Battles for the State Constitution: A Dissenter's View

Gonzaga School of Law

Chapter of the Federalist Society

September 24, 2001

The Hon. Richard B. Sanders

Washington Supreme Court

Thank you Dan Lloyd and thank you Gonzaga Federalist Society for inviting my presentation. And thank you friends for sharing your lunch hour with me.

My topic is: "Battles for the State Constitution: A Dissenter's View." This, however, was not the original suggested topic. That was "Interpreting the Constitution: A View From the Front Lines." I rejected the latter in favor of the former not only because it seemed overly academic, but also because it failed, in my view, to properly grasp the role of the lawyer and the judge when it comes to questions of constitutional moment.

Rather I think lawyers, at least the successful ones, have what Rocky called "The Eye of the Tiger." They are passionate, not dispassionate. They are zealous in their advocacy. They are warriors who champion the legal rights of their clients. They are anxious to do battle, to temper their swords with the blood of the adversary. And if that is not their destiny, then they hold it is better to leave the field on their shield rather than cowering behind it. And all the while they are consummate professionals, ever controlled and courteous, as they fight for the right.

While lawyers are the shock troops, first over the barricade with the war hoop, the judiciary stands behind. But the right thinking judge is not that far behind. Judges must be impartial as to the personal attributes of the litigants before them. However they are not neutral. In the words of Justice William O. Douglas: "No judge at the level I speak of was neutral. The Constitution is not neutral. It was designed to take the government off the backs of the people."1

As original and creative as Justice Douglas was, his view of the proper role of the judge was not his invention. The founding fathers who wrote that series of essays from which our host derives its name, The Federalist Papers, and who later advocated the adoption of a Bill of Rights as the first ten amendments to our United States Constitution, were of a similar persuasion. James Madison warned in Federalist No. 48, "That a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to" tyranny absent a judiciary to apply it.

Later he argued the federal constitution should be amended with a Bill of Rights assuring, "independent tribunals of justice will consider themselves in a peculiar manner the guardians of these rights; they will be an impenetrable bulwark against every assumption of power in the legislature or executive; they will be naturally led to resist every encroachment upon the rights expressly stipulated for in the constitution by the Declaration of Rights." And Alexander Hamilton, in Federalist No. 78, set forth in plain language the job description of a judge. He there proclaimed, "Courts of justice are to be considered as the bulwarks of a limited constitution against legislative encroachments. . . ." He challenged the judiciary to "require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the constitution, where legislative invasions of it had been instigated by the major voice of the community." He called the judiciary to arms, demanding of judges "that inflexible and uniform adherence to the rights of the constitution and of individuals, which we perceived to be indispensable in the courts of justice. . . ."

Therefore I am here today to talk about "Battles for the State Constitution" not as a neutral bystander but as an advocate for those fundamental principles. Preservation of those principles has provided a land of liberty for us to inherit, one won by the blood and sacrifice of our forefathers.

Unfortunately the compromise of the principles, if not their demise, cannot be easily perceived during the process. Like the ebbing tide, we cannot see it happen but only know it has when the beach is dry. So it is with the law. When we know what is happening it is usually only because it has already happened. But by then the words of our constitution may be a "mere demarcation on parchment," devoid of practical value. So let us realize battles are being fought and lost, and more battles will be fought in the future. Their outcome depends on those who live to fight them.

Independent State Constitution

The first battle is for no less than the independence and integrity of our state constitution in and of itself. There are those who claim that the state constitution is a weak sister to its federal counterpart, and to give it an independent meaning we must first surmount some obstacle. Otherwise the federal constitution controls. Some have construed State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986), to embody this federal default principle.

In point of law, however, it was the national constitution which was the afterthought. Constitutions of the several states had been previously proposed and ratified. State government was the basic unit of government. The federal government existed only by delegation from the states. Our national constitution was in large part inspired by the strengths and weaknesses of the state constitutions which preceded it. Insofar as it incorporated a Bill of Rights, it copied same from the Virginia Declaration of Rights drafted by George Mason. But at most the Bill of Rights was to be but a second layer of protection, the state declarations of rights were primary.

In 1889 the citizens of this state by popular vote ratified our constitution. Their intention can only be understood by the plain meaning of the language they used. Except by amendment that constitution has not changed. It was not only a constitution for that time, but for all time.

Notwithstanding, our appellate courts have, time and time again, sought to measure our state constitutional protections by some federal standard. In State v. Catlett, 133 Wn.2d 355 (1997) for example, our court went so far as to say that although the double jeopardy clause of the state constitution barred a criminal drug prosecution following the forfeiture of assets in 1995, it no longer did so in 1997 because of an intervening U.S. Supreme Court decision. Dissenting, I argued our state constitution should be given its plain, ordinary, and literal meaning as intended by our forefathers. And its meaning does not change. Nor is it in any way dependent on how federal or state courts construe the federal constitution. Our constitution is the basic covenant between the people of the state and their government. It must be respected and defended as exactly that.

Limited Power of Government

The second battle is also fundamental. There are those who claim because the federal government is a government of limited and enumerated powers, the government given to us by our state constitution must be absolute, subject only to those boundaries set forth in its Declaration of Rights. The advocates for this view cite a long line of cases which pay lip service to this heresy, but seldom if ever justify it. See, e.g., State v. Young, 123 Wn.2d 173, 180 (1994).

But I also dissent from this view, believing instead that our state government is also a limited government.

I would first direct your attention to the congressional Enabling Act, approved in February 1889 (25 U.S. Statutes at Large § 180, at 676), wherein the citizens of our territory were invited to propose and ratify a constitution not repugnant to "the principles of the Declaration of Independence." Every congressional Enabling Act since 1864 contained identical language. This requirement was inspired by no less than Abraham Lincoln. Lincoln once commented that he never had a political thought which was not based upon the Declaration of Independence.

In pertinent part, the Declaration provides:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness. That to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.

The equality of which the Declaration speaks is the equality of man qua man. By his nature, no man the equal of another has the legitimate right to impose his will, except by consent. Thus the power of government extends only insofar as it is delegated by the consent of the governed. The object of government was not to do everything, but rather to secure the rights of the individual. These included the right to life, liberty, and the pursuit of happiness, that is, all private pursuits including property.2

The Declaration continues that governments which not only fail to secure those rights, but invade them, are unworthy and should be set aside. On that basis the fires of revolution were ignited, ultimately to sweep away the tyranny of King George, replacing it with a government dedicated to the protection of individual rights, not their violation.

I ask you, was not the Constitution of the State of Washington faithful to this principle? Article I, section 1, 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.

I submit this is merely a paraphrase of the Declaration of Independence. The plenary power of our state resides in its people, not the government. The government is empowered only by their consent "to protect and maintain individual rights," not violate them.

This essential function of government, sometimes described as the police power, is therefore to protect our lives, liberty, and property from transgressions of our neighbors. If government is to do more than that, we must look to a specific provision of the constitution to evidence delegation of that authority. And our constitution does contain some such provisions, maintenance of the public schools for example. However, the rule must be, absent express delegation of constitutional authority, the people have reserved to themselves all else.

Ours is not a legislature vested with all legislative powers, only some.3

Scope of Police Power

The losses sustained in earlier battles make the prospect of defeat even more imminent in the third. I am speaking here of the legitimate scope of the police power.

Although our constitution does not describe the power of our state government in these terms, I would argue article I, section 1, is no more than a reformulation of the classical understanding of just that. In the beginning, we could delegate to government no more, and did delegate substantially less, than the power we already possessed as individuals. The "police power" is properly understood to be that power an individual possesses in the state of nature to defend what is his: His person and his property.4 For the sake of expediency we delegated this authority to the government for our protection. Protection of "health" and "safety" were early formulations of the idea.

Through the years our court has stated, and reiterated, that that which exceeds the police power also exceeds the constitutional power of state government. However, by the same token, through those same years the original definition of the police power has been misunderstood, forgotten, and inflated.

I would argue a critical battle over the police power was lost in CLEAN v. State, 130 Wn.2d 782 (1996), where a majority of the court opined that construction of a baseball stadium was an exercise of the police power. I would contend, in dissent, that a baseball stadium may be a capital improvement, a public work, corporate welfare, or a gift of public funds to private entities, but it is not, by any stretch of the imagination, an exercise of the police power if that term retains any meaning. If that is an exercise of the "police power," then I can imagine nothing which is not.5

A second and critical phase of the battle over the police power is now being fought. That battle concerns the integrity and the survival of our Declaration of Rights.

Let us put this question in the context of Federalist No. 84, written by Alexander Hamilton. Therein Alexander Hamilton defended the proposed Constitution of 1787 against the principal complaint that it failed to contain a Bill of Rights. Hamilton countered that a Bill of Rights was

not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorful pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?

(Italics added.) Clearly it was Hamilton's view, as it was the view of the founding generation, that a Bill of Rights served only one function, that function to be an exception to powers otherwise legitimately exercised by government.

But what has happened to this principle in the Battle for our State Constitution? One by one precious provisions in our state Declaration of Rights have been deemed to exist not as exceptions to the power of government, but rather subject to the so-called police power of government. Were that true our Declaration of Rights would be meaningless.

Article I, section 24, the right to bear arms, was an early casualty, as many cases purport to hold that the right to bear arms, although constitutionally guaranteed, is subject to reasonable regulation under the police power. See, e.g., Second Amendment Foundation v. Renton, 35 Wn. App. 583, 586 (1983). Since I came to the Supreme Court, this heresy has also infected religious liberty, secured in very absolute terms by article I, section 11. Regrettably our court has said religious liberty is also subject to reasonable regulation under the police power. See Open Door Baptist Church v. Clark County, 140 Wn.2d 143, 167 (2000). So what is next? Privacy? Press? Speech? Assembly? Can it not be argued that these are also at the mercy of the police power-a power which some argue only ends with the Declaration of Rights, but now predominates over even that? I am reminded of the prophecy of our first Supreme Court Justice, Theodore Stiles, that the ever-expanding notions of "police power" are "liveries of heaven, stolen to serve the devil in." Weden v. San Juan County, 135 Wn.2d 678, 726 (1998) (Sanders, J., dissenting).

Separation of Powers

Yet a fourth battle rages over separation of powers. Recall that Baron De Montesquieu in his epic treatise, The Spirit of the Laws, discerned that if liberty is to survive, the power of government must be limited through separation and division. It was his view, accepted by the founding fathers, that governmental power must check governmental power. To that end the branches of government were separated from each other, and set against each other.

The founding fathers of our state and nation feared concentration of power in the legislative branch. "Into its impetuous vortex," wrote James Madison in Federalist No. 48, would be swept all of the power of government but for the courageous vigilance of the judicial branch, which had not only the authority but duty to declare the law with respect to the activities of the other branches. See Federalist No. 78 and see Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803).

Now, however, the doctrine would be set on its head by those who claim judges who stand firm against legislative encroachments beyond constitutionally delegated legislative power are somehow "activists" who themselves are grasping a role beyond their delegated authority. I could not disagree more. Montesquieu also observed, "there is no liberty if the power of judging be not separated from the legislative and executive powers" as quoted in Federalist No. 78. Power means power.

Article IV of the Washington Constitution provides, "The judicial power of the state shall be vested in a supreme court . . . ." The power to declare what the law is at the heart of the judicial power. Beyond that the judiciary is vested with the power and authority to do that which traditionally courts have done.6 Yet time and time again the legislature has usurped more and more judicial authority. For example, at the time our constitution was ratified the courts retained discretion in criminal sentencing up to maximum limits set by the legislature. See State v. Rivers, 129 Wn.2d 697, 732-33 (1996) (Sanders, J., dissenting). The courts reserved to themselves decisions regarding bail. See State v. Blilie, 132 Wn.2d 484, 490 (1997). The courts were of course the adjudicators of the rules of evidence. Now, however, the legislature has encroached upon all of those functions, and the courts, in the name of "restraint" and "separation of powers" have not only acquiesced, they have rushed to surrender!

This dissenter would argue the constitutional balance required by the separation of powers means there must first be power to separate. An important aspect of that power is the power of the judiciary. We must be careful to avoid error but not hesitant to do our job. Our power is weak but important. We must not surrender it. Justice to the individual and maintenance of a constitution more than mere parchment depends on us.

And there are some who would argue we should defer to the legislature even to the extent of presuming statutes constitutional unless proved otherwise beyond a reasonable doubt. While this idea is promoted in the name of separation of powers, actually it destroys the separation of powers because it empowers the legislature at the expense of the citizen, the courts and the constitution itself. It is also an injudicious partiality favoring one party at the expense of the other. This maxim is inconsistent with the role of the judiciary in a constitutional republic. See, e.g, Island County v. State, 135 Wn.2d 141 (1998) (Sanders, J., concurring).

O.J. Simpson was acquitted of murder under the beyond-a-reasonable-doubt standard, but he was found to have killed his ex-wife by a preponderance. We must not allow our legislature to get away with murdering the constitutional rights of our fellow citizens.

Yet another battle associated with the separation of powers is what is sometimes called the Fourth Branch of government. See State ex rel. Brislawn v. Meath, 84 Wash. 302, 317-18 (1915). In this branch the people themselves exercise their legislative authority through the power of initiative and referendum. This power is expressly reserved to the people by constitutional amendment. It is as significant as any power delegated to any other branch. It is therefore also the responsibility of those who would guard the constitutional flame to guard the integrity of this constitutional power as much as any other.

Notwithstanding the Fourth Branch has not fared well. A case in point is again CLEAN v. State, 130 Wn.2d 782 (1996). That was the first of several cases involving the Mariner Stadium. The question was whether an emergency clause on a piece of legislation (the presence of which is now routine) was sufficient to defeat a citizen referendum under article II, section 1(d), which exempts from the referendum power "such laws as may be necessary for the immediate preservation of the public peace, health, or safety." There the court not only equated the specific language of the constitution with its expanded view of the police power, but delegated determination of the factual circumstance which justified this exception to the legislature itself. The fox is left to guard the hen house!

This dissenter would argue delegating the authority to the legislature to, in effect, immunize itself against the power of the people to check and balance it through a referendum upsets the constitutional balance and bestows upon the legislative branch illegitimate power gained at the expense of the people, the judiciary, and the plain words of the constitution. To the contrary, the question of an emergency must be a question for the judiciary to decide because it is the power of the judiciary to tell us what the law is, not the power of the legislature to write its own ticket.

In conclusion, these and other battles have been fought, are being fought, and must be fought in the future. As lawyers and judges, we must think critically. First of all we must recognize the conflict. Then we must choose sides and join the battle. This is who we are and who we must forever be.

* * *

After his talk Justice Sanders entertained questions from the audience.

Question: Justice Sanders, do you view popular election of judges as a threat to the independence of the judiciary?

Justice Sanders: No. An independent judiciary is a judiciary which is independent from the legislative and the executive branches. Independence is promoted, not defeated, by selection through a process independent of both. Judges who fail to discharge their duties because they are fearful for their own personal fortune in a reelection campaign are not judges who lack "independence" in this sense, but are men and women of weak character. Frankly, and as a practical matter, I do not believe the fear of electoral defeat is a substantial influence on the judgment of an elected judge.

Question: What problems are raised by the recent terrorist attack on the World

Trade Center?

Justice Sanders: President Bush said the attack was a cowardly act on freedom itself. I disagree. The individuals involved were not cowards, but they certainly were criminals. They did not attack the institution of freedom, they hijacked airplanes, destroyed property, and killed innocent civilians. The challenge to America is to not allow this tragedy to erode our commitment to a free society and civil liberties. Short of a police state, and even with it, I doubt that we can eliminate all terrorism in the name of safety or security. But we must never forget the fundamental principle upon which our country is based is liberty and that to destroy or compromise the constitutional rights of a few to enhance the security of the many is a path which leads away from, not toward, the fundamentals upon which our system was based. If this is to be the land of the free, it must also be the home of the brave. As Justice Hugo Black said, "we must not be afraid to be free."7

Thank you for allowing me to share your lunch hour with you.

* * *

1 William O. Douglas, The Court Years 1939-1975, at 8 (1980).

2 It was in this sense that I spoke on my inauguration day: "Nothing is, nor should be, more fundamental in our legal system than the preservation and protection of innocent human life." At the time I did not think the proposition was either doubtful or controversial. Live and learn. See In re Sanders, 135 Wn.2d 175, 180 (1998).

3 See Maynard v. Valentine, 2 Wash. Terr. 3, 14, 3 P. 195 (1880), cited in Weden v. San Juan County, 135 Wn.2d 678, 725 n.13, 958 P.2d 273 (1998) (Sanders, J., dissenting) ("A legislature with undefined powers has all legislative powers . . . Its voice 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. . . .").

4 See Roger Pilon, Can American Asset Forfeiture Be Justified?, 39 N. Y. L. Sch. L. Rev. 311, 320-25 (1994).

5 Cf. Hugh D. Spitzer, Municipal Police Power in Washington State, 75 Wash. L. Rev. 495, 505 (April 2000).

6 "What the judicial power is is what the judicial power has been." Justice Scalia, oral remarks at Federalist Society Separation of Powers seminar, Durango, Colorado, Sept. 28, 2001.

7 In re Anastaplo, 366 U.S. 82, 116, 81 S. Ct. 978, 6 L. Ed. 2d 135 (1961) (Black, J., dissenting).