The Arizona State Constitution:
A Reference Guide

by John D. Leshy
reviewed by Brian de Vallance

More than 200 years after James Madison put quill to parchment and drafted the United States Constitution, the debate over federalism continues to rage. Recently, after more than a half century of allowing Congress to regulate everything from liquor to live fish bait through the Commerce Clause, the U.S. Supreme Court has begun to limit congressional power and, correspondingly, increase state authority. For example, last year, it held that Congress could not use the Commerce Clause to authorize suits against states in federal court.¹

This debate over federalism, older than the Republic itself, makes one thing clear: The authority of state governments will continue to play a vital role in how this nation is governed. It is in this increasingly relevant context that Professor John D. Leshy’s The Arizona State Constitution: A Reference Guide² strikes a resonant chord. Leshy’s book, which is part of a 50-state series, provides both a brief constitutional history of Arizona and a clause-by-clause analysis of the constitutional provisions themselves.

Although a serious, scholarly work, The Arizona State Constitution is at once useful and interesting. After setting forth each clause, Leshy provides a brief but thorough analysis, discussing all relevant appellate court decisions. For this reason alone, The Arizona State Constitution is an invaluable resource. Several of these sections stand out, including those on Arizona’s free speech protection, our initiative and referendum authority, and our controversial tort provision.

Arizona’s Tort Guaranty

As most personal injury lawyers and insurance company executives can attest, the Arizona Constitution expressly guarantees that "[t]he right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation."³ Leshy observes that this protection evolved from what originally was intended "to serve the parochial interest of labor" to the "right of action for damages...to all persons."⁴ He notes that because these protections "severely limit the legislature’s ability to affirm the common law tort liability, they have provoked continuing controversy."⁵

And while this right has proven difficult for the Legislature to restrict, it has also been elusive for the Arizona Supreme Court to define. For example, in Boswell v. Phoenix Newspapers, Inc.,⁶ the Court unanimously stated that this section of our Constitution was not "limited to the elements and concepts of particular actions which were defined in our pre-statehood caselaw."⁷ Only two years later, by a three-to-two vote,⁸ the same court upheld a statute that prohibited product liability suits more than 12 years after the product has been sold, acknowledging but not overruling its holding in Boswell.⁹ As then-Vice Chief Justice Feldman wrote in his dissent, "the majority opinion [in Bryant] simply defies the history, spirit, intent and language of our State Constitution by permitting the Legislature to make incremental erosions of our most basic rights and to destroy every inch of progress made since 1912."¹⁰ Then, in 1993, the Court overruled Bryant by a four-to-one vote and, for now, interprets our Constitution as protecting the right to sue in strict liability.¹¹

Our Rich, Populist History

For all of this volume’s clear and concise examination of our Constitution’s provisions, however, it is perhaps the historical overview that proves most rewarding. In these 30 pages, Leshy communicates the ideas and concerns that led to the final document and articulates the underlying local political orthodoxy of the day. As he explains, the Arizona framers’

skepticism of concentrating power in the hands of the few extended beyond government to embrace the private sector as well, but their skepticism was not gloomy. Like progressives around the country, they were generally meliorists, confident of the ability of humankind to channel its energies toward worthy and noble ends. The Arizona delegates believed in progress and in the idea that, as the leading interpreter of the progressive era has put it, the "nation could be redeemed if the citizens awoke to their responsibilities." Sober enough to reject the idea that the "future would take care of itself," they did share an intense faith in the future of themselves and their society.¹²

The Arizona State Constitution also recounts the admission gambit of 1911, where President Taft authorized Arizona statehood if Arizona voters would delete the constitutional provision of judicial recall later that fall.

Having been forcefully apprised of the price of admission, in the election held on December 12, 1911, the Arizona voters dutifully removed the recall by a margin of nearly nine to one. Two months later, on February 14, 1912, Taft signed the proclamation admitting Arizona into the Union. The independent-minded Arizona voters extracted their revenge from Taft in several ways. Democrats swept nearly all the state offices at that election, and less than 11 months later Arizonans soundly rejected Taft’s bid for reelection. He garnered less than 13 percent of the popular vote, finishing behind Woodrow Wilson, Teddy Roosevelt (running on the progressive Bull Moose ticket), and Socialist Eugene Debs. At the same election, the voters reinstated the judicial recall in the constitution by a margin of almost 50 to one.¹³

Leshy also manages to humanize our constitutional framers — a phrase that usually conjures up monocles and mothballs — by telling how they rejected without debate a proposal to disqualify themselves from seeking any office created by the constitution for a period of five years. With a sense of humor appropriate to an arid state, convention president Hunt referred this proposal, which had been introduced amid "laughter and applause," to the convention’s committee on "militia and the public defense" for a quiet burial.¹⁴

In fact, several of the Arizona framers would remain in government for 40 years. As Leshy points out, "[t]his ambition probably served the state well, for it made the delegates attuned to realism in designing a government in which many of them had ambitions to serve."¹⁵

You Need This Book

In an era when politicians, with numbing regularity, prefer to waive rather than read constitutional canons, it is refreshing to see such a thorough examination of the history, provisions, and consequences of our Constitution. The Arizona State Constitution clearly communicates a passion for the people and the ideas that forged it and helps us understand the context from which this living document continues to evolve. Article by article, section by section, Professor Leshy has written the definitive work on the Arizona Constitution — a volume that belongs in the library of every Arizona lawyer.

Brian de Vallance, a former student in Professor Leshy’s seminar on the Arizona Constitution, is an associate at Sacks Tierney P.A.

ENDNOTES:

1. Seminole Tribe v. Florida, 116 S. Ct. 1114, at 1125-1128 (1996) (overruling Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989)).

2. John D. Leshy, The Arizona State Constitution: A Reference Guide (1993). Professor Leshy, on leave from the College of Law at Arizona State University, is currently serving as Solicitor of the U.S. Department of Interior.

3. Ariz. Const. art. XVIII, § 6; see Ariz. Const. art. II, § 31.

4. The Arizona State Constitution at 310 (citing Kenyon v. Hammer, 142 Ariz. 69, 688 P.2d 961 (1984)).

5. Id. at 311.

6. Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 9, 730 P.2d 186 (1986), cert. denied, 481 U.S. 1029 (1987).

7. The Arizona State Constitution at 311 (quoting Boswell, 151 Ariz. at 17-18, 730 P.2d at 194-95).

8. This case was considered during a vacancy on the Court. One of the three deciding votes was cast by an Arizona Court of Appeals judge, sitting on the Court by designation.

9. The Arizona State Constitution at 311. (citing Bryant v. Continental Conveyor & Equip. Co., 156 Ariz. 193, 751 P.2d 509 (1988)).

10. Bryant, 156 Ariz. at 202, 751 P.2d at 518 (Feldman, V.C.J., dissenting).

11. Hazine v. Montgomery Elevator Co., 176 Ariz. 340, 861 P.2d 625 (1993).

12. The Arizona State Constitution at 10 (citations omitted).

13. Id. at 17-18.

14. Id. at 6 (citations omitted).

15. Id.