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The Green Bag

it is possible without the recall to remedy this situation. Practically all of our state constitutions contain guaranties as to 'due process' and 'equal protection* equivalent to those in the Fourteenth Amendment. If the constitutionality of a state law is contested as violating these provisions, the state court may hold the state law invalid as violating either state or federal constitutional provisions or both. If such a state decision is based on federal constitutional grounds it is final, for at present there is no appeal to the United States Supreme Court from a state decision upholding a federal constitutional right which is set up, even though the state decision is less liberal than decisions of the United States Su preme Court. If a state court bases its declaration of unconstitutionality on state constitutional grounds, here again its decision is final, unless overruled by a change in the state constitution. "But if state courts have abused their power to declare state laws unconsti tutional on 'due process' and 'equal protection' grounds, it is possible to remedy the situation by two measures, the one involving a change in state con stitutions, and the other an act of Con gress: "(1) The states may strike the 'due process of law' and the 'equal protec tion of the laws' clauses from their con stitutions. These clauses must mean the same thing in state constitutions as in the federal constitution, although it must be said that they are often inter preted to mean different things, and since the Fourteenth Amendment, state con stitutional provisions of this character have served no useful purpose, for pri vate rights are adequately safeguarded by that amendment. "(2) If the guaranties of 'due pro fess' and 'equal protection' were stricken crom the state constitutions, we would

still have these guaranties in the Four teenth Amendment enforcible by both state and federal courts. The power of a state court to declare a state law to be a violation of the federal Constitution is beyond state control. And the 'due process' and 'equal protection' clauses, as limitations upon the states, are now too firmly embedded in our federal con stitutional law to be changed. But if the 'due process* and 'equal protection* clauses are stricken from state constitu tions, state decisions declaring state laws unconstitutional upon these grounds must be based on the federal constitu tional provisions, and it should be pos sible without great difficulty to obtain a prompt and uniform interpretation of these federal clauses for the whole country by an amendment to the Fed eral Judicial Code, so as to permit re view by the United States Supreme Court of state decisions holding state laws invalid on federal constitutional grounds." Where federal and state constitutions contain practically identical limitations upon the states, the state limitation in such a case serves to safeguard no rights not adequately safeguarded by the fed eral limitation. This is especially true as to our state "due process laws" and "equal protection of the laws clauses," which in so far as they serve any pur pose merely serve as a basis for illiberal state decisions holding a law not "due process of law" under state constitu tional provisions when the same law would pretty clearly not be held by the United States Supreme Court to violate the "due process of law" clause of the Fourteenth Amendment. What I propose is therefore, (1) a reduction of the power of state courts to declare laws invalid on the basis of state constitutional provisions identical with limitations upon the states in the federal