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123 Our country was still fairly early in the development of what we now call the “new judicial federalism” when the New Jersey Supreme Court decided State v. Hunt in 1982.1 This set of developments arose because we have a federal system, with a national government and a United States Constitution, as well as fifty state governments, each with its own state constitution. Under such a system, similar matters may sometimes be decided one way by the U.S. Supreme Court (usually first) under the federal Constitution and a different way later by state courts under their state constitutions. In the 1970s, after the days of the liberal U.S. Supreme Court under the leadership of Chief Justice Earl Warren, the Court began to drift more toward the conservative side. In response, lawyers and state judges who had come of age during the Warren Court years began to look more carefully at their state constitutions, and lawyers started making arguments that state constitutional provisions, even if they were worded similarly or identically to those in the federal Constitution, should be construed more liberally by state courts. As a consequence , even if the claim to particular constitutional rights was lost in the U.S. Supreme Court under the federal Constitution, a similar argument could still be made and won under a state constitution. Seen from this perspective, it became clear that rulings about federal constitutional rights established a national minimum standard of protection for citizens, but state courts could go beyond that minimum level and provide additional rights for their citizens under their state constitutions. This was true, importantly, even if the state constitution used language identical to that of the federal Constitution. U.S. Supreme Court Justice William J. Brennan Jr., who had served on the New Jersey Supreme Court in the 1950s, described this situation in 1986: “Rediscovery by state supreme courts of the broader protections afforded 6 State v. Hunt (1982) Protecting Privacy from Unwarranted Searches amid a National Road Map to Independent State Constitutional Rights Cases ROBERT F. WILLIAMS 124 ROBERT F. WILLIAMS their own citizens by their state constitutions . . . is probably the most important development in constitutional jurisprudence in our times.”2 New judicial federalism had its origins in the early 1970s and had gathered a good deal of momentum as the 1980s began. Because many of the cases recognizing more expansive rights under state constitutions dealt with the rights of accused criminals, however, such decisions by state supreme courts drew a lot of criticism, initially from prosecutors and then from the public generally. State supreme court justices were charged with simply “substituting their judgment” for that of the U.S. Supreme Court when they “disagreed” with the latter’s interpretations of federal constitutional guarantees.3 In a country that had grown used to the Supreme Court issuing definitive pronouncements about rights, this phenomenon seemed strange, at least at first. Of course, when the Supreme Court ruled in favor of expansive federal constitutional rights, that ended the matter and those rights had to be recognized all over the country, including in state courts. However, in the converse situation, where the Supreme Court did not recognize federal rights, or recognized a minimal version of such rights, this quite literally left the matter to the discretion of the fifty states. In this circumstance, it was no surprise that some state courts chose to require greater rights than the national minimum standard. When this occurred in a way that seemed to favor accused criminals or other unpopular people, it raised the kinds of concerns noted in the preceding paragraphs. By 1982, the year in which State v. Hunt was decided, the country, and New Jersey, had a good deal of experience with new judicial federalism. The New Jersey Supreme Court had already issued important interpretations of the state constitution that went well beyond the national minimum standards imposed by the U.S. Supreme Court. For example, the New Jersey court had recognized the rights of poor schoolchildren, of persons who were subjected to searches and seizures by law enforcement personnel, of the terminally ill or injured who wished to die with dignity, and of indigent women who sought medical assistance funding for abortions, as well as expansive state constitutional rights in a number of other controversial areas, including those of persons charged with crimes. All of these decisions went beyond the national minimum standards. State v. Hunt By the 1970s, New Jersey had enacted a variety of laws...

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