State constitutions and the protection of rights
Justice Clint Bolick was appointed to the Arizona Supreme Court in 2016 and in 2018 was retained by the voters for a six-year term. Prior to joining the Court, Justice Bolick litigated constitutional cases in state and federal courts from coast to coast, including the U.S. Supreme Court. He is a co-founder of the Institute for Justice and author of numerous books. He recently spoke with American Habits senior editor Ray Nothstine.
A lot of people don’t think of state constitutions when it comes to protecting rights, but why are they essential? There is a great line from Calvin Coolidge. He talks about the importance of looking to our state and local governments before we look to the federal government. He says it’s essential to do that to preserve liberty and self-government. Does that thinking apply to state constitutions—and why the impulse to settle so many issues in the federal courts?
Judge Clint Bolick: As usual, Calvin Coolidge was right. This federal constitutionalism is a relatively recent phenomenon. The Bill of Rights was not even applied to the states until the 1920s. Of course, that job really wasn’t finished until the Second Amendment was finally incorporated against the states in the McDonald decision not that long ago. For most of the rights that we have against our state and local governments, the state constitution traditionally was the main show in town, the only show in town.
It’s only recently that when we think “constitution,” we think of the U.S. Constitution. We have 50 state constitutions, too. What’s so important about them is that every single one of them has more protections for individual liberties and greater constraints on government power than the U.S. Constitution does. To the extent that we don’t think about the state constitution, we’re really leaving a lot of our rights on the floor. We’re leaving them unprotected.
It’s really a matter of efficiency. I think back to my own days as a public interest litigator; you can either get one precedent in the U.S. Supreme Court, or you can go from state to state to state. Of course, most people wanted to grab the golden ring in the U.S. Constitution at the U.S. Supreme Court.
We see a case like Kelo in 2005, the eminent domain case, where the Supreme Court left our private property rights unprotected. That’s when organizations like the Institute for Justice and others went to state courts and obtained greater protections against eminent domain abuse under state constitutions.
That’s really been a major part of the game plan ever since for freedom-oriented organizations, not just on the right but on the left as well with freedom of speech and other rights that more liberal groups have gone to court to defend. It’s essential that state constitutions be at the forefront of our minds.
Can state constitutions work in a way that pushes back against centralization from the federal level? Are they a counterweight, so to speak? Is there room for that?
Judge Bolick: There surely is room. The U.S. Supreme Court, to its credit, has really recognized in recent years the important role that state constitutions play. I like to describe the federal Constitution as the floor for the protection of our liberties. State courts and state constitutions can go further than that. They can’t protect less under the supremacy clause of the U.S. Constitution, but they can provide more.
During the 1940s, the Supreme Court referred to the 10th Amendment as a truism with really no legal impact.
That’s the first counterweight that state constitutions provide. That is an independent source of protection for our individual rights. The second that they can provide is a federalism deterrent against overreach. We have the 10th Amendment, which the U.S. Supreme Court has recently been more protective of than it was previously. During the 1940s, the Supreme Court referred to the 10th Amendment as a truism with really no legal impact.
Now, there are often times when the federal courts will defer to the state courts on matters of state law. One of the things that I find especially nifty is that if we decide an issue based on our state constitution or our state laws, unless that decision itself violates federal law or the federal Constitution, that’s the last word on the subject. The U.S. Supreme Court can’t even review that decision. I think that state constitutions are a vital component of federalism and really do provide, to use your excellent word, a counterweight against the federal government in numerous ways.
We’ve seen the federal government intervene more to protect individual rights. A lot of that stems from the Warren Court era. Do state courts want to intervene more? Is there a hesitancy? Might they be a better protector of individual rights going forward? It seems like states might have more of an interest to protect rights, particularly if it conflicts with certain rights that the federal government might be trying to say that they’re protecting as politicization increases.
Judge Bolick: The answer is generally yes. Of course, it really varies from state to state. Some state courts, for example, interpret their constitutions in “lockstep” with U.S. Supreme Court interpretations of the federal Constitution. I think that violates our oath to our own state constitutions when we do that. Other states are very interested in protecting their constitutional rights. They have the power to do so.
I mentioned earlier that some of the rights that are protected in state constitutions and constraints on government power are completely unknown to the federal Constitution. In other instances, they’re simply broader. To give an example, I had mentioned earlier that Second Amendment rights were not protected against the states until recently, but many state constitutions have their own protections of the right to keep and bear arms. Whereas the Second Amendment is very confusing when you read it because it begins with a caveat or a condition regarding the militia, whatever that term means, many of the state constitutions—like Arizona—simply say we have an individual right to keep and bear arms.
Arizona explains what the amendment is for, and it’s for self-defense and the defense of others. It took a century for the US Supreme Court to get there, but we were already there in 1912. I think that our state constitution framers had a very robust protection for individual rights in mind.
That’s a great point about Arizona because I think they were one of the original constitutional carry states, and I’m sure they were leaning a lot on their state constitution when they were interpreting a lot of firearm laws there. Legislators were thinking about it.
You already mentioned Kelo but can you offer up a few other tangible examples of how state constitutions best expand freedom and improve the lives of residents? Someone who might be reading this and wondering what does the state constitution do for me? What other tangible examples are there for protecting residents in the state?
Judge Bolick: There’s a whole variety of state constitutional provisions that appear in a number of state constitutions that I refer to as “if only” provisions. I refer to them that way because if only the US Constitution had these same provisions, we’d be in much better shape. Two of them here in Arizona that we have and are robustly enforced are called the gift clause and the private or local bill clause. Also related to that is the single-subject rule.
The gift clause prevents gifts by subsidy or otherwise from the government to individuals. We have applied that to strike down all sorts of corporate subsidies that are rampant in the U.S. budget because there is no similar constraint. Similarly, we recently applied the state or the single-subject rule to strike down a host of bills that were passed as part of the budget. In federal law they are called “earmarks,” and they are ubiquitous. Here, if you have substantive legislation, you cannot park it in the budget.
Another one that is in all state constitutions as well as the federal Constitution is our free speech provision. Many of these provisions in state constitutions are written more broadly than the First Amendment free speech provision. Even the ones that are written identically, we are free to construe more broadly. To give an example, recently the Supreme Court struck down a law that required small businesses to provide customized services for same-sex marriages.
We had already done that in Arizona in the context of calligraphy and personalized wedding invitations. Our free speech provision says that every person may freely write, speak, and publish on all subjects and is responsible for the abuse of that right. We reasoned that if you are being compelled to write something, then you’re not freely publishing or freely writing.
If the Supreme Court had gone the other way in that case, Arizonans still would have been protected in their free speech rights by virtue of our state constitution. Those are two different examples, one constraining government power, the other protecting individual rights. I literally could go on all day about these provisions because there are so many of them. Many of them are specific to one or a few states, but many of them—like the free speech provision—vary widely under state constitutions.
A lot of Americans would prefer getting back to a more federalist-minded governing and judicial interpretive mindset. We’re already seeing people vote with their feet. You see that in Arizona too—people are pouring in. Some for politics but many for just purely economic reasons or cost of living. I worry that there are also a lot of Americans and powerful forces out there who simply just want to compel people to think and behave a certain way.
National policies accomplish that because of the politicization of everything and continued centralization. There is a desire to stomp out dissent. If they live in California, and they see people believing or behaving something else or a certain way in Alabama, they want to stomp that out or maybe even vice versa. Are you concerned about that? Is there a way to squelch or lower that thinking?
Judge Bolick: Since the beginning of mankind, there’s always been that desire to dictate the lives of others. The Constitution was a rebellion against that. The U.S. Constitution is based on state constitutions. Our Bill of Rights was derived entirely from state constitutions that already existed. I think we’re really living in the golden age of federalism, where it’s more important than ever before. Obviously, Californians have a different view of the relationship of the state and the individual than Arizonans do.
The neat thing is we do get to vote with our feet, and we do get to go to lower tax environments or more social justice-oriented environments if that’s what’s drawing people in. We see this, for example, in the abortion context, where some states constrain abortion. One of the things we must recognize about federalism is it’s a two-way street. There are some who are drawn to a more regulated environment, and they are just as free to vote with their feet as we who value liberty more broadly do as well. Federalism is a component of our system that is always in jeopardy.
SPN has obviously really taken the lead in devising strategies to make sure that whoever is president—whether it’s our guy or their guy or some other person—we still have the ability to protect the rights of our citizens. I can’t think of a more important project right now when our country is so deeply divided. Federalism was probably not intended by the Framers to be essentially a release valve for the pressures that build up in the national government, but it certainly serves that purpose where we can vote with our feet and be in a state that reflects our individual values.
