Sandefur: Supreme Court decides to follow different constitution

Posted 1/18/21

In a 4-3 decision with important consequences for online privacy in Arizona, the state’s highest court ruled Jan. 11 that the Arizona Constitution’s “private affairs” clause does not protect individual rights any more than the federal Constitution.

To Our Valued Readers –

Visitors to our website will be limited to five stories per month unless they opt to subscribe.

For $5.99, less than 20 cents a day, subscribers will receive unlimited access to the website, including access to our Daily Independent e-edition, which features Arizona-specific journalism and items you can’t find in our community print products, such as weather reports, comics, crossword puzzles, advice columns and so much more six days a week.

Our commitment to balanced, fair reporting and local coverage provides insight and perspective not found anywhere else.

Your financial commitment will help to preserve the kind of honest journalism produced by our reporters and editors. We trust you agree that independent journalism is an essential component of our democracy. Please click here to subscribe.

Charlene Bisson, Publisher, Independent Newsmedia

Please log in to continue

Log in
I am anchor

Sandefur: Supreme Court decides to follow different constitution


In a 4-3 decision with important consequences for online privacy in Arizona, the state’s highest court ruled Jan. 11 that the Arizona Constitution’s “private affairs” clause does not protect individual rights any more than the federal Constitution — despite the fact that the two documents use entirely different language when describing the rights of Arizonans.

The decision — which came after police officers got information about a person’s computer usage without first obtaining a warrant — involves the federal Constitution’s Fourth Amendment, which prevents “unreasonable searches,” and the Arizona Constitution’s stricter promise that “no person shall be disturbed in his private affairs, or his home invaded, without authority of law.”

Although the Arizona Constitution’s language was written in 1912, with the intention of providing stronger protections for privacy than the federal Constitution — and despite the fact that Arizona justices have long claimed to recognize that the state Constitution was intended to provide stronger protections for individual rights than the federal Constitution — the state Supreme Court ruled that the need for “uniformity” between federal and state law outweighs the significance of the state Constitution’s actual wording.

The case centers around an investigation in which officers obtained information about a person’s location by issuing a subpoena to a computer company that helped them track down a suspect, instead of getting a warrant.

The U.S. Supreme Court has usually allowed such searches on the grounds that they are not “unreasonable” — and the Fourth Amendment to the federal Constitution only forbids “unreasonable” searches. But the Arizona Constitution is much more protective — at least, in theory.

It does not include the word “unreasonable.” Instead, its anti-search rule was copied from the Washington State Constitution, and it prohibits even reasonable searches that are unlawful.

Washington courts, interpreting their “private affairs” clause, have prohibited searches like the one at issue in this case. Accordingly, the Goldwater Institute filed a pair of briefs urging the court to rely on Washington legal precedent when interpreting Arizona’s identical constitutional protections.

As explained in our report on the “private affairs” clause, its authors intentionally crafted language different from the federal Constitution’s, with the express goal of providing stronger security for individual rights than the U.S. Constitution provides.

In fact, when the question came up whether to allow the state’s Corporation Commission to demand private information through a subpoena, and without a warrant, the authors of the state Constitution refused, on the grounds that doing so would violate the “private affairs” clause that they had just approved.

The decision rejected that evidence, on the grounds that there is “value in uniformity with federal law when interpreting and applying the Arizona Constitution.”

Despite the fact that the state Constitution’s framers and ratifiers made the conscious decision to reject “uniformity” and expressly chose not to use the word “unreasonable,” today’s decision applied the “reasonableness” theory copied from federal law — a theory federal judges created more than a half century after the Arizona Constitution was ratified.

And, asserting that the authors of the state Constitution had “objections to extending state constitutional protections in other contexts beyond those recognized under the federal Constitution at the time” — even though those objections related to entirely different issues — the justices simply declined to respect the Arizona framers’ choice to reject federal law in this context.

They also refused to follow Washington legal precedent on the grounds that Washington state statutes protect privacy more than Arizona statutes. Statutes, of course, have nothing to do with what the state Constitution’s language allows or doesn’t allow.

Justices Bolick, Brutinel and Timmer wrote a powerful dissent, criticizing the majority’s “non-textual” decision to “[prioritize] national uniformity even where Arizonans have chosen a markedly different approach in their organic law.”

The language of the state Constitution, the dissenters noted, “was deliberately chosen as an alternative to the language of the Fourth Amendment.” Indeed, “if the framers wanted to craft language that would be enforced on its own terms, how could they have better done so than to reject one set of words and deliberately adopt another?”

State constitutions exist for an important reason: to provide more detailed, more flexible, and more carefully tailored guarantees for individual rights than those established in the federal Constitution.

Arizona courts have often acknowledged this fact, and in some cases — for example, in cases involving government’s eminent domain power — have often enforced stronger legal protections than the federal Constitution provides. But the decision not only betrays this important principle in the context of privacy rights, it also threatens to undermine the entire concept of state constitutional protections.

“By what standard” will courts “determine when to give independent meaning to our state constitutional language in other contexts[?]” ask the dissenters.

If the courts are unwilling to do so in a case where the state and federal constitutions use entirely different language, it’s hard to predict when they will do so.

Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.