November 2008

Brush Up on Your Washington Constitutional Law

To Protect and Maintain Individual Rights — A Citizen’s Guide to the Washington Constitution, Article 1

Authors: Jonathan Bechtle and Michael Reitz

Foreword by Associate Chief Justice Charles W. Johnson

Published by Evergreen Freedom Foundation, 2008; Paperback; 116 pages; ISBN: 978-0-615-21232-6; $9.95

According to a recent survey, two-thirds of Americans can name at least one of the judges on American Idol, but fewer than 10 percent can name the chief justice of the U.S. Supreme Court. Another survey found that only 25 percent of Americans could name more than one of the rights guaranteed by the First Amendment, yet more than half could name at least two characters from The Simpsons.

Such ignorance of the law bothers Olympia lawyer Michael Reitz, who has co-authored a book meant to inform Washington citizens of their basic legal rights. To Protect and Maintain Individual Rights — A Citizen’s Guide to the Washington Constitution, Article 1, written by Reitz and colleague Jonathan Bechtle, was recently released by the nonprofit Evergreen Freedom Foundation, where the authors work. The foundation is a public-policy research organization whose stated mission is “to advance individual liberty, free enterprise, and limited and accountable government.”

“The general apathy about our civic foundations should greatly concern us as members of the Bar,” Reitz says. “Fundamental liberties cannot be long preserved when large numbers of citizens lose sight of them.”

The 116-page paperback is a section-by-section reference guide to the state’s Declaration of Rights. Priced at $9.95, it can be purchased online at www.guide.effwa.org. Reitz notes that book publishing is a new venture for Evergreen Freedom Foundation, which is distributing the book in-house and trying to get the word out through local bar associations, law libraries, local libraries, grassroots community groups, and legal commentators. “We haven’t advertised outside of our member newsletter, which goes out to about 4,500 folks monthly,” Reitz says.

The book is divided into brief segments, each of which begins with the language of a constitutional section, followed by an objectively presented two- or three-page summary of case law interpreting the section, as well as a brief list of citations to leading cases and other sources. Despite the legal references, the book is written in language easily accessible to non-lawyers. It would appear to be a natural fit as a supplementary text for high-school or college courses on law and government, as well as a handy reference for lawyers who don’t normally practice constitutional law but occasionally need a quick guide to the subject.

The book includes a foreword by Justice Charles W. Johnson of the Washington State Supreme Court. Justice Richard B. Sanders and Washington Attorney General Rob McKenna contributed glowing back-cover blurbs.

Reitz explains that he and Bechtle put the book together by examining the sources of the Washington Constitution, the 1889 Constitutional Convention debates, and significant cases that have interpreted the Declaration of Rights. “We drew the book’s title from the opening section of the Washington Constitution, which says governments are ‘established to protect and maintain individual rights,’” Reitz says. “This basic truth is especially relevant for practitioners, as Washington has experienced a renaissance of state constitutional jurisprudence over the last 20 years. State constitutions were originally intended to be the first line of defense for the protection of individual liberty, with the federal constitution acting as a secondary safeguard. Few Washingtonians realize the state constitution often provides greater protection of individual rights.”

In 1986, the Washington State Supreme Court issued the watershed opinion in State v. Gunwall,1 which examined whether it is appropriate to resort to independent state constitutional grounds to decide a case, rather than deferring to equivalent provisions of the U.S. Constitution. Guided in part by a law review article by Justice Robert F. Utter,2 the Supreme Court held that independent review of the state constitution is indeed appropriate, as its text may “provide greater protection for individual rights . . . .”3 The court then listed criteria for independently analyzing the Washington Constitution.

Reitz notes that over time, especially since the Gunwall decision, Washington courts have recognized greater protections in the state Constitution in areas such as free speech, property rights, freedom from search and seizure, the right to trial by jury, and the right to keep and bear arms. 

NOTES
 1.  State v. Gunwall, 106 Wash.2d 54 (1986).
 2.  Utter, Robert F., “Freedom and Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights,” 7 U. Puget Sound L.Rev. 491 (1984).
3. Gunwall, supra note 1, at 59.