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Justice Charles M. Leibson and the Revival of State Kentucky Law Journal Volume 86 | Issue 4 Article 10 1998 Justice Charles M. Leibson and the Revival of State Constitutional Law: A Microcosm of a Movement Jennifer DiGiovanni Assistant District Attorney, Allegheny County, Pennsylvania Follow this and additional works at: https://uknowledge.uky.edu/klj Part of the Constitutional Law Commons, and the State and Local Government Law Commons Right click to open a feedback form in a new tab to let us know how this document benefits you. Recommended Citation DiGiovanni, Jennifer (1998) "Justice Charles M. Leibson and the Revival of State Constitutional Law: A Microcosm of a Movement," Kentucky Law Journal: Vol. 86 : Iss. 4 , Article 10. Available at: https://uknowledge.uky.edu/klj/vol86/iss4/10 This Essay is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal by an authorized editor of UKnowledge. For more information, please contact [email protected]. Justice Charles M. Leibson and the Revival of State Constitutional Law: A Microcosm of a Movement BY JENNIFER DIGIOVANNI INTRODUCTION he resurgence of state constitutional law jurisprudence has caused many to positively reevaluate the feasibility of state courts developing an independent body of law based upon their own state constitutions. Tins Essay will provide an overview of the state constitutional law revival movement by focusing upon the work of one state jurist, the late Kentucky Supreme Court Justice Charles M. Leibson. During his tenure on the court, from 1983 through 1995, Justice Leibson's state constitutional law opinions underwent a transformation that presaged similar developments m the greater movement going on nationwide. In essence, a study of Justice Leibson's work provides a microcosm for viewing the development of the state constitutional law movement as a whole. The transformation of Justice Leibson's opinions demonstrates that, given time to evolve and grow, state constitutional adjudication can succeed in creating an alternative body of constitutional law that may be more protective ofindividual rights and more reflective ofthe beliefs of the people than federal constitutional law More particularly, by tapping into Kentucky's unique culture, traditions, and value system, Justice Leibson's * Assistant District Attorney, Allegheny County, Pennsylvania. Former Appellate Court clerk to the Honorable Peter Paul Olszewski and the Honorable Joseph A. Huclock, both of the Superior Court of Pennsylvania. J.D. 1996, Duquesne University School of Law. I would like to acknowledge the invaluable contributions, encouragement, and insight of my former constitutional law professor and current friend, Ken Gormley, whose dedication to, and enthusiasm for, this project have been truly remarkable. His unflagging support and dedication to this Article have been unparalleled and are very much appreciated. 1009 1010 KENTUCKY LAW JOURNAL [VOL. 86 state constitutional law opinions grew to represent a fully developed and workable state jurisprudence that was the product of thorough analyses of Kentucky's rich political and social history Part I of this Essay will briefly review the history of the relations between the United States Supreme Court and the various state supreme courts in the straggle to determine which entity would be primarily responsible for protecting people's rights and liberties. Part II will provide a concise survey of the history of the state constitutional law revival movement and will furnish the reader with both positive and negative critiques from some of the movement's most vocal commentators. Part Im will then begin a discussion of Kentucky constitutional law jurisprudence starting with the first phase of Justice Leibson's state constitutional law development, in which independent state constitutional analyses were confined to issues of peculiarly state concern. Part IV of the Essay will focus upon the middle portion of Justice Leibson's state constitutional law career, in which he analyzed issues under the Kentucky Constitution where the United States Supreme Court had not decided a case directly on point. Part V will concentrate on the culmination of Justice Leibson'sjoumey into state constitutional law jurisprudence, during which he analyzed rights issues on the independent basis of the Kentucky Constitution, notwithstand- mg federal constitutional law precedent to the contrary Finally, the Essay will conclude with a brief summary of the importance of Justice Leibson's contributions to the people of Kentucky, m particular, and to the New Judicial Federalism Movement as a whole. I. HISTORY OF TENSION BETWEEN THE FEDERAL AND STATE GOVERNMENTS IN THE STRUGGLE TO DETERMINE WHICH POWER WOULD BE PRIMARILY RESPONSIBLE FOR ENSURING AND PROTECTING THE PEOPLE'S CIVIL RIGHTS This section of the Essay will review the history of the tension between the federal and state governments in their struggle for constitutional supremacy as guardians of civil rights and liberties. It will demonstrate that, although our founding fathers envisioned strong state governments that would protect the rights oftheir respective citizens, the states abdicated their responsibilities. In the states' wake, the federal government inter- vened in order to ensure that all persons enjoyed a certain minimum level of protection from encroachment upon their guaranteed rights. None would doubt that the governmental system established by our founding fathers envisioned a two-tiered system with a strong national government, but it was also anticipated that the individual states would be 1997-98] JUSTICE CHARLES M. LEIBSON 1011 the primary guardians of the civil liberties of the people. The states' constitutions, many of which pre-dated the federal Constitution, were the primary, and in many cases, the sole repositories of individual rights.' The intricacies of this system, and the compromises that were integral to its formation, are evident in the debates between the federalists and the antifederalists of the day. In fact, one of James Madison's goals in writing the Federalistpapers was to alleviate the fears of some factions of the public that the proposed national government would be too strong and would subvert the traditional role of the states. Thus, Madison emphasized that the powers delegated to the national government would be few and that, apart from these carefully delineated provisions, the states would continue to be vital and robust guarantors of the rights of the people: The powers delegated by the proposed Constitution to the federal government are few and defimed. Those which are to remain in the state governments are numerous and infinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all objects which, in the ordinary course of affairs, concern the lives, liberties, and propensities of the people and the internal order, improve- ment, and propensity of the State.2 The independence with which the states were vested is evident in the fact that it was not until 1816, in Martin v. Hunter's Lessee,3 that the United States Supreme Court held that state court constitutional decisions were subject to judicial review. In so holding, the Court affirmed the constitutionality of section 25 of the Judiciary Act of 1789, 4 which had authorized Supreme Court review in such situations.5 It may be the opinion of the appellate court of Virginia in that same case, however, that best demonstrates the ferocity with which the individ- ISee generally Stanley J. Mosk, State Constitutionalism:Both Liberal and Conservative, 63 TEx. L. REV. 1081 (1985). 2 THE FEDERALIST No. 45 (James Madison). 3Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816). 4 1 Stat. 85 (1789). 5 See Martin, 14 U.S. (1 Wheat.) at 34041 (noting that the state courts are bound by the Supremacy Clause when adjudicating federal constitutional matters). Section 25 of the Judiciary Act of 1789 extended the appellate jurisdiction of the Supreme Court to all matters involving federal statutory or common law and treaties ruled upon by the highest court of any state. 1012 KENTUCKY LAW JOURNAL [VrOL. 86 ual states attempted to guard and protect their perceived supremacy The judges of the Virginia Court of Appeals boldly asserted that they were not subject to the appellate jurisdiction of the United States Supreme Court and were, therefore, not bound by a previous holding issued by that Court that reversed the Virginia court and directed that judgment be entered m favor ofthe appellant. At oral argument before the United States Supreme Court, the state's attorney asserted this same position: "This court, undoubtedly, has all the incidental powers necessary to carry into effect the powers expressly given by the constitution. But this cannot extend to the exercise of any power mconsistent with the whole genius, spirit, and tenor of the constitution."6 Despite the strong assertion ofnational power evident in Justice Story's opinion in Martin v. Hunter's Lessee, the state courts retained their sovereign position as prniary guarantors of the people's civil liberties. After all, the federal Constitution, with its narrowly defined scope, did not address the rights of state citizens, but only federal citizens.7 So it worked, unquestioned in practice if not in theory, until the Reconstruction Era following the Civil War. This tume period, often referred to as the "vast transformation,"' saw a tremendous metamorphosis in both the conception and role of the federal Constitution as a vehicle for protecting people from state actions that denied them liberties.' Indeed, the effect of the passage of the Civil War amendments was not lost on those in Congress who lobbied for their passage. Cognizant of the sweeping changes in our federal system that the amendments would likely bring about, the drafters and supporters of the amendments forged ahead nonetheless because of the 6Id.
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