Wash. State Farm Bureau Fed'n v. Gregoire
No. 78637-2
SANDERS, J. (concurring) -- I am troubled by the majority's claim (echoed
in Justice Chambers' concurrence at 9) that
It is a fundamental principle of our system of government
that the legislature has plenary power to enact laws, except as
limited by our state and federal constitutions. Each duly elected
legislature is fully vested with this plenary power.
Majority at 2.
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
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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.1
Our majority also appears to be oblivious to the basic tenet of the American
Revolution, which forcefully rejected the European model of unlimited
government. Prior to Washington's statehood our Territorial Supreme Court
construed language in the Oregon Organic Act which granted to the territorial
legislature "a legislative power extending to 'all rightful subjects of legislation, not
inconsistent with the Constitution and laws of the United States' (9 stat. 325, s.
16)." Maynard v. Valentine, 2 Wash. Terr. 3, 14, 3 P. 195, 200 (1880). The court
reasoned, "The language of the Organic Act, declaring that the legislative power
shall extend to all rightful subjects of legislation, implies that there are some
subjects of legislation that are not rightful." Id. Pertinent to the issue at hand, the
Territorial Supreme Court eloquently described the foundation principle of
American governance:
A legislature with undefined powers has all legislative powers. It can
lay down the laws in every direction, moulding all persons and
1 This analysis has been undertaken in greater depth in Richard B. Sanders &
Barbara Mahoney, Restoration of Limited State Constitutional Government: A
Dissenter's View, 59 N.Y.U. Ann. Surv. Am. L. 269, 280 (2003).
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things, and each particular person and thing conclusively to what it
says, determining absolutely and finally every question by its fiat. Its
voice is the voice of the governing power, and the voice of the
governing power is the voice of God. From that there is no appeal.
Great Britain's Parliament is an example of such a Legislature. . . .
American legislatures are different, simply because limited. Higher
legislation than any one of them is capable of has at one breath called
them into being and circumscribed their activities. The National and
State legislatures have their bounds set by what the people have
enacted in the National and State constitutions.
Id. at 13-14.
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. As Chief Justice Chase opined, "To maintain that our federal, or
state legislature possesses such powers, if they had not been expressly restrained;
would, in my opinion, be a political heresy, altogether inadmissible in our free
republican governments." Calder v. Bull, 3 U.S. (3 Dall.) 386, 388-89, 1 L. Ed.
648 (1798).
The majority's unexamined claim in reality invites a totalitarian regime and
is inconsistent with the founders' understanding of the social compact.
I cannot subscribe to the omnipotence of a state legislature, or that it
is absolute and without control ; although its authority should not be
expressly restrained by the constitution, or fundamental law of the
state. . . . The purposes for which men enter into society will
determine the nature and terms of the social compact ; and as they
are the foundation of the legislative power, they will decide what are
the proper objects of it. . . . There are acts which the federal, or state
legislature cannot do, without exceeding their authority.
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Id. at 387-88.
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.
"It is to be observed, therefore, that the police power of the
government, as understood in the constitutional law of the United
States, is simply the power of government to establish provisions for
the enforcement of the common as well as civil-law maxim, sic utere
tuo ut alienum non laedas. . . . 'it being of universal application, it
must of course be within the range of legislative action to define the
mode and manner in which every one may so use his own as not to
injure others.' Any law which goes beyond that principle, which
undertakes to abolish rights, the exercise of which does not involve
an infringement of the rights of others, or to limit the exercise of
rights beyond what is necessary to provide for the public welfare and
the general security, cannot be included in the police power of the
government. It is a governmental usurpation, and violates the
principles of abstract justice, as they have been developed under our
republican institutions."
City of Seattle v. Ford, 144 Wash. 107, 111, 257 P. 243 (1927) (quoting 1
Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and
Property in the United States 4 (1900)). See also Karasek v. Peier, 22 Wash. 419,
426-27, 61 P. 33 (1900) ("[A]ny provision or regulation of the use and enjoyment
of land by the owner which is not limited to the prevention of nuisances is opposed
to constitutional principles; and the power of the legislature to prohibit nuisances
is confined to the prohibition or regulation of such acts as violate, or materially
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interfere with, the rights of others.").
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.2 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,3 is subject to reasonable regulation under the
police power. See, e.g., City of Seattle v. Montana, 129 Wn.2d 583, 593, 919 P.2d
1218 (1996). 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. See Open Door Baptist Church v.
Clark County, 140 Wn.2d 143, 167, 995 P.2d 33, 46 (2000). This caused the
alarm to be sounded in another context,
So what is next? Privacy? Press Speech Assembly? Can it
2 See, e.g., CLEAN v. State, 130 Wn.2d 782, 806, 928 P.2d 1054 (1996), where it
is contended even the construction of a baseball stadium is an exercise of the
police power. According to Professor Hugh Spitzer, "This broad definition of the
police power appears overinclusive and thus not analytically useful." Hugh D.
Spitzer, Municipal Police Power in Washington State, 75 Wash. L. Rev. 495, 506
(2000).
3 "Although the constitutional right to bear arms is not unlimited in scope, within
its scope that right is absolute." State v. Schelin, 147 Wn.2d 562, 579, 55 P.3d
632 (2002) (Sanders, J., dissenting).
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not be argued that these are also at the mercy of the police power -- a
power which some argue only ends with the declaration of rights, but
now predominates over even that? I am reminded of the prophecy of
our first supreme court justice, Theodore Stiles, that the ever-
expanding notions of "police power" are "liveries of heaven, stolen
to serve the devil in."
Richard B. Sanders, Battles for the State Constitution: A Dissenter's View, 37
Gonzaga L. Rev. 1, 7 (2001-02).
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? Why, for instance,
should it be said, that the liberty of the press shall not be restrained,
when no power is given by which restrictions may be imposed?
The Federalist No. 84, at 579 (Alexander Hamilton) (Jacob E. Cooke ed., 1961)
(emphasis added). 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
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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.
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Aside from that, I concur in the remainder of the majority's opinion.
AUTHOR:
Justice Richard B. Sanders
WE CONCUR:
Justice James M. Johnson
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