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The New Federalism[index]

During the last fifteen years or so, the U.S. Supreme Court has begun to retreat from the role of champion of individual rights. This should have a broadening effect on our rights and freedoms. This is because the state role of establishing affirmative rights should no longer be overshadowed by an active federal judiciary that, limited by the concepts of federalism, could only guard us against the actions of government.

The response is a revival called the "new federalism." The new federalism has no political ideology: it includes progressives, moderates and conservatives--everyone who believes in a careful balance between individual freedom and governmental power. The new federalism rests on the proposition that federal constitutional safeguards establish a minimum standard for our natural rights (restricting governmental interference), while each state constitution affords additional protection in its historic capacity as the original conservator of individual freedom.

The last to understand the importance of the new federalism is the law schools who have traditionally emphasized federal jurisprudence in their courses on constitutional law while failing to provide a foundation in state constitutional theory. Today the constitutional law professor who fails to include the expansive role of state constitutional law in his course is an anachronism circa 1960.

As described above, the mechanism for securing natural rights affirmatively has always been left to each state. Thus, each state has enacted affirmative grants of natural rights to the people in that state. After lying dormant for 200 years, they are awakening as part of the new federalism movement.

For example, the first amendment to the United States Constitution prohibits Congress from making laws abridging the freedom of speech or the press. The fourteenth amendment prohibits state governments from making such laws. But Article I, Section 8 of the Texas Constitution goes much further. It begins, "Every person shall be at liberty to speak, write or publish his opinions on any subject...."

In other words, the United States Constitution merely protects free speech from state and federal laws that would limit it. The Texas Constitution protects free speech from anyone who would limit it.

To illustrate, in a case styled Jones v. Memorial Hospital System, the plaintiff was employed by the defendant hospital as a registered nurse. She wrote an article about the conflict between the duty of hospital personnel to prolong life and the right of terminally ill patients to die. After the article was published in a local newspaper, Nurse Jones was fired. Texas is a so-called "employment-at-will state" wherein an employee who has no contract continues employment at the will of the employer. We (the Jones case was brought with the assistance of the American Civil Liberties Union and the Clark Reed Foundation and both authors were involved in the case as attorneys for the plaintiff) and our associates brought suit in Texas State Court under the Texas Bill of Rights. The Texas trial court summarily dismissed the case because the defendant hospital was not a governmental entity and there was, therefore, no state action as required by the United States Constitution. In Jones v. Memorial Hospital System, 677 S.W.2d 221 (Tex.App.--Houston--[1st Dist.] 1984) no writ, the First Houston District Court of Appeals remanded the case with instructions to the trial court to consider the question of additional protection under the Texas Constitution. On remand, the trial court entered a summary judgment in favor of the hospital. On the second appeal, the appeals court ruled that the Texas Constitution prohibits a private hospital from summarily terminating a registered nurse for publishing an article on a matter of public import related to the hospital. Jones v. Memorial Hospital System, 746 S.W.2d 891 (Tex.App.--Houston--[1st Dist.] 1988) no writ. After affirming that Ms. Jones could sue directly under Section 8 of the Texas Bill of Rights, the appeals court expressly acknowledged that Section 8 provides more protection than the First Amendment to the federal constitution.

During this same period, The Texas Supreme Court observed that the federal Constitution is not the sole guarantor of the people's freedom. Speaking for the Court, Justice Franklin Spears noted,

"Like the citizens of other states, Texans have adopted state constitutions to restrict governmental power and guarantee individual rights....this court has the power and duty to protect the additional state guaranteed rights of all Texans....By enforcing our constitution, we provide Texans with their full individual rights and strengthen federalism....LeCroy v. Hanlon, 713 S.W.2nd 335, 338 (Tex. 1986)." (citations omitted).

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