concurring:
I concur in the opinion of the court.
Illustrating the developing interest in State constitutionalism, a national conference on the development of State constitutional law, co-sponsored by the Conference of Chief Justices, the National Center for State Courts, and the Marshall-Wythe School of Law, was held this year, and the American Bar Association announced that one of the topics in its Appellate Judges Seminar series will be “The Use of State Constitutions.” This seminar will address questions such as whether State courts may reach different conclusions under State constitutions from those the Supreme Court has reached under the Federal Constitution and, in the event of differences, which shall prevail.
In some of the growing literature and in judicial opinions regarding State constitutions, there appear statements showing less than a full understanding of the character of constitutions and the principles that guide their judicial interpretation. It has even been stated, and in other instances implied, that a State court is free to interpret its constitution as it wishes as long as its interpretation is not more restrictive than the interpretation the Supreme Court has given parallel provisions of the Constitution of the United States. A State may not, of course, reduce the rights assured by the Federal Constitution, and it is equally clear that a State may place greater restrictions on its own power and authority than the Federal Constitution, as read by the Supreme Court, has done.
With similarity to the principle governing statutory construction, a court, in interpreting a constitution, is to ascertain and give effect to the intent of the framers of it and the citizens who have adopted it. In Drury v. County of McLean (1982), 89 Ill. 2d 417, 422-23, citing what this court pronounced in People ex rel. Keenan v. McGuane (1958), 13 Ill. 2d 520, 31 Ill. 2d 197, we said: “We have previously acknowledged that in construing the Constitution the true inquiry concerns the understanding of the meaning of its provision by the voters who adopted it. However, the practice of consulting the debates of the members of the convention which framed the constitution has long been indulged in by courts in determining the meaning of provisions which are thought to be doubtful. (People ex rel. Keenan v. McGuane (1958), 13 Ill. 2d 520, 527.) The debates, therefore, aid in determining the intent of the drafters of the Constitution.” (See also Continental Illinois National Bank & Trust Co. v. Zagel (1979), 78 Ill. 2d 387, 397.) That it is generally accepted that courts must look to the intent of the adopters and framers as controlling there can be no doubt. To illustrate: American Jurisprudence, 2d, under Constitutional Law, citing Federal decisions and decisions from 25 States observes: “The fundamental principle of constitutional construction is that effect must be given to the intent of the framers of the organic law and of the people adopting it. This is the polestar in the construction of constitutions, all other principles of construction are only rules or guides to aid in the determination of the intention of the constitution’s framers.” 16 Am. Jur. 2d Constitutional Law sec. 92, at 418 (1979).
If these principles of constitutional construction were to be ignored critics not unreasonably would declare it judicial arrogance for courts to say that their power to construe constitutions was limited only by the restraints courts might impose upon themselves. Courts are not legislatures, and neither are they constitutional framers and adopters of constitutions. What Justice Powell said in another context is not without relevance: “We should be ever mindful of the contradictions that would arise if a democracy were to permit general oversight of the elected branches of government by a nonrepresentative, and in large measure insulated, judicial branch.” United States v. Richardson (1974), 418 U.S. 166, 188, 41 L. Ed. 2d 678, 695, 94 S. Ct. 2940, 2952 (concurring opinion).
The majority holds that the constitutional delegates did not manifest an intent to expand the protection afforded by the fourth amendment to the Constitution, other than to add provisions giving protection against eavesdropping and invasions of privacy. That this was a conscious decision of the convention appears from the fact that the delegates were given instructions as to the role they were to play as drafters of the new constitution as to the possible consequences of actions they might take. Delegate Elmer Gertz, chairman of the Bill of Rights Committee, has given a fascinating report of much that occurred during the proceedings of the constitutional convention. (E. Gertz, For The First Hours of Tomorrow: The New Illinois Bill of Rights (1972).) In it he tells that the then governor of Illinois had a series of research papers that had been prepared by the Constitution Research Group sent to all of the delegates both before and during the convention. Two of the papers concerned problems which were to come before the Bill of Rights Committee and another was a general introduction to constitution-making and contained much material on the Illinois bill of rights. The group’s research papers were later published as: Con-Con: Issues for the Illinois Constitutional Convention (1970).
Through these research papers the delegates were given information that appears relevant in determining whether the delegates, in drafting section 6 of the bill of rights, did or did not intend to confer rights and protections beyond those given under the fourth améndment.
The delegates were informed:
“Although most important bill of rights provisions have thus become ‘federalized,’ there is a clear, continuing justification for state bills of rights. First, the state may grant greater and more far-reaching protection to its citizens than federal decisions require. For instance, the Illinois Bill of Rights does provide greater protection in the case' of damages for property taken or ‘damaged’ for public use by eminent domain. The federal Bill of Rights as applied through the Fourteenth Amendment merely establishes the minimum amount of protection afforded, leaving the states free to impose more stringent requirements if they choose to do so. In the past the minimum required under the Fourteenth Amendment has all too often been the maximum provided by the states, but there is no reason why this should persist into the future.” Grad, The State Bill of Rights, in Con-Con: Issues for the Illinois Constitutional Convention 32-33 (1970).
In a paper entitled “The State Constitution: Its Nature and Purpose,” the delegates were instructed and cautioned:
“In any revision of a state constitution, the existing declaration of rights should be examined to determine whether some provisions are no longer necessary, whether some should be clarified or expanded, and whether new basic rights should be recognized. Moreover, in view of the progressive extension in recent years of provisions of the federal Bill of Rights to the states, on the theory that they are fundamental rights protected against the states by the Fourteenth Amendment, the corresponding provisions of the Illinois Constitution should be examined to see whether they accord with the federal standard applicable to the states.
A word of caution may be introduced here. Courts follow the general rule of construction that words carried forward verbatim from an earlier constitution to a revised constitution also carry forward the accumulated gloss of judicial interpretation.” Kaupler, The State Constitution: Its Nature and Purpose, in Con-Con: Issues for the Illinois Constitutional Convention 24-25 (1970).
The majority has noted that the delegates, in drafting section 6, basically followed the language and provisions, of section 6 of the preceding constitution with these exceptions: a right of the people to be free from invasions of privacy and a right against interceptions of communications by eavesdropping devices or other means were added.
It appears that the instruction given the delegates by the research papers was not ignored by the delegates. For example, in discussing the Illinois bill of rights, the research papers noted that Illinois, in the then-existing bill of rights, did not have an express guarantee of equal protection of the laws and that an adequate clause ought to be considered by the delegates for inclusion in the new bill of rights. (Grad, The State Bill of Rights, in Con-Con: Issues for the Illinois Constitutional Convention 41-42 (1970).) The delegates responded to the recommendations, and the constitution that was submitted by the delegates to the voters contained a provision assuring equal protection of the laws. Too, the papers noted that protections against illegal wiretapping and “bugging” might be considered by the delegates for express constitutional inclusion. It is interesting to note that the delegates did expand the search-and-seizure provisions in the proposed constitution to include a guarantee of freedom from unreasonable eavesdropping and invasions of privacy. Grad, The State Bill of Rights, in Con-Con: Issues for the Illinois Constitutional Convention 45-46 (1970).
The research papers should not be overlooked in any search to determine the mind of the convention.