Researching the Washington State Constitution
***The Law Library did not bring our entire collection to our temporary Tumwater location. Some titles in this post must be retrieved from offsite storage.***
The Washington State Constitution was ratified in 1889, over three decades after Washington Territory was divided out of Oregon Territory by Congress in 1853. Hugh Spitzer, a law professor at the University of Washington, explains the progressive reasons behind many of the decisions written into the Constitution in a video created by TVW for educators and high school students in Washington (and filmed in the Washington State Law Library). The already progressive Washington Constitution was made yet more progressive in 1912 with the addition of the right of citizens to petition initiatives and referendum, essentially giving voters the power to create statutes. Recent citizen initiatives include the 2012 initiatives to recognize same-sex marriage and legalize marijuana, making Washington one of the first states to do both.
In constitutional research, the text of the Constitution is the starting point. The current version of the Constitution is published online by the Office of the Code Reviser. It is also found in print in volume 0 of the Revised Code of Washington. The State Law Library can provide older versions if needed.
After reading the relevant constitutional clauses, you will want to read the case annotations for that clause from one of the two competing sets of annotated statutes for Washington, either the Revised Code of Washington Annotated published by Thomson Reuters or the Annotated Revised Code of Washington published by Lexis. It is critical to read the cases that interpret the meaning of the constitutional clauses in order to understand how the courts will apply the constitution to a factual scenario. The reference librarians at the State Law Library can help you access these annotations.
One of the key issues in state constitutional law is the extent to which state constitutional rights match those in the federal constitution. Because of the Supremacy Clause in the United States Constitution, the federal constitution is the supreme law of the land. Nonetheless, the federal constitution defines a “floor” below which state constitutions may not fall but states may offer more rights than the federal constitution. For example, in State v. Bassett, 192 Wn.2d 67, 428 P.3d 343 (2018) the Washington Supreme Court held that the Washington Constitution’s cruel punishment clause provides more protection than the federal Eighth Amendment’s prohibition on cruel and unusual punishment and that life imprisonment without the possibility of parole constituted unconstitutionally cruel punishment for defendants under the age of eighteen.
The analysis that the courts undertake to determine whether the Washington Constitution provides greater rights comes from State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986). The court explains:
The following nonexclusive neutral criteria are relevant in determining whether, in a given situation, the Washington State Constitution should be considered as extending broader rights to its citizens than the United States Constitution: (1) the textual language; (2) differences in the texts; (3) constitutional history; (4) preexisting state law; (5) structural differences; and (6) matters of particular state or local concern.
Gunwall analysis can be complicated. Professor Spitzer analyzed the application of Gunwall in his article New Life for the ‘Criteria Tests’ in State Constitutional Jurisprudence: Gunwall Is Dead — Long Live Gunwall!, 37 Rutgers L. J. 1169 (2006).
Constitutional research sometimes requires historical research of the documents from the 1870s and 1880s that show intent from the framers of the Washington Constitution. The Constitutional Convention held in Walla Walla in 1878 did not get approved by Congress. The second Constitutional Convention held in Olympia in 1889 produced the Constitution that Congress ratified when admitting Washington as a state. Key sources include:
· Rules of the Constitutional Convention of the Territory of Washington, July 4, 1889 (T. H. Cavanaugh, Public Printer, 1889)
· Beverly Paulik Rosenow, ed., The Journal of the Washington State Constitutional Convention 1889, with Analytical Index (Book Publishing Company, 1962; reprinted by William S. Hein & Co. in 1999)
· Washington State Constitutional Convention, 1889: Contemporary Newspaper Articles (Marian Gould Gallagher Law Library, 1998)
· James Leonard Fitts, The Washington Constitutional Convention of 1889 (University of Washington Thesis (M.A.), 1951)
For more current sources, the top treatise on the Washington Constitution is by former Justice Robert Utter and Professor Hugh Spitzer: The Washington State Constitution, Second edition (Oxford University Press, 2013). The national treatise by Jennifer Friesen, State Constitutional Law: Litigating Individual Rights, Claims, and Defenses, 4th ed. (LexisNexis, 2006), is also available for loan from the State Law Library.
For assistance with state constitution research please contact a reference librarian by phone at 360–357–2136 or email at library.requests@courts.wa.gov. (RM)
