Washington Supreme Court Justice Richard Sanders is perhaps the deepest thinker on his court. He dives to the bottom of constitutional issues, asking: Where do the basic concepts come from? What's the underlying political and legal theory? What did the Nation's founders think about this topic in 1789? What did Washington's founders have in mind in 1889? This doesn't mean that Sanders is always right. And he routinely fails to bring his colleagues along with him. A libertarian with a noticeably independent streak, Justice Sanders authors more dissenting opinions than anyone else on Washington's high court, and his dissents and concurrences often contain vigorous philosophical journeys into American constitutional history and politics.
In his recent concurring opinion in Washington Farm Bureau Federation v. State of Washington, 162 Wn.2d 284, 308 (2007), Justice Sanders resurrected a vital debate from 1787, pulled it forward 100 years to Washington's founding, and came to an important conclusion that is partly right and partly wrong. His thinking, which he himself labeled "unorthodox" in a law review article, is worth review and discussion. Farm Bureau was a challenge to the state legislature's 2006 tinkering with Initiative 601 spending caps. Washington's constitution provides that after an initiative is passed, the Legislature may amend it during the next two years with a two-thirds vote of each house, and thereafter may amend it with a simple majority. In Farm Bureau, the Washington Supreme Court held that because the two-year waiting period had passed, a legislative majority was well within its power when it increased previously-adopted spending limits and declared that Initiative 601 had been complied with despite the plaintiff Farm Bureau's protestations.
In the majority opinion, Justice Mary Fairhurst stated 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." That statement got Justice Sanders' dander up. He criticized it as "careless rhetoric" and launched into a critique of the court's traditional view that the Legislature has "plenary" (i.e., full) power to pass laws. Justice Sanders put his discourse in a "concurring" opinion, meaning that he agreed the Legislature could change I-601 expenditure limits but that he did not buy the majority's reasoning.
Sanders said Fairhurst's statement about "plenary" legislative power "seems to be based on an erroneous assumption that state governments have inherent powers." He went on to assert, as he has in other cases and in law review articles, that this presumption about inherent legislative power "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." Fairhurst shot back in a footnote that Sanders' views were based on "a long standing, but mistaken, understanding of the foundational principles of state government," and she reiterated the court's oft-stated view that the Legislature's power was "plenary."
Sound like a tempest in a teapot? It is. But it is a fascinating little tempest, and one that has been around since 1787, when the current United States Constitution was written, debated, and ultimately approved.
Prior to 1787, the best European (and American) thinkers took it for granted that political power ultimately could not be split. It had to reside in one "sovereign" that had the last word. Most theorists, led by the French political philosopher Jean Bodin, held that there must be a supreme central power in every state. For Bodin, it was the king. Most English agreed with Bodin's basic premise about the impossibility of splitting final political power. The writer Samuel Johnson, for example, proclaimed: "There must, in every society, be some power or other from which there is no appeal."
But not all British thinkers agreed that the king was the automatic focal point of power. The Tories certainly thought he was, but the rival Whigs didn't. Both parties agreed that politics was a perpetual battle between the rulers and the ruled. Yet, while Tories claimed that the king ultimately had full (plenary) power, subject to a few fiscal checks placed in Parliament, the Whigs put plenary power in Parliament, leaving some executive prerogatives with the Crown.
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