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Tuesday, February 15, 2022

OPINION:

OPINION:

Editor’s note: This is one in a series examining the Constitution and Federalist Papers in today’s America.


At a recent Constitution Day event in Arizona, I asked those attending how many of them support the Second Amendment. This being a conservative audience, every hand shot up.

Then I asked how many support Article 2, Section 26 of the Arizona Constitution. One hand tentatively crept up, then came down. Everyone looked like I had asked a trick question, and they surely didn’t want to give the wrong answer.

Sadly, it was a trick question — because almost no one, even the most civic-minded among us, knows the contents of our state constitutions.

In our federalist republic, Americans enjoy the protections of not one constitution but 51. Every state constitution contains protections of rights and constraints on government power that are unknown in the national constitution. State judges are empowered to enforce those provisions to provide greater protections for freedom than does the U.S. Supreme Court when it interprets the national constitution.

Yet when we think of our constitutional rights, we often think solely of the U.S. Constitution. It is a magnificent freedom charter. But state constitutions are too.

Indeed, many of the provisions of our Bill of Rights came from state constitutions that preceded the national constitution. Until the 20th century, state constitutions usually provided the only protection against abuses by state and local governments. Specific Bill of Rights guarantees were gradually “incorporated” against the states through the 14th Amendment. Only recently, for instance, were the Second Amendment and the Eighth Amendment’s prohibition of excessive fines applied to the states.

As that happened, state constitutions, once our primary protection against violations of our rights, receded to an afterthought.

But starting in the 1970s, activists on the left, followed by others on the right, began to rediscover the independent force of state constitutions, which offer opportunities that don’t exist under the U.S. Constitution. A right to education, for instance, does not exist in the national constitution, but nearly all state constitutions are construed to guarantee such a right. Many state constitutions prohibit gifts of public funds to private companies, among many other constraints.

State courts can even interpret provisions in their constitutions that are identical to their counterparts in the national constitution, so long as they provide greater freedom, not less.

My favorite example of the independent vitality of state constitutions is the issue of eminent domain. In the infamous Kelo v. City of New London case in 2005, the U.S. Supreme Court, by a 5-4 vote, upheld the taking of a working-class neighborhood to make way for amenities for a Pfizer plant. 

The property owners argued that the taking violated the Fifth Amendment, which limits the power of eminent domain to “public use.” But the majority held that “public use” really meant “public benefit,” a much more elastic standard that permitted the taking. The neighborhood was bulldozed, even though the amenities were never built.

While Suzette Kelo was losing her home in New London, Connecticut, a man named Randy Bailey faced a similar predicament in Mesa, Arizona. The city wanted to take his brake shop and provide the land to a hardware store that wanted to expand.

Had Mr. Bailey challenged the taking under the federal constitution, he surely would have lost. But instead, he challenged it under the more protective language of the Arizona Constitution — and won. Courts in other states have similarly interpreted their constitutions to protect greater private property rights than does the U.S. Supreme Court.

Another example may be the right to keep and bear arms. The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” When the U.S. Supreme Court construed that language in District of Columbia v. Heller, the majority concluded that despite the prefatory language relating to a militia, the amendment created an individual right to keep and bear arms. But four justices strongly disagreed.

The framers of Arizona Constitution Article 2, Section 26 seemed to anticipate that controversy and made its language clearer, declaring that the “right of the individual citizen to bear arms in defense of himself or the state shall not be impaired.”

Regardless of the protection or lack thereof that the U.S. Supreme Court provides to national constitutional rights, residents of the states enjoy the double security for their rights provided by state constitutions. But only if they know what their rights are.

Civics education (and legal education, for that matter) stops short when it fails to encompass state constitutions. This brief discussion only skims the surface, and of course every state constitution differs from the others. We are left largely on our own to understand the rights our state constitutions recognize and to ensure that they are protected and enduring.

• Clint Bolick is a justice on the Arizona Supreme Court and a research fellow with the Hoover Institution.


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