Rediscovering the Arizona Constitution
Do you support the Constitution?
I hope your answer is yes. But an even better response would be to ask: which one?
Mention the Constitution and Americans instinctively think of the United States Constitution and its magnificent Bill of Rights.
But Americans do not have one constitution. We have 51. And if we are to protect our freedoms far into the future, we need to restore our understanding of state constitutions.
Every state has its own constitution. Many constitutions pre-date the United States.
The Constitution, and indeed many of the rights embraced in the Bill of Rights were based on state constitutional provisions.
Every state constitution contains protections of individual rights and restraints on government power that are unknown to the national constitution. What’s more, in our system of federalism, state courts are free to interpret provisions in our constitutions — even when worded the same as provisions in the Bill of Rights — to protect greater freedom than the U.S. Supreme Court recognizes.
Our national constitution thus provides the baseline for the protection of our rights, which all 50 states are free to surpass.
Viewed in that light, state constitutions ought to be very important. But if our civic understanding of the U.S. Constitution is dismal — and it is — our understanding of state constitutions is far worse.
That is odd because for most of our nation’s history, state constitutions were the only protection against abuses of rights by state and local governments. That began to change following the Civil War with the adoption of the Fourteenth Amendment, which protected individual rights against infringement by the states.
But it wasn’t until 1925 that the Supreme Court began slowly “incorporating” the Bill of Rights — protection by protection — against the states. Only in this century, for instance, did the Court apply the Second Amendment to the states.
As federal rights grew in importance, state constitutional rights receded. Americans came to recognize the U.S. Constitution as the source of our rights. That shift was reflected in legal education: “Constitutional Law” encompasses only the federal constitution; state constitutional law is an elective that few law students take.
The pendulum began to shift back in the 1970s and ‘80s. Justice William Brennan, a liberal icon, grew worried over the erosion of rights by a more conservative Supreme Court. He urged advocates to recourse to state courts to secure greater protection for the rights of criminal defendants and others. Many heeded the call.
More recently, conservatives and libertarians are catching up, led by groups like the Institute for Justice and Goldwater Institute, which are joining liberal groups such as the American Civil Liberties Union in giving greater attention to state constitutional rights.
Jeffrey Sutton, chief judge of the U.S. Court of Appeals for the Sixth Circuit, penned an outstanding primer on state constitutionalism called 51 Imperfect Solutions. I believe Arizona’s constitution is less imperfect than the rest, for as the 48th State, we had lots of lessons from which to draw.
Among many other provisions, Arizona’s constitution provides greater protection for speech than its federal counterpart. Its right to keep and bear arms is more explicit than the Second Amendment. Unlike the U.S. Constitution, we have an express protection of privacy, and a prohibition of gifts of public funds through subsidies and otherwise. And we have an extensive Victims’ Bill of Rights. Those provisions barely scratch the surface of its contents.
In the coming months, I plan to write about some of those provisions in greater detail. In the meantime, take a look at the Arizona Constitution. It will surprise you!
You can pick up a free pocket copy of our state constitution at the Arizona State University’s School for Economic Thought and Leadership (SCETL). Tell them Clint sent you. The protections you will find in those pages are precious — but they are meaningful only if we know what they are and take them seriously.
Clint Bolick is an Arizona Supreme Court Justice and teaches Constitutional Law at ASU’s Sandra Day O’Connor School of Law. You can find his opinions and articles at azjustice44.com.
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This article was published on November 22, 2021, in Western Tribune and is reproduced with permission from the author.
