Paul Avelar and Keith Diggs
Justice Brennan’s exhortation—now forty years old—for lawyers and judges to rediscover protections for individual rights in state constitutions was a timely reminder of the importance of state constitutions in our system of federalism. Justice Brennan issued this call at a time when he believed the U.S. Supreme Court was retreating from the protection of individual rights under the U.S. Constitution. It is doubtful that Justice Brennan meant to include economic liberty—the right to earn a living free from oppressive government regulation—in his “new federalism.” But economic liberty is a nearly textbook example of an individual right that the U.S. Supreme Court had once vigorously protected but had retreated from by the late 1970s.
The pattern of meaningful protection for economic liberty fading into nonprotection was repeated at the Arizona Supreme Court. The change in Arizona jurisprudence, however, happened at a different time than in the federal courts and has never been adequately explored or explained—either by the courts or commenters. Neither have the “early” Arizona economic liberty cases—which actually span the decades between the 1920s and 1970s—been given credit for their consistency and sophisticated understanding of the police power, individual rights, and the threat of government-created monopoly. A comprehensive survey of these early cases demonstrates a tradition under the Arizona Constitution of providing more meaningful judicial protection for economic liberty than under the U.S. Constitution. This tradition was seemingly abandoned as the Arizona Supreme Court embraced—without explanation—a “lockstep” approach to economic liberty by adopting federal jurisprudence to interpret the relevant provisions of the Arizona Constitution. But this lockstep approach cannot be squared with the original cases, ignores unique aspects of the Arizona Constitution, and leads to incorrect results. As other states have begun to explore the greater protections for economic liberty in their constitutions, Arizona courts need to rediscover the same in our Constitution.