, as well as guarantying a right to counsel. In the 1914 decision Weeks v. United States, the United States Supreme Court determined that evidence obtained in violation of the Fourth Amendment’s protection against unreasonable searches and seizures must be “excluded” from evidence. However, this only applied to evidence obtained by the federal government. It was not until the 1961 decision Mapp v. Ohio that the United States Supreme Court required all the states to also exclude evidence that was unlawfully obtained.

Since the creation of the exclusionary rule, however, the rule has been limited in many ways. Notably, in the 1984 United States Supreme Court decision, United States v. Leon, it was determined that evidence obtained under a defective warrant should not be excluded if the officer relied upon the warrant in “good faith.” Thus, in Leon, a police officer prepared a defective affidavit and obtained a search warrant from a judge. The police seized evidence because they relied on the judge’s search warrant. The evidence obtained was not excluded because the officers had relied in good faith that the judge’s search warrant was properly issued.

That was in 1984. In 1991, the Pennsylvania Supreme Court was faced with a similar issue. Police officers had submitted a defective affidavit and the judge issued the search warrant. The officers relied on the warrant in good faith and seized evidence. The defendant sought relief under Article I, Section 8 of the Pennsylvania Constitution, arguing that Pennsylvania was under no obligation to adopt the federal government’s good faith exception. The trial court and the Superior Court examined Article I, Section 8, which, like Article 4 of the Bill of Rights, protects against unreasonable searches and seizures. Finding the language sufficiently similar, the trial court and Superior Court determined that the Pennsylvania Constitution offered no greater protection than our federal Constitution, and the “good faith exception” was transplanted to Pennsylvania.

The Pennsylvania Supreme Court, however, saw the matter differently. In a decision authored by Justice Ralph J. Cappy, the Pennsylvania Supreme Court determined that the “good faith exception” did not apply to Pennsylvania, and the state constitution, therefore, offered greater protection than the federal Constitution.

This decision was significant, in that it established a divergence between state and national constitutions. However, Justice Cappy’s decision was even more significant, in that it created a model for analysis for future cases of constitutional importance when provisions of our state constitution mirrored that of the federal. Thus, lawyers wishing to argue cases specifically under the Pennsylvania, rather than the national, Constitution must “brief and analyze” the following four factors:

  1. Text of the Pennsylvania constitutional provision;
  2. History of the provision, including Pennsylvania case-law;
  3. Related case-law from other states;
  4. Policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence.[7]

This test has established the direction of our state constitutional law, providing a means of independent analysis unique from review by the United States Supreme Court. Indeed, this analysis appears to support a review entirely independent from the federal Constitution, specifically welcoming examination of case law from other states over the case law of the United States Supreme Court.

Duquesne University President Ken Gormley celebrated Edmunds as a critical case in the development of state constitutional law in the midst of the “New Federalism,” and in a 1993 article described the case as being the “official starting point of a new constitutional era in Pennsylvania.”[8]

Further, the Edmunds analysis is not only limited to provisions of Pennsylvania’s constitution that mirror provisions in the federal Constitution. Rather, the four factors of this analysis are even applicable to provisions of the state constitution that do not have a counterpart in the federal Constitution.[9] Indeed, the state constitution protects more rights than the national Constitution, including Article 1, Section 1’s protection of a person’s right to reputation, and Article 1, Section 27’s protection of a right to clean air, pure water, and the preservation of the environment.

Chief Judge Sutton’s book is a reminder to all Americans that the United States Supreme Court is not the last stop for the big cases of American constitutional law. Pennsylvania, however, has recognized this since 1991, and has developed a robust body of state constitutional law in the decades following Edmunds.

This Constitution Day, let’s continue to celebrate our federal Constitution. However, let’s also remember our other constitution, indeed our other constitutions. Those documents remain as much a protector of notions of liberty and justice as the national document that we treasure. 


[1] Even Vermont, not one of the original thirteen colonies, drafted its own constitution in 1777.

[2] Robert F. Williams, The Influences of Pennsylvania’s 1776 Constitution on American Constitutionalism During the Founding Decade, 112 Penn. Mag. Of History & Biography 25 (1988).

[3] The Massachusetts Constitution of 1780, written by John Adams, and the Virginia Constitution of 1776, drafted by George Mason and James Madison, among others, were probably the most influential. Donald S. Lutz has an interesting volume entitled Colonial Origins of the American Constitution, which provides a documentary history of the historical, colonial documents among the individual states which provided the foundation of our national Constitution.

[4] Jeffrey Sutton, 51 Imperfect Solution (2018).

[5] Prune Yard Shopping Center v. Robins, 447 U.S. 74, 80-81 (1980).

[6] Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991).

[7] This was done to ensure that a Pennsylvania Supreme Court decision established the “adequate and independent state grounds” which would disable the United States Supreme Court from granting certiorari to hear an appeal from the Pennsylvania Supreme Court. Typically, if a state supreme court interprets the national constitution, the U.S. Supreme Court could review it. However, if the state supreme court is completely interpreting state law or the state constitution, the U.S. Supreme court cannot review.

[8] Ken Gormley, The Pennsylvania Constitution After Edmunds, 3 Widener J. Pub. L. 55, 56 (1993).

[9] League of Women Voters v. Commonwealth, 178 A.3d 737, 803 (Pa. 2018).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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