September 22, 2017

By: Dennis Whitaker

Sunday September 17, 2017, is the 230th anniversary of the signing of the United States Constitution, and Constitution Day is being celebrated with programs in schools across the nation.   Pennsylvania’s 1968 constitution contains many analogous provisions to its federal counterpart. Our Supreme Court has sometimes interpreted these provisions to provide the exact measure of protection that the federal constitution guarantees as the United States Supreme Court has interpreted it. On many occasions however, the Pennsylvania Supreme Court has interpreted these analogous state constitutional provisions as guaranteeing more protection for individuals than the U.S. Supreme Court has held are required under the federal constitution. The 230th anniversary of the federal constitution provides an ideal moment to review these foundations of our rights as Americans and as Pennsylvanians. In this spirit Pennsylvania Appellate Advocate will present a series of posts during the week of September 18 in which we compare and contrast the federal and Pennsylvania constitutions and discuss the implications of the heightened guarantees provided under our Supreme Court’s interpretation of the Pennsylvania provisions. We invite you to follow Pennsylvania Appellate Advocate on a regular basis and to visit us every day next week for our Constitution Week posts.

In preparation for next week we offer some interesting background. The constitutional convention met in Philadelphia for four months beginning May 14, 1787, culminating with the signing of the Constitution on September 17, 1787. 12 of the 13 states signed: Rhode Island refused to send delegates to the convention because it was wary of a powerful federal government. (George Washington, displeased with the decision, wrote that “Rhode Island . . . still perseveres in that impolitic, unjust, and one might add without much impropriety scandalous conduct, which seems to have marked all her public councils of late.”) (More on Rhode Island below). Nonetheless, on September 17, 1787 the 12 state delegations present approved the Constitution, and 39 of the 42 delegates present signed it. Pennsylvania’s signers were: Benjamin Franklin; Thomas Mifflin; Robert Morris; George Clymer; Thomas FitzSimons; Jared Ingersoll: James Wilson; and, Gouverneur Morris. Alexander Hamilton was the sole signer from New York.

The Constitution became effective on June 21, 1788, when New Hampshire became the ninth state to ratify. On March 4, 1789 the first Congress under the Constitution convened in New York City. George Washington was inaugurated as the first president of the United States on April 30, 1789. More than a year later, Rhode Island became the 13th and last of the original 13 colonies/states to ratify the Constitution, on the condition that a Bill of Rights be added. James Madison had introduced a proposed Bill of Rights in the House of Representatives on June 8, 1789. Congress approved 12 amendments on September 25, 1789 and sent them to the states for ratification. On December 15, 1791, Virginia ratified the Bill of Rights and 10 of the proposed 12 amendments became part of the Constitution.


Although we presently live under the 1968 Constitution, Pennsylvania’s first Constitution was ratified in 1776, nearly 12 years before the federal document. In Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991), in the context of rejecting a “good faith” exception to the exclusionary rule as “frustrat[ing]” the guarantees provided by Article I, Section 8 of the Pennsylvania Constitution, Id. at 905-06, our Supreme Court described the relationship between the federal and state documents as follows:

Perhaps the extent of the untapped history of the Pennsylvania Constitution should be underscored. Pennsylvania’s Constitution was adopted on September 28, 1776, a full ten years prior to the ratification of the U.S. Constitution. Like the constitutions of Virginia, New Jersey, Maryland, and most of the original 13 Colonies, Pennsylvania’s Constitution was drafted in the midst of the American Revolution, as the first overt expression of independence from the British Crown. See W. Adams, The First American Constitutions at 61 (1980). The Pennsylvania Constitution was therefore meant to reduce to writing a deep history of unwritten legal and moral codes which had guided the colonists from the beginning of William Penn’s charter in 1681. See White, Commentaries on the Constitution of Pennsylvania (1907). Unlike the Bill of Rights of the United States Constitution which emerged as a later addendum in 1791, the Declaration of Rights in the Pennsylvania Constitution was an organic part of the state’s original constitution of 1776, and appeared (not coincidentally) first in that document.

Thus, contrary to the popular misconception that state constitutions are somehow patterned after the United States Constitution, the reverse is true. The federal Bill of Rights borrowed heavily from the Declarations of Rights contained in the constitutions of Pennsylvania and other colonies. See Brennan, The Bill of Rights and the States, in The Great Rights 67 (E. Cahn ed. 1963). For instance, the Pennsylvania Declaration of Rights was the “direct precursor” of the freedom of speech and press. See 1 B. Schwartz, The Bill of Rights: A Documentary History 262 (1971). The Delaware Declaration of Rights prohibited quartering of soldiers and ex-post facto laws. Id. at 276-78. North Carolina’s Declaration of Rights provided a number of protections to the criminally accused–the right to trial by jury, the privilege against self-incrimination, and others–which later appeared in the United States Constitution. Id. at 286-88.

Edmunds, 586 A.2d at 896.

As one might expect from reading this exposition, the Pennsylvania Supreme Court will review the guarantees our charter provides independently of the U.S. Supreme Court’s decisions regarding the guarantees analogous federal provisions provide. In Theodore v. Delaware Valley Sch. Dist., 836 A.2d 76 (Pa. 2003), the Court stated:

As a matter of policy, Pennsylvania citizens should not have the contours of their fundamental rights under our charter rendered uncertain, unknowable, or changeable, while the U.S. Supreme Court struggles to articulate a standard to govern a similar federal question. There is an entirely different jurisprudential and constitutional imperative at work when this Court, which is the final word on the meaning of our own charter in a properly joined case or controversy, is charged with the duty to render a judgment.

Theodore, 836 A.2d at 89, quoting Pap’s A.M. v. City of Erie, 812 A.2d 591, 611 (Pa. 2002).

From this we can conclude that, as the subsequent posts in this series will discuss, our Supreme Court has often construed the guarantees Pennsylvania’s constitution provides more broadly than the U.S. Supreme Court has construed the analogous provisions in the federal Constitution. While interesting from an academic standpoint, from a practice standpoint it obviously is important to include state law provisions when one is asserting constitutional guarantees as either a sword or a shield. Decisions establishing rights under Pennsylvania’s Constitution independent of its federal counterpart are not subject to U.S. Supreme Court review as our Supreme Court has the last word on the guarantees the Commonwealth’s foundational document provides.

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About the Author:

Dennis A. Whitaker, partner at Hawke, McKeon & Sniscak, LLP, is an experienced litigator with over 25 years of Commonwealth service.  Focusing on government appellate and original jurisdiction practice in state and federal courts, Dennis offers sound advice, creative solutions, and effective strategies to clients navigating the appeals process.