The Keystone State: Older and Better than the Feds

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Lincoln famously declared that "the Union is older than the
states." This is, of course, hogwash. The colony of Pennsylvania,
for example, was created on March 4, 1681 when King Charles II gave
a charter to William Penn. Earlier, a large part of the colony was
included in the Virginia colony, chartered in 1606. The fact that
Pennsylvania joined the Union on December 12, 1787 does not make
the Union older than Pennsylvania. The ratification of the federal
constitution did not erase the 106 years of Pennsylvania history
which predate the U.S. constitution.

lie, aside from distorting history, unduly diverts attention from
the states to the federal Leviathan. Students from sea to shining
sea are taught to worship the federal constitution as if it were
Scripture. In contrast, few students ever study the constitutions
of their states – this despite the fact that persons have more daily
contact with their state governments than with the federal government.

persons should be pleased to learn, then, that the Pennsylvania
constitution is a far greater document in its regard for individual
liberty than the federal constitution.

Pennsylvania constitution is replete with protections of individual
rights which make the federal constitution look shabby by comparison.
Some, of course, would argue that the federal constitution looks
quite shabby on its own, but that is beyond the scope of this article.
For now, attention should be focused on how pathetic Uncle Sam's
parchment looks when you prop it up next to the virile constitution
of the Keystone State (which isn't a state, but a Commonwealth).

federal constitutional jurisprudence, there is a "good faith
exception" to the exclusionary rule. The exclusionary rule
is a rule which excludes evidence from a trial when that evidence
resulted from an illegal search, i.e. from the police ignoring the
rules in the quest for "justice." In federal law, the
court can ignore the fact that the police broke the rules if they
acted in "good faith," i.e. if they really didn't know
they were breaking the law to catch a law-breaker.

such monkey-business in Pennsylvania. As the Pennsylvania Supreme
Court decided in the case of Commonwealth v. Edmunds, the
federal "good faith exception" violates the heightened
notion of privacy contained in Article 1, Section 8 of the Pennsylvania
constitution. Article 1, Section 8 of the Pennsylvania constitution
states that: "The people shall be secure in their persons,
houses, papers, and possessions from unreasonable searches and seizures,
and no warrant to search any place or to seize any person or things
shall issue without describing them as nearly as may be, nor without
probable cause, supported by oath or affirmation subscribed to by
the affiant." No warrant, no exceptions.

contrast, the Fourth Amendment provides that: "The right of
the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported
by Oath or affirmation, and particularly describing the place to
be searched, and the persons or things to be seized." The words
are nearly identical, but the federal courts have been much more
willing to forget the law and do what they please.

are numerous practical consequences of this difference in interpretation.
Pennsylvania recognized the privacy of bank records in Commonwealth
v. DeJohn, while Uncle Sam can raid your bank records at will,
thanks to the Supreme Court's ruling in U.S. v. Miller. A
defendant charged with a possessory offense in Pennsylvania has
automatic standing to challenge the admissibility of evidence obtained
from an illegal search. Uncle Sam disagrees: U.S. v. Salvucci
abolished automatic standing in such cases. Pennsylvania does not
allow the use of recording devices to monitor incoming or outgoing
phone numbers (Commonwealth v. Beauford). You can see where
this is going (Smith v. Maryland, a U.S. Supreme Court case,
says no problem).

sniffing your luggage for drugs? In Pennsylvania, that's a search
and it requires a warrant (Commonwealth v. Johnston). In
federal law? It's not a search: U.S. v. Place.

you've been arrested, and are handcuffed outside your car? Pennsylvania
cops may not conduct a warrantless search of your car, unless the
circumstances are sufficient to justify this. Federal law (New
York v. Belton) says the police can search your car without
a warrant.

Pennsylvania, if a police officer doesn't have probable cause or
a reasonable suspicion to stop and frisk someone, he can't do it.
Take a look at California v. Hodari D. for the alternative,
federal rule.

Pennsylvania police officer cannot send an informant into your home
to beam your conversations out to the police. Again, Article 1,
Section 8 provides a reasonable expectation of privacy in the home.
Not so where Uncle Sam is concerned.

want to talk to the police? Your silence cannot be used to impeach
you (i.e., attack your credibility) at trial in Pennsylvania, thanks
to Commonwealth v. Turner. Guess what? Federal law says silence
can be used to impeach.

may be tempted to reply that these protections only benefit the
criminals. This objection, however, misses the point. The protections
of individual liberty found in the Pennsylvania constitution protect
anyone who is accused of a crime. One hopes that those charged with
crimes are generally guilty, in a moral sense, of actually having
committed the evil deed with which they are charged. But these robust
protections of individual liberty should properly be seen as robust
limits on the powers of the government. In that regard, Article
1, Section 8 is good not only for criminal defendants, but is a
good thing for all.

from the privacy concerns of Article 1, Section 8, Pennsylvania
also provides more protection for free speech (more than the vaunted
First Amendment to the federal constitution). Commonwealth v.
Tate protects speech on private colleges, especially if an event
is open to the public, unlike Shopping Center v. Robins,
where the U.S. Supreme Court held otherwise.

and perhaps best of all, the Pennsylvania constitution flies in
the face of the ridiculous and unscrupulous "scholars"
(and mindless Hollywood stars) who argue that the Second Amendment
of the U.S. constitution does not recognize an individual right
to keep and bear arms. These leftists contend that the Second Amendment
is meant to protect the states' abilities to arm their militias.
Ignoring for the moment the fact that the militia consists of able-bodied
men between the ages of 18 and 45 (or thereabouts), consider the
language of the dueling constitutions.

Sam: "The operation of a well-regulated militia being a necessity,
the right of the people to keep and bear arms shall not be infringed."

Constitution, Article 1, Section 21: "The right of the citizens
to bear arms in defence of themselves and the State shall not be

nice about the Pennsylvania right to bear arms provision, in contrast
to the Second Amendment, is that it gets the grammar right. Rather
than putting the modifying clause first, and giving the power-mad
statist charlatans a hook, the Pennsylvania constitution states
the right directly: "the right of the citizens to bear arms
in defence of themselves." Even for lawyers, maybe even for
Al Gore's lawyers, this provision is beyond debate. Perhaps this
is why Pennsylvania is a close second to Texas for the highest number
of hunters, shooters, gun owners, and gun shops in the nation.

is truly bizarre to contend that the federal constitution protects
the rights of states to have a militia if the state constitutions
themselves speak not in terms of a militia, but in terms of individual
rights. This is especially bizarre in light of the fact that more
than a few state constitutions – Pennsylvania's, in particular – came before the federal constitution. So much for that claptrap
about the Union being older than the states, Mr. Lincoln.

final note: despite the good things which can be said about the
Pennsylvania constitution, it does not appear to be widely taught,
if at all, in Pennsylvania schools.

8, 2001

Dieteman is an attorney in Erie, Pennsylvania, and a PhD candidate
in philosophy at The Catholic University of America.

2001 David Dieteman

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