¶1dissenting.
¶2In 1921, the great Cardozo said: “The judge, even when he is free, is still not *70wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, metho-dized by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in the social life.’ Wide enough in all conscience is the field of discretion that remains.” Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1921).
¶3In 1954, the Supreme Court of the United States, no doubt impatient with representative democracy, outlawed racial segregation in the public schools of the states. Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). In my view, the opinion in Browndrew its “inspiration from consecrated principles.” It has already secured its place in history by virtue of its declaration for decency and justice. Unfortunately, it also established a pattern for subsequent distortions of the judicial process.
¶4In 1958, the Supreme Court of the United States, no doubt outraged by the conduct of the Legislature and Governor of Arkansas, declared that the “supreme Law of the Land,” which binds all state officials, including judges (Article VI), is whatever a majority of the persons who are members of the Supreme Court at any particular time in history say it is. Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958).
¶5In a long line of cases, beginning in 1961, the Court expanded the absorption doctrine to effectually impose upon the states, through the Due Process Clause of the Fourteenth Amendment, nearly all of the constraints of the Federal Bill of Rights.
¶6But probably the most devastating blow to the historic concept of federalism was the evolution of the compelling state interest test.
¶7In 1905, the United States Supreme Court, in Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937, struck down a state statute which provided that no employees should be required or permitted to work in bakeries more than sixty hours in a week, or ten hours a day, holding that such statute was an unreasonable, unnecessary and arbitrary interference with the right of an individual to contract. Mr. Justice Holmes had the following to say in dissent:
“It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we as legislators might think as injudicious or if you like as tyrannical as this, and which equally with this interfere with the liberty to contract, …. Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.” 198 U.S. at 75 and 76, 25 S.Ct. at 546-547.
¶8In a period of several years before and after the decision in the Lochnercase, the United States Supreme Court, under the mantle of “substantive due process,” rather routinely struck down state legislative enactments. This period has come to be known as the Lochner Era, and was referred to by Mr. Justice Black, in April, 1963, in the case of Ferguson v. Skrupa, 372 U.S. 726, 730, 83 S.Ct. 1028, 1031, 10 L.Ed.2d 93, as follows:
“The doctrine that prevailed in Loch-ner, … and like cases — that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely — has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.”
¶9*71Mr. Justice Black was not omniscient in this particular instance. On June 17, 1963, in Sherbert v. Verner, 374 U.S. 398, 406, 83 S.Ct. 1790, 10 L.Ed.2d 965, the Court considered “whether some compelling state interest” justified a state statutory infringement of a right under the First Amendment and declared the statute, as applied, unconstitutional.
¶10In April, 1969, in Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600, the Court struck down state statutes requiring one year’s residence prior to receiving welfare benefits, holding that because this requirement impinged on the constitutionally guaranteed right of interstate travel, it was to be judged by the standard of whether it promoted a compelling state interest.
¶11In January, 1973, in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, the Court struck down a Texas abortion statute, holding that the statute infringed on a pregnant woman’s right of privacy, in the opinion of the Court could not be justified by a compelling state interest, and, therefore, violated the Due Process Clause.
¶12Roe v. Wade graphically illustrates the point I wish to make:
(A) The Court first found that a pregnant’s woman’s right of privacy is a “fundamental” right under the Due Process Clause of the Fourteenth Amendment.
(B) The Court recognized that this right of privacy is not absolute but “that some state regulation in areas protected by that right is appropriate.” 410 U.S. at 154, 93 S.Ct. at 727.
(C) The Court recognized that at some point in pregnancy, a state’s “interests in safeguarding health, in maintaining medical standards, and in protecting potential life … become sufficiently compelling to sustain regulation of the factors that govern the abortion decision.” 410 U.S. at 154, 93 S.Ct. at 727.
(D) The Court then proceeded to declare, by trimesters of pregnancy, the interests of a state which it considers “compelling.”
¶13The ultimate distortion of the judicial process, at least in my area of concern, occurred in 1978. To borrow from Raoul Berger: “Unhappily … bad cases in course of time crowded out the good, being congenial to the deep-seated greed for power from which judges, alas, are not immune. And by dint of repetition, what was manifest usurpation became clothed in respectability.” Berger, “Law of the Land” Reconsidered, 74 Northwestern University Law Review 1, 30 (1979). On June 28,1978, a judge of the United States District Court for the Western District of Missouri substituted his will for the judgment of the people of Missouri, and declared unconstitutional the residency requirement for office which appears in Article IV, § 13 of the Missouri Constitution. Antonio v. Kirkpatrick, 453 F.Supp. 1161 (1978). On appeal, the United States Court of Appeals for the Eighth Circuit affirmed, being “satisfied that the District Court’s findings of fact are not clearly erroneous and that it applied correct principles of law.” Antonio v. Kirkpatrick, 579 F.2d 1147, 1150 (1978).
¶14What then is to be the fate of state legislative enactments? I think it must be conceded, on the record, that some time ago we entered another Lochner Era. It has been the law for several years that when a judge is asked to determine the constitutional validity of a state statute, he must first determine whether the right allegedly impinged upon is a “fundamental” right and, if so, whether such impingement can be justified by a compelling state interest.
¶15This brought us to the question: What are state court judges to do in this situation?
¶16The problem posed was that the compelling state interest standard requires a judicial evaluation which is subjective in nature and which requires that a judge decide whether “the legislature has acted unwisely.” As noted by Mr. Justice Rehnquist in Roe v. Wade, “the compelling state interest standard will inevitably require (courts) to examine … legislative policies and pass on the wisdom of these policies in the very process of deciding whether a particular state interest put forward may or may not be ‘compelling’.” 410 U.S. at 174, 93 S.Ct. at 737.
¶17*72State court judges in Missouri are bound to support the Constitution of the United States and the Constitution of the State of Missouri. Article VI of the United States Constitution provides that the judges in every state shall be bound by the “supreme Law of the Land.” Therefore, when the United States Supreme Court has considered and pronounced upon the constitutional validity of a particular Missouri statute, we are bound to follow that pronouncement and no problem arises. A problem does arise, however, when there has been no such pronouncement, because, in that situation, state court judges in Missouri are expressly admonished by our state Constitution not to “exercise any power properly belonging” to the legislative department (Mo.Const. Art. II, § 1) — we are expressly forbidden by our state Constitution from determining whether “the legislature has acted unwisely.”
¶18In this situation, were state judges in Missouri being directed by the United States Supreme Court to apply a standard which required, in the application, that we “legislate” and, in so doing, violate the Constitution of Missouri? We could not assume that the Justices of the Supreme Court of the United States were unaware of our dilemma. Therefore, the question unavoidably arose: Does the Court intend that state court judges shall any longer play a significant role in shaping the law under the Constitution of the United States?
¶19The answer to the question came on April 24,1979, and the answer is “no.” In North Carolina v. Butler,-U.S.-, 99 S.Ct. 1755, 1759, 60 L.Ed.2d 286, the Court disagreed with North Carolina’s treatment of the Miranda rule, and declared that “a state court can neither add to nor subtract from the mandates of the United States Constitution.” It is significant here to note that the Miranda rule does not appear in the United States Constitution. It was enacted by the Court in 1966 and is a “mandate” of the Court. Of course, another method is available (See Article V) for amending the Constitution.
¶20In any event, the role of state courts has now been defined. We must confine ourselves to application of the “mandates” of the Court. Therefore, I would immediately withdraw into our designated sphere as gracefully as possible. Where situations or issues require it, we must cheerfully and faithfully follow the “mandates” of the Court. However, it is no longer necessary or proper for us to reach out to interject Missouri state courts into adjudication of questions involving the United States Constitution as written.
¶21For a beginning, I would enter an order, effective immediately as to all motions to vacate pending in our trial courts or on appeal, excising the words “or the United States” from the first paragraph of Rule 27.26, and directing that all movants be given the opportunity to amend motions or to file new motions addressing their rights under the Missouri Constitution.
¶22In Butler, supra, the Court made a point of noting that it “must accept whatever construction of a state constitution is placed upon it by the highest court of the State.” I suggest that we begin now to meaningfully implement the provisions of the Missouri Bill of Rights.
¶23I have mixed emotions about all of this but must admit to a feeling of some relief. Attempting to predict during the past several years what the “supreme Law of the Land” will be in a given situation has sometimes proved to be an exercise in futility. See Rodgers v. Danforth, 486 S.W.2d 258 (Mo. banc 1972).
¶24I would reverse and remand to the trial court with directions to permit movant to amend.
¶25I respectfully dissent.