This is a way of saying things too easily, of course. And then it was over. A stupid lie. For sound sleeping. People who offer unsolicited advice say things like my brother Bill’s wife Janice said, the next day, over the white pigtails of the kitchen phone. The line was static-filled over her voice; I wasn't really listening. He’d been dead for a while, she said. Sure, I said. Shut off, really. At any rate, they couldn't come, not at this time of year, what with Bill's business. I understood, of course. He's got so many commissions, you know. Of course, of course, I reassured. Cooing, like a pigeon, now. More noise on the line. At some point, I realized that we had finished our conversation, found myself picking through the refrigerator, enjoying the cold stale air, the brightly colored racks of condiments.

Dead already. While Janice was exactly the sort of bratty blonde Bill and Don had always run around with, this wasn't entirely unreasonable. One of the things I would hear often enough and which was even true in a sort of way if only I hadn't failed to turn myself off while my father had withered in slow time. But I had failed, counting the beat with my left foot, gently picking up his food scraps, shushing my mother, brushing his teeth for him, dealing with the ineffectual tool that had made me, cooking meals, and fielding calls, and breathing very still and very slow in the house whose very floorboards I now hated. Still, it was a cliché that bore escaping into, a moment of deniable regularity, like the spaces between the moment when I was, say, folding laundry and the moment that I found myself staring through the streaked glass of the window, clenching my fists in empty repetition, wondering when I had stopped, when I would continue.

I continued.

Sometimes those months, as the winter stretched on, I took short walks which I intended to be much longer escapes, until under Crystal Pier or round the whirligig Belmont, after a few blocks of frat filled rental properties and smiling sand-castle molding children, I would see an old friend from high school with his longboard and two ten year olds, and I would find myself hating him for no good reason but the infantile ache in my heart. And I stood a coward, unable to say hello or rub the cowlicks on his twins’ heads, but bending on my certain leg. Good breaks? Eight foot swells. Taking the boys out. Connor and Ryan. And I would turn around quietly, attempting to walk in the same footsteps I had set out in, creeping back to my house through the wet sand, crunching it between my toes, ignoring the neon colored attire of the bathers, the fractured reflections of crossing runners in the surf.

When we buried my father, I laid him in the ground pretty much alone. Don and Bill were back East and no-one had really expected them to show for the funeral. Don sent flowers. Bill a baked ham.

Molly and I stood a silent watch for the priest, my mother, assorted guests, scattered weeping. My sister stood aloof. After we put him in, I limped and Molly drifted back towards our home, shrouded in the mid-morning fog not yet burned off the strand. She stopped. You sonofabitch, she said. We were silent for a while. Until at last we reached the peeling red paint that crippled off the sea rotten boards of the house I had been born in. You rotten sonofabitch, she said. And walked inside.

Afterwards, my mother had stood, alone outside the house, the faint lines of light now breaking through the clouds outlining her slight frame. She and the priest, slowly moving, heads bobbing like marionettes someone was making speak: angular, jerky motions. They looked like they were in stop-motion, slightly out of frame. There was a gap of around twenty feet between us, but when my mother looked up, I turned aside. Molly had come out of the house, arms drifting over the warping wood of the rail. A hand absently grabbed at my arm. The wind must have shifted again because Mother's voice carried over to us. Not talking about him at all, but the house, repairs, the nuances of the neighbors' lives. The priest nodded, head bobbling back and forth rapidly. I reached over to fold Molly against me, but instead of the expected scratch of her autumn sweater there was only salt wet sage and chapparal curled around the rail.

Via the Arbitrary Aardvark and ScotusBlog, I see that the Supreme Court has taken an interesting search and seizure case from Utah. What I find interesting is not so much the 4th Amendment issue that the Court has decided to review (when can police bust up loud parties without a warrant?) but the dog that didn't bark in the lower court. The Utah Supreme Court's opinion complained that the attorneys failed to adequately brief a state constitutional argument and if litigants don't take the claims seriously, why should they?

Of course, there's a slight problem of circularity here-- in his essay on the dearth of state constitutionalism, James Gardner rejects this "blame the lawyers" approach. He says litigants don't take the state constitution seriously because, surely, it doesn't occur to them that they will win.

Maybe, but maybe not. Maybe most modern lawyers simply don't know how to brief a plausible constitutional argument that doesn't involve case law. Constitutional law courses focus almost exclusively (if not exclusively) on decisions of the Supreme Court and the odd lower court (and some of them are very odd indeed). You might get a nod to Jackson's Bank Veto, but what First-Year Con. Law student learns how to brief a legal argument to a court on a constitutional issue that cites only things like the original history and plain text of the provision, traditions of the people of the state, and so on? If states want their state constitutions taken seriously, they might do well to provide a bit of a helping hand, and demonstrate how it could be done.

This, of course, supposes that state courts are genuinely interested in generating state constitutional jurisprudence, rather than using their offices as a chance to act as Warren-Courts-in-Exile. There are some legitimate cynics who think that states couldn't care less about the actual content of their own constitutions, but Utah's plea for state constitutional litigation seems hard to explain on that view.

Also, owing to the accidents of history, much independent state constitutional jurisprudence is based on searches-and-seizures and the other criminal procedure amendments. Given that criminal procedure at most law schools is not really taught as a branch of constitutional law (Akhil Amar's occasional Crim Pro class being one notable exception), this may exacerbate the problem. Criminal lawyers are even less prepared to make legal arguments about constitutional issues that reason from first principles. (Then again, if I am right that Con Law classes don't really prepare students to do something other than argue from cases, maybe the difference is minimal.)

The opinion of the Utah Court is here and pasted below are the relevant paragraphs:

Our aspiration to provide useful guidance to those charged with the day-to-day responsibility of putting search and seizure law into practice is handicapped by the manner in which search and seizure cases are presented to us. This case, like Brake and an array of its search and seizure predecessors,(2) either does not raise or inadequately briefs a state constitutional claim. The reluctance of litigants to take up and develop a state constitutional analysis is surprising in light of our repeated statements that federal Fourth Amendment protections may differ from those guaranteed our citizens by our state constitution. See, e.g., State v. Debooy, 2000 UT 32, ¶ 12, 996 P.2d 546 ("While this court's interpretation of article I, section 14 has often paralleled the United States Supreme Court's interpretation of the Fourth Amendment, we have stated that we will not hesitate to give the Utah Constitution a different construction where doing so will more appropriately protect the rights of this state's citizens."); State v. Watts, 750 P.2d 1219, 1221 n.8 (Utah 1988) ("[C]hoosing to give the Utah Constitution a somewhat different construction may prove to be an appropriate method for insulating this state's citizens from the vagaries of inconsistent interpretations given to the fourth amendment by the federal courts."); State v. Hygh, 711 P.2d 264, 271-73 (Utah 1985) (Zimmerman, J., concurring) (stating that state and federal search and seizure law are not identical).

In Brake, for example, we took issue with the usefulness of federal Fourth Amendment jurisprudence concerning the police officer safety justification for warrantless automobile searches. Brake, 2004 UT 95 at ¶¶ 27-31. Our reasoning in Brake emanated to a great extent from cases in which we concluded that article I, section 14 of the Utah Constitution provides a greater expectation of privacy than the Fourth Amendment as interpreted by the United States Supreme Court.

Where the parties do not raise or adequately brief state constitutional issues, our holdings become inevitably contingent. They carry within them an implicit qualification that if properly invited to intervene, our state's Declaration of Rights might change the result and impose different demands on police officers and others who in a very real sense are the everyday guardians of constitutional guarantees against unreasonable searches and seizures.

In the not so distant history of this court, we engaged in an ongoing and robust discussion over whether and to what extent we should defer to the federal courts when called upon to interpret provisions of our Declaration of Rights, which parallel the federal Bill of Rights. State v. Anderson, 910 P.2d 1229, 1234-42 (Utah 1996); State v. Poole, 871 P.2d 531, 534-36 (Utah 1994); State v. Larocco, 794 P.2d 460, 465-71 (Utah 1990). In Anderson, we counseled against departing from the guidance from federal courts except when "compelling circumstances" required it. 910 P.2d at 1235. To do otherwise would cause unnecessary confusion and undercut the policy objective of giving clear direction to judges and law enforcement officials. Id. Justice Stewart in his concurrence cautioned against unquestioning fealty to federal precedent on matters of individual liberty. Id. at 1240. He defended his view by noting that "[t]he framers of the Utah Constitution necessarily intended that this Court should be both the ultimate and final arbiter of the meaning of the provisions in the Utah Declaration of Rights and the primary protector of individual liberties." Id.

The debate over the proper relationship between the Bill of Rights and Declaration of Rights has lain dormant for almost a decade. This lull does not signal resolution of the matter. The mere passage of time and the accumulation of decisions issued by this court on appeals brought solely on Fourth Amendment grounds may, however, ultimately overpower the merits of an independent analysis of search and seizure law under our Declaration of Rights. It would be unfortunate, indeed, if such a de facto abdication of our responsibility as guardians of the individual liberty of our citizens were to occur. Because we are resolute in our refusal to take up constitutional issues which have not been properly preserved, framed and briefed, State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346; State v. Lopez, 886 P.2d 1105, 1113 (Utah 1994), we are once again foreclosed from undertaking a principled exploration of the interplay between federal and state protections of individual rights without the collaboration of the parties to an appeal. This collaborative effort should be renewed.

(T)he early cases litigated under the U.S. Constitution were also unimpressively argued. If you read the transcripts of oral arguments (often found in the pages of the U.S. Reports) before the early Justices, you will find that they often involve one-faceted arguments about basic principles--hardly the sort of nuanced, complicated litigation we're accustomed to. Until a caselaw developed, constitutional arguments were often flimsy and unimpressive.

It would therefore seem that state supreme courts should be willing to decide state constitutional issues even if the briefs submitted have thin arguments. Walk--indeed, crawl--before running.

I am 1, studying for an administrative law exam, 2, resisting the strong temptation to read the copy of David Currie's The Constitution in Congress: Descent into the Maelstrom that is sitting on my bed, and 3, intermittently commenting on whether the Department of Labor could re-regulate home-care workers so as to entitle itself to Chevron deference rather than Mead deference, and if so, whether ti could also find a way to do so retroactively. The result will be the light blogging that has characterized the past few weeks.