In the midst of COVID-19, I founded the John Marshall League, a conservative Republican Lawyers group, to provide a forum for originalist-minded attorneys throughout the valley to gather and discuss crucial issues and developing legal principles. Last month, our group had the pleasure of hearing from Arizona Supreme Court Justice Clint Bolick, who spoke about an issue that is one of my top priorities, states’ rights and the freedoms given to us by the Constitution of Arizona. Justice Bolick emphasized that the citizens of Arizona have even greater rights under the Arizona Constitution than under the U.S. Constitution, and that Arizona attorneys should not hesitate to raise and develop state constitutional issues for consideration by our state courts.
Before joining the Court in 2016, Justice Bolick had a distinguished career as an advocate defending individual liberties in state and federal courts, first working as a staff attorney with the Mountain States Legal Foundation before joining former liberal, and now U.S. Supreme Court Justice Clarence Thomas at the EEOC, followed by a stint at the U.S. Department of Justice. He subsequently co-founded the Institute for Justice where he litigated on behalf of small businesses faced with unjustified or anti-competitive regulations, as well as promoting school choice, property rights, and free speech. He subsequently became the Vice President for Litigation at the Goldwater Institute where he not only litigated public interest cases but also drafted proposed legislation aimed at preserving individual rights.
At the John Marshall League meeting, Justice Bolick noted that unfortunately relatively few attorneys have ever read or taken courses dealing with state constitutions, largely because law school constitutional law courses primarily deal with provisions of the U.S. Constitution. As a result, state constitutional issues are often not raised when cases are litigated, thereby depriving the courts of the legal ability or opportunity to consider and expound on those issues. This, he noted, is unfortunate because a great attribute of the American republic is that there is not one constitution but rather fifty-one constitutions, many with individual protections far greater than the provisions of the U.S. Constitution. He added that Arizonans are fortunate in that our Constitution was drafted more than one hundred years after the U.S. Constitution and the constitutions of most other states were drafted, thereby permitting the framers to adopt or adjust the other federal or state provisions to meet the particular needs of Arizona.
The Declaration of Rights provided in our state’s constitution was drafted much broader than the federal Bill of Rights including the explicit guarantee of privacy, a right that is not found in the federal Bill of Rights and resulting in the federal courts’ extraordinary and questionable judicial attempts to discern a privacy right. As important, the Arizona Constitution does not contain a “case or controversy” requirement, hence making Arizona courts more receptive to hearing cases that federal courts might avoid because of mandatory “standing” preconditions.
Justice Bolick emphasized that as an aspect of federalism, Arizona courts are free to interpret the provisions of the Arizona Constitution differently than their counterparts in the U.S. Constitution so long as the courts give greater protection to individual rights, never less, than federal court decisions.
I am a proud federalist who recognizes the importance of state’s rights and will defend them with vigor. I urge law schools in Arizona and other states to recognize the importance of state constitutions and add courses focused on them to their curricula.
When I’m traveling around the state as part of my campaign to be Arizona’s next Attorney General, I remind everyone that the job of whoever ends up in that office will be to protect Arizona’s citizens from the government and to protect not only the rights granted by the United States Constitution, but also the more expansive rights prescribed by the Arizona State Constitution. I look forward to further conversations with Arizona’s conservative legal leaders and this inspiring Arizona Supreme Court Justice in future meetings of the John Marshall League.
Rodney Glassman is currently a Major in the United States Air Force JAG Corps Reserve and private attorney at Beus Gilbert McGroder PLLC.