April 29, 2000

The Hon. Richard B. Sanders

As those of you who attended last year’s convention know, today’s appearance is an encore performance. I have returned.

Last year’s presentation included a public confession of philosophical orientation: "My name is Richard, and I am a libertarian," I acknowledged. As I recall, although brain cells are rapidly dying, I made a similar albeit vicarious confession on behalf of the Founding Fathers: those who signed the Declaration of Independence, ratified the United States Constitution, and that lesser known host of worthies who drafted and proposed the Washington State Constitution for popular ratification in 1889.

I recalled that these three documents, at their core, proclaimed a law of liberty which is the birthright of every citizen and the guiding principle of an enlightened judiciary.

I reflected upon the line in the Declaration of Independence which states that not only are men created equal but "they are endowed by their creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness." And that, most importantly: "That to secure these rights governments are instituted among men. . . ."

From these words I drew two important principles:

(1) We humans are born with our rights on. We do not get our rights from the government, but rather from our creator, or, as some might prefer, as an aspect of our very nature.

(2) It is the purpose of government to protect or rights, not to violate them. After all, the whole reason for the Declaration of Independence was the British government had ceased to fulfill its legitimate function to protect rights, but rather stood the purpose of government on its head, violating rights rather than protecting them.

I think we see the aspiration for legitimate government to protect our rights as well as the fear that government may abuse our rights reflected in the United States Constitution as originally proposed in 1787. Without regard to the Bill of Rights subsequently added, the original Constitution envisioned a federal government limited to those powers delegated to it by the states or the people. As observed by Alexander Hamilton in the Federalist Papers, a bill of rights is really unnecessary to secure our liberties against the exercise of governmental powers which are not delegated to the government in the first instance. For example, he argued against a bill of rights securing freedom of the press by observing that the federal government had no power to usurp that freedom in the first instance and such an additional guarantee would be mere surplusage.

Although a bill of rights was ultimately ratified as the first ten amendments to the Constitution, in point of fact, Hamilton was right: The first and most important protection to our liberty is the absence of authority in the government to abridge it.

Not only does the United States Constitution but also the constitutions of the various states proceed from this principle. That is these constitutions define and thus limit the authority of the government to act.

By the same token when the Declaration of Independence envisions a government by the consent of the governed, I believe we would be very mistaken to assume that the consent envisioned is in essence a blank check for the government to do anything it pleases. No, the consent envisioned is that consent manifested through popular ratification of that contract between the people and their government which we commonly call the Constitution. The Constitution states what power we delegate to the government. What we don’t give away, we keep. The Constitution is therefore the fundamental law of the land, a law more fundamental than the government itself. In fact the Constitution defines the mechanism and purpose of governing authority.

Of course, as Chief Justice John Marshall observed, it is the unique role of the courts to determine what the law is and to apply that law not only to private parties but also to the government itself. And as James Madison argued in favor of the adoption of a Bill of Rights, courts must see themselves as an impenetrable bulwark against every assumption of power by the legislative or executive branch which might violate those rights.

Thus, as originally envisioned, the government was to be the guardian of our rights, and the courts were to guard the guardian.

In 1889 the people of this state adopted the Washington State Constitution as a condition precedent to our admission to the Union. The congressional Enabling Act which contemplated our admission provided that we first adopt a constitution consistent with the principles set forth in the Declaration of Independence. Therefore I think it is not by mere coincidence that article I, section I, of the Washington State Constitution provides, in language similar to the Declaration of Independence itself: "Governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights."

However no matter how great and noble the Founders’ intent which animated these documents, they are still, in fact, merely documents, merely words on parchment. If we are to retain the original purpose and design of government, it will be because we the people, the people living today, wish, direct, and insist that it be so. I often reflect upon the immortal words of Judge Learned Hand as he expressed them in his 1945 speech to those assembled in New York’s Central Park:

But the reciprocal of this proposition must also be true. While the spirit of liberty dwells in the hearts of men and women, the Constitution, the law, and the court can save it. This I state not just as a hope or aspiration but as a fact, the achievement of which is within our grasp—at least in our state.

Although the currents of liberty run wide and deep across our nation, I fear that the original intent, understanding, or design of our Federal Constitution will not find restoration within our lifetime. Professor Stewart Jay of the University of Washington School of Law, currently putting the final touches on his seminal history of the United States Constitution, recently stated at an appellate judges conference the original understanding and intent of the United States Constitution bears little or any similarity to the current construction placed upon it by the United States Supreme Court. I am not altogether convinced that Professor Jay is distressed at this state of affairs; however, as a scholar he has faithfully discharged his duty to not only seek but publish the truth as he understands it.

The demise of the Federal Constitution, in my view, can be traced directly to the demise of the United States Supreme Court. And that retreat from constitutional principles can be fixed from a very specific date, February 5, 1937. On that day President Roosevelt proposed the Reorganization of the Judiciary act: For every Supreme Court Justice who did not retire after the age of 70, the President would be empowered to appoint a new Justice, up to a total of six. Thus, the Supreme Court would be enlarged up to fifteen members, six of whom would be immediate appointees of President Roosevelt. The plan was popularly known as the court-packing plan. I think it was not by coincidence this proposal followed Supreme Court invalidation of six major New Deal laws over the previous two years. Shortly before the act was scheduled for vote, however, the United States Supreme Court reversed its field by upholding the Washington minimum wage act, an act similar to a New York statute invalidated by the Court only the previous year. Two weeks later, it upheld the National Labor Relations Act, also on a five to four vote. Justice Owen Roberts changed his position. It was, as columnist Joseph Alsop quipped: "A switch in time that saved nine."/Fn.1/  Shortly thereafter one of the aging constitutional stalwarts retired, reducing what President Roosevelt had called the "Four Horsemen of the Apocalypse," to only three. From that point there has been virtually no brake applied to the federal government by the United States Supreme Court in any meaningful sense.

        /Fn.1/  Robert K. Newman, Hugo Black A Biography 214 (1994).

That barricade has been breached, I fear forever. Now we are thrown back to our last line of defense, the constitutions of the various states.

In this regard, the State of Washington has truly a glorious constitution. It is set forth verbatim in my website, www.geocities.com/justice_sanders. Its Declaration of Rights is much broader than the federal bills of rights. It defines the purpose of government as one to protect and maintain individual rights. It clearly provides for an individual right to keep and bear arms. It protects against not only taking property without just compensation but also against "damaging" that property. It protects the rights of speech and privacy above and beyond that secured by the First Amendment to the United States Constitution. It secures the rights of those who may be accused of crime in multiple, specific ways. It guarantees the absolute freedom of religion. It states, "the right of trial by jury shall remain inviolate. . . ." It states, "the provisions of this constitution are mandatory, and unless by express words they are declared to be otherwise." It mandates, "A frequent recurrence to fundamental principles is essential to the security of individual right and the perpetuity of free government." And it adds, "The enumeration in this constitution of certain rights shall not be construed to deny others retained by the people."

Beyond the Declaration of Rights the state constitution also vests in the people the power to legislate by initiative or to veto legislation by referendum. The state constitution provides essential guarantees with respect to fair taxation. It promotes our liberty by separating the powers of the judicial, executive, and legislative branches, in effect playing one organ of government off against another in fulfillment of Montesquieu’s admonition: "It is necessary from the very nature of things that power should be a check to power." And of course, it further secures our liberty by providing checks and balances within and between the legislative and executive branches.

I would be remiss, however, if I did not warn and caution you that many of the fundamental principles upon which our constitution is built are subject to unrelenting challenge.

As I previously observed, the first guarantee of liberty is the limited nature of government itself. In the context of state law, we call the power and authority of government to regulate the affairs of its citizens the "police power." Although the state constitution does not define police power as such, it does provide an operational definition in article I, section 1, when it states the government is "established to protect and maintain individual rights." The classical understanding of the police power is summarized in the Latin maxim, "sic utere tuo ut alienum non laedas," which means "one should his own property in such a manner as not to injure that of another." In other words, the police power is an expression of the legitimate power or authority of government to protect our rights against invasions by our neighbor. It is the government doing for us what we could legitimately do for ourselves if there were no government. When the government fulfills its police power responsibility to protect our lives, our liberty, and our property, it is promoting the "public good" as that term was originally understood. Lord Blackstone said

The "police power" is therefore not only an essential grant of power to the government but also a limitation of that power. Unfortunately modern decisions by our State Supreme Court have severely eroded the original meaning of these terms as they have allowed for the expansion of the scope of governmental authority beyond that necessary to protect our rights as private citizens.

In CLEAN v. State of Washington,/Fn.2/ for example, a majority of the Supreme Court said it was a legitimate exercise of the police power to build a new stadium for the Mariners. I would suggest to you, however, that construction of a baseball stadium, like construction of a public highway, however beneficial, is in no way, shape, or form, an exercise of the "police power" at least as that term was originally understood. It is a public work, a capital improvement project.

        /Fn.2/ 130 Wn.2d 782, 928 P.2d 1054 (1996).

But from the decision in CLEAN v. State of Washington, it was a short slide down the slippery slope to approve a new stadium for the Seahawks,/Fn.3/ a new garage for Nordstrom’s in the City of Spokane,/Fn.4/ to prohibit jet skis in the middle of the Strait of Juan de Fuca,/Fn.5/ or to deny a heliport permit because the owner could not demonstrate an individualized business necessity./Fn.6/ 

/Fn.3/ Brower v. State, 137 Wn.2d 44, 969 P.2d 42 (1998).

/Fn.4/ CLEAN v. City of Spokane, 133 Wn.2d 455, 947 P.2d 1169 (1997).

/Fn.5/ Weden v. San Juan County, 135 Wn.2d 678, 958 P.2d 273 (1998).

/Fn.6/ Tradewell Group d/b/a Development Services of America v. City of Seattle, 138 Wn.2d 107, 979 P.2d 387 (1999).

A second area of concern is the erosion of civil liberties, particularly when undermined by regulations which take an economic form or justified by the police power. Civil forfeiture laws are therefore not seen as criminal punishment subject to the double jeopardy clause but as legitimate exercises of the police power./Fn.7/ Business establishments, otherwise exempt from some governmental regulation under guarantees of freedom of the press or freedom of speech, find themselves clinging to existence, if at all, under the weight of regulations which serve a supposed economic or police power purpose. For example, although nude dancing is protected under the free speech provisions of the state constitution, in Ino Ino Inc. v. City of Bellevue,/Fn.8/ the Supreme Court, not without dissent, approved a regime of regulation designed to eliminate these business establishments by making them unprofitable. In the same vein, it was not necessary for the communist Sandinista government of Nicaragua to outlaw opposition newspapers, only to nationalize the newsprint and accordingly restrict its sale to silence the opposition. And what newspaper (other than The Stranger) could survive a price control which limited the sales price to five cents a copy?

/Fn.7/ State v. Catlett, 133 Wn.2d 355, 945 P.2d 700 (1997).

/Fn.8/ 132 Wn.2d 103, 937 P.2d 154 (1997).

The most recent example of the collision between the expanded police power, economic regulation, and bedrock civil liberties is Open Door Baptist Church v. Clark County./Fn.9/

        /Fn.9/ 140 Wn.2d 143, 995 P.2d 33 (Mar. 16, 2000).

In that case we were confronted with a regime of local zoning laws totally outlawing the establishment of any new church, absent a conditional use permit, within the entire borders of Clark County. This is to be distinguished from other uses which are permitted outright in various zones of the county, including residential use, steel mills, adult movie theaters, barber shops, grocery stores, and almost anything else one can imagine.

To obtain a conditional use permit it was first necessary to pay a fee of $5,500. Then the applicant must submit nine volumes of detailed studies and information regarding not only the design of the structure, but the landscaping, adjacent traffic patterns, environmental effect, if any, effect on public facilities, resources, etc., all at a considerable cost. Then a hearing examiner—a representative of the executive branch of government, not the judiciary—is vested with the discretionary authority to either grant, deny, or approve with conditions the application for whatever reason he or she thinks is in the "best interest" of the public. In that case, for example, the church was prohibited from having evening or early morning services, thus prohibiting Christmas Eve or Easter sunrise services. In Portland, Oregon, a similar conditional use permit process was utilized to restrict the right of a church to serve meals to the homeless or accommodate more than 70 individuals for regular services in a sanctuary constructed to host 400.

But not without dissent a majority of the court upheld the regulation as a legitimate exercise of zoning under the police power, notwithstanding the express language of the state constitution which guarantees "absolute freedom of conscience in all matters of religious sentiment, belief and worship" except for "acts of licentiousness or . . . . practices inconsistent with the peace and safety of the state."

The essence to be distilled from the Open Door decision is as follows:

(1) Civil liberties are subject to regulation under the police power, rather than being exceptions to the police power;

(2) economic regulations are often not considered as inconsistent with civil liberty guarantees; and

(3) simple constitutional language is not to be given the plain and ordinary meaning and effect its words would suggest.

To understand the force and effect of the Open Door decision, let us compare it to a recent decision from the United States Court of Appeals, Eleventh Circuit, Lady Lingerie Inc. v. City of Jacksonville./Fn.10/ There it appears the lingerie shop attempted to put the fun back in shopping by allowing male patrons to purchase lingerie off of live models, apparently paying more and more for less and less. Jacksonville attempted to regulate the establishments by requiring them to obtain a conditional use permit similar in form and if not less onerous, to that required by Clark County. The United States Court of Appeals, however, threw the conditional use permit requirement out as in violation of the First Amendment to the United States Constitution.       

        /Fn.10/ 176 F.2d 1358 (11th Cir. (Fla.) May 27, 1999), cert. denied 120 S. Ct. 1554, (U.S. Apr 3, 2000) (No. 99-356).

It would therefore appear that for at least some purposes, nudie dance establishments are exempt from the conditional use permit requirement, whereas in our state, at least, churches are not.

I think it is the better view, however, that the police power itself is a limited grant of authority to the government, but that even where that authority is otherwise appropriately exercised, it may not abridge constitutionally protected civil liberties. That is the reason we have civil liberties. Moreover the distinction between "property rights" and personal rights is a false one, property doesn’t have rights, people do./Fn.11/

        /Fn.11/ Lynch v. Household Finance Corp., 405 U.S. 538, 92 S. Ct. 1113, 31 L. Ed. 2d 424 (1972).

Of course, while these are cause for concern, in other areas our State Supreme Court has gone above and beyond the requirements of the United States Supreme Court to protect our liberty. For example, last summer I was privileged to write a majority opinion for the court prohibiting pretextual traffic stops when they are parlayed into a warrantless search for criminal activity./Fn.12/ And our court, led by Justice Alexander, has been particularly protective of our citizens’ rights with respect to search and seizure, and has jealously protected the probable cause warrant requirement.

        /Fn.12/ State v. Ladson, 138 Wn.2d 343, 979 P.2d 833 (1999).

Notwithstanding, on these and many other issues, the court is closely divided. This term alone we are rearguing approximately six cases which ended in a tie due to the resignation of Justice Durham. One such case is the most important takings challenge this court has heard in a number of years. Governor Locke’s new appointee, Bobbe Bridge, will therefore cast the deciding vote in these cases, assuming all other votes remain unchanged. Of course a single justice can change the result in every five-to-four case. Similarly, the addition of one new justice can change the result in many six to three cases, not only through the persuasion of reason, but also the reluctance of some Justices to cast their vote in dissent.

This year, four positions of the Washington State Supreme Court will be up for election. Justice Alexander will stand for reelection, and Justice Bridge will run for the remainder of an unexpired term. Justices Guy and Talmadge have not announced their plans; however, it is likely one or both of them will not seek reelection, thus making it all but inevitable that there will be one, probably two, new faces on the Washington State Supreme Court come January 2001. I am absolutely confident that there will be one or more candidates for these positions that each of you can enthusiastically support. I believe it is your patriotic duty, and in your ultimate self-interest, to be involved.

I conclude with the words of William O. Douglas, the only Justice of the United States Supreme Court who called Washington his home: