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Bar Journal - Summer 2004

New Hampshire and the Methodology of the New Judicial Federalism


By dusting off our state constitutions, judges can be "activists" in the best sense of the word and breathe life into the fifty documents. If we let them atrophy in our respective states, we will not only have failed to live up to our oaths to defend those constitutions but will have helped to destroy federalism as well.

Justice Charles G. Douglas, III1

[A] party seeking a state constitutional ruling in this court has no less a duty to us than he has to the trial court: to state the issue directly and to develop supporting arguments premised on policy or authority.

Justice David Souter2

The State of New Hampshire has had a very important role in the development of the New Judicial Federalism ("NJF"), where state courts have interpreted their state constitutions to provide more protection than the federal constitution. The NJF has now reached a state of relative maturity.3 The maturation process, however, was based on a number of building blocks, including both academic commentary and judicial decisions. Justice Charles Douglasí influential article,4 which was published in 1978, only one year after Justice William Brennanís more famous article,5 played a very influential role in raising the consciousness of the New Hampshire bench and bar concerning state constitutional law. Justice Douglas noted:

Ultimately it will be up to the appointed and elected state judges to set their own houses in order by active study and planning to improve their judicial systems and image, by talking to law clerks about the need to research and use state constitutions first, and then by taking the time to decide intellectually and deliberately what is wanted in their states in the light of the state constitutions.6

Five years after Justice Douglas published his seminal article on federalism, the New Hampshire Supreme Court issued its decision in State v. Ball.7 State v. Ball, also written by Justice Douglas, marked the beginning of the countryís most sustained commitment to the methodological approach to state constitutional rights interpretation that we now refer to as the "primacy approach."8 The New Hampshire Supreme Court has consistently treated state constitutional law claims before reaching federal constitutional claims.

Three years after Ball, Justice John Paul Stevens quoted extensively from Justice Douglasí Ball opinion in his dissent from the United States Supreme Courtís decision to hear, and then vacate and remand, a Delaware case.9 In his dissent, Justice Stevens was continuing his criticism of the approach adopted by the Court three years earlier in Michigan v. Long, where the Court concluded that state high court decisions which were unclear whether they were based on state or federal constitutional law would be within the Courtís jurisdiction unless they contained a "plain statement" that they were based on an adequate and independent state ground.10 After quoting with approval from the Ball opinion, he stated: "[S]ince 1983, in over a dozen cases, the New Hampshire Supreme Court has thereby averted unnecessary disquisitions on the meaning of the Federal Constitution. The emerging preference for state constitutional bases of decision in lieu of federal ones is, in my view, the analytical approach best suited to facilitating the independent role of state constitutions and state courts in our federal system."11 The New Hampshire approach was therefore held up by Justice Stevens as a model for the other states. The New Hampshire Supreme Courtís approach, reflected in Ball and followed ever since, has provided an extremely effective implementation of the Michigan v. Long directive that should be a model for all states.

State v. Goss, a recent decision by the New Hampshire Supreme Court suppressing evidence obtained in the warrantless seizure of a personís garbage placed at the curb, illustrates a number of the lessons we have learned during the evolution of the NJF.12 This 2003 decision reached a different conclusion about such searches of garbage from that reached in 1988 by the United States Supreme Court in California v. Greenwood.13 The United States Supreme Courtís decision in Greenwood, therefore, represented not the end of constitutional litigation on the matter, but rather the "middle"14 of American constitutional litigation. After the Courtís decision in Greenwood, its "ripple effect" could be observed as a number of state courts took a "second look"15 at the question under their state constitutions. Those earlier state constitutional garbage search cases also illustrated a variety of lessons about the evolution of the NJF.16

The United States Supreme Courtís Greenwood decision included, in the majority opinion, the reminder that "[i]ndividual states may surely construe their own constitution as imposing more stringent constraints on police conduct than does the Federal Constitution."17 This statement, of course, expresses a truism but it is nevertheless an important boost for lawyers and state judges assessing the importance of independent interpretation of state constitutions.

The process of "second looks" at constitutional questions under state constitutions has also been referred to by Professor Robert Cover as reflecting "jurisdictional redundancy."18 Professor Cover identified three areas in which federal-state jurisdictional redundancy is a good thing. First, he identified the differing interests of state and federal judges ("the judge...who simply shares a world-view with the dominant elite").19 Second, Cover identified the differing ideologies of state and federal judges ("the decision makerís construction of reality was distorted by the social determinants of his mental world").20 Finally, he noted such judgesí differing approaches to innovation of norms ("innovation in norm articulation is healthier in a federal system").21 In addition, Cover noted that redundancy in constitutional interpretation could be either "confirmatory" or "nonconfirmatory."22 The New Hampshire Supreme Courtís decision to strike down a warrantless garbage search, therefore, constitutes an example of "nonconfirmatory" norm articulation based on jurisdictional redundancy.

Justice David Souter made an important observation about the importance of lawyersí efforts in raising and articulating state constitutional claims in 1986 while he sat on the New Hampshire Supreme Court:

Nowhere is the need greater than in the field of State constitutional law, where we are asked so often to confront questions that have already been decided under the National Constitution. If we place too much reliance on federal precedent we will render the State rules a mere row of shadows; if we place too little, we will render State practice incoherent. If we are going to steer between these extremes, we will have to insist on developed advocacy from those who bring the cases before us.23

In Justice Souterís assessment, treating state constitutional provisions as mere shadows of their federal counterparts would be a negative form of redundancy in the federal system. This approach, of course, would yield none of the benefits pointed out by Professor Cover.

Cases such as those concerning garbage searches, which arise after a definitive ruling by the United States Supreme Court foreclosing any federal claim, are still influenced in very important ways by the earlier decision of the Supreme Court. That decision casts either a shadow24 or glare25 over the proceedings under the state constitution in the state court. It is important to remember here, however, that decisions about federal constitutional rights by the United States Supreme Court are of two types: those holding in favor of asserted federal constitutional rights, and therefore becoming the supreme law of the land, and those holding against asserted federal constitutional rights and therefore leaving the matter to the fifty states.26 These latter cases do, quite literally, leave the matter for resolution under state constitutions, or state statutory or common law.27 Still, the United States Supreme Court decision ruling against the federal constitutional rights can be very influential. As stated above, the majority can acknowledge the possibility of differing outcomes under state constitution.28 In addition, the majority opinion may reflect, expressly or by implication, deference to the states as a partial rationale for declining to recognize federal constitutional rights.29 Such decisions may also reflect "strategic concerns" about the practical application of a single national ruling applicable in all fifty states.30 It is for this reason that Justice Robert Utter of the Washington Supreme Court, referring to the United States Supreme Court, noted: "The court must . . . establish a rule which accounts for all the variations from state to state and region to region. The rule must operate acceptably in all areas of the nation and hence it invariably represents the lowest denominator."31

The New Hampshire garbage search decision also indicates another important way that the earlier Supreme Court decision ruling against asserted federal constitutional rights can have an important impact on the ensuing state constitutional litigation. In the New Hampshire case, the dissenting opinion of Justice Brennan in Greenwood proved to be more influential than the Supreme Courtís majority opinion.32 I commented on this phenomenon elsewhere:

Supreme Court dissents can and do have a significant impact upon state courts confronting the same constitutional problem the dissenter believes the Court decided incorrectly. In this sense, state courts have become a new audience for Supreme Court dissents on federal constitutional questions that may also arise under state constitutions. Thus, dissenters may be vindicated more quickly, but only on a state-by-state basis.33

The New Hampshire garbage search decision also reflects the use of the "horizontal federalism" approach of relying on other state high court decisions on the matter under their state constitution, as opposed to only the vertical view at what the United States Supreme Court decided on the matter.34 In Goss, Justice Nadeau stated "[w]e acknowledge that in finding protection under our State Constitution under these circumstances, we join a small minority of courts. . . . Like the court in Hempele, however, Ďwe are persuaded that the equities so strongly favor protection of a personís privacy interest that we should apply our own standard rather than defer to the federal provision.í"35 As an aside, one might have thought the New Hampshire Supreme Court would give special weight the Massachusettsí view of this matter, because of the influence of the Massachusetts Constitution on New Hampshireís Constitution, but it did not follow the 1990 Massachusettsí decision in Commonwealth v. Pratt upholding garbage searches.36

Interestingly, the New Hampshire court did not rely on any previously articulated criteria or factors to justify reaching a different result from that of the United States Supreme Court. I have described the "criteria approach" as follows:

Under this methodology, the state supreme court . . . sets forth a list of circumstances (criteria or factors) under which it says it will feel justified in interpreting its state constitution more broadly than the Federal Constitution. These criteria, then, are used by advocates to present, and judges to decide, claims made under the state constitution in cases where there is also a federal claim that is unlikely to prevail. On the one hand, the criteria approach is laudable because it teaches and calls attention to the nature of state constitutional arguments. On the other hand, however, I have been critical of this approach for a number of reasons that I believe have demonstrated themselves in the past fifteen years.37

New Yorkís Chief Judge Judith Kaye has made the point very clearly:

Second, I disagree with the dissent that, in an evolving field of constitutional rights, a methodology must stand as an ironclad checklist to be rigidly applied on pain of being accused of lack of principle or lack of adherence to stare decisis. We must of course be faithful to our precedents, as I believe we are in the cases now before us. But where we conclude that the Supreme Court has changed course and diluted constitutional principles, I cannot agree that we act improperly in discharging our responsibility to support the State Constitution when we examine whether we should follow along as a matter of State lawĖwherever that may fall on the checklist.38

Actually, the New Hampshire garbage search case seems to be based on a reasoned disagreement with the outcome adopted by the majority of the United States Supreme Court fifteen years earlier. Chief Justice Shirley Abrahamson, of the Supreme Court of Wisconsin, made this point in discussing the earlier state constitutional garbage search cases.39 She posed the following questions:

But should not different opinions about individual rights in search and seizure cases be expected and accepted? Differences in interpretation of the state and federal constitution should be viewed, I believe, as examples of the difficulties of interpreting language, especially the broad phrases of a bill of rights. . . . We accept division of opinion within the United States Supreme Court on interpretations of constitutional language. . . . Why should state courts not closely examine a federal decision to determine whether it is sufficiently persuasive to warrant adoption into state law?40

Chief Justice Abrahamson reported that she conducted "her own unscientific survey of Wisconsinitesí views on garbage." The "general consensus" was that oneís garbage is private. "These views raise questions about how a court determines societyís reasonable expectation of privacy.41

As noted, the New Hampshire garbage search case illustrates these points. Justice Broderickís dissenting opinion simply saw the matter differently from the majorityís view:

Because I believe that everyday life experience confirms that any subjective expectations we may have of hoped-for privacy in our discarded trash are not objectively borne out, I cannot support a holding that extends constitutional protection to the defendantís trash.42

Further confirmation of Chief Justice Abrahamsonís "different opinions" approach is provided by the Arkansas Supreme Court, which soon after the New Hampshire Goss decision went the other way, following the Supreme Courtís Greenwood approach.43

As Justice Douglas pointed out twenty-six years ago,44 the New Hampshire Constitution is a document of independent force.45 The treatment of it as such by the New Hampshire Bar and Supreme Court provides a model for the nation.


* Distinguished Professor of Law, Rutgers University School of Law, Camden. This article is an extended version of a presentation made on February 13, 2004 at a New Hampshire Bar Association Continuing Legal Education program entitled "The New Hampshire Constitution: A Constitutional Analysis 20 Years After State v. Ball," convened by the New Hampshire State Bar Association in Bedford, New Hampshire. The program is available on tape or online under NHBA-CLE.

  1. Honorable Charles G. Douglas, III, State Judicial Activism-The New Role for State Bills of Rights, 12 Suffolk U.L. Rev. 1123, 1150 (1978).
  2. State v. Bradberry, 129 N.H. 68, 82 (1986) (Souter, J., concurring specially).
  3. See generally Robert F. Williams, The Third Stage of the New Judicial Federalism, 59 N.Y.U. Ann. Surv. Am. L. 211 (2003).
  4. Douglas, supra note 1.
  5. William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977).
  6. Douglas, supra note 1, at 1148-49.
  7. 124 N.H. 226 (1983).
  8. The term "primacy approach" is associated with Justice Hans Linde of Oregon, who had advocated the approach long before it was adopted in New Hampshire, and who was cited as authority in the Ball decision. Ball, 124 N.H. at 231, citing State v. Kennedy, 666 P. 2d 1316, 1323 (Or. 1983). Oregonís approach to state constitutional rights interpretation has also remained relatively consistent. See State v. Moylett, 836 P. 2d 1329, 1332 (Or. 1992).
  9. Delaware v. Van Arsdall, 475 U.S. 673, 703-04 (1986) (Stevens, J., dissenting).
  10. 463 U.S. 1032 (1983).
  11. 475 U.S. at 704.
  12. State v. Goss, 834 A.2d 316 (N.H. 2003).
  13. 486 U.S. 35 (1988).
  14. Robert F. Williams, In the Supreme Courtís Shadow: Legitimacy of State Rejection of Supreme Court Reasoning and Result, 35 S.C.L. Rev. 353, 360 (1984).
  15. Id. at 361.
  16. See Robert F. Williams, In the Glare of the Supreme Court: Continuing Methodology and Legitimacy Problems in Independent State Constitutional Rights Adjudication, 72 Notre Dame L. Rev. 1015, 1039-46 (1997).
  17. 486 U.S. at 43.
  18. Robert M. Cover, The Uses of Jurisdictional Redundancy: Interest, Ideology, and Innovation, 22 Wm. & Mary L. Rev. 639 (1981).
  19. Id. at 660-61.
  20. Id. at 664.
  21. Id. at 673.
  22. Id. at 674-75.
  23. State v. Bradberry, 129 N.H. 68, 83 (1986) (Souter, J., concurring specially) (emphasis added). See also Arpiar G. Saunders, Jr., The New Hampshire Constitution and Individual Rights: "Developed Advocacy" Required, 28 N.H.B.J. 327 (1987).
  24. Williams, supra note 14.
  25. Williams, supra note 16.
  26. Robert F. Williams, Methodology Problems in Enforcing State Constitutional Rights, 3 Ga. St. U.L. Rev. 143, 166 (1986-87).
  27. Judith S. Kaye, Foreword: The Common Law and State Constitutional Law As Full Partners in the Protection of Individual Rights, 23 Rutgers L.J. 727 (1992).
  28. Note 17, supra, and accompanying text.
  29. Williams, supra note 14, at 389-97.
  30. Lawrence Gene Sager, Foreword: State Courts and the Strategic Space Between the Norms and Rules of Constitutional Law, 63 Tex. L. Rev. 959 (1985).
  31. Alderwood Assocs. v. Washington Envtl. Council, 635 P.2d 108, 115 (Wash. 1981), citing Project Report: Toward An Activist Role for State Bills of Rights, 8 Harv. C-R.C-L.L. Rev. 271, 290 (1973) (emphasis added). In Traylor v. State, 596 So. 2d 957 (Fla. 1992), Chief Justice Leander Shaw noted: "The federal Bill of Rights facilitates political and philosophical homogeneity among the basically heterogeneous states by securing, as a uniform minimum, the highest common denominator of freedom that can prudently be administered throughout all fifty states." Id. at 962 (emphasis added).
  32. State v. Goss, 834 A.2d 316, 319 (N.H. 2003).
  33. Williams, supra note 14, at 375-76. Justice Brennan also made the point about the possible influence of Supreme Court dissents in developing state constitutional law. William J. Brennan, Jr., In Defense of Dissents, 37 Hastings L.J. 427, 430 (1986).
  34. G. Alan Tarr and Mary Cornelia Aldis Porter, State Supreme Courts In State and Nation 2 (1988).
  35. 834 A.2d at 320, quoting State v. Hempele, 576 A.2d 793, 814 (N.J. 1990).
  36. 555 N.E. 2d 559 (Mass. 1990).
  37. Williams supra note 16, at 1021-22.
  38. People v. Scott and People v. Keta, 593 N.E. 2d. 1328, 1346 (N.Y. 1992) (Kaye, J., concurring) (emphasis added).
  39. Shirley S. Abrahamson, Divided We Stand: State Constitutions in a More Perfect Union, 18 Hastings Const. L.Q. 723, 725-33 (1991).
  40. Id. at 731.
  41. Id. at 729 n. 26. Chief Justice Abrahamson considered the problem of "legislative facts" concerning the expectation of privacy in State v. Rewolinski, 464 N.W. 2d 401, 414 n.1 (Wis. 1990) (Abrahamson, J..dissenting).
  42. Goss, 834 A.2d at 322 (Broderick, J., dissenting).
  43. Rikard v. State, 23 S.W.3d 114 (Ark. 2003).
  44. Douglas, supra note 1.
  45. See Susan E. Marshall, The New Hampshire State Constitution: A Reference Guide (forthcoming 2004).


Professor Robert F. Williams is a Distinguished Professor of Law, Rutgers University School of Law, Camden.



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