Thanks.
What I was wondering is: Do state constitutions have to (themselves) meet federal Constitutional tests?
IOW, can a state's constitution be found unconstitutional?
I suspect it can, no different than a state's legislature can be found to have produced unconstitutional legislation.
For ex: some provision which violates an individual's Constitutional rights.
Well, like I said, I just can't answer that because it's not something I've looked into. I suspect that what would happen is that a state appellate court states that the defendant loses under both federal and state constitutions, and then the Supreme Court takes it up on cert. to say "the state court's interpretation of the state constitution provides less protection on this point, so we overturn this decision because the federal constitution as we interpret it says otherwise."
I'm not sure it would be phrased as a ruling that the state constitution is "unconstitutional" under the federal constitution, but the practical effect would be the same. The state court would then have to follow whatever the Supreme Court said. I'm just not aware of any case that dealt with that specifically, so what do I know.
But it's interesting that a state constitution can go further in protecting rights (I would assume as long as some other right is not subsequently infringed upon due to the state's expansion).
It's not something that many people may be aware of, but it's there and I definitely approve of it. One snippet:
"We have noted that we "can HN6 interpret the rights of our citizens under art. 12 to be more expansive than those guaranteed by the Federal Constitution." Commonwealth v. Cryer, supra, at 568. As we stated in Commonwealth v. Hodge, 386 Mass. 165, 169, 434 N.E.2d 1246 (1982), in discussing the differences between the Sixth Amendment and the Massachusetts Declaration of Rights, the "Declaration of Rights can . . . provide greater safeguards than the Bill of Rights of the United States Constitution." Commonwealth v. Mavredakis, 430 Mass. 848 (2000)
So in addition to what I've mentioned, MA for example requires a trial judge in a criminal case to give a forceful instruction to the jury about doubting the police account of a defendant's confession where they failed to record it (or the defendant refused to allow it to be recorded). Though it wouldn't go as far as one might think. The prosecutors flipped their collective lids when the decision came down, but really, nothing changed. (Of course, it also lead to a situation where the recording equipment suffered an unexplained "malfunction" at higher rates than previously....). We're pushing to have them mandate automatic exclusion of a confession that is not recorded, given the ubiquity of recording equipment and the force of a confession, but who knows where that will go. I doubt they'll go that far.
Cite:
Commonwealth v. DiGiambattista, 442 Mass. 423 (2004). (These are available online free, if anyone is interested enough to slog through pages of legal rationale....)
Similarly, unlike under the federal constitution, the police
must notify a suspect they have in for questioning if an attorney contacts them and tells them that they wish to speak with the suspect before interrogation (or be present for it). SCOTUS says that knowledge that an attorney is trying to contact a suspect is irrelevant to whether the suspect voluntarily waives his "Miranda rights". MA says that's crap.
There are 6-10 other examples, but I'm feeling a little too lazy to find where I cited them in the past...