explaining that "it is the common law right to jury trial as enjoyed at the time of the adoption of the 1970 constitution to which [the constitutional phrase] 'heretofore enjoyed’ refers” (emphasis in original)
How later courts described this case
- explaining that "it is the common law right to jury trial as enjoyed at the time of the adoption of the 1970 constitution to which [the constitutional phrase] 'heretofore enjoyed’ refers” (emphasis in original)
- discussing the debate regarding the right of trial by jury at the 1970 Constitutional Convention and concluding that “there was no intent to change trial by jury as that right was enjoyed in this State at the time of the 1970 constitutional convention”
- recognizing constitutional right of the accused to waive trial by jury and holding prosecution consent requirement unconstitutional
- our courts “often look to the common law” when determining the essential functions of a jury
Written by the judges who cited it.
The opinion
JUSTICE CLARK, concurring:
While I agree with the result reached by the majority opinion, much of the majority’s reasoning strikes me as unconvincing, and most of it as unnecessary. That reasoning flows from the majority’s continued adherence to an untenable premise: that State constitutional provisions are to be construed in “lockstep” (see McAffee, The Illinois Bill of Rights and Our Independent Legal Tradition: A Critique of the Illinois Lockstep Doctrine, 12 S. Ill. U. L.J. 1 (1987)) with parallel provisions of the Federal Constitution.
It remains a mystery to me how this principle ever came into being, and why once in existence it has remained embedded, seemingly indelible, in the body of our law. I know of no evidence — either in the convention debates, the explanations given to the ratifying voters, or in the committee reports — for the proposition that our Illinois Constitution of 1970 was intended to be construed in some instances not by the supreme court of Illinois but, instead, by the Supreme Court of the United States. If, indeed, this was what was meant, why was it not said? It would have been easy enough for the drafters of the constitution to insert a proviso: “Where similar, State and Federal constitutional provisions are to be construed following the Federal precedents established by the United States Supreme Court.” The lack of such a statement in the plain text of the constitution strongly suggests that the lockstep principle is not good constitutional law.
That the majority itself is uneasy with the lockstep principle can be seen from the qualifier which it attaches to it: a similar State provision can be interpreted differently if such an intent can be derived either from the language of the provision, the convention debates, or the committee reports. Thus the majority has blocked out a multistep procedure. First, it must determine whether the State and Federal provisions are “similar.” If not, the State provision can be interpreted independently. Second, if the provisions are “similar” it must be presumed that construction of the Federal provision controls. This is the lockstep principle. Third, the lockstep principle can be rebutted with evidence that the State provision is intended to be construed “differently” — i e., more broadly. Fourth, the State provision must be construed to determine its meaning in the context of the case presented.
This procedure strikes me as cumbersome. How it works in practice can be seen from the majority opinion. The majority infers from the words “heretofore enjoyed” that the ratifiers of the 1970 constitution did not intend to tamper with the right to jury trial guaranteed in prior State constitutions and under the common law. Since our court held in People v. Spegal (1955), 5 Ill. 2d 211 , that a requirement of prosecutorial consent to jury waivers was unconstitutional, it would follow that the jury trial right “heretofore enjoyed” precluded prosecutorial consent. But does it follow? If the lockstep principle applies to the 1870 constitution, Spegal would be overruled by the Supreme Court’s subsequent decision in Singer v. United States (1965), 380 U.S. 24 , 13 L. Ed. 2d 630 , 85 S. Ct. 783 , which held that the Federal right to jury trial did not proscribe prosecutorial waivers. Thus the majority must argue that the jury trial right of the 1870 Illinois Constitution is to be interpreted differently than the parallel jury right guaranteed by the sixth amendment to the United States Constitution. But why so? Lacking direct evidence from convention debates or committee reports, the majority is forced to rely on unspecified differences between the “jury experience” of our forebearers in the eighteenth and nineteenth centuríes and the earlier common law traditions relied upon by the court in Singer.
I cannot help but admire the majority’s reasoning. The almost Talmudic ingenuity with which the majority construes the words “heretofore enjoyed” is especially impressive. But my admiration is tempered by my sense that these verbal gymnastics are not needed.
The lockstep approach may have some advantages, but simplicity is not one of them. Nor is it clear to me why the majority’s logic would not apply equally well to other constitutional guarantees such as privacy or search and seizure. As to many of our State constitutional provisions — indeed as to most of them — our court has a long tradition of liberal construction in the service of individual rights. The lockstep approach conflicts with this tradition. Nor has the approach won plaudits from scholars. To the contrary, it has been soundly condemned. See McAffee, The Illinois Bill of Rights and Our Independent Legal Tradition: A Critique of the Illinois Lockstep Doctrine, 12 S. Ill. U. L.J. 1 (1987); Note, Interpreting the Illinois Constitution: Illinois Supreme Court Plays Follow the Leader, 18 Loy. U. Chi. L.J. 1271 (1987).
There is an alternative. Instead of assuming that similar State and Federal provisions are to be construed similarly, we could simply assume that all State constitutional provisions are to be construed independently of their Federal counterparts. By “independently” I do not mean that the State constitutional provision must in every instance be given a broader or more liberal construction. All I mean is that as to our State constitutional provisions, Federal precedents are not stare decisis. They are persuasive and not determinative. Where their reasoning persuades us, we should follow them. Where they do not, we should not. Thus, in this instance, we need only hold that the reasoning of Spegal strikes us as more persuasive than the reasoning of Singer. Strip away the circumlocution made necessary by its adherence to the lockstep principle, and that is what, it seems to me, the majority is really saying.
Using this approach, Federal precedent would be one guide to decision; our prior precedents, the records of our convention, and precedents interpreting similar provisions in the constitutions of our sister States would be others. Subject to the caveat that we could not interpret our State constitution in a way which would offend the Federal constitution, we would be free to make our own reasoned judgments on our State constitution without first having to decide whether the ratifiers of that constitution intended to accord us that privilege.
Several other considerations persuade me that the approach I suggest is the better one. Given the existence of the Federal Bill of Rights, and the application, through the due process clause of the fourteenth amendment, of the bulk of its guarantees to the States, there would be little point in writing parallel guarantees into any State constitution if those guarantees were never to be interpreted more broadly. I cannot understand why anyone would want to spill ink uselessly. By including parallel guarantees in our State constitution, its drafters and ratifiers were, it seems to me, sending a clear message. The message was that they wanted the “double protection” that only State constitutional guarantees could provide. They did not want our State constitution interpreted more broadly in every instance. But they at least wanted the security of knowing that the seven justices of this court would bring to bear on every important constitutional issue their independent resources of wisdom, judgment, and experience. It is precisely because I value these resources so highly that I cannot adhere to the majority’s reasoning.
While I therefore cannot agree with the majority’s reasoning, I applaud the result. This case, combined with others, indicates to me that the lockstep principle is on its last legs. The court has now held that our State constitutional protection provides broader rights of due process (Heimgaertner v. Benjamin Electric Manufacturing Co. (1955), 6 Ill. 2d 152, 159 ), free speech (City of Blue Island v. Kozul (1942), 379 Ill. 511 ), jury trial and confrontation (People v. Duncan (1988), 124 Ill. 2d 400 ), and freedom from cruel and unusual punishment (People v. Gacho (1988), 122 Ill. 2d 221, 260 ). It is also possible that it provides a greater protection for the right against self-incrimination. (People v. Smith (1982), 93 Ill. 2d 179, 189 .) The only clear line of authority remaining which favors a lockstep construction involves search and seizure. See, e.g., People v. Tisler (1984), 103 Ill. 2d 226 ; but see Note, United States v. Leon & Illinois v. Gates: A Call for State Courts to Develop State Constitutional Law, 1987 U. Ill. L. Rev. 331 .
This crescendo of recent cases suggests that while the majority may pay lip service to the principle, it has tacitly repudiated it. I believe that is time to square case law and doctrine by making this repudiation explicit. Since the majority opinion, while correct as to its result, does not do this, I must respectfully concur.