Michael S. Lewis: State constitutional law comes to life in New Hampshire

For the Monitor
Published: 9/16/2017 12:05:03 AM

Does New Hampshire state constitutional law constrain the actions of federal law enforcement agents who make arrests in New Hampshire?

This important question has been raised in a more nuanced way by the New Hampshire Civil Liberties Union in recent weeks in response to anticipated efforts by federal law enforcement to use allegedly ill-begotten evidence in state courts.

Many readers will ask, “What do you mean state constitutional law? There is one Constitution and it begins ‘We the People,’ right?”


On Tuesday, the New Hampshire Supreme Court Society will host an important event at the Federal District Court in Concord discussing the state constitutions that play so much more of a role in our lives as citizens.

Hon. Jeffrey Sutton of the United States Court of Appeals, a highly regarded federal jurist with deep personal ties to New England, will come to New Hampshire to give the society’s annual King Lecture.

Past lecturers have included justices of the U.S. Supreme Court and leading national politicians, attorneys, journalists and academics.

Judge Sutton, who has been discussed as a potential nominee to the United States Supreme Court, will do what his predecessors have not. He will talk about the constitutional law that most effects most citizens, state constitutional law, and the judicial officers who process the most justice for us, our state judges.

He will describe how each separate state constitution, New Hampshire’s included, confer rights upon citizens that are separate, distinct, and more powerful than the federal constitution whose parameters we hear so much more about.

He will be joined in this discussion by our own Justice David Souter, who served as a state trial and state supreme court justice before he became a federal judge and then U.S. Supreme Court justice. Justice Souter will provide his own quite special insights on the subject from the perspective of a state and federal jurist.

Perhaps he will recall his predecessor, Justice William Brennan, who wrote 40 years ago: “State constitutions . . . are a font of individual liberties, their protections often extending beyond those required by the Supreme Court’s interpretation of federal law. The legal revolution which has brought federal law to the fore must not be allowed to inhibit the independent protective force of state law – for without it, the full realization of our liberties cannot be guaranteed.”

Or perhaps he will recall his former colleague, New Hampshire Supreme Court Justice Charles Douglas, who wrote, “By dusting off our state constitutions, judges can be ‘activists’ in the best sense of the word and breathe life into the 50 documents” that comprise our nations’ separate and independent state constitutions.

These leaders have ensured that New Hampshire has had a special role in the development of this topic.

State constitutional law has revolutionized education funding in New Hampshire and has buttressed the rights of privacy and property in New Hampshire in ways that far exceed the guarantees of the federal constitution.

Judge Sutton’s lecture will add an important perspective to the very rich civics discourse that has come to define New Hampshire and the business of the New Hampshire Supreme Court Society in an area of law to which we should all give much greater attention.

(Michael S. Lewis is a Concord attorney.)

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