Different Words Have Different Meanings

Anthony Sanders · January 11, 2021

Today the Arizona Supreme Court went out of its way to not interpret the Arizona Constitution. We’ve discussed on the blog before how state supreme courts should feel no shame—indeed, they should feel pride!—in interpreting their own constitutions differently from the U.S. Constitution, even when the language in question is identical. But the Arizona case, State v. Mixton, concerns language that is wildly different, and yet still ends up being interpreted the same. The four-justice majority’s opinion wildly overbalances the need for uniformity with other states over actual constitutional text. It’s almost like (actually, it is like) the text doesn’t matter.

There’s a lot going on in Mixton, including much discussion of the third-party doctrine in search and seizure law, and the implications of our increasingly digital lives on that doctrine (it’s a case about a subpoena of an internet service provider). We at IJ submitted an amicus brief in the case on that issue. But here I just want to quickly focus on the issue of the Arizona Constitution’s text.

Most readers will be familiar with the language of the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Arizona’s equivalent clause protecting against government abuse of searches and seizures is a whole different thing:

No person shall be disturbed in his private affairs, or his home invaded, without authority of law.

No matter how pro-government you are, you have to admit those are not the same. A question for the Arizona court in Mixton was whether the words “private affairs” should be read more broadly than the Fourth Amendment—in this case whether it could cover information about the defendant that is held by a third-party ISP.

The court’s answer was essentially to throw up its hands on what “private affairs” means, and by default adopt the body of Fourth Amendment law that the federal courts have developed. To give the majority some credit, they performed some examination of the background of the clause, and of how that phrase was used at the time the constitution came into force, including scholarship on the issue. But all that apparently just confused things: “The text of the Private Affairs Clause does not define the meaning of ‘private affairs,’ nor does the history of its passage delineate the scope of its application. Thus, its text does not command, objectively or otherwise, the standard by which we determine its reach.”

This is one of the most impressive waiving of the hands I’ve ever seen. If this approach were applied to every piece of constitutional text then courts would never find meaning in constitutional language. Very few constitutional clauses, state or federal, define the meaning of their terms, and the history and original meaning of a clause do not often fully flesh out its “scope” like Athena from the head of Zeus. Thus, this is the equivalent of calling the text an “ink blot” (as Robert Bork wrongly said of the Ninth Amendment), which “private affairs” clearly is not. Even so, the majority uses this to then import Fourth Amendment doctrine into its analysis, as well as the value of uniformity of law across jurisdictions, and then uses that to side with the government.

On the other hand, Justice Clint Bolick, joined by two of his colleagues, wrote a detailed dissent that is well worth reading. He points out the obvious fact that if a state’s citizens have written their constitution differently from the federal version, they probably want it interpreted differently too:

The majority here prizes national uniformity even where Arizonans have chosen a markedly different approach in their organic law. That priority is misplaced given that in our federalist system, “state constitutions are our basic charters of state governance.” . . . We do Arizonans a disservice by elevating the value of discordant national uniformity over enforcement of our own constitution and the greater clarity and protection it affords.

Judicial engagement means, at a minimum, taking constitutional text seriously. Hopefully Bolick’s dissent can help that happen the next time a court is asked if different words have different meanings.