The former Great Gorge Playboy Resort in New Jersey seems an unlikely place to help form a jurisprudential movement toward reliance on state constitutions to protect civil rights and liberties.
One need only turn back the clock to 1976 to find the story of one of the most significant moments in the rise of state constitutions. Anyone who is steeped in this movement is likely familiar with the lead article in the January 1977 issue of the Harvard Law Review, “State Constitutions and the Protection of Individual Rights.” The author was U.S. Supreme Court Justice William J. Brennan Jr.
When Justice Brennan died in July 1997, the obituary by New York Times Supreme Court correspondent Linda Greenhouse observed, “The article became one of the most frequently cited law review articles in history, and the results were apparent in a rapidly growing number of state supreme court rulings that relied on state constitutions to expand individual rights.”
Less well known is the rocky path the highly influential article had to its publication and the impact that followed.
To celebrate Brennan’s 70th birthday and 20th year on the Court, the New Jersey State Bar Association invited the justice, a native son of the state, to deliver an address at a spring meeting on May 22, 1976. The location was the Great Gorge Playboy Resort in Vernon, New Jersey, which was opened by publisher Hugh Hefner in 1972 and sold a decade later.
Hundreds of judges and lawyers came to pay tribute to Brennan and to hear him speak. But with all the revelry of the Playboy Club and a bagpipe band, Irish singers, and other preliminary speakers, Brennan would recall that it was late in the evening when he began his speech. With the audience dwindling, the mood raucous, and those who remained paying little attention, Brennan decided to cut the speech short. “Maybe a third of it was delivered, and nobody listened to a damn word of it,” Brennan recalled.
Brennan had planned an important message. He saw a U.S. Supreme Court under Chief Justice Warren Burger (1969–1986) that was becoming less protective of constitutional rights and urged state supreme courts to look to their own state constitutions to provide more protection for civil rights and liberties.
Based on an advanced copy of the speech, the Washington Post reported the next day on Brennan’s call to arms for state constitutions, but otherwise, the largely undelivered speech received little notice and would likely have had little impact. However, with the help of one of his law clerks, Brennan’s speech went from potential obscurity to the lead article of the Harvard Law Review. New Jersey Supreme Court Justice Stewart G. Pollock would later describe Brennan’s article as “the Magna Carta of state constitutional law.”
Brennan’s Harvard article spelled out a framework and rationale for relying on state constitutions. He wrote that “state courts no less than federal are and ought to be the guardians of our liberties.” He continued that “state courts cannot rest when they have afforded their citizens the full protections of the federal Constitution.”
Brennan’s premise was that while the Court under Chief Justice Earl Warren had dramatically expanded and strengthened constitutional protections for individual rights in the 1960s, the 1970s saw limitations on such protections. He described the curtailment of those constitutional protections at considerable length. Brennan complained that “a solution that shuts the courthouse door in the face of the litigant with a legitimate claim for relief, particularly a claim of deprivation of a constitutional right, seems to be not only the wrong tool but also a dangerous tool. . . . The victims of the use of that tool are most often the litigants most in need of judicial protection of their rights—the poor, the underprivileged, the deprived minorities.”
State courts, he argued, needed to step in and pick up the protection of rights. The way state courts could do that, Brennan explained, was to interpret state constitutions to provide greater protection than the Supreme Court’s view of federal protections. “Some state decisions,” Brennan wrote, “have indeed suggested a connection between these recent decisions of the United States Supreme Court and the state court’s reliance on the state’s bill of rights.”
Brennan cited several of what were relatively pioneering decisions at the time. He praised a California Supreme Court decision, People v. Disbrow. The U.S. Supreme Court had ruled that statements made by an accused who did not receive Miranda warnings could still be used to impeach the accused’s testimony, even if it could not be used as direct evidence. The California Supreme Court ruled, however, that such statements could not be used to impeach the defendant’s testimony because the California state constitution does not allow it. Brennan quoted from the state court opinion touting the independence of the state constitution and the California court’s obligation to protect the state’s citizens “despite conflicting decisions of the United States Supreme Court interpreting the federal Constitution.”
Another example may have been even more influential for Brennan. State v. Johnson was decided by the New Jersey Supreme Court, a bench on which Brennan sat from 1952 to 1956, and written by Justice Mark Sullivan, with whom Brennan had worked on the lower New Jersey courts in the late 1940s. The issue was what standard to use to determine whether a search is validly based on the consent of a person who is not in custody. The U.S. Supreme Court had ruled that prosecutors did not have to prove that the subject knew he had a right to refuse consent and adopted instead a totality of the circumstances test. Justice Sullivan wrote that the U.S. Supreme Court’s decision settled the issue as far as the Fourth Amendment to the U.S. Constitution, but as Brennan quoted Sullivan, “we have the right to construe our state constitutional provision in accordance with what we conceive to be its plain meaning.” The New Jersey court ruled that under the state constitution, prosecutors must prove that a subject knowingly waived the right to decline a search.
Even as far back as 1976, Brennan said there were many other examples. Brennan wrote, “Other examples abound where states courts have independently considered the merits of constitutional arguments and declined to follow opinions of the United States Supreme Court they find unconvincing, even where the state and federal constitutions are similarly or identically phrased.”
Brennan also anticipated an important aspect of the interplay between state and federal constitutions. Examining questions of jurisdiction, Brennan noted that the U.S. Supreme Court is largely limited to ruling on issues that were decided on the basis of federal law or the U.S. Constitution but not cases decided solely on the basis of state law. Brennan wrote, “Some state courts seem apparently even to be anticipating contrary rulings by the United States Supreme Court and are therefore resting decisions solely on state law grounds.” He continued, “. . . the state decisions not only cannot be overturned by, they indeed are not even reviewable by, the Supreme Court of the United States.”
In his lifetime, Brennan’s impact became readily apparent. His Harvard Law Review article has been reprinted in collections of works on state constitutions, and his influence has been recognized widely in commentaries and symposia. Quite a legacy for a message that almost never happened.
