Freedom and Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights

• Publication year: 1984
• Citation: Vol. 7 No. 03

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 7, No. 3SPRING 1984

Freedom and Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights(fn*)

Justice Robert F. Utter(fn**)

I. Introduction

It has now been almost a century since the people of the State of Washington ratified America's forty-third bill of rights.(fn1) As might be expected of the authors of a document that had been drafted and redrafted many times by different people in different ages, the framers of the Washington Declaration of Rights (the "Declaration") borrowed heavily from earlier versions, while incorporating new ideas and provisions that they considered appropriate to the peculiar conditions, history, and philosophy of their Territory and its people.

For a variety of reasons, however, the charter that was intended as the primary protector of the fundamental rights of Washingtonians(fn2) was largely ignored by subsequent generations of lawyers, judges, and scholars who assumed erroneously that the attitudes, beliefs, and intentions of the framers of the 1889 Washington Declaration were identical to those of the drafters of one of the other bills of rights a full century earlier on the other side of the continent. In recent years, this assumption has been questioned more frequently by lawyers and judges searching for the scope the founders of our state intended to give to fundamental individual freedoms. Increasingly, Washington courts are being asked to consider our Declaration as an independent and effective source of protection for individual rights, including some rights not recognized or protected by the United States Supreme Court, and to give our state constitution a truly independent interpretation. No matter how sympathetic they may be to such requests, lawyers and judges face at least three major problems in making a truly independent interpretation of a state constitutional provision.

First, they must justify departing from precedents laid down by the United States Supreme Court, a step which makes many people understandably uncomfortable until the differing histories of the federal and state acts are understood.

Second, they must decide when and how to approach a state constitutional problem. Typical questions include whether the state or federal constitution should be raised or considered first; whether and how a state constitutional provision should be compared with the comparable federal provision, if any; how to weigh federal court precedents and state court dicta; how to avoid the danger of federal review and reversal of decisions that rest on independent state constitutional grounds; and, how to develop an independent framework for analyzing the state Declaration of Rights.

Finally, they must decide how to analyze state constitutional provisions with few or no Washington Supreme Court precedents for guidance. Although most judges are familiar with the usual forms of textual analysis, many are unaccustomed to making the necessary in-depth inquiry into the intent of the people who wrote and ratified the Declaration, and few know what resources are available to aid them in discovering such intent.(fn***) Furthermore, trial judges are generally reluctant to base their decisions even in part on their analysis of contemporary values and conditions, an analysis that is uniquely necessary to the continued existence and vitality of a modern constitution.

II. Grounds for Independent Interpretation of the Washington Declaration of Rights

The United States Supreme Court has consistently held that state courts may interpret state constitutions to be more protective of individual rights than the United States Constitution.(fn3) The Washington Supreme Court has expressly accepted this responsibility on a number of occasions.(fn4) In Alderwood Associates v. Washington Environmental Council,(fn5) for example, the Washington Supreme Court found a state constitutional right to solicit initiative signatures in privately-owned shopping centers, and explained this departure from federal constitutional precedent as follows:

State courts are obliged to determine the scope of their state constitutions due to the structure of our government. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments; and then the portion allocated to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time each will be controlled by itself.

When a state court neglects its duty to evaluate and apply its state constitution, it deprives the people of their "double security." It also removes from the people the ability to try "novel social and economic experiments"-which is another important justification for the federal system. . . .

. . . .

We have often independently evaluated our state constitution and have concluded that it should be applied to confer greater civil liberties than its federal counterpart when the reasoning and evidence indicate such was intended and is necessary. . . .(fn6)

There are many other compelling reasons, of course, for state courts to interpret state constitutional provisions independently from the corresponding provisions, if any, of the United States Constitution, even where the two provisions contain identical language.

A. Differences between the state and federal constitutions

Various courts and commentators have noted the most crucial differences between the federal and state constitutions.(fn7) For instance, the Washington Supreme Court has often observed that the United States Constitution is a grant of limited power, authorizing the federal government to exercise only those constitutionally enumerated powers expressly delegated to it by the states.(fn8) The state constitutions, on the other hand, serve as limitations on the otherwise plenary power of state governments to do anything not expressly forbidden by the state constitutions or federal law.(fn9) Consequently, state constitutions are typically much longer and more detailed than the federal Constitution, and contain much more specific provisions for the regulation of state governmental conduct.

In addition, the Washington Constitution is a more "political" document than its federal counterpart. The relative ease with which it can be amended, combined with its much more recent authorship, make our state constitution much more reflective of current local values than the federal charter and much more responsive to changes in those values.(fn10)

Furthermore, state constitutions often protect individual rights that are nowhere explicitly recognized in the United States Constitution. For instance, article 1, section 7 of the Washington Constitution provides express constitutional protection for certain privacy rights of Washington citizens.(fn11) Article 9, section 1 creates a right of all Washington children to be amply provided with a public education.(fn12) Article 1, section 24 guarantees an individual right to bear arms, in contrast to the federal Constitution's collective right to bear arms for purposes of maintaining a well-regulated state militia.(fn13)

B. Differences between the state and federal courts

There are also significant differences between the federal and Washington judiciaries.(fn14) For instance, Washington judges are elected, and are subject to periodic reelection, while federal judges are appointed for life. On the one hand, this gives federal judges potentially more freedom to interpret the national Constitution in an "activist" manner, since they face less severe personal consequences if their decisions are greatly out of line with popular notions of justice. On the other hand, while an activist role may be personally riskier to an elected judge, it may also be considered more democratically legitimate than activism by unelected, politically unresponsive federal judges. Similarly, the relative ease of amending state constitutions reduces the risk of erroneous or politically unacceptable constitutional lawmaking by state judges once it occurs.(fn15)

Superimposed upon these differences are some related constraints on the United States Supreme Court's ability to broadly interpret the United States Bill of Rights. For instance, the United States Supreme Court establishes rules that must be practical and accepted in all areas of the nation, forcing the Court to choose the lowest common denominator of individual rights.(fn16) Similarly, the United States Supreme Court must be careful to respect the principles of federalism, one of which requires that the states be left free to try a broad range of social, political, and legal experiments.(fn17) Neither of these constraints applies to state judges in interpreting state constitutions.

Many of the factors discussed above suggest that state judges have more freedom than federal judges to interpret their constitutions and to provide a greater degree of protection to individual rights than is possible under the United States Constitution.

C. Early constitutional history

The early constitutional history of the United States leaves no doubt that state bills of rights were never intended to be dependent on or interpreted in light of the United States Bill of Rights. In...