October 15, 2019
By Timothy Sandefur
State constitutions are the neglected tools of American law. As federal judge Jeffrey Sutton put it just last month, there are “51 constitutions in this country,” with state constitutions protecting our freedoms much more than the federal Constitution does. Yet thanks to our excessive focus on the goings on in Washington, D.C., “few Americans, not even most lawyers, appreciate this liberty-friendly feature of American federalism.” We at the Goldwater Institute are working to change that—and today, we’re releasing a new policy report about one of the most important—and often ignored—provisions of the Arizona State Constitution, known as the “Private Affairs Clause.”
The Private Affairs Clause was first written for the Washington Constitution of 1889 and was copied verbatim by the delegates to the Arizona Constitutional Convention in 1910. It says “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Note how different that is from the Fourth Amendment to the U.S. Constitution, written in 1789: The state version doesn’t use any of the words that appear in the federal Constitution, such as “unreasonable,” “searches,” or even “warrants.”
Given these differences in language, Washington state courts have interpreted their Private Affairs Clause to provide some of the strongest protections against unjustified searches in the nation. While federal courts are concerned with whether a search is “reasonable,” Washington courts have said that reasonableness isn’t the question under the state Constitution—what’s important is whether or not a search is “without authority of law.” That difference is significant because federal courts often allow warrantless searches if they’re “reasonable”—whereas Washington courts say that a search that’s “without authority of law” isn’t allowed, no matter how reasonable.
What’s bizarre is that although Arizona’s Clause was copied from Washington’s, and although it contains none of the language found in the federal Constitution, and although Washington courts have interpreted their Clause quite well, Arizona courts have interpreted the Clause by copying federal legal theories (such as the “third party” or the “good faith reliance” doctrines)—theories that federal courts created while interpreting this “reasonableness” concept—when, again, “reasonableness” just isn’t a consideration under the language of the Arizona Constitution.
Arizona courts have also largely ignored the precedent from Washington courts that actually do interpret the language of the Private Affairs Clause. They do this even though they already consult Washington precedent when interpreting other provisions of the Arizona Constitution that were borrowed from Washington’s Constitution, such as the free speech and eminent domain provisions. In those cases, Arizona courts take the commonsense position that if the language of the two constitutions is the same, the legal interpretations should probably be the same. But when it comes to Private Affairs, the Grand Canyon State’s courts have largely copied-and-pasted federal law instead.
In our new policy report, The Arizona “Private Affairs” Clause: Time for a Second Look, I examine how Arizona courts have gone wrong in interpreting this provision. For one thing, history reveals that the Clause was written in light of then-recent U.S. Supreme Court cases that applied the search warrant requirement to government demands for business records. Economic transactions—anything a person bought or sold or donated money to—were considered “private affairs” at the time, and the Clause was written to prevent the government from either controlling those decisions or from demanding that people turn over their receipts, checkbooks, and so forth. Although the Clause also applies to what we today normally think of as “searches,” it’s actually far broader than that.
In the 1980s, Arizona courts said that the Clause protects a person’s right to refuse medical treatment if so desired. That was a good first step, but since then, courts have never explored what else the Clause might apply to. But as I explain, the Clause should also forbid the government from (for example) demanding the disclosure of a person’s private information when that person donates to a nonprofit group or to a political campaign.
The Clause also applies to the normal criminal law searches we’re familiar with, of course, and in recent weeks, we’ve filed two amicus briefs in important pending Arizona lawsuits involving the Private Affairs Clause:
It’s long past time for Arizona courts to enforce the actual wording of the Private Affairs Clause. It’s bizarre that they ignore its actual words and follow federal legal doctrines that are based on the federal Constitution, which uses entirely different words. Arizona courts already consult Washington precedent when interpreting other provisions of the Arizona Constitution that were borrowed from Washington, because doing so does justice to the actual language that the state Constitution’s framers used. Refusing to treat the Private Affairs Clause with the same respect is arbitrary and irrational. It’s time for Arizona courts to enforce the Arizona Constitution.
Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute and the author of the new paper The Arizona “Private Affairs” Clause: Time for a Second Look.
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