New Federalism

Wisconsin long recognized that if the State charged a person with a crime, and the person had retained or appointed counsel, the 6th Amendment precluded the police from questioning him or her. This case addressed a new United States Supreme Court decision, which held that the 6th Amendment permits police to question a person charged with a crime unless he invokes the right to counsel. Wisconsin’s justices could not agree on a majority opinion. Abrahamson, one of the nation’s leading proponents of “new federalism,” filed a concurrence arguing that Article I, §7 of the Wisconsin Constitution should be interpreted to continue the longstanding rule because it better protects the right to counsel.

Under the “new federalism” doctrine, the United States Constitution establishes minimum individual rights, but state courts may interpret their own constitutions as providing greater rights. Following New York v. Belton, 453 U.S. 454 (1981), a majority of the Wisconsin Supreme Court held that when officers arrest the driver of a car, the 4th Amendment permits them to search the entire car including containers, purses, bags or luggage in the passenger compartment. Abrahamson dissented arguing that the scope of warrantless searches had reached a shockingly low standard and that, under “new federalism”, Article 1, §11 of the Wisconsin Constitution can and should be construed to preclude police from searching passenger areas of a car without a warrant, and that therefore Wisconsin should reject Belton. Ten years later, the United States Supreme Court rejected the majority’s understanding of the 4th Amendment, which prompted the Wisconsin Supreme Court to overrule Pallone. See State v. Dearborn, 2010 WI 84, 327 Wis. 2d 252, 786 N.W.2d 97.