Where Would We Hide From the Devil? : Citizen rights: In our eagerness to make it easier to convict criminals, we may be giving the government the power to choose who’s a criminal.

As we celebrate the bicentennial of the Bill of Rights, many pundits doubt whether the American people would ratify the first 10 amendments if the question were presented today. After all, most of the rights enshrined there--such as the right to jury trial, protection against unreasonable searches and the privilege against self-incrimination--provide protection for criminals. In June, these doubts will be put to the test in California.

One of the key provisions of the Crime Victims Justice initiative sponsored by Sen. Pete Wilson amends the state Constitution to provide: “This Constitution shall not be construed by the courts to afford greater rights to criminal defendants than those afforded by the Constitution of the United States.” This raises two questions: Why do we need any “greater” rights under our state Constitution than we get under the federal Constitution? If these greater rights protect only criminal defendants, what have we got to lose by giving them up?

Most of the original 13 states had separate bills of rights in their state constitutions long before 1791. Thomas Jefferson was a leading proponent of these provisions, even after he had served as President and the country had grown to 17 states. “Seventeen distinct states,” he argued, “can never be so fascinated by the arts of one man, as to submit voluntarily to his usurpation.” In other words, rights under the federal Constitution might shrink during eras of repression. State governments would then function as the “true barriers of our liberty.”

A century later, Justice Louis D. Brandeis put it more romantically, describing the role of the states as “laboratories of democracy,” free to experiment with their own constitutions. Former Chief Justice Warren E. Burger, referring to the Brandeis analogy, noted that this experimentation occurs in the domain of “the most intimate and personal aspects of an individual’s life--such as family, health, moral and criminal matters.”

Last year, Chief Justice William H. Rehnquist told a gathering of state chief justices that the U.S. Supreme Court has no inclination to oppose their movement to construe their state constitutions more liberally than the federal Constitution. “The movement is a classic example of Justice Brandeis’ praise for the federal system as making possible experimentation in 50 different state laboratories to see what the proper solution to a question is.”

On occasion, the U.S. Supreme Court is even persuaded that the state “experiments” are worth emulating under the federal Constitution. An example is the 1978 decision of the California Supreme Court in People vs. Wheeler, holding that the state constitutional guarantee of a right to jury trial precluded the use of peremptory challenges by either side to remove a racial or ethnic group from the jury. Ten years later, the U.S. Supreme Court overruled a prior precedent to reach a similar conclusion under the federal Constitution. Unfortunately, the federal decision confers narrower protection against racism in jury selection than Wheeler, and the Wilson initiative would abrogate the broader guarantees of the California Constitution.

Other examples abound of states construing their constitutions more broadly than parallels in the U.S. Constitution. The phenomenon is not limited to “liberal” state supreme courts. Within the past 15 years, more than 600 such decisions have been rendered in the supreme courts of nearly every state. Here in California, the most expansive use of independent interpretations of our state Constitution has been in the right to jury trial, the right to privacy and the right to be free of racial discrimination.

The protections of these rights would be lost only for “criminal defendants” under the initiative, however. How does that affect those of us who are absolutely confident that we will never be accused of a crime? We will never have any need to assert these rights.

What this argument overlooks is the function constitutional rights play in establishing the boundaries of governmental intervention in everyone’s life. While a criminal prosecution is the ultimate form of the coercive power of government, a good deal of government snooping, prodding and pushing is accomplished simply by the threat of criminal prosecution. The requirement of a subpoena or a search warrant before our bank or credit card records can be examined, for example, protects all California citizens, even though the only ones who ever assert it are those who ultimately end up as criminal defendants. At that point, the initiative declares, the rights disappear.

In our eagerness to make it easier to convict criminals, we tend to forget the ever-present risk that the enhanced power we are turning over to our government includes the power to define who the “criminals” are. The classic confrontation between Thomas More and his son-in-law in “A Man for All Seasons” illustrates the point. “I’d cut down every law in England to get at the devil,” declares Roper. Criminal defendant Thomas More responds, “And when the last law was down, and the devil turned round on you--where would you hide, Roper, the laws all being flat?”

By playing on our fear of crime, the proponents of this initiative seek to convince us to repeal the bill of rights in our state Constitution, and simply “opt out” as one of the 50 laboratories of democracy. The polls suggest they will succeed.