10 Journal of the Kansas Association for Justice u CRIMINAL LAW The Loneliness of the Kansas Constitution* by Daniel E. Monnat & Paige A. Nichols Daniel E. Monnat of Breathing new life into Kansas constitutional law may be challenging, Monnat & Spurrier, but it is the responsibility of the Kansas bar and the Kansas courts in a Chtd., has been a prac- federal system. ticing criminal defense —Steve McAllister, Comment, Interpreting the State Constitution: A Survey and lawyer for the past 34 Assessment of Current Methodology, 35 Kan. L. Rev. 593, 622 (1987). years in his hometown of Wichita, Kan. A cum laude graduate of Cali- fornia State University, San Francisco, he Introduction doctor’s position prevailed.5 received his J.D. from the Creighton Uni- This is but one example of the Kansas versity School of Law. Monnat frequently The year was 1859. The days of Bleed- framers’ intent to create a forward- lectures throughout the United States on ing Kansas had finally come to an end, looking state constitution—a collection a variety of criminal defense topics and and Kansas’ founding fathers were of rights that would have independent has been listed in The Best Lawyers In crowded into a Union Pacific Railway force apart from the federal constitu- America for two decades. Recently, he was office in Wyandotte, Kansas Territory, tion as interpreted by the United States listed as one of the top 100 Super Lawyers debating the terms of the free-state Supreme Court. These framers’ “proud for Kansas and Missouri for 2009. constitution. At issue was whether the and firm” insistence on state sovereignty Monnat is a past two-term president “equal and inalienable” rights guaran- is also evident in their adoption of con- of the Kansas Association of Criminal teed in section one of the Kansas Bill of stitutional provisions prohibiting slavery, Defense Lawyers, a former member of Rights1 should be extended to “all men” exempting homesteads from forced sales, the Board of Directors of the National or just to free (i.e., unenslaved) men. and advancing the property and parent- Association of Criminal Defense Lawyers, One dissenter complained that if the ing rights of women.6 As one early Kansas a member of the KsAJ Board of Governors section did not explicitly exclude per- lawyer observed, “[m]ost of the progres- and Executive Committee, a graduate of sons “owing service” in other states, the sive ideas of the decade were incorpo- the Gerry Spence Trial Lawyer’s College, guarantee would be seen as a “hostile rated” in the Kansas constitution.7 and a Fellow of the American College of blow” toward the fugitive-slave law and Today the original handwritten, eight- Trial Lawyers and the Litigation Counsel the Dred Scott decision upholding that page document lies safely in the archives of America. law under the federal constitution.2 of the Kansas State Historical Society. A Country doctor James Blunt pas- single rotating page is displayed under Paige A. Nichols has sionately defended the guarantee as glass in the Kansas Museum of History. been writing motions to all men, observing that “those who And what has become of this document and appellate briefs made the [fugitive slave] law and those in the Kansas courts? With few excep- on behalf of criminal [federal justices] who decide upon its tions, it appears to have been relegated defendants for over 17 constitutionality are but human, and to the archives there, as well. years. She received her liable to err.” 3 The doctor urged his Over the past half-century, Kansas’ J.D. from Northeast- fellow state founders to let “[t]he eyes state constitution has come to play ern University in Bos- of the whole country…see Kansas at second fiddle to the federal constitution ton, and an LL.M. in criminal law from this time place herself proudly and in our courts. The rights that many free- the University of Missouri–Kansas City. firmly upon the ancient doctrine of staters died facedown in the mud to se- She lives and works in Lawrence, Kan. State rights, or State sovereignty.” 4 The cure are rarely treated as sovereign rights Journal of the Kansas Association for Justice 11 independent of the federal constitution. In the aftermath of incorporation, Constitution” relinquishes “an impor- Time and again the Kansas Supreme United States Supreme Court Justice tant incident of this State’s sovereignty,” Court has acknowledged its authority William J. Brennan called upon state and makes it “less of a State than its sis- “to interpret our Kansas Constitution courts to recognize that state constitu- ter States who recognize the independent in a manner different than the United tions “are a font of individual liberties, significance of their Constitutions.”25 States Constitution has been construed,” their protections often extending beyond Invoking state sovereignty as a basis and yet the Court has “not traditionally those required by the Supreme Court’s for independently interpreting a state done so.”8 interpretation of federal law.”16 Ever constitution frees up state courts in two This article aims to promote state since, other state courts have struggled important ways. First, courts that recog- constitutionalism in Kansas, and to to develop a coherent methodology of nize the sovereign nature of state consti- offer a few tools and cautionary notes to state constitutionalism.17 But despite tutions need not be overly concerned if those lawyers and courts who wish once Kansas’ proudly forward-looking his- the state constitution is textually simi- again to see “Kansas at this time place tory, the Kansas Supreme Court has lar—or even identical—to its federal herself proudly and firmly upon the only occasionally joined in that struggle. counterpart.26 And second, courts with ancient doctrine of State rights.” 9 a healthy respect for state sovereignty may grant a state constitutional claim Why should Kansas courts even if the United States Supreme Court State versus federal recognize that the Kansas has denied a federal constitutional claim constitutionalism constitution has independent in the very same case.27 In its early opinions, the Kansas meaning? Finally, developing a robust state Supreme Court routinely interpreted The Kansas Supreme Court has previ- constitutional jurisprudence will ensure the Kansas constitution as an indepen- ously warned that any interpretation of that Kansas’ voice is heard when the dent document with force of its own. the Kansas constitution should aim to United States Supreme Court looks to The Court only mentioned the federal “achieve a consistency so that it shall not the states in developing its own consti- constitution in passing (if at all) and be taken to mean one thing at one time tutional jurisprudence.28 treated interpretations of that document and another thing at another time.”18 as having no more authoritative value But by tying our constitution’s interpre- than other interpretive tools such as tation to that of the federal constitution, How should Kansas courts Kansas history, the practices of sister our Supreme Court has guaranteed that independently interpret the states, common law, treatises, and public our constitution will be “taken to mean Kansas constitution? policy.10 one thing at one time and another thing One approach to interpreting a state All that changed in the early 1960s, at another time.”19 Over the past two constitution is by recognizing its force when the United States Supreme Court centuries, the United States Supreme as a freestanding authoritative docu- began to hold that selected provisions Court has reversed itself in the range of ment and analyzing its meaning using of the federal Bill of Rights had been 200-300 times.20 Only by interpreting traditional interpretive tools.29 The New incorporated through the Fourteenth our constitution independently of the Jersey Supreme Court, for example, Amendment to bind the states.11 The federal constitution can our courts en- reads its state constitution through the Kansas Supreme Court had previ- sure that the Kansas document “stands lens of the state’s “constitutional his- ously—and appropriately—been the today and should stand tomorrow, tory,” “legal traditions,” “strong public sole and final arbiter of the Kansas staunch and rigid in its restraints upon policy,” and any “special state concerns” constitution. But after incorporation, governmental powers in our system of warranting vindication of state consti- it suddenly began construing our state democracy.”21 tutional rights.30 The supreme courts of constitutional provisions in lockstep Recognizing that the Kansas constitu- Pennsylvania, Vermont, Washington, with the United States Supreme Court’s tion has independent meaning also safe- and Connecticut follow similar ap- construction of similar federal provi- guards and advances several important proaches.31 sions—as though the mere act of incor- aspects of “Our Federalism.”22 It recog- Another approach is to invoke the poration had stripped the Kansas high nizes that federalism rejects “centraliza- state constitution when it appears that court of its authority to interpret and tion of control over every important the United States Supreme Court’s inter- enforce the Kansas constitution.12 Today issue in our National Government and pretation of the federal constitution has the Kansas courts for the most part its courts.”23 It recognizes the superior left the basic rights of a given state’s citi- interpret Kansas constitutional provi- practical competence of state courts to zens underprotected. Many courts have sions independently only when they lack decide issues of local concern.24 And it is rejected United States Supreme Court a federal counterpart13 or when their an important assertion of state sover- precedent under their own constitutions federal counterpart has not yet been eignty. Treating a state constitution as irrespective of textual differences, his- held applicable to the states.14 15 “simply a mirror image of the Federal torical traditions, or a unique state per- 12 Journal of the Kansas Association for Justice spective.