By The Hon. Richard B. Sanders
Washington State Supreme Court
Presented at Cato Institute's Center for
Constitutional Studies Policy Forum
Washington, D.C., August 8, 2003
Dr. Pilon, Friends from the Cato Institute, and Distinguished Guests:
The question is:
Do State Constitutions and Courts Still Protect Liberty?
I have a two-part answer to this question: Yes and no.
Yes, state constitutions generally provide declarations of rights more expansive than the Bill of Rights.
Yes, in my opinion at least, state constitutions do provide for a limited delegation of power to state government from state citizens who are the ultimate sovereigns, and limited government is essential for liberty to flourish.
Yes, I think state constitutions do a great deal to preserve individual liberty if they are construed to vest in state government the police power as it was traditionally understood: the executive power to prevent or protect us from rights violating activities of our neighbors.
And yes, I think state constitutions further safeguard our liberty by providing for a government republican in form, separations in power which exceed those of the federal government and, in many cases, the so-called fourth branch of government, which is the people themselves acting through initiative and referendum.
Yes, yes, yes, state constitutions are wonderful things, but to quote the words of James Madison in Federalist No. 48: "A mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands."
And what was Madison’s remedy?
I posit it was more than words on parchment, it is a vigorous and independent judiciary: a judiciary not only ready, willing, and able to provide that "impenetrable bulwark" to protect our liberty enshrined by the Bill of Rights, but an equal dedication to protect our liberty from state governments through our state constitutions, for as James Farley, Chairman of the Democratic National Committee under Franklin Deleanor Roosevelt, once put it, for the "Forty-seven states and the Soviet of Washington."
It was no less than Supreme Court Justice William J. Brennan who reinvigorated the idea of state constitutional law in his 1977 Harvard Law Review article, "State Constitutions and the Protection of Individual Rights." There Justice Brennan stated that during the ’60s the Supreme Court held an expanded view of individual rights, however, in subsequent years, he became the great dissenter (penning a law review article on that subject as well) because he was feeling a certain level of frustration in his efforts to protect our liberty at the federal level. He said,
The point I want to stress here is that state courts cannot rest when they have afforded their citizens the full protections of the federal constitution. State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Court’s interpretation of federal law. The legal revolution which has brought federal law to the fore must not be allowed to inhibit the independent protective force of state law—for without it the full realization of our liberties cannot be guaranteed.
Note that Justice Brennan saw an essential linkage between constitutional rights and a judiciary willing to stand up and protect them. Some might call this activism. I think it is better called the willingness of the judge to do his or her job.
Now let us recall the second half of the question originally posed, Do state courts still protect liberty? I think that they do in many ways, but they have turned out to be far less than the impenetrable bulwark advocated by Madison to protect our liberty.
Brennan did not uncritically accept the prospect of state courts as protectors of liberty:
The very premise of the cases that foreclose federal remedies constitutes a clear call to state courts to step into the breach. With the federal locus of our double protections weakened, our liberties cannot survive if the states betray the trust the Court has put in them. And if that trust is for the Court, strong enough to override the risk that some states may not live up to it, how much more strongly should we trust state courts whose manifest purpose is to expand constitutional protections. With federal scrutiny diminished, state courts must respond by increasing their own.
. . . .
We can confidently conjecture that James Madison, Father of the Bill of Rights, would have approved. We tend to forget that Madison proposed not ten, but, in the form the House sent them to the Senate, seventeen amendments. The House approved all seventeen including Number XIV—a number prophetic of things to come with the adoption of Amendment XIV seventy-nine years later—for Number XIV would have imposed specific restraints on the states. Number XIV provided: "No State shall infringe the right of trial by Jury in criminal cases, nor the right of conscience, nor the freedom of speech or of the press." Madison, in a speech to the House in 1789, argued that these restrictions on the state power were "of equal, if not greater, importance than those already made" in the body of the Constitution. There was, he said, more danger of those powers being abused by state governments than by the government of the United States. Indeed, he said, he "conceived this to be the most valuable amendment in the whole list. If there were any reason to restrain the Government of the United States from infringing these essential rights, it was equally necessary that they should be secured against the State governments."
William J. Brennan, supra, 90 Harv. L. Rev. 503-504 (footnotes omitted).
I do not claim that I have done an in-depth study of every state supreme court, although I do have some general impressions based upon my own experiences.
The sad fact of the matter is that until recently state constitutional law was not taught in the major law schools, and those that got it pursued it through home study. Also at the time the Renaissance in state constitutional law which emerged in the late 1970s and 1980s, it was espoused by academic and judicial minds who had been influenced, I would argue overly so, by the new deal progressive era which had produced such things as the Soviet of Washington.
This reinvigoration of state constitutional law was very helpful in some respects involving civil liberties such as free speech and the rights of the accused; however, in my opinion at least, failed to grasp the more fundamental propositions upon which state constitutional law is based.
As a first example of heresy, it is almost universally claimed that whereas the federal government is a government of delegated powers, state governments have all powers except those which are specifically denied through a provision of their declaration of rights. This maxim has been repeated in literally hundreds of decisions from every state.
As for myself, I have decided that I will not sign an opinion containing such language. For this and other reasons, I think I am well on the way to capturing the distinction of having the all-around record for dissenting opinions on my court. At last count I have written about 80 majorities but 160 dissents.
However I attempted to vent my frustration on this score in a New York University law review article, published in Volume 59 at 269 of the 2003 issue of that law review, challenging this heresy. I think the Washington Territorial Court said it best in 1880, a score of years before mind rot starting taking its toll in earnest:
A legislature with undefined powers has all legislative powers. It can lay down the laws in every direction, molding all persons and things, in each particular person and thing, conclusively to what it says; determining absolutely and finally every question by its fiat. Its voice is the voice of the governing power, and the voice of the governing power is the voice of God. From that there is no appeal. Great Britain’s parliament is an example of such a legislature . . . American legislatures are different, simply because limited. Higher legislation than any one of them is capable of has at one breath called them into being and circumscribed their activities. The national and state legislatures have their bounds set by what the people have enacted in the national and state constitutions.
Our Washington Constitution, like the constitutions of most other states, was adopted upon invitation from Congress in the form of an Enabling Act. Every Enabling Act since 1864, in the days of Lincoln, has required that the state constitution not be repugnant to "the principles of the Declaration of Independence." I mention this because I know those principles are near to the heart and mind of Dr. Pilon, the Cato Institute, as well as Abraham Lincoln, who once said he never had a political thought which was not based in part upon that Declaration.
Let us recall that the Declaration provides:
We hold these truths to be self-evident, that all men are created equal, they are endowed by their creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness. And to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.
The Declaration is an appeal to reason, it is a statement that men are equal to one another and that no man may be governed by another without his or her consent. It is also a statement of the purpose of government: To preserve our rights. Finally it is a rationale for a remedy for governments which cease to protect our rights, but rather invade them. Thus our American Revolution was born.
We need not go very far to trace that same sentiment in the 1889 constitution of the State of Washington. Indeed article I, section 1 of our State Constitution provides:
All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.
This as a paraphrase of the Declaration of Independence. It is a statement of the purpose of government: To protect our rights. When governments do things which do not protect our rights, that government exceeds or violates its fundamental purpose. Thus constitutions of the several states delegate to governments only that power delegated by the consent of the people, they specify how that government will function, and for what purpose it will act. Constitutions are contracts between the people and their government—not blank checks because the ultimate sovereignty resides in the people, not in the state government. It is the duty of the courts to hold the line against every encroachment and attempted expansion of authority beyond those constitutional limits established for state legislatures, state executives, and local governments by the state constitution.
And this leads me to the second problem in state constitutional law: The police power. Our state constitution hardly even mentions the police power by name, rather it is to be derived, I think, from that general statement of purpose in article I, section 1 and the Declaration of Independence—to protect and preserve individual rights.
As originally conceived, the police power is the power delegated to the government by the people to protect the legal rights which they would otherwise have, in the state of nature, to their own lives, persons, and property if there was no government to act for them. Health and safety were early terms associated with the police power.
However, over the years, the idea of the police power has expanded, or I would say devolved, to a generalized statement of whatever the government might want to do for any reason. Washington’s first supreme court justice, Theodore Stiles, identified the potential problem of an elastic definition of the police power in colorful language when he suggested it now became "liveries of heaven stolen to serve the devil in."
Things have gotten so bad in our state I can scarcely imagine how they could possibly be any worse since our Supreme Court turned aside a citizen’s challenge to public financing of the Mariners baseball stadium by claiming it was a legitimate exercise of the police power. It may be a public work, or corporate welfare—but I think to call it "police power" would turn Justice Stiles in his grave.
I recall the oral argument in this case where I attempted to have some fun. I attempted through questioning from the bench to pin down the attorney general on why she thought the stadium tax was exempt from popular referendum as she claimed it was "necessary for the immediate preservation of the public peace, health or safety" as those words are used to exempt an act from the referendum clause of our state constitution. I asked her if it was for one of these things or all of these things. She said it was for all of them, at which time I offered a follow up question concerning the health prong of the test: "Can you tell me who’s going to get sick if the Mariners leave town?" Well, she told me I did not understand the constitutional phrase at issue, a proposition ultimately accepted by a majority of my colleagues.
I would like to say the State of Washington is unique in this regard, but I don’t think so.
Another aspect to the police power problem is the apparent willingness of courts to subordinate clear and unequivocal provisions of state declarations of rights to police power considerations.
For example, article I, section 24 of our state constitution unequivocally provides: "The right of the individual citizen to bear arms in defense of himself or the state shall not be impaired." Yet the courts in our state have stated time and time again that this direction must yield to legitimate exercises of the police power.
But I ask you, how can this be? Was it not Alexander Hamilton who in Federalist No .78 argued that a national bill of rights was unnecessary to create an "exception to powers" the federal government did not already possess. Following this line of reasoning, is it not the ultimate corruption to say that a state declaration of rights is not an exception to the police power, but rather subordinate to the police power. Such a claim, I would argue, defeats the whole purpose of a state declaration of rights and undermines our entire system of liberty.
Unfortunately, this heresy in our state has not only affected the right to keep and bear arms but also, for example, freedom of religion which our state constitution in article I, section 11, states in unequivocal terms is that "absolute freedom of conscience in all matters of religious sentiment, belief and worship shall be guaranteed every to individual and no one shall be molested or disturbed in person or property on account of religion." What is next? Free speech, free press, the right to trial by jury? In a recent case arising under this provision, the majority of our court upheld a county’s zoning laws which prohibited the establishment of a church in any zone within the county absent a conditional use permit. A year or two after the decision was rendered, I did a drive-by of the "Open Door Baptist Church" to find that its doors were closed, its parking lot was overgrown with weeds, and the sign out front did not say "Jesus Saves," but rather advertised astronomy equipment.
On second thought, it might well be true that a telescope is necessary to find the rationale from this decision which did seem to come from another planet.
There is one last heresy in state constitutional law, or state court practice, which I would like to touch upon. That is the idea of separation of powers and judicial activism.
To begin let us recall that it was Baron De Montesqieu that popularized the idea of separation of powers in the foredawn of our American Revolution when he suggested that one governmental power in opposition to another was the indispensable prescription for a free society. "There is no liberty of the power of judging not be separated from the legislative and executive powers."
But for there to be a separation of powers, there must first be powers to separate. The judicial power, although a weak one, it is nevertheless a power which must be present so as to balance out the ample powers delegated by the people to the legislative and executive branches. That power is to do what judges do. It is to decide cases, it is to determine the rules of procedure. But when our court or other courts announce they give deference to the legislative or executive branches in matters of constitutional moment, we are not exercising our power, but rather we are rushing to surrender it. We are preferring the government at the expense of the individual, and we are tilting the playing field so that individuals seeking to vindicate the pleasures of their private lives must run uphill against a government bureaucracy ensconced in the high ground.
This is not fair. This is prejudicial. This is an abdication of judges to exercise their judicial power without apology and to perform their judicial duties impartially.
Finally Dr. Pilon and the Cato Institute, I appreciate your invitation for this outsider to deliver his message inside the beltway, a belt which seems to be expanding a notch or two every time I return to the Capitol. I agree, in summary, with Justice Brennan, that the Bill of Rights of the United States Constitution is the second of a "double protection" to our liberties, and urge that we recall our state constitutions and state courts are the first protection to our liberty. And we should not apologize for doing our job.
Let me end with words of Justice William O. Douglas, the real Washington’s contribution to the United States Supreme Court.
The Constitution and the Bill of Rights were designed to get government off the backs of the people—all the people. Those great documents did not give us the welfare state. Instead, they guaranteed to us all the rights to personal and spiritual self-fulfillment
But that guarantee is not self executing. As nightfall does not come all at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all most be most aware of change in the air—however slight—lest we become unwitting victims of the darkness.