Writings and observations

A revolutionary upholding of law?

Richard Sanders

Richard Sanders

Thejust-released decision in Washington State Farm Bureau Federation v. Gregoire by the Washington Supreme Court could almost be a straddler in its majority opinion, perhaps reflecting the variety of views that resulted in no fewer than five documents (including concurrances and dissent) in the decision folder today.

Much the most striking was the dissent offered by Justice Richard Sanders, which ended with an unexpected bit of wit: “Aside from that, I concur in the remainder of the majority’s opinion.” Witty, of course, because he had ripped into practically every underlying premise the majority had; unexpected, because his own views are so . . . well, read them for yourself below.

The case was a response to Initiative 601, passed as the Taxpayer Protection Act by Washington’s voters in 1993, aimed at limiting the ability of the legislature to raise taxes. When in 2005 the legislature raised tobacco and alcohol taxes, a coalition (including the Farm Bureau) sued, saying it had violated the terms of the initiative.

The main decision skirted the key issues here, holding (though some of the reasoning here seems obscure) that the legislature’s action didn’t formally violate the initiative’s terms. But much of the argument centered on a point the majority seemed not to want to formally nail down: The relationship between initiatives and the legislature. The majority opinion suggested but stopped barely short of saying explicitly that Initiative 601 ran afoul of the constitution, because it tried to bind the legislature in a way that only the constitution itself could.

The basic rule, commonly understood around the country in states that allow initiatives, is that legislation passed by initiative has the same standing as laws passed by the legislature. Just as any session of a legislature can revise laws passed by earlier sessions, and as initiatives can amend laws passed by legislatures, so legislatures can – possibly at their political peril – revise or even toss out measures passed by initiative. All these variations have happened in many states, Oregon and Idaho included, and all of this is commonly accepted as understood process. The Washington Supreme Court majority apparently does too: “A law passed by initiative is no less a law than one enacted by the legislature. Nor is it more. A previously passed initiative can no more bind a current legislature than a previously enacted statute.”

Besides the main majority opinion, the case generated four other concurrences or dissent. There’s a broader and recommended overview of court reactions to the case on the David Postman blog. Here, we’ll focus more specifically on Sanders.

Here’s the abridged Sanders dissent (edited mainly of quotes and cites):

I understand that the majority’s view to be the state legislature is virtually unrestrained except insofar as the legislative action countervenes some express prohibition in the state constitution. Although this claim has been repeated by rote in several of our decisions, I am unable to find a single one which explains its rationale, much less critically examines its premise. I challenge the majority to either do so here or dispense with this careless rhetoric.

The assertion seems to be based on an erroneous presumption that state governments have inherent powers – a presumption that contradicts the basic
premise of all American governance that all power resides in the people except
insofar as it has been delegated to the government. As such, the claim flies in the face of article I, section 1 of the state constitution, which plainly and expressly provides: “All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.” This section hardly evidences our state government has the inherent power to do anything. Rather, it stands for precisely the opposite.

Our majority also appears to be oblivious to the basic tenet of the American Revolution, which forcefully rejected the European model of unlimited
government. . . .

Therefore I think it is fair to say not only is the majority’s claim inconsistent with the text of our state constitution but profoundly un-American in theory as well. . . . The majority’s unexamined claim in reality invites a totalitarian regime and is inconsistent with the founders’ understanding of the social compact. . . But the majority’s claim on its face purports that the legislature may do virtually anything except where restrained by a Declaration of Rights. This has never been our system, as we have often observed even the constitutionally undefined police power is not itself without limits. . .

I also note with alarm the seditious doctrine sometimes embraced by our
majority that even our Declaration of Rights is itself trumped by exercise of the
state’s police power, a power which a majority of my colleagues seems to believe
with their new-found wisdom has no limits whatsoever. For example article I,
section 24 of our constitution, protecting the right to bear arms, was an early
casualty of this view as many cases purport to hold that the right to bear arms,
although constitutionally guaranteed, is subject to reasonable regulation under the
police power. Additionally our constitutional guaranties of religious liberty, also secured in very absolute terms by article I, section 11 of our constitution, are similarly subordinated to the police power. . .

The view that the federal Bill of Rights or state Declaration of Rights is subject to the otherwise legitimate government action is plainly inconsistent with the fundamental theory of American governance. Federalist No. 84, authored by Alexander Hamilton, defended the proposed Constitution of 1787 against the principal attack that it failed to contain a Bill of Rights. Hamilton countered that a Bill of Rights was “not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?. . .” So, to put it another way, the Bill of Rights, or Declaration of Rights, properly understood, is an enumeration of exceptions to what the government may otherwise legitimately do. Yet our majority rejects this view to virtually nullify the only purpose of a Declaration of Rights by claiming it is subordinate to an otherwise almost unlimited exercise of the police power, which removes any restraint at all to the claimed “inherent” and infinite “plenary power” of the legislature.

Fundamentally, when a majority of our court claims that our state legislature has “plenary power to enact laws, except as limited by our state and federal constitutions,” it departs from the founding principle that governments may legitimately perform only those activities which are delegated by the sovereign people. Moreover, the majority seems most willing to even subordinate express constitutional exceptions enumerated in the Declaration of Rights and elsewhere to the omnipotent power of the “plenary” state.

I fear for our Republic each step the majority takes toward achieving its counterrevolutionary premise. One cries outrage when the majority purports to recognize “a fundamental principal of our system of government,” which is in reality absolutely antithetical to those true principles of our Republic, which are indeed fundamental.

Put aside the red meat of “counterrevolutionary” and “totalitarian” or his concerns about an “infinite plenary” legislative power (which sounds like an awesome thing, except for this little thing called the constitution which actually does a decent job of restricting it). Sanders’ reading of republican – which is in considerable part legislative – government is, to say the least, quite a bit different than most people hold. His reading of the intent of the national founders is unique, too; many of them had great fear of what “the mob” (the mass of citizens) would do if they actually got the power to vote for their representatives, something relatively few Americans actually could do until well into the 19th century. And the idea of a series of checks and balances, not least holding in line the “passions” of the “mob,” was central to their design of the federal system.

But the larger question Sanders might try answering is this: How exactly would he define what a legislature should do? Every session legislatures of all sorts around the country grapple with a vast, almost astonishing, array of issues, as they have for a long time – since colonial days. What sort of an allowable defined power would Sanders prescribe for them? Or should we get rid of legislatures entirely, and legislate by poll?

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One Comment

  1. I won’t say I disagree with him in regard to the BOR, but that also is a Constitutional matter and the initiative was a Legislative matter. Oregon msy have the difficulty of passing one over the other backwards, but Constitutions do trump.

    November 22, 2007

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