JUSTICE REHNQUIST delivered the opinion of the Court.
Respondent Robert Van Arsdall was convicted of murder in a Delaware trial court. The Supreme Court of Delaware reversed his conviction on the ground that the trial court, by improperly restricting defense counsel's cross-examination designed to show bias on the part of a prosecution witness, had violated respondent's confrontation rights under the Sixth and Fourteenth Amendments to the United States Constitution, and that such violation required automatic reversal. 486 A.2d 1 (1984). While we agree that the trial court's ruling was contrary to the mandate of the Confrontation Clause of the Sixth Amendment, we conclude that the Supreme Court of Delaware was wrong when it declined to consider whether that ruling was harmless in the context of the trial as a whole.
Shortly after midnight on January 1, 1982, Doris Epps was stabbed to death in an apartment in Smyrna, Delaware, after an all-day New Year's Eve party. Respondent and Daniel Pregent, who by respondent's testimony were the only two people in the apartment with Epps at the time she was killed, were arrested at the scene of the crime and charged with Epps' murder. At separate trials, respondent was convicted and Pregent was acquitted.
The State's case against respondent was based on circumstantial evidence, and proceeded on the theory that respondent had either killed Epps or assisted Pregent in doing so. Several of the partygoers testified about the party and the scene after the killing. The party, which lasted from late in the morning of December 31, 1981, until shortly before midnight, was held in the adjacent apartments of Pregent and
Robert Fleetwood was the 10th of 16 prosecution witnesses. In addition to recounting uncontroverted facts about the party, he testified that sometime between 11 and 11:30 p.m. he walked across the hall, looked into Pregent's living room from the doorway, and saw respondent sitting on the edge of the sofa bed next to Pregent's feet. Fleetwood, who did not have a complete view of the bed, did not see Epps or anyone else in the apartment. Upon returning to his own apartment, Fleetwood stayed awake long enough to hear nearby bells ring in the New Year, at which point he passed out. App. 82-85.
Meinier, who with Mood had remained awake in Fleetwood's apartment, testified that at roughly 1 a.m. respondent knocked at Fleetwood's door. Respondent's shirt and hands were spattered with blood, and he was holding a long, blood-covered knife. According to Meinier, respondent stated that "he had gotten in a fight" but that he "got them back." Id., at 130. After turning the knife over to Mood and washing his hands, respondent said "I think there's something wrong across the hall." Id., at 132. Meinier went to Pregent's apartment and discovered Epps' body lying in a pool of blood on the kitchen floor. Mood then summoned the police, who found respondent in Fleetwood's
In addition to the testimony of the partygoers and the arresting officers, the State introduced Pregent's postarrest statement, respondent's two postarrest statements, and the testimony of a forensic expert. Among other things, the expert testified about the nature and source of the bloodstains on respondent's clothing.
During Fleetwood's cross-examination, defense counsel sought to impeach Fleetwood by questioning him about the dismissal of a criminal charge against him — being drunk on a highway — after he had agreed to speak with the prosecutor about Epps' murder. When the prosecutor objected, the trial court allowed counsel to question Fleetwood on the matter outside the presence of the jury. Fleetwood acknowledged that the drunkenness charge had been dropped in exchange for his promise to speak with the prosecutor about the murder, but he denied that the agreement had affected his testimony.
Respondent was the only defense witness. Consistent with his second statement to the police, he attributed Epps' murder to Pregent. Consistent with Fleetwood's testimony, he stated that he had returned to Pregent's apartment, after drinking with friends, by about 11:30 p.m.
Defense counsel admitted in their opening and closing arguments to the jury that respondent was in Pregent's apartment when Epps was killed. In closing argument, after attempting to discredit Fleetwood's testimony (largely by emphasizing his intoxication), counsel stressed that all that testimony proved was what respondent "never denied," that "he was at Danny Pregent's apartment before Doris Epps was murdered." App. 188-189. The jury found respondent guilty of first-degree murder and possession of a deadly weapon during the commission of a felony.
On appeal, the Delaware Supreme Court reversed respondent's conviction on the authority of the Confrontation Clause. Noting that "the bias of a witness is subject to exploration at trial and is `always relevant as discrediting the witness and affecting the weight of his testimony,'" 486 A. 2d, at 6 (quoting Davis v. Alaska, 415 U.S. 308, 316 (1974)), the court found that the trial judge's ruling denied respondent his constitutional right to effective cross-examination. By barring any cross-examination of Fleetwood about the dismissal of the public drunkenness charge, the ruling kept from the jury facts concerning bias that were central to assessing Fleetwood's reliability. The court rejected the State's argument that since "Fleetwood's basic testimony was cumulative in nature and unimportant," the Confrontation Clause error was harmless beyond a reasonable doubt. 486 A. 2d, at 7. The court held that "a blanket prohibition against exploring potential bias through cross-examination"
We granted certiorari, 473 U.S. 923 (1985), and now vacate and remand.
The Confrontation Clause of the Sixth Amendment guarantees the right of an accused in a criminal prosecution "to be confronted with the witnesses against him." The right of confrontation, which is secured for defendants in state as well as federal criminal proceedings, Pointer v. Texas, 380 U.S. 400 (1965), "means more than being allowed to confront the witness physically." Davis v. Alaska, 415 U. S., at 315. Indeed, " `[t]he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.'" Id., at 315-316 (quoting 5 J. Wigmore, Evidence § 1395, p. 123 (3d ed. 1940)) (emphasis in original). Of particular relevance here, "[w]e have recognized that the exposure of a witness' motivation in testifying is
In this case, however, the trial court prohibited all inquiry into the possibility that Fleetwood would be biased as a result of the State's dismissal of his pending public drunkenness charge. By thus cutting off all questioning about an event that the State conceded had taken place and that a jury might reasonably have found furnished the witness a motive for favoring the prosecution in his testimony, the court's ruling violated respondent's rights secured by the Confrontation Clause.
The State somewhat tentatively suggests that a defendant should have to show "outcome determinative" prejudice in order to state a violation of the Confrontation Clause: Unless the particular limitation on cross-examination created a reasonable possibility that the jury returned an inaccurate guilty
After concluding that the trial judge's ruling was constitutional error, the Delaware Supreme Court rebuffed the State's effort to show "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained," Chapman v. California, 386 U.S. 18, 24 (1967). In so doing, it offered no explanation why the Chapman harmless-error standard, which we have applied in other Confrontation Clause cases, e. g., Harrington v. California, 395 U.S. 250 (1969); Schneble v. Florida, 405 U.S. 427 (1972), is inapplicable here. We find respondent's efforts to defend the automatic reversal rule unconvincing.
At the same time, we have observed that some constitutional errors — such as denying a defendant the assistance of counsel at trial, or compelling him to stand trial before a trier of fact with a financial stake in the outcome — are so fundamental and pervasive that they require reversal without regard to the facts or circumstances of the particular case.
Respondent seeks to blunt the force of Harrington in essentially two ways. First, he suggests that this Court's decision in Davis v. Alaska forecloses application of harmless-error analysis to the particular sort of Confrontation Clause violation involved here, citing the following language near the end of the Court's opinion:
Read properly, however, Davis does not support an automatic reversal rule, and the above-quoted language merely reflects the view that on the facts of that case the trial court's error had done "serious damage" to the petitioner's defense.
Davis was charged with stealing a safe from a bar. The police found the stolen safe abandoned near the home of Richard Green, who testified at trial that he had seen Davis engaged in suspicious activity near this site on the day of the crime. Defense counsel was barred from eliciting on cross-examination that Green was on juvenile probation for burglary both at the time of his pretrial identification of Davis and at the time of trial. The defense sought to suggest that Green may have slanted his account in the State's favor either to shift suspicion away from himself or to avoid revocation of probation for failing to "cooperate." 415 U. S., at 310-311. This Court reversed Davis' conviction, emphasizing that Green's testimony was "crucial" and that there was a "real possibility" that pursuit of the excluded line of impeachment evidence would have done "[s]erious damage to the strength of the State's case." Id., at 319. So despite the absence of a reference to Chapman, Davis plainly rests on the conclusion that on the facts of that case, the error might well have contributed to the guilty verdict. Davis should not be read as establishing, without analysis, a categorical exception to the harmless-error rule.
Respondent's second argument in support of a per se reversal rule is that the Confrontation Clause error in this case, which like Davis involved the exclusion of evidence, is analytically distinct from that in Harrington v. California, which involved the erroneous admission of harmless testimony. Because it is impossible to know how wrongfully excluded evidence would have affected the jury, the argument runs, reversal is mandated. But Harrington cannot be so easily dispatched. Respondent, like Harrington, was denied
Accordingly, we hold that the constitutionally improper denial of a defendant's opportunity to impeach a witness for bias, like other Confrontation Clause errors, is subject to Chapman harmless-error analysis. The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case. Cf. Harrington, 395 U. S., at 254; Schneble v. Florida, 405 U. S., at 432.
We believe that the determination whether the Confrontation Clause error in this case was harmless beyond a reasonable doubt is best left to the Delaware Supreme Court in the first instance. Accordingly, that court's judgment is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
JUSTICE WHITE, concurring in the judgment.
The Sixth Amendment confers on defendants in criminal cases the right "to be confronted with the witnesses against"
It makes much more sense to hold that no violation of the Confrontation Clause has occurred unless there is some likelihood that the outcome of the trial was affected. I agree that the Delaware Court erred and that we should remand for consideration of prejudice, but I would not now hold that a constitutional violation occurred. If it is ultimately held that the outcome would have been the same whether or not cross-examination had been limited, no Sixth Amendment violation occurred in this case.
I would thus treat this claim of a Sixth Amendment violation just as the majority would treat limitations on cross-examination that would fall within the trial judge's "wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on . . . cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Ante, at 679. These "reasonable" limitations are not violations at all, obviously because they can have no impact on the fairness of the trial. Yet the curtailment of cross-examination imposed in this case is said to be unreasonable and an infraction of the Amendment even though it may be held beyond reasonable doubt that it had no impact whatsoever on the result the jury reached.
Even if it is ultimately held in this case that the error was harmless, as the Court is quite willing to assume will be the case, the judge has been declared derelict and commanded not again to restrict cross-examination in this manner even though he is convinced, and rightly so, that it has no significance whatsoever in terms of the outcome of the trial. With all due respect, I cannot join the Court's opinion.
JUSTICE MARSHALL, dissenting.
The Court today properly holds that a complete denial of cross-examination designed to explore the bias of a prosecution witness violates the Confrontation Clause, whether or not the denial influenced the outcome of the trial and whether or not the witness was important to the prosecution's case. Nevertheless, the Court remands in order to permit the state court to apply harmless-error analysis to that violation. I must respectfully dissent from the latter part of the Court's holding. I believe that the importance of cross-examination to a criminal trial is so great that a complete denial of otherwise proper cross-examination concerning the potential bias of a prosecution witness should lead to no less than a reversal of the conviction.
The centrality of cross-examination to the factfinding process makes it particularly unlikely that an appellate court can determine that a denial of cross-examination had no effect on the outcome of a trial.
The fact that a particular witness' testimony was corroborated cannot render harmless a denial of the right to expose his bias. Defense counsel may have valid strategic reasons for challenging one witness' testimony aggressively while treating a corroborating witness more gently. Jurors evaluating the witnesses' demeanor may choose to give great weight to the testimony of one witness while ignoring the similar testimony of another. In either event, denial of cross-examination concerning a witness' bias may deprive the defense of its best opportunity to expose genuine flaws in the
Indeed, an appellate court attempting to apply harmless-error analysis is faced with a formidable burden. The court cannot merely satisfy itself that the jury would have reached the same result had the witness in question not appeared at all; it must be convinced beyond a reasonable doubt that the jury would have reached the same result even if cross-examination had led the jury affirmatively to believe that the witness was lying. Moreover, the court must conclude, beyond a reasonable doubt, that no evidence exculpatory to the defendant could have emerged from a genuinely adversarial testing of the witness. I think that a court can make such a determination only in the rarest of circumstances, and a rule of per se reversal is therefore justified.
The Confrontation Clause violation in this case is especially pernicious. The jury was essentially misled, by the empty gesture of cross-examination, to believe that the defense attorney had been permitted to use all the tools at his disposal to expose weaknesses in Fleetwood's testimony. Having survived what appeared to be counsel's best efforts to undermine the witness' credibility, Fleetwood's testimony necessarily carried more weight with the jury than would the same testimony given without an apparent opportunity to cross-examine.
This analysis makes it unnecessary to strain, as does the majority, to reconcile the apparent per se rule of Davis v. Alaska, 415 U.S. 308 (1974), with the harmless-error analysis employed in Harrington v. California, 395 U.S. 250 (1969), and Schneble v. Florida, 405 U.S. 427 (1972). I would simply hold that Davis mandates reversal whenever the prosecution puts a witness on the stand but the court does not permit the defense to cross-examine concerning relevant potential bias. I therefore dissent from the Court's decision to permit the Delaware Supreme Court to apply
I also write to emphasize that this Court cannot require state courts to apply harmless-error analysis to violations of the Federal Constitution. See Connecticut v. Johnson, 460 U.S. 73, 88 (1983) (STEVENS, J., concurring in judgment). While this Court has stated that federal law governs the application of harmless error to violations of the Federal Constitution, see Chapman v. California, 386 U.S. 18, 21 (1967), that cannot mean more than that state courts must reverse convictions when the Constitution so mandates. When the Constitution does not mandate a particular remedy, this Court may not "declare which of many admittedly constitutional [remedial] alternatives a State may choose." Id., at 48 (Harlan, J., dissenting) (footnote omitted). We have never held that the Federal Constitution forbids state courts to reverse certain convictions pursuant to state substantive or procedural law, nor can I imagine what provision of the Constitution could grant us such a power. Thus the Delaware Supreme Court remains free on remand to decide that even though it applied the substantive standards of the Sixth Amendment to determine whether error occurred, its harmless-error analysis was the product of state rather than federal law.
JUSTICE STEVENS, dissenting.
The Court finds the way open to reverse the judgment in this case because "[t]he opinion of the Delaware Supreme Court, which makes use of both federal and state cases in its analysis, lacks the requisite `plain statement' that it rests on state grounds." Ante, at 678, n. 3.
Despite the directness of the route chosen, today's destination was not foreordained. Unlike Michigan v. Long, this case concerns whether the Court should presume jurisdiction to review a state supreme court's remedy for a federal constitutional violation. Since courts have traditionally enjoyed broad discretion to fashion remedies — even remedies forbidding otherwise lawful acts — once a constitutional violation
The rules that govern this Court's jurisdiction to review state-court judgments should, of course, be consistent with the jurisdictional principles that govern the entire federal judicial
In origin and design, federal courts are courts of limited jurisdiction; they exercise only the authority conferred on them by Art. III and by congressional enactments pursuant thereto. See Bender v. Williamsport Area School Dist., ante, at 541, and cases cited therein. Like all other federal courts, this Court has only the power expressly given it. Because it is our inescapable duty — in contrast to that of the political branches — to construe authoritatively the very instruments which define and limit that power, the Court early in its history wisely adopted a presumption that every federal court is "without jurisdiction" unless "the contrary appears affirmatively from the record." King Bridge Co. v. Otoe County, 120 U.S. 225, 226 (1887). Accord, Thomas v. Board of Trustees, 195 U.S. 207, 210 (1904); Minnesota v. Northern Securities Co., 194 U.S. 48, 62-63 (1904). That presumption is just as "inflexible" in this Court as in any other federal court.
Even for cases unquestionably within this Court's subject-matter jurisdiction, we have disclaimed any pretension to
The Court has remained faithful to these basic tenets when it is reviewing cases that arise in the federal system. See Bender v. Williamsport Area School Dist., ante, at 545-549; Regents of University of Michigan v. Ewing, 474 U.S. 214, 222-223 (1985). Ironically, however — and contrary to tradition
The jurisdictional presumption that the Court applies — and extends — today harbors a hidden selection bias that in turn reveals a disturbing conception of this Court's role. Because a state ground can only support a judgment consistent with a
The Court's decision to monitor state-court decisions that may or may not rest on nonfederal grounds is not only historically disfavored but risks the very confrontations and tensions a more humble jurisdictional stance would avoid. The presumption applied today allocates the risk of error in favor of the Court's power of review; as a result, over the long run
Less obvious is the impact on mutual trust when the state court on remand — perhaps out of misplaced sense of duty — confines its state constitution to the boundaries marked by this Court for the Federal Constitution. In Montana v. Jackson, 460 U.S. 1030 (1983), for example, this Court vacated and remanded "for further consideration in light of South Dakota v. Neville, 459 U.S. 553 (1983)." In so doing, this Court presumed that the judgment of the Montana Supreme Court did not rest on Montana's Constitution. Justice Sheehy, joined by the author of the state court's original opinion, rather bitterly disagreed:
See id., at 357-358, 672 P. 2d, at 264-265 (Shea, J., dissenting).
The Court's two-sentence analysis notwithstanding, one cannot be confident that we have not trenched on state prerogatives in this very case. Here, the Delaware Supreme Court applied a rule reversing convictions when the defendant had been totally denied the right to cross-examine a witness for bias. The rule was expressly found to be "consistent with Davis v. Alaska, 415 U.S. 308 (1974) and with our ruling in Weber [v. State, 457 A.2d 674 (1983),] for determining whether a violation of the confrontation clause is harmless." 486 A.2d 1, 7 (1984) (emphasis added and citations omitted). Weber itself emphasized that "[b]oth the United States and Delaware Constitutions guarantee the right of a defendant to confront the witnesses against him. U. S. Const. amend. VI; Del. Const. art. I, § 7." Weber v. State, 457 A. 2d, at 682 (footnote omitted). At no point did the Delaware Supreme Court imply that it reversed the defendant's conviction only because that result was compelled by its understanding of federal constitutional law; rather, the conclusion that its rule was "consistent with" a case of this Court construing the federal Confrontation Clause suggests that it was interested merely in respecting the bounds of federal law as opposed to carrying out its command. The Court rewards
I agree with JUSTICE MARSHALL that "the Delaware Supreme Court remains free on remand to decide that . . . its harmless-error analysis was the product of state rather than federal law." Ante, at 689. Because the Court's approach does nothing to minimize, and indeed multiplies, future occasions on which state courts may be called upon to clarify whether their judgments were in fact based on state law, it is appropriate to amplify the opinion I expressed in Massachusetts v. Upton, 466 U.S. 727, 736 (1984) (concurring in judgment), that the proper "sequence of analysis when an arguable violation of the State Constitution is disclosed by the record" is for the state court to consider the state constitutional claim in advance of any federal constitutional claim. In that case, I described the Oregon Supreme Court's practice of considering state constitutional claims before reaching issues of federal constitutional law:
Since 1983, in over a dozen cases,
It must be remembered that every State but Rhode Island had a written constitution by the close of the Revolutionary War in 1783. "[F]or the first century of this Nation's history, the Bill of Rights of the Constitution of the United States was solely a protection for the individual in relation to federal authorities. State Constitutions protected the liberties of the people of the several States from abuse by state authorities." Massachusetts v. Upton, 466 U. S., at 738-739 (STEVENS, J., concurring in judgment). The independent significance of state constitutions clearly informed this Court's conclusion, in Barron v. The Mayor and City Council of Baltimore, 7 Pet. 243, 247-248 (1833), that the Bill of Rights applied only to the Federal Government:
While the holding of the Barron case has since been superseded by ratification of the Fourteenth Amendment and selective incorporation of the Bill of Rights, the concomitant atrophy of state constitutional theory was both unnecessary and unfortunate.
"Well, I did understand that I did feel that you wanted to make sure that I knew what I was talking about and I do feel that you wanted to make sure I had my story together before coming in here. So that is why I did feel that it was dropped." App. 106.
"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence."
"[W]e will not assume that a state-court decision rests on adequate and independent state grounds when the `state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion.'" Caldwell v. Mississippi, 472 U.S. 320, 327 (1985) (quoting Michigan v. Long, 463 U.S. 1032, 1040-1041 (1983)). The opinion of the Delaware Supreme Court, which makes use of both federal and state cases in its analysis, lacks the requisite "plain statement" that it rests on state grounds. Michigan v. Long, supra, at 1042, 1044. Indeed, the opinion makes no reference to any "superintending" authority, and nowhere suggests the existence of a state prophylactic rule designed to insure protection for a federal constitutional right. We read the decision below as resting on federal law.
"If federal constitutional error occurs in a state criminal trial, federal law places certain limits on the state appellate court's disposition of the case. If the error is sufficiently grievous, it must reverse. If the error is less grievous, it also must reverse unless it declares its conviction beyond a reasonable doubt that the federal error was harmless. But federal law does not require a state appellate court to make a harmless-error determination; it merely permits the state court to do so in appropriate cases. This is all the Court held in Chapman v. California, 386 U.S. 18 (1967)."
JUSTICE MARSHALL is therefore quite right to point out that "this Court cannot require state courts to apply harmless-error analysis to violations of the Federal Constitution." Ante, at 689.
"[T]he policy . . . is one of substance, grounded in considerations which transcend all such particular limitations. Like the case and controversy limitation itself and the policy against entertaining political questions, it is one of the rules basic to the federal system and this Court's appropriate place within that structure.
"The policy's ultimate foundations, some if not all of which also sustain the jurisdictional limitation, lie in all that goes to make up the unique place and character, in our scheme, of judicial review of governmental action for constitutionality. They are found in the delicacy of that function, particularly in view of possible consequences for others stemming also from constitutional roots; the comparative finality of those consequences; the consideration due to the judgment of other repositories of constitutional power concerning the scope of their authority; the necessity, if government is to function constitutionally, for each to keep within its power, including the courts; the inherent limitations of the judicial process, arising especially from its largely negative character and limited resources of enforcement; withal in the paramount importance of constitutional adjudication in our system." Id., at 568-571 (footnotes omitted).
In 1867 the post-Civil War Congress, which was not overly concerned with state sovereignty, revised the section to allow review without respect to questions of validity or construction, "where any title, right, privilege, or immunity is claimed under the constitution, or any treaty or statute of or commission held, or authority exercised under the United States." Act of Feb. 5, 1867, § 2, 14 Stat. 386. The question raised by this amendment, however, was not whether the Court could or should review state-court decisions in favor of federal constitutional claims, but whether the amendment had effected an implied repeal of the doctrine that the Court could review only federal questions in cases subject to review — a question answered emphatically in the negative in Murdock v. Memphis, 20 Wall. 590 (1875). (According to Professor Charles Warren, it is "highly probable" that Congress actually meant to provide that "every question passed on by the State Court should be open for reconsideration in the Supreme Court." 2 C. Warren, The Supreme Court in United States History 682 (rev. ed. 1926)).
Although Congress' response to the Ives case demonstrates that there are cases in which a state court's judgment indicating a federal claim merits review, that view is perfectly consistent with the traditional understanding that the primary function of this Court is to review decisions rejecting such claims. Indeed, the facts of Ives belie any suggestion that Congress intended searching review of state-court decisions upholding claims of federal right. The workmen's compensation legislation was of exceptional importance to the State of New York, as attested to by the fact that it represented the labor of a 14-person commission chaired by a United States Senator, 201 N. Y., at 284, 94 N. E., at 435-436, and was "based upon a most voluminous array of statistical tables, extracts from the works of philosophical writers and the industrial laws of many countries, all of which are designed to show that our own system of dealing with industrial accidents is economically, morally and legally unsound," id., at 287, 94 N. E., at 437. (In response to Ives the people of New York amended their Constitution to allow for legislation of this kind. S. Rep. No. 161, supra, at 2; H. R. Rep. No. 1222, supra, at 3.) Not only was this particular statute of great concern to New York, but the constitutionality of legislation of this kind was unsettled: "Similar laws were held constitutional in New Jersey, the State of Washington, and some other States." H. R. Rep. No. 1222, supra, at 2. See 52 Cong. Rec., supra, at 276 (remarks of Rep. Webb) (New Jersey).
Professor Dworkin makes a similar point:
"The institution of rights against the Government is not a gift of God, or an ancient ritual, or a national sport. It is a complex and troublesome practice that makes the Government's job of securing the general benefit more difficult and more expensive, and it would be a frivolous and wrongful practice unless it served some point. Anyone who professes to take rights seriously, and who praises our Government for respecting them, must have some sense of what that point is. He must accept, at the minimum, one or both of two important ideas. The first is the vague but powerful idea of human dignity. This idea, associated with Kant, but defended by philosophers of different schools, supposes that there are ways of treating a man that are inconsistent with recognizing him as a full member of the human community, and holds that such treatment is profoundly unjust.
"The second is the more familiar idea of political equality. This supposes that the weaker members of a political community are entitled to the same concern and respect of their government as the more powerful members have secured for themselves, so that if some men have freedom of decision whatever the effect on the general good, then all men must have the same freedom. I do not want to defend or elaborate these ideas here, but only to insist that anyone who claims that citizens have rights must accept ideas very close to these.
"It makes sense to say that a man has a fundamental right against the Government, in the strong sense, like free speech, if that right is necessary to protect his dignity, or his standing as equally entitled to concern and respect, or some other personal value of like consequence. It does not make sense otherwise.
"So if rights make sense at all, then the invasion of a relatively important right must be a very serious matter. It means treating a man as less than a man, or as less worthy of concern than other men. The institution of rights rests on the conviction that this is a grave injustice, and that it is worth paying the incremental cost in social policy or efficiency that is necessary to prevent it. But then it must be wrong to say that inflating rights is as serious as invading them. If the Government errs on the side of the individual, then it simply pays a little more in social efficiency than it has to pay; it pays a little more, that is, of the same coin that it has already decided must be spent. But if it errs against the individual it inflicts an insult upon him that, on its own reckoning, it is worth a great deal of that coin to avoid." R. Dworkin, Takings Rights Seriously 198-199 (1977).
Accord, Linde, E Pluribus — Constitutional Theory and State Courts, 18 Ga. L. Rev. 165, 178 (1984) ("My own view has long been that a state court always is responsible for the law of its state before deciding whether the state falls short of a national standard, so that no federal issue is properly reached when the state's law protects the claimed right" (footnote omitted)); Linde, First Things First: Rediscovering the States' Bills of Rights, 9 U. Balt. L. Rev. 379, 383 (1980) ("Just as rights under the state constitutions were first in time, they are first also in the logic of constitutional law"). For thoughtful discussion of other views, see Utter, Swimming in the Jaws of the Crocodile: State Court Comment on Federal Constitutional Issues when Disposing of Cases on State Constitutional Grounds, 63 Texas L. Rev. 1025 (1985) (advocating that state courts comment on federal issues even in cases decided on state constitutional grounds); Developments in the Law — The Interpretation of State Constitutional Rights, 95 Harv. L. Rev. 1324, 1356-1367 (1982) (contending that state constitutions should be used only to supplement individual rights in the event that protection under the Federal Constitution is unavailable).
To implement this practice of considering state constitutional issues in advance of federal ones, state high courts have directed parties to file supplemental briefs illuminating possible state constitutional bases of decision when the initial briefings have neglected such issues. See State v. Kennedy, 295 Or. 260, 268, 666 P.2d 1316, 1321 (1983). Cf. State v. Jewett, 146 Vt. 221, 222, 500 A.2d 233, 234 (1985).
"One longs to hear once again of legal concepts, their meaning and their origin. All too often legal argument consists of a litany of federal buzz words memorized like baseball cards. As Justice Linde has noted:
`People do not claim rights against self-incrimination, they "take the fifth" and expect "Miranda warnings." Unlawful searches are equated with fourth amendment violations. Journalists do not invoke freedom of the press, they demand their first amendment rights. All claims of unequal treatment are phrased as denials of equal protection of the laws.'" State v. Jewett, 146 Vt., at 223, 500 A. 2d, at 235 (footnote omitted).
"In the period following independence, the state legislatures became increasingly active, enacting a great variety of laws. To many Americans much of this legislation appeared to serve the special interests of some groups at the expense of others. Moreover, much of it was thought to violate the natural rights of individuals. For example, the Pennsylvania Council of Censors issued a report in 1784 that listed many examples of legislative violations of the state constitution and bill of rights. The report showed that `fines had been remitted, judicially established claims disallowed, verdicts of juries set aside, the property of one given to another, defective titles secured, marriages dissolved,' and so forth. Similar abuses were also taking place in New Hampshire and other states. The injustice of these laws, as James Madison said, brought `into question the fundamental principle of republican Government, that the majority who rule in such governments are the safest Guardians both of public Good and private rights.' By the end of the 1780's, `the Americans' inveterate suspicion and jealousy of political power, once concentrated almost exclusively on the Crown and its agents, was transferred to the various state legislatures.'
"As Americans became more distrustful of democracy, Whig political theory gradually declined and Federalist theory became predominant. Americans began to impose greater restrictions on their legislatures in order to safeguard individual rights. In the 1770's and 1780's more and more rights were added to bills of rights. Moreover, the power of the legislatures to limit or alienate rights was steadily reduced. Increasingly, bills of rights became binding on legislatures. Instead of saying merely that the legislature `ought' not abridge certain rights, bills of rights began to provide that it `shall' not do so. The prevailing view among the Federalists was that the authority of the legislature and of government generally should extend only to a relatively narrow range of issues.
"In summary, during the revolutionary period a `tidal-wave of democracy. . . swept over the colonies.' Thereafter, during the 1780's, those waters receded and another wave swept in: a wave of concern about protecting `private rights against uncontrolled legislative power.'" Elfenbein, The Myth of Conservatism as a Constitutional Philosophy, 71 Iowa L. Rev. 401, 472-474 (1986).