Power to the people! It's in the constitution

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.

Americans were always a little different. Eighteenth century American Whigs were, by English standards, "radical Whigs" who were almost as suspicious of Parliament as they were of the king. In Britain, radical Whigs did not wield any power — they just grumbled. But the experience with overbearing royal governors, as well as a distant tax-imposing Parliament, swung American Whigs permanently to the "radical" camp.

As we all know, the inability or unwillingness of George III and Parliament to compromise in America led to the Revolution, after which between 80,000 and 100,000 American Tory refugees fled or were forced into Canada, the West Indies, and elsewhere. This left only Whigs in America, and radical Whigs at that.

Move forward just a few years after the Revolution, when the shaky decentralism of the Articles of Confederation convinced most of America's elite that a new governmental system was needed. A constitutional convention was held, and a federal constitution was proposed — a constitution that consciously split sovereignty (i.e. ultimate authority) between the states and the national government, and within the national government between the three branches.

The separation of powers between the branches had some basis in earlier English constitutional theory. But the "Anti-federalists" who opposed ratifying the constitution repeated the old theorem that ultimately someone had to have the last word, and, based on the prevailing political principles of the time, that splitting sovereignty between the states and the national government was fundamentally impossible and doomed to failure. They were convinced that Federalists were power-hungry elitists, and that because authority could not be successfully divided between separate levels of government, control would drift inexorably to the central power, leaving states' rights and individual liberties by the wayside.

This was a powerful argument, and the Federalists had to think fast. As the historian Gordon Wood has artfully documented, when the new Constitution hung in the balance at Pennsylvania's ratifying convention, the Federalist James Wilson latched onto a political idea that had been slowly germinating since 1776 — that sovereignty, ultimate power, lay neither in a king nor in a legislature, but instead resided in the people. And the people, being sovereign, could allocate that power anywhere they chose: some to the national government, some to the state governments, and further split among branches. The concept fit in nicely with the radical Whig tradition, and proved to be an effective intellectual end-run that trumped the Anti-federalists and helped gain approval of the Constitution.

Back to Justice Sanders' tempest in a teapot. In his Farm Bureau opinion, Sanders pointed out that Washington's founders in 1889 placed the Federalists' winning argument in the opening words of our state's constitution. Article I, Section 1 proclaims: "All power is inherent in the people ..." That proclamation is the cause of Sanders' angst about the Washington Supreme Court's repeated assertion that the Legislature has plenary (full) power. Sanders reminds his colleagues that when Americans bought James Wilson's Federalist argument in 1787, they chose to place ultimate sovereignty in the people, not in the people's elected representatives. Here's where Sanders is right and where he's wrong. He is correct to remind us that the people ultimately hold all power. The people decide, through constitutions, who makes choices on their behalf. The people decide which rights to retain (for example, the rights of initiative, referendum, and recall). And the people can amend the state constitution and adjust our system of state government so long as the changes are compatible with the national constitution.

But Justice Sanders fails to expressly recognize in his opinion that simply because the people hold ultimate power, it does not mean that their exercise of that power through an initiative always overrides the Legislature or ever overrides the state constitution. Today's "radical Whigs" in Washington state, like Tim Eyman, repeatedly assert that a majority of electors, through the initiative, can always trump the Legislature. But in America the people establish the rules-of-the-road through constitutions. When voters adopt a constitutional system for allocating power, that system stands until it is changed by amendment — which is not easy.

Our state constitution puts the voters and the Legislature on an equal footing — at least after the two-year post-initiative waiting period. When it comes to adopting legislation, majoritarian attempts to overrun constitutional checks and balances are precisely the sort of thing that the republican James Madison warned us against. Justice Sanders should focus on our state constitution beyond Article I, Section 1. He is absolutely correct when he recites that provision's statement that all power ultimately resides in the people. But Article II, Section 1 of our constitution states in plain English (or plain American, anyway): "The legislative authority of the state ... shall be vested in the legislature" except for the reservation of the initiative and the referendum. Article III splits executive power among eight independently elected statewide officials (a reflection of American skittishness about overbearing royal governors). And Article IV, Section 1 vests all judicial power in a supreme court and such other courts as the legislature may provide.

So our state's founders — the duly elected delegates of the people — split power every which way, and they did it on purpose. Justice Fairhurst and her court majority colleagues are correct when they repeat that "the legislature has plenary power to enact laws" except as limited by the state and federal constitutions. When it comes to the state constitution, that legislative power is indeed plenary, restricted only by the state constitution's Declaration of Rights, by the allocation of executive and judicial powers to other branches, and by the sharing of legislative power with the people through the initiative and referendum. Apart from that, the Legislature has robust powers — especially broad because under the United States Constitution the national government has limited, specified powers and all other powers remain with the states and the people themselves.

In the case under discussion, Justice Sanders as well as Justice James Johnson (who wrote a similar concurrence) voted along with the majority. Their lively concurring opinions did not make a whit of difference in the outcome.

But Sanders' constant reminders to look to history, to 18th and 19th century political theory — back to the basics, in other words — is healthy and useful even if his interpretation of that history can be legitimately debated. His majority colleagues should take the bait and engage in historical and philosophical debate with him more often, and on his thoughtful terms.

Constitutional, political, and historical theory, and lively debate about that theory, are keys to a participatory democracy and vital to a judiciary that keeps law planted firmly in the traditions of our democratic republic.

For further reading on the ideas contained in this article, see Gordon S. Wood, "The Creation of the American Republic 1776–1787" (Univ. of North Carolina Press, Chapel Hill, 1969); Joseph J. Ellis, "American Creation: Triumphs and Tragedies at the Founding of the Republic" (Alfred A. Knopf, New York, 2007); Richard B. Sanders and Barbara Mahoney, "Restoration of Limited State Constitutional Government: A Dissenter's View," 59 N.Y.U. Annual Survey of American Law 269 (2003).

• Hugh Spitzer practices at Foster Pepper LLP and teaches state constitutional law at the University of Washington School of Law.