The Keystone State: Older and Better than the Feds

Abraham 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.

Lincoln's 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.

Liberty-minded 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.

The 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).

In 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.

No 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.

In 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.

There 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).

Dogs 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.

So 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.

In 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.

A 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.

Don't 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.

Some 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.

Aside 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.

Finally, 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.

Uncle 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."

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

What's 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.

It 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.

One 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.

January 8, 2001

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