Guest Essayist: Sean Beienburg

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Not all states can say that their first public act was defying the president of the United States. Arizona, the last state admitted to the Union from the contiguous United States, can.

Like many westerners then and now, Arizonans were anxious about and skeptical of concentrations of power, especially power wielded from afar, and, in writing their constitution, they sought to see it widely dispersed. (In this, Arizona’s Founders were not unlike the American Founders, increasingly distressed at their local government affairs being directed from the metropole, in violation of what they understood their English liberties to guarantee.)[1] This meant not only that the state government would be carefully limited and easily checked by the people, but also that its constitution would ensure private actors could not wield undue influence in the state. In short, the Arizona Constitution was against both Big Government and Big Business—and it used controversial populist innovations to achieve these goals.

Worries about western populism run amok—even by the progressive Senator Albert Beveridge, an Indiana Republican who chaired the committee on territories– meant Congress planned to admit Arizona and New Mexico jointly in 1906, but only if both territories agreed. New Mexico approved of the joint admission in a referendum, but Arizona rejected it overwhelmingly. Congress agreed to separate the two but, unusually, to require the territories to have their proposed constitutions approved by both Congress and the president before admission could take place, thus ensuring a check on the radicals of the West.

In October 1910, residents from across the Arizona territory convened in Phoenix to draft a new constitution, and the charter they drafted mixed both old values and new ideas.

The early parts of the Declaration of Rights include standard statements of political philosophy once common in state constitutions, alongside explicit gratitude to and acknowledgement of divine providence. The brief preamble observes that “we, the people of the state of Arizona, grateful to almighty God for our liberties, do ordain this constitution.” (The state’s motto, Ditat Deus, meaning God Enriches, echoes this preamble).

As sections 1 and 2 of the Declaration of Rights explain, writing a constitution allows the “frequent recurrence to fundamental principles [that] is essential to the security of individual rights and the perpetuity of free government” (section 1). It also allows for the clear recognition that “governments derive their just powers from the consent of the governed” who establish them to “protect and maintain individual rights” (section 2). The substance of the individual rights that followed, largely taken from other state constitutions (and substantively if not stylistically familiar to a reader of the federal Bill of Rights and Article I, Section 10), similarly followed well-worn paths.

But while the types of rights included in the Arizona Constitution’s equivalent to the Bill of Rights are fairly standard, its latter parts, both its protections of labor and especially its structural provisions, are far more unconventional.

The Arizona constitution bristles with a skepticism of big business and a related strong commitment to the dignity of labor, incorporating and expanding on provisions being added to contemporary constitutions and legislative codes of other states like Oregon and Wisconsin.

This is perhaps most obvious in two full articles aiming to check the power of business. The first is the Corporation Commission, effectively a fourth branch of government whose obligations and powers are spelled out with great attention in Article XV. Its basic purpose: carefully regulating corporations that operated as utilities (such as railroads), which lent themselves to monopolies rather than normal market competition.

The second is Article 18, explicitly titled Labor, which offers a variety of worker protections that now seem commonplace. Often repealing old doctrines from common law, Article 18 provides, among other guarantees, for employer liability for on-the-job injury, worker’s compensation provisions, and the elimination of the fellow-servant rule (in which an employee, not the employer, was liable for worksite injuries inflicted on another worker due to the actions of the coworker).

But beyond these policy provisions–often updates to common law, which even many constitutionally conservative politicians found little to object to—worries about the concentration of economic power led to institutional innovations which did unsettle defenders of American constitutionalism.[2] Because of concerns that special interests could all too easily capture the complicated separation of powers of the Madisonian system and thwart the will of the people, Progressive Era reformers sought to change not just what the policies were but the very structure of government itself.

Arizona’s founders imbibed these intellectual waters, and thus the charter they created is a populist constitution, with a focus on direct, rather than mediated, democracy.

The initiative and referendum processes are the most obvious example of this. The equivalent of the U.S. Constitution’s vesting clause (Article I, Section 1), in which legislative power is vested in Congress, in Arizona explicitly reserves the right of the people to override the legislature by referendums or initiatives.[3] (In fact, for emphasis, this reservation appears in the first paragraph.) The initiative and referendum was championed by convention president and first governor George Hunt, who himself had picked up the idea from Bucky O’Neill, an Arizona soldier killed with Theodore Roosevelt’s Rough Riders in the charge up San Juan Hill.[4]

A second, related instance of constitutional populism is the simple initiative process by which amendments are made to Arizona’s Constitution. While perhaps an extreme example, Arizona’s theory of direct constitutional democracy both illustrates and attempts to take advantage of constitutional federalism.

The U.S. Constitution, which establishes a strong but substantively limited federal government and imposes a floor of basic rights on all the states, is difficult to amend, requiring a supermajoritarian, cross-regional consensus to do so—thus ensuring a narrow majority cannot impose its wishes on the diverse citizens of the country more broadly.

But Arizona’s state constitution, by way of contrast, is extremely easy to amend, requiring the gathering of signatures and a bare majority vote at the following general election. This ensures that the state government can thus directly respond to the local preferences of the people in exercising the police powers for the common good, but that even when being a “laboratory of democracy” the state government remains checked within the core constraints of the U.S. Constitution.[5]

A third instance of the constitution’s populism is its distrust of appointed politicians. Unlike in many states which model the U.S. government, in which one elects the chief executive, who in turn brings an attorney general and other executive branch officials, almost every Arizona position is separately elected and after a direct popular primary.

Part of the concern for concentrated power was the fear of judges run amok (and especially when in cahoots with business, as they were often charged with being). The early 1910s were a tough time for judicial independence, with Progressive Era critiques of the separation of powers leading to consideration of a wide range of attacks on judicial review.  Some wanted supermajority judicial votes to declare legislation unconstitutional, others, to allow Congress to overturn judicial decisions.[6] Future Supreme Court justices Felix Frankfurter and Louis Brandeis proposed eliminating part of the 14th Amendment altogether in order to stop judges from, in their mind, imposing their policy views on states that wanted to build more protective regulatory regimes.[7]

This debate was largely what the 1912 election would be about: Theodore Roosevelt wanted to be able to recall individual judicial decisions, part of why William Howard Taft and Roosevelt’s two closest political allies Elihu Root—who had been Roosevelt’s chosen successor—and Henry Cabot Lodge all turned on TR in the election, fearing their old friend had turned against American constitutionalism itself.[8]

This was the climate in which Arizona sought statehood, and it reflected the wild western populism common to the time, which led even progressives like Albert Beveridge to fear statehood and arrange, uncommonly, for a presidential signature to be required for admission.

Thus, the single clearest and best-known example of the militant populism that so worried these Republicans is in the constitution’s judicial recall provision. Article VIII of the Constitution established protocols for recalling officials– “all elective officials”, making Arizona the second state to have a recall provision (after the progressive laboratory of Oregon).

But because Arizona judges, like in many states, gained their seats by election, the expansive language meant that judges themselves would be vulnerable to recall—a far more radical curb on judicial power than any of the other alternatives raised in the Progressive Era.

For President Taft, a former and future judge, this was unacceptable. Arizona’s provision would intimidate judges from making unpopular decisions when the law required them to do so. As such, he vetoed the state’s admission- thus ensuring Arizona, not New Mexico, would be the 48th state.

By a 9 to 1 vote Arizona voters added a clause to their recall section insisting that it was for all elective officials “except members of the judiciary.” A mollified Taft thus approved statehood.[9] What one historian has termed “the longest sustained admission fight in American territorial history” seemed over.[10] But there was one more skirmish to be fought.

As Oklahoma’s recent move of its state capitol from Guthrie to Oklahoma City in violation of its own statehood enabling act had proved the year before,[11] there was nothing that could be done to ensure compliance—what could Taft do if Arizona resisted? Cite breach of contract and take statehood away from a now sovereign entity? Invade it as in revolt? As a result, then-Governor Hunt and the legislature moved to restore judicial recall immediately, with the first senate bill a constitutional amendment restoring it, openly provoking the president and members of Congress.

And that proposed amendment was approved at the next election by an almost 50 to 1 ratio—with Taft, the sitting president running in fourth in Arizona, losing not only to Wilson and Roosevelt but even the Socialist candidate Eugene Debs.[12] You could say then that the Arizona  Constitution, like Arizona more broadly, was born angry- we warned them.

Sean Beienburg is an assistant professor in the School of Civic and Economic Thought and Leadership at Arizona State University and the project director of the Living Repository of the Arizona Constitution. He is also the author of the recent book Prohibition, the Constitution, and States’ Rights (2019), published by the University of Chicago Press.

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[1] For the clearest encapsulation of the importance of federalism to revolutionary thought, see the underappreciated predecessor to the Declaration of Independence, the Declaration and Resolves of the First Continental Congress, October 14, 1774 https://avalon.law.yale.edu/18th_century/resolves.asp; on the subsequent development of the American understanding of federalism more broadly see Sean Beienburg, Prohibition, the Constitution, and States’ Rights (Chicago: University of Chicago Press, 2019), 18-24.

[2] See for example, Elihu Root, “How to Preserve the Local Government of the States: A Brief Study of National Tendencies.” Speech to the Pennsylvania Society in New York, Wednesday, December 12, 1906, printed as How to Preserve the Local Government of the States (New York: Brentano’s, 1907); Beienburg, Prohibition, the Constitution, and States’ Rights, 44-50.

[3] Article IV, Section 1, Part 1.

[4] John D. Leshy, The Arizona State Constitution, 2nd ed. (New York: Oxford University Press, 2013), 15.

[5] New State Ice Co. v. Liebmann 285 U.S. 311 (1932) (J. Brandeis, dissenting)

[6] Kenneth P. Miller, Direct Democracy and the Courts (Cambridge: Cambridge University Press, 2009); William G. Ross, A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890-1937 (Princeton, NJ: Princeton University Press, 1994); Stephen Engel, American Politicians Confront the Court: Opposition Politics and Changing Responses to Judicial Power (Cambridge: Cambridge University Press, 2011).

[7] Sean Beienburg, “Progressivism and States’ Rights: Constitutional Dialogue between the States and Federal Courts on Minimum Wages and Liberty of Contract.” American Political Thought 8 (2019): 34.

[8] William Schambra, The Saviors of the Constitution,” National Affairs 10 (Winter 2012), reprinted as “The Election of 1912 and the Origins of Constitutional Conservatism,” Toward an American Conservatism: Constitutional Conservatism During the Progressive Era, eds. Joseph Postell and Jonathan O’Neill (New York: Palgrave MacMillan 2013), 95-121

[9] Leshy, The Arizona State Constitution, 22.

[10] Howard Roberts Lamar, The Far Southwest, 1846-1912: A Territorial History (Albuquerque: University of New Mexico Press, (2000) [1970]), 423.

[11] See Coyle v. Smith, 221 U.S. 559 (1911), upholding the move on grounds enabling act conditions ceased to be binding once a state was admitted to the union, insofar as it became an equally free state.

[12] Leshy, The Arizona State Constitution, 22-23.

1 reply
  1. Publius Senex Dassault
    Publius Senex Dassault says:

    Very interesting essay. One cannot help but wonder if Arizona will defy the predictions of many Founders that open democracy will ultimately lead to self destruction as it defied Taft. Perhaps being a “State” instead of a Nation will be its own peculiar insulation to this malady, or the Founders were wrong.

    PSD

    Reply

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