A House Divided: When State and Lower Federal Courts Disagree on Federal Constitutional Rights

"The operation of a double system of conflicting laws in the same state is plainly hostile to the reign of law. Janus was not a god of justice." (1) Despite our many differences, "We the People" (2) take as a given that rights contained in our Federal Constitution will apply with equal force throughout the land. As John Jay put it in The Federalist No. 22, "we have uniformly been one people; each individual citizen everywhere enjoying the same national rights, privileges, and protection." (3) To better ensure federal rights uniformity, the Framers included the Supremacy Clause in the Constitution (4) and ordained that there be "one supreme Court" (5) to harmonize what Justice Joseph Story termed "jarring and discordant judgments" (6) of lower courts, giving rise to "public mischiefs." (7) Federal constitutional rights, however, have never applied in uniform fashion nationwide, and rights uniformity has long numbered among the legal myths de Tocqueville recognized as central to American governance. (8) In a recent article, I chronicled how federal rights disuniformity plays out in the context of the nation's twelve regional federal circuit courts of appeal. (9) Focusing on Fourth Amendment doctrine in particular, the article highlighted the existence of over three dozen circuit splits, many concerning quite common and basic search and seizure issues. (10) The variation underscored the challenge entailed in realizing the Supreme Court's expectation that the Fourth Amendment is "enforceable in the same manner and to like effect" nationwide. (11) The article also surveyed the many practical and theoretical ramifications of what Justice Scalia recently condemned as a "crazy quilt" of federal constitutional rights, (12) generated by a single sovereign's judicial system--the nation's federal circuit courts. This Article shifts focus, examining state court contributions to federal constitutional diversity. Typically operating out of the public and scholarly limelight, state courts have long shared a concurrent obligation with lower federal courts to interpret the U.S. Constitution (13) and protect the rights contained in it. (14) Critically important as well, state courts do so independently of their federal counterparts. They need not defer to the constitutional positions adopted by federal circuit courts, (15) including those in which they are geographically situated, (16) which lack direct appellate review authority over them. (17) As a consequence, on all issues other than the comparatively narrow range of questions expressly addressed by the Supreme Court, (18) state and lower federal courts are free to disagree, creating conditions ripe for the constitutional conflict feared by the Framers. This Article provides the first in-depth examination of state-federal concurrent constitutional authority and does so by focusing on a context in which its consequences are most problematic: within individual states. While a handful of articles over the years have examined state court power vis-a-vis federal constitutional questions more generally, (19) no systematic effort has been undertaken to examine intrastate, state-federal conflict on federal constitutional questions. (20) This Article redresses this deficit, using as its doctrinal locus federal constitutional criminal procedure, with its unique impact on government power and individual liberty and privacy. The Article proceeds as follows: Part I begins by providing an overview of the growing power of state courts to interpret and apply federal constitutional provisions, and then considers the important benefits of state court involvement. State court decisions, much like state legislative enactments extolled by Justice Brandeis, (21) provide a basis for real-world experiments to gauge the effects of doctrine, cabined (unlike the decisions of federal circuits) to individual states. The decisions themselves, moreover, originate in a context that is in many ways distinct from that of federal courts. …