State Constitutional Rights After Roe - Example

[MyTeamIsOnTheFloor]

Not for the partisanly stupid. Hickory and ilk drive on.


Kentucky is on its 4th Constitution. First in 1792. 4th in 1891.

Section 1 currently says:

”All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned:
First: The right of enjoying and defending their lives and liberties.
Second: The right of worshipping Almighty God according to the dictates of their consciences.
Third: The right of seeking and pursuing their safety and happiness.
Fourth: The right of freely communicating their thoughts and opinions.
Fifth: The right of acquiring and protecting property.
Sixth: The right of assembling together in a peaceable manner for their common good, and of applying to those invested with the power of government for redress of grievances or other proper purposes, by petition, address or remonstrance.
Seventh: The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons.“

Section 2 says: “Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.”

Section 5 says: “No preference shall ever be given by law to any religious sect, society or denomination; nor to any particular creed, mode of worship or system of ecclesiastical polity; nor shall any person be compelled to attend any place of worship, to contribute to the erection or maintenance of any such place, or to the salary or support of any minister of religion; nor shall any man be compelled to send his child to any school to which he may be conscientiously opposed; and the civil rights, privileges or capacities of no person shall be taken away, or in anywise diminished or enlarged, on account of his belief or disbelief of any religious tenet, dogma or teaching. No human authority shall, in any case whatever, control or interfere with the rights of conscience.”

Its a combomash of the Declaration of Independence and US Constitution/Bill of Rights, but still different. Some more. Some less. Multiple other statutory provisions made their way into the Constitution in Kentucky, presumably to strengthen them. The mash-up continued even to the modern era. Example - Kentucky took administrative regulations passed by the EEOC under the Americans With Disabilities Act and placed them into the statutory language of the Kentucky Civil Rights Act, giving them the power of legislative enactment over the weaker (see last week’s EPA decision) administrative regulations.


Are the words used to create state protections of life, liberty, safety and happiness enough to create protections greater than the US Constitution created? We will see what the Kentucky courts say soon. The trial court judge hearing the case in Louisville issued an injunction delaying enforcement of Kentucky’s trigger law long enough to give the pro/con parties more time to present argument. THAT injunction was upheld by the Court of Appeals.

When I was a new lawyer, one of Kentucky’s esteemed Supreme Court judges (wildly liberal) publicly lamented the circumstance that so few Kentucky lawyers used the state Constitution. Looks like his wish is coming true. A whole new era of state law has awakened across the US. I will be a spectator. Younger lawyers will hopefully set aside their personal feelings and act like lawyers and make it a beneficial era.

First up - abortion rights. As they say at USC, now a Big Tenor, “Fight On.”

 

[anon_6hv78pr714xta]

Not for the partisanly stupid. Hickory and ilk drive on.


Kentucky is on its 4th Constitution. First in 1792. 4th in 1891.

Section 1 currently says:

”All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned:
First: The right of enjoying and defending their lives and liberties.
Second: The right of worshipping Almighty God according to the dictates of their consciences.
Third: The right of seeking and pursuing their safety and happiness.
Fourth: The right of freely communicating their thoughts and opinions.
Fifth: The right of acquiring and protecting property.
Sixth: The right of assembling together in a peaceable manner for their common good, and of applying to those invested with the power of government for redress of grievances or other proper purposes, by petition, address or remonstrance.
Seventh: The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons.“

Section 2 says: “Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.”

Section 5 says: “No preference shall ever be given by law to any religious sect, society or denomination; nor to any particular creed, mode of worship or system of ecclesiastical polity; nor shall any person be compelled to attend any place of worship, to contribute to the erection or maintenance of any such place, or to the salary or support of any minister of religion; nor shall any man be compelled to send his child to any school to which he may be conscientiously opposed; and the civil rights, privileges or capacities of no person shall be taken away, or in anywise diminished or enlarged, on account of his belief or disbelief of any religious tenet, dogma or teaching. No human authority shall, in any case whatever, control or interfere with the rights of conscience.”

Its a combomash of the Declaration of Independence and US Constitution/Bill of Rights, but still different. Some more. Some less. Multiple other statutory provisions made their way into the Constitution in Kentucky, presumably to strengthen them. The mash-up continued even to the modern era. Example - Kentucky took administrative regulations passed by the EEOC under the Americans With Disabilities Act and placed them into the statutory language of the Kentucky Civil Rights Act, giving them the power of legislative enactment over the weaker (see last week’s EPA decision) administrative regulations.


Are the words used to create state protections of life, liberty, safety and happiness enough to create protections greater than the US Constitution created? We will see what the Kentucky courts say soon. The trial court judge hearing the case in Louisville issued an injunction delaying enforcement of Kentucky’s trigger law long enough to give the pro/con parties more time to present argument. THAT injunction was upheld by the Court of Appeals.

When I was a new lawyer, one of Kentucky’s esteemed Supreme Court judges (wildly liberal) publicly lamented the circumstance that so few Kentucky lawyers used the state Constitution. Looks like his wish is coming true. A whole new era of state law has awakened across the US. I will be a spectator. Younger lawyers will hopefully set aside their personal feelings and act like lawyers and make it a beneficial era.

First up - abortion rights. As they say at USC, now a Big Tenor, “Fight On.”

That is a fascinating way in which to lay down the rights. I've litigated a few state constitutional issues in various states but haven't see one written that way. There is A LOT of jurisprudence to be fought over in those phrases.

Have Kentucky courts generally ruled that those provisions are supposed to mirror US Const. rights, or have they opened it up in the past?

 

[MyTeamIsOnTheFloor]

That is a fascinating way in which to lay down the rights. I've litigated a few state constitutional issues in various states but haven't see one written that way. There is A LOT of jurisprudence to be fought over in those phrases.

Have Kentucky courts generally ruled that those provisions are supposed to mirror US Const. rights, or have they opened it up in the past?

I’m not sure. I have never been part of a case where a state Constitution provision was pleaded, so I never did much research that ran into cases discussing them. I’d bet there are a handful of very old cases, but not much that is recent.

I know the judge in the Kentucky case, and I suspect he has LOTS of amicus briefs on his desk right now. We intentionally don’t discuss any of his cases, even after I quit practice. But his opinion, and the appellate review decisions, will probably flesh some of this out.

One wild card - when a couple of trial courts were about to enjoin the Governor’s Covid-related Executive Orders here, the Supreme Court stepped in and superceded Court of Appelas review, and just took the case over. Generally, the Court of Appeals here is more liberal than the Supreme Court.

It’s gonna be wild for a while.

 

[anon_6hv78pr714xta]

I’m not sure. I have never been part of a case where a state Constitution provision was pleaded, so I never did much research that ran into cases discussing them. I’d bet there are a handful of very old cases, but not much that is recent.

I know the judge in the Kentucky case, and I suspect he has LOTS of amicus briefs on his desk right now. We intentionally don’t discuss any of his cases, even after I quit practice. But his opinion, and the appellate review decisions, will probably flesh some of this out.

One wild card - when a couple of trial courts were about to enjoin the Governor’s Covid-related Executive Orders here, the Supreme Court stepped in and superceded Court of Appelas review, and just took the case over. Generally, the Court of Appeals here is more liberal than the Supreme Court.

It’s gonna be wild for a while.

Sounds like Kentucky has an interesting legal landscape.

 

[MyTeamIsOnTheFloor]

Sounds like Kentucky has an interesting legal landscape.

WIIIIDE spectrum.

Judge Roy Bean in one county and Judge William Brennan in another.

And they all hated Snooty-ass Louisville lawyers - except for me, whom they loved and respected.

 

[Univee2]

WIIIIDE spectrum.

Judge Roy Bean in one county and Judge William Brennan in another.

And they all hated Snooty-ass Louisville lawyers - except for me, whom they loved and respected.

All the bourbon you brought to pre-trial meetings had nothing to do with that.

 

[MyTeamIsOnTheFloor]

All the bourbon you brought to pre-trial meetings had nothing to do with that.

I assumed all judges outside of Louisville were packing both booze and bullets.

Very cosmopolitan.

First injunction hearing I ever participated in was over the phone, with a judge attending the annual judicial conference. Rules provided for a district court judge to hear it because the circuit judge was not in county. He refused. The circuit court judge was called and was drunk as hell. We lost.

 

[TMFT]

I’m curious to see how state con law claims pan out. It’s common in Indiana appellate cases regarding the state equivalent of the 4th that the court mentions that it’s “more stringent” than the federal 4th amendment. It obviously can’t be less stringent. But we’ll see once the rubber meets the road.

 

[dbmhoosier]

Liberals don't care about the Constitution and truly believe they can do whatever they want. See this fascist nutjob here..

 

[MyTeamIsOnTheFloor]

I’m curious to see how state con law claims pan out. It’s common in Indiana appellate cases regarding the state equivalent of the 4th that the court mentions that it’s “more stringent” than the federal 4th amendment. It obviously can’t be less stringent. But we’ll see once the rubber meets the road.

As a second year law student clerking for a law firm, I once had to research the right to public education under state constitutions. It was one of the things that made me begin to better understand this system of ours and how to “think like a lawyer.” I was also scared to death. I was working for a guy who had been a Senator, a Governor, and a member of the Sixth Circuit Court of Appeals. I was in so far over my head, I could barely breathe. But I came away with a much better understanding of “government.”

Its gonna be interesting. I believe it will change the way we govern ourselves. People are paying a lot of attention. It’s a hell of a lot easier to amend a state Constitution that the federal. Also, just more direct contact between voters and representatives. Smaller numbers, better communication, closer contacts with more elected officials. A guy in Pikeville will never see Mitch McConnell, but he WILL see multiple state government folks in his own county and his neighboring counties. They know their local judges too.

As the guy who gave me my first ever taxed job said, “It’s a whole new ballgame.”

 

[GuyDatHoo]

Liberals don't care about the Constitution and truly believe they can do whatever they want. See this fascist nutjob here..

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She’s got a lot of gusto for an unelected politician.