Arnold, The Honorable Richard S.

English

Valparaiso University

Valparaiso University Law Review Volume 26 Number 1 Symposium: The Bill of Rights Yesterday and Today: A Bicentennial Celebration Symposium: The Bill of Rights Yesterday and Today: A Bicentennial Celebration In Honor of Justice William J. Brennan, Jr.: Justice Brennan and the State Courts The Honorable Richard S. Arnold Follow this and additional works at: https://scholar.valpo.edu/vulr  Part of the Law Commons Recommended Citation The Honorable Richard S. Arnold, In Honor of Justice William J. Brennan, Jr.: Justice Brennan and the State Courts, 26 Val. U. L. Rev. (1991). Available at: https://scholar.valpo.edu/vulr/vol26/iss1/1 This Introduction is brought to you for free and open access by the Valparaiso University Law School at ValpoScholar. It has been accepted for inclusion in Valparaiso University Law Review by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staff member at scholar@valpo.edu. JUSTICE BRENNAN AND THE STATE COURTSRICHARD S. ARNOLD*Most of Justice Brennan's legal legacy, of course, will be found in hisopinions. Judges occasionally produce other writings, however, such as articlesand lectures, and one such piece by the Justice seems. to -me especially worthyof comment. In the interests of full disclosure, I confess at the outset that theJustice produced the work in question, at the James Madison Lectures, NewYork University, during the Term when I was with him. It is proper to add,lest the reader suspect otherwise, that this Lecture, first draft and all, was theJustice's personal work.' Neither of us law clerks (in those ancient days therewere only two) did a first draft. Not only the philosophy and the concepts,then, were original Brennan, but also the writing, in all its details. About allwe could claim was some proofreading and maybe a few footnotes.The title of the Lecture is The Bill of Rights and The States. It is reprinted,along with similar lectures by Chief Justice Warren and Justices Black andDouglas, in a little book called The Great Rights.' The ruling concept of theBrennan Lecture was that the Bill of Rights, originally conceived as limiting thefederal government only, was being gradually applied to the states, not by thewholesale incorporation advocated by Justice Black, but by a more conservativeprocess which Justice Brennan described as selective incorporation or"absorption."The Lecture, comprising only twenty printed pages, was delivered onFebruary 15, 1961. Its main thesis is important, but it is a subsidiary point,really made only in passing, that I wish to emphasize here. At the very end ofthe Lecture the Justice makes the following observation:It is reason for deep satisfaction' that many of the states effectivelyenforce the counterparts in state constitutions of the specifics of theBill of Rights. Indeed, some have been applied by states to an extentbeyond that required of the national government by the correspondingfederal guarantee.2Circuit Judge, United States Court of Appeals for the Eighth Circuit. Law Clerk to Mr.Justice Brennan, October Term, 1960.1. THE GREAT RjoHTs, (Edmond Cahn ed., 1963).2. Id. at 85 (footnote omitted).Arnold: In Honor of Justice William J. Brennan, Jr.:  Justice Brennan andProduced by The Berkeley Electronic Press, 1991VALPARAISO UNIVERSITY LAW REVIEW [Vol. 26In these two sentences is the germ of an idea which has grown more and moreimportant in American Constitutional Law in the last thirty years. As federalcourts, in the opinion of some, have increasingly narrowed those individualliberties protected by the Bill of Rights, state courts and state law have begunto assume a more important role. State constitutions are now increasinglyregarded as potential sources of individual rights, sources that are unaffected bythe trends of adjudication on the Supreme Court of the United States. Statecourts must of course give to individuals the full range of rights secured by theFederal Constitution. This is a floor, a minimum, below which the states maynot go. It is not, however, a ceiling or maximum. A state may create, asagainst itself, any additional rights it wishes, and it may use as a source for suchrights clauses in its own constitution, even for clauses worded exactly the sameas their federal counterparts, such as, for example, Due Process.We may use as an example one given by Justice Brennan in the 1961Lecture. In People v. Den Uyl,3 "the Supreme Court of Michigan applied thestate privilege against self-incrimination to exonerate from disclosure wheneverthere is a probability of prosecution in state or federal jurisdictions."' The ruleunder the Fifth Amendment to the Federal Constitution is otherwise.5 Underthe Fifth Amendment, no privilege exists against incriminating oneself under thelaws of a sovereign, including any state, other than the United States.As Justice Brennan went on to point out, state statutes, too, could be thesource of rights going beyond the Federal Constitution. My favorite exampleis given in his same footnote 66. On January 17, 1961, House Bill 111 wasintroduced in the Arkansas General Assembly. The bill provided that convictionor acquittal of an offense against the United States would be a bar to anArkansas prosecution for the same conduct. This proposition ultimately becamelaw,' contrasted with the rule under the Fourteenth Amendment to the FederalConstitution.' Indeed, when Justice Brennan learned of the bill that had beenintroduced in the Arkansas Legislature, I am proud to recall, he observed thatthe Southern states, in a way paradoxically, seemed in some ways to have akeener appreciation for the legal rights of individuals than some other sectionsof the country.This idea - that the state courts, interpreting their own law, and thushaving nothing to fear from the reviewing power of the Supreme Court of the3. 29 N.W.2d 284, 287 (Mich. 1947).4. THE GREAT RIGHTS, supra note 2, at 166 n.66.5. See, United States v. Murdock, 284 U.S. 141 (1931).6. ARK. CODE ANN. § 5-1-114 (1987).7. See, Bartkus v. Illinois, 359 U.S. 121 (1959) (state prosecution not barred by previousfederal conviction or acquittal for same conduct).Valparaiso University Law Review, Vol. 26, No. 1 [1991], Art. 1https://scholar.valpo.edu/vulr/vol26/iss1/11991]United States, could be the course of individual liberties greater than thosesecured by the Federal Constitution - has been elaborated in many ways andmany contexts since Justice Brennan referred to it in 1961. In fact, for manyyears the idea was a centerpiece of the Appellate Judges Seminars conducted bythe Institute for Judicial Administration at New York University. JusticeBrennan was a member of the faculty of that seminar for a number of yearsduring the 1960s, a capacity in which I followed him twenty years later. Groupafter group of state appellate judges were told -- and some few of them appearedsurprised to hear -- that the states' own constitutions could be independentsources of law, that due process of law under the Constitution of Texas, say,could create more rights than the identical phrase in the Federal Constitution.The point of all this is not that state courts must or should interpret theirown constitutions differently or more expansively than the Supreme Court of theUnited States interprets the Federal Constitution. The point is more basic:whether to adopt such more generous interpretations is a choice, and a choicewholly within the competence of the highest court of each state. The concept,really, is one of states' rights -- the right of a state, not to exercise moregovernmental power for itself, but to secure for its own citizens a greater degreeof individual freedom. And if, as time goes by, some of Justice Brennan'sopinions broadly interpreting the liberties of the citizen as guaranteed by theConstitution of the United States cease to commend themselves to a majority ofhis successors, perhaps some of the ideas in those opinions will turn up in thedecisions of state courts. If this happens, and there is evidence that it is alreadyhappening, there will be good reason to claim that the Brennan legacy has anadditional important part. This is altogether fitting for one who came to theSupreme Court of the United States after serving as a state-court judge at threedifferent levels.Arnold: In Honor of Justice William J. Brennan, Jr.:  Justice Brennan andProduced by The Berkeley Electronic Press, 1991Valparaiso University Law Review, Vol. 26, No. 1 [1991], Art. 1https://scholar.valpo.edu/vulr/vol26/iss1/1

In Honor of Justice William J. Brennan, Jr.:  Justice Brennan and the State Courts

ValpoScholar

Valparaiso University Law Review 
Volume 26 
Number 1 Symposium: The Bill of Rights 
Yesterday and Today: A Bicentennial 
Celebration 
Symposium: The Bill of Rights Yesterday and Today: A Bicentennial 
Celebration 
In Honor of Justice William J. Brennan, Jr.: Justice Brennan and 
the State Courts 
The Honorable Richard S. Arnold 
Follow this and additional works at: https://scholar.valpo.edu/vulr 
 Part of the Law Commons 
Recommended Citation 
The Honorable Richard S. Arnold, In Honor of Justice William J. Brennan, Jr.: Justice Brennan and the 
State Courts, 26 Val. U. L. Rev. (1991). 
Available at: https://scholar.valpo.edu/vulr/vol26/iss1/1 
This Introduction is brought to you for free and open 
access by the Valparaiso University Law School at 
ValpoScholar. It has been accepted for inclusion in 
Valparaiso University Law Review by an authorized 
administrator of ValpoScholar. For more information, 
please contact a ValpoScholar staff member at 
scholar@valpo.edu. 
JUSTICE BRENNAN AND THE STATE COURTS
RICHARD S. ARNOLD*
Most of Justice Brennan's legal legacy, of course, will be found in his
opinions. Judges occasionally produce other writings, however, such as articles
and lectures, and one such piece by the Justice seems. to -me especially worthy
of comment. In the interests of full disclosure, I confess at the outset that the
Justice produced the work in question, at the James Madison Lectures, New
York University, during the Term when I was with him. It is proper to add,
lest the reader suspect otherwise, that this Lecture, first draft and all, was the
Justice's personal work.' Neither of us law clerks (in those ancient days there
were only two) did a first draft. Not only the philosophy and the concepts,
then, were original Brennan, but also the writing, in all its details. About all
we could claim was some proofreading and maybe a few footnotes.
The title of the Lecture is The Bill of Rights and The States. It is reprinted,
along with similar lectures by Chief Justice Warren and Justices Black and
Douglas, in a little book called The Great Rights.' The ruling concept of the
Brennan Lecture was that the Bill of Rights, originally conceived as limiting the
federal government only, was being gradually applied to the states, not by the
wholesale incorporation advocated by Justice Black, but by a more conservative
process which Justice Brennan described as selective incorporation or
"absorption."
The Lecture, comprising only twenty printed pages, was delivered on
February 15, 1961. Its main thesis is important, but it is a subsidiary point,
really made only in passing, that I wish to emphasize here. At the very end of
the Lecture the Justice makes the following observation:
It is reason for deep satisfaction' that many of the states effectively
enforce the counterparts in state constitutions of the specifics of the
Bill of Rights. Indeed, some have been applied by states to an extent
beyond that required of the national government by the corresponding
federal guarantee.2
Circuit Judge, United States Court of Appeals for the Eighth Circuit. Law Clerk to Mr.
Justice Brennan, October Term, 1960.
1. THE GREAT RjoHTs, (Edmond Cahn ed., 1963).
2. Id. at 85 (footnote omitted).
Arnold: In Honor of Justice William J. Brennan, Jr.:  Justice Brennan and
Produced by The Berkeley Electronic Press, 1991
VALPARAISO UNIVERSITY LAW REVIEW [Vol. 26
In these two sentences is the germ of an idea which has grown more and more
important in American Constitutional Law in the last thirty years. As federal
courts, in the opinion of some, have increasingly narrowed those individual
liberties protected by the Bill of Rights, state courts and state law have begun
to assume a more important role. State constitutions are now increasingly
regarded as potential sources of individual rights, sources that are unaffected by
the trends of adjudication on the Supreme Court of the United States. State
courts must of course give to individuals the full range of rights secured by the
Federal Constitution. This is a floor, a minimum, below which the states may
not go. It is not, however, a ceiling or maximum. A state may create, as
against itself, any additional rights it wishes, and it may use as a source for such
rights clauses in its own constitution, even for clauses worded exactly the same
as their federal counterparts, such as, for example, Due Process.
We may use as an example one given by Justice Brennan in the 1961
Lecture. In People v. Den Uyl,3 "the Supreme Court of Michigan applied the
state privilege against self-incrimination to exonerate from disclosure whenever
there is a probability of prosecution in state or federal jurisdictions."' The rule
under the Fifth Amendment to the Federal Constitution is otherwise.5 Under
the Fifth Amendment, no privilege exists against incriminating oneself under the
laws of a sovereign, including any state, other than the United States.
As Justice Brennan went on to point out, state statutes, too, could be the
source of rights going beyond the Federal Constitution. My favorite example
is given in his same footnote 66. On January 17, 1961, House Bill 111 was
introduced in the Arkansas General Assembly. The bill provided that conviction
or acquittal of an offense against the United States would be a bar to an
Arkansas prosecution for the same conduct. This proposition ultimately became
law,' contrasted with the rule under the Fourteenth Amendment to the Federal
Constitution.' Indeed, when Justice Brennan learned of the bill that had been
introduced in the Arkansas Legislature, I am proud to recall, he observed that
the Southern states, in a way paradoxically, seemed in some ways to have a
keener appreciation for the legal rights of individuals than some other sections
of the country.
This idea - that the state courts, interpreting their own law, and thus
having nothing to fear from the reviewing power of the Supreme Court of the
3. 29 N.W.2d 284, 287 (Mich. 1947).
4. THE GREAT RIGHTS, supra note 2, at 166 n.66.
5. See, United States v. Murdock, 284 U.S. 141 (1931).
6. ARK. CODE ANN. § 5-1-114 (1987).
7. See, Bartkus v. Illinois, 359 U.S. 121 (1959) (state prosecution not barred by previous
federal conviction or acquittal for same conduct).
Valparaiso University Law Review, Vol. 26, No. 1 [1991], Art. 1
https://scholar.valpo.edu/vulr/vol26/iss1/1
1991]
United States, could be the course of individual liberties greater than those
secured by the Federal Constitution - has been elaborated in many ways and
many contexts since Justice Brennan referred to it in 1961. In fact, for many
years the idea was a centerpiece of the Appellate Judges Seminars conducted by
the Institute for Judicial Administration at New York University. Justice
Brennan was a member of the faculty of that seminar for a number of years
during the 1960s, a capacity in which I followed him twenty years later. Group
after group of state appellate judges were told -- and some few of them appeared
surprised to hear -- that the states' own constitutions could be independent
sources of law, that due process of law under the Constitution of Texas, say,
could create more rights than the identical phrase in the Federal Constitution.
The point of all this is not that state courts must or should interpret their
own constitutions differently or more expansively than the Supreme Court of the
United States interprets the Federal Constitution. The point is more basic:
whether to adopt such more generous interpretations is a choice, and a choice
wholly within the competence of the highest court of each state. The concept,
really, is one of states' rights -- the right of a state, not to exercise more
governmental power for itself, but to secure for its own citizens a greater degree
of individual freedom. And if, as time goes by, some of Justice Brennan's
opinions broadly interpreting the liberties of the citizen as guaranteed by the
Constitution of the United States cease to commend themselves to a majority of
his successors, perhaps some of the ideas in those opinions will turn up in the
decisions of state courts. If this happens, and there is evidence that it is already
happening, there will be good reason to claim that the Brennan legacy has an
additional important part. This is altogether fitting for one who came to the
Supreme Court of the United States after serving as a state-court judge at three
different levels.
Arnold: In Honor of Justice William J. Brennan, Jr.:  Justice Brennan and
Produced by The Berkeley Electronic Press, 1991
Valparaiso University Law Review, Vol. 26, No. 1 [1991], Art. 1
https://scholar.valpo.edu/vulr/vol26/iss1/1


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