THE FIRST LINE of DEFENSE a Blueprint for State Constitutional Litigation to Expand Freedom

THE FIRST LINE OF DEFENSE a blueprint for state constitutional litigation to expand freedom

+ BY CLINT BOLICK + Director, Goldwater Institute Center for Constitutional Litigation GOLDWATER INSTITUTE

THE FIRST LINE OF DEFENSE

a blueprint for state constitutional litigation to expand freedom

+ BY CLINT BOLICK + Director, Goldwater Institute Center for Constitutional Litigation

Executive Summary

For decades, groups seeking to protect individual rights—groups that I will col- lectively and loosely refer to in the paper as the “freedom movement”—have with some success used litigation, particularly in federal courts, to advance their missions. Despite the hesitancy some have about using judicial power to limit abuses by the other branches of government, such action is both necessary and appropriate because the courts were intended to protect individual liberties against majoritarian abuses.1 However, the freedom movement largely has overlooked a vital component of a pro- freedom litigation agenda: state constitutions.

In the American federalist system, state constitutions were intended to provide the primary bulwark for the protection of individual rights. That role is even more important as the growth of state and local governments now eclipses that of the national government, creating a large and growing wake of individual rights viola- tions.2 While Rehnquist-era federal courts increased protection for individual rights in several contexts, the constitutional counterrevolution has dissipated.3 By contrast, state constitutions have been almost entirely untapped as a source of protection for individual rights.

State constitutions offer both procedural and substantive advantages in a pro-freedom litigation arsenal. Taxpayers generally have standing—the legal capacity to sue—under state constitutions, which can help to expose a great deal of governmental mischief to potential challenge. State constitutions often contain provisions for which there are no federal constitutional counterparts, such as gift clauses, balanced budget requirements, and broad proscriptions against eminent domain abuse. More- over, even where federal and state constitutional provisions are similar or identical, state courts are free to interpret their own provisions more expansively than federal courts interpret the federal counterparts.4

There now exists an array of state-based, market-oriented policy organizations.M erg- ing state constitutional litigation programs with the ongoing work of such groups would strengthen both enterprises and create significant economies of scale. This blueprint provides a sketch of how such groups could add the power of litigation to their policy arsenals. GOLDWATER INSTITUTE

A Tale of Two Cases

The stories of Susette Kelo and Randy Bailey are strikingly similar. Both individuals were honest Americans with a fervent desire to be left alone. Both owned property coveted by private interests, but neither desired to sell at any price. Both were victim- ized by local governments that decided to use their power of eminent domain to ac- quire their property and transfer ownership to wealthier and more powerful interests in the name of economic development. Both resisted and were represented in their legal defense by the Institute for Justice. While Bailey prevailed, Kelo did not. The discordant outcomes in the two cases provide powerful testimony to the need for a sophisticated litigation strategy to apply expansively the constitutional protections of state constitutions.

The Fifth Amendment to the U.S.C onstitution provides, “nor shall private property be taken for public use, without just compensation.” But decades of adverse federal court precedents transformed the “public use” requirement into a far more permissive “public benefit” standard, giving local governments virtual carte blanche authority to The Fifth Amendment engage in Robin Hood–in–reverse schemes using their eminent domain power. to the U.S. Constitution Still, that state of affairs came as a rude awakening to Susette Kelo and her neighbors in the Fort Trumbull area of New London, Connecticut, in the late 1990s. Kelo provides, “nor shall had lived in her home with its view of the water since 1997 and had made extensive private property be taken improvements to it. Her neighbor, Wilhelmina Dery, had lived in her home since she was born in 1918, and her husband took up residence when they were married for public use, without over 60 years earlier. Their son lived in the house next door, which he and his wife received as a wedding gift. The neighborhood was tidy and close-knit, with residences just compensation.” and small businesses—a true slice of America.

As part of a broader plan to redevelop New London and increase its tax base, the New London Development Corporation, a private nonprofit organization invested with the power of eminent domain, decided to initiate proceedings to raze most of the Fort Trumbull neighborhood. The purposes were nebulous. The Pfizer Corpora- tion had announced plans to locate a research facility adjacent to Fort Trumbull. The planners wanted the Fort Trumbull property to complement the Pfizer effort by building research and development office space and by providing retail or parking space, ostensibly to support a new nearby marina.

Kelo and the Derys did not want to move—nor should they have been forced to. Traditionally, the awesome power of eminent domain has been limited to the con- struction of public facilities, such as roads, schools, and hospitals—hence the explicit limitation of the power in the Fifth Amendment to public use. This condemnation, by contrast, involved the taking of land to transfer from one private owner to another. But when Kelo and her neighbors went to state court to try to stop the condemnation, they were turned away without relief. Construing the state constitution narrowly, Connecticut courts reasoned that the economic development conferred a public benefit, and therefore the taking was constitutionally permissible. GOLDWATER INSTITUTE

Kelo and the Derys appealed to the U.S. Supreme Court, invoking the Fifth Amend- ment’s restriction of the power of eminent domain to public use. But in an infamous decision, the Court left Kelo and her neighbors empty-handed. The 5-4 majority opinion found that the takings were “executed pursuant to a ‘carefully considered’ development plan.”5 The Court acknowledged that early American jurisprudence recognized that public use meant public use, but “that narrow view steadily eroded over time” because “it proved to be impractical given the diverse and always evolving needs of society.”6 The case, the majority ruled, turned on whether the taking was for a “public purpose,” and “our cases have defined that concept broadly, reflecting our longstanding policy of deference to legislative judgments in this field.”6

Randy Bailey faced a similar ordeal but with a decidedly happier ending. The hard- working family man owns Bailey’s Brake Service at the corner of Main and Country Club in Mesa, Arizona, where scores of customers have had their brakes expertly serviced and repaired for over 20 years. Randy bought the business from his father and hopes to pass it on to his son someday. He is honest, takes care of his property, The Court acknowledged pays taxes, and provides employment to the community.

that early American juris- But the City of Mesa decided that the corner on which Bailey’s brake shop oper- ates would make a terrific “gateway” to the city, and that the existing businesses and prudence recognized that homes should be razed so that a local hardware store could move to the site and public use meant public expand its business. When Bailey and others refused to sell, the city decided to use eminent domain. use, but “that narrow view Fortunately, Bailey had a resource at his disposal that Susette Kelo did not: a much steadily eroded over time” more explicit provision of the Arizona Constitution that provides that “[p]rivate because “it proved to be property shall not be taken for private use.” After listing a series of specific exceptions, the provision goes on to explain that “[w]henever an attempt is made to take private impractical given the property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such without regard to diverse and always any legislative assertion that the use is public.” evolving needs of society.” Even with that explicit language, the trial court ruled against Bailey, applying precedents that had eroded the protection. But in a landmark ruling, the Court of Appeals reversed the decision. The city cited federal precedents in support of its arguments, but the court rejected them. “The federal constitution provides considerably less protection against eminent domain than our Constitution provides,” the court explained, and thus federal cases provide little assistance in interpreting the Arizona provision.7

The appeals court ruled that “if the government proposes to take property and then convey it to private developers for private commercial use, a significant question is presented because of the intended disposition of the property.”8 It held that the “constitutional requirement of ‘public use’ is satisfied only when the public benefits and characteristics of the intended use substantially predominate over the private nature of that use.”9 Applying a list of factors, the court concluded that the attempted taking of Bailey’s property was for private rather than public use and, therefore, fell outside GOLDWATER INSTITUTE

the city’s authority. Although not perfect, the Bailey ruling has created greater protection for private property rights in Arizona than exists under federal court precedents or in many other states.

Although Kelo and Bailey had different outcomes in court, both had happy endings. Kelo quickly became one of the most despised precedents in American history and alerted people to the vulnerable state of property rights. The ruling ignited a national movement to curb eminent domain abuse, leading to favorable legislation and voter initiatives in roughly 40 states so far. Likewise, the Bailey decision was followed in Arizona by a successful voter initiative in Mesa to limit the city’s eminent domain power;10 by statewide legislation curbing eminent domain abuse;11 and by the enact- ment of Proposition 207, which curtails both eminent domain abuse and regulatory takings, by a 65 percent majority in 2006.12

The two cases thus provide important lessons for the freedom movement. Kelo dem- onstrates that lawsuits can be powerful teaching vehicles, illustrating in dramatic terms the need for reform. Bailey teaches that a pro-freedom litigation program is incomplete without a vigorous focus on state constitutional guarantees. Together, the Together, the two cases two cases demonstrate the vast realm of the possible for pro-freedom litigation. demonstrate the vast realm

Federalism & State Court Activism of the possible for pro-freedom litigation. Over the past several decades, a significant pro-freedom public interest law movement has emerged, encompassing such organizations as the Pacific Legal Foundation and the Institute for Justice as well as dozens of other regional or issue-focused entities. Most of their litigation has been waged in federal courts. Together, the litigation groups have scored some impressive victories in such areas as racial preferences, private property rights, freedom of speech, mandatory unionism, economic liberty, federalism, freedom of commerce, religious liberty, and school choice.13

The freedom movement’s emphasis on federal litigation is understandable. Federal court decisions, particularly at the U.S. Supreme Court, have far greater precedential effects than those of state constitutional decisions. Given finite resources, federal court litigation offers the prospect of achieving much greater “bang for the buck.” That is especially true when the federal courts are populated by judges who are recep- tive to arguments grounded in original constitutional intent.

But the ardor of the federal judicial counterrevolution seems to have cooled. Toward the end of the Rehnquist era, the U.S. Supreme Court began to retrench, delivering disappointing decisions in many of the areas in which it previously had produced important gains for freedom, including private property rights, racial preferences, and school choice.14 Whether the Roberts Court will resume its predecessor’s earlier direction remains to be seen.

Moreover, it is a bit ironic that a movement that professes fealty to federalism has focused so intensively on federal court litigation, largely ignoring state constitutions. GOLDWATER INSTITUTE

The U.S. Constitution’s framers intended that state constitutions, rather than the federal constitution, would provide the first line of defense for individual liberties. Indeed, the Bill of Rights was patterned after preexisting rights in state constitutions, and the federal protections were not even held applicable to the states until after the 14th Amendment was ratified in the late 19th century. As The Federalist No. 51 explains, a “compound republic” consisting of a federal government and state governments, each with their own protections of individual liberties, provides a “double security” for the “rights of the people.”15

Although principles of federalism have been greatly eroded over the years, one rule remains sacrosanct: state courts are not bound to interpret their own constitutions in lockstep with the U.S. Supreme Court, even if the language of the provisions is identical. The sweetest fruit of the federalist system is that the U.S. Constitution provides only the floor beneath which the protection of liberty may not descend. But state courts are free to go beyond federal constitutional protections (or, more to the point, beyond protections recognized by federal courts) in construing their own state constitutions. The U.S. Constitution’s framers intended that state As so often is the case, the trails of expansive state constitutional interpretation were blazed by groups I will loosely refer to as pro-government. The patron saint of that constitutions, rather than movement was U.S. Supreme Court Justice William Brennan, who perceived during the 1970s that the activist revolution of the Warren era was beginning to wane. In a the federal constitution, pair of seminal law review articles, Brennan extolled the virtue of state courts reading would provide the first line guarantees of state constitutions more broadly than the national constitution. Al- though his articles were a clarion call to pro-government activists, his message ought of defense for individual to resonate just as strongly—if not more so—among pro-freedom organizations. As liberties. Brennan proclaimed: [T]he point I want to stress here is that state courts cannot rest when they have afforded their citizens the full protections of the federal Constitution. State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Court’s interpretation of federal law. The legal revolution which has brought federal law to the fore must not be allowed to inhibit the independent protective force of state law—for without it, the full realization of our liberties cannot be guaranteed. 16

Brennan noted that Madison had cautioned that state governments, not the federal government, could pose the greatest threat to liberty and, in fact, had proposed explicit constraints on state power within the Bill of Rights. But his suggestion was defeated because, as Brennan recounted, “it was believed that personal freedom could be secured more accurately by decentralization than by express command…. In other words, the states were perceived as protectors of, rather than threats to, the civil and political rights of individuals.”17 Though Madison’s views ultimately prevailed through the adoption of the 14th Amendment, state courts retain the power to interpret state constitutional rights more broadly than federal constitutional rights. GOLDWATER INSTITUTE

“As is well known,” Brennan explained, “federal preservation of civil liberties is a minimum, which the states may surpass so long as there is no clash with federal law.” In light of the perceived retrenchment in the interpretation of federal constitutional rights in the 1970s, Brennan called upon state courts to be the primary defenders of individual rights, and they did exactly that. Indeed, by 1984, Brennan counted “over 250 published opinions holding that constitutional minimums set by the United States Supreme Court were insufficient to satisfy the more stringent requirements of state constitutional law.”18

Justice Brennan’s call to state court activism was taken up by pro-government groups across the nation, with enormous success in such areas as tort liability, family law, criminal law, and education. The paradigm example is the case of educational equity. In 1973, the U.S. Supreme Court ruled in San Antonio Independent School District v. Rodriguez that the federal constitution does not provide a right to education, and it rebuffed efforts to hold school funding inequities unconstitutional.19 Whereupon, liberal activists convinced a number of state courts, beginning in California and New Jersey, to interpret their own constitutions to confer a fundamental right to education and to strike down funding systems that were found to produce educational in- The trend of a more equity.20 Three decades later, funding equity lawsuits in numerous states have wrested vigorous interpretation of billions of additional tax dollars for public schools. state constitutions is one The trend of a more vigorous interpretation of state constitutions is one that the free- that the freedom move- dom movement should welcome. As Justice Brennan remarked, “Every believer in our concept of federalism, and I am a devout believer, must salute this development ment should welcome. in our state courts.”21 He argued that “those who regard judicial review as inconsis- tent with our democratic system—a view I do not share—should find constitutional interpretation by the state judiciary less objectionable than activist intervention by their federal counterparts.”22 In addition to the framers’ intention that the state constitutions protect liberties, Brennan noted that many state judges themselves are subject to democratic processes through popular election and that state constitutions typically are more easily amended than the federal constitution.

“This rebirth of interest in state constitutional law should be greeted with equal enthusiasm by all those who support our federal system, liberals and conservatives alike,” Brennan observed, though he quipped tellingly that “[a]s state courts assume a leadership role in the protection of individual rights and liberties, the true colors of purported federalists will be revealed.”23 Pro-freedom organizations may not like the outcomes of some state court cases, but it is difficult to forestall them when only one side is engaged in the battle. As my Alliance for School Choice colleague Scott Jensen often reminds me, a bedrock rule of contests is that you have to be present to win.

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Vast Untapped Potential

Whatever success the Left has enjoyed through state court activism, the odds are great that the freedom movement could enjoy even greater success were it to engage systematically in state constitutional litigation. That is because many of the provisions in state constitutions are aimed at restricting government power. A survey of state constitutions yields myriad provisions that could be freedom advocates could wield, many of which have no counterparts in the federal constitution—and even where they do, it is important always to keep in mind that federal constitutional protection only provides the starting point for state constitutional interpretation. In addition to public use provisions that are found in most state constitutions, promising doctrines and provisions found in multiple state constitutions include the following:

Taxpayer standing. Taxpayers do not have standing in federal courts by virtue of their taxpayer status. A plaintiff raising federal constitutional claims must assert a particularized injury—one that is not shared in equal measure by all Whatever success the Left citizens. As a result, there are many cases, such as excessive government spending, in which no one has standing to challenge unconstitutional government actions. has enjoyed through state By contrast, taxpayers generally have standing in state courts to challenge almost any exercise of government power, especially involving appropriation of public court activism, the odds funds. That is why, for example, one sees challenges of municipally funded sports are great that the freedom stadiums or other government boondoggles in state courts, whereas federal government projects typically are unchallengeable. movement could enjoy General liberty provisions. A number of state constitutions, especially the even greater success were older ones, begin with statements of general principles that resemble the Decla- it to engage systematically ration of Independence, particularly in their explicit protections of life, liberty, the pursuit of happiness, and property. Article I, Section X, of the Washington in state constitutional state constitution, for instance, declares, “All political power is inherent in the litigation. people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.” Section 2 of Kentucky’s bill of rights and Wyoming Constitution’s Article I, Section 7 provide, “Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.” Such provisions can be argued as background principles that create a presumption in favor of liberty, and their specific application can be traced to encompass protections for common-law rights such as private property and economic liberty.

Right of free labor. Economic liberty—the right to pursue a business or livelihood free from arbitrary government interference—receives almost no protection in federal courts. However, several state constitutions explicitly protect the freedom to pursue a livelihood, providing greater textual support for economic liberty than does the U.S. Constitution. Article I, Section I, of the Alaska Constitution, for example, states that “[t]his constitution is dedicated to the principles that all persons have a natural right to life, liberty, and the pursuit of happiness, and the enjoyment of the rewards of their own industry.” Similarly, GOLDWATER INSTITUTE

many constitutions safeguard the privileges and immunities of citizens, which state courts are free to interpret as more protective of economic liberty than the federal courts have. Several state courts have interpreted their due process and equal protection clauses to protect economic liberty.

Antimonopoly provisions. Closely related are express prohibitions of government monopolies contained in several constitutions. Article I, Section 34, of the North Carolina Constitution is typical in its declaration that “[p]erpetuities and monopolies are contrary to the genius of a free state and shall not be allowed.” Such provisions could be applied to prevent government from conferring exclu- sive monopolies or creating barriers to entry into businesses and professions.

Contract clauses. The U.S. Supreme Court has essentially read the proscrip- tion against abridging the sanctity of contracts out of the Constitution. Most state constitutions prohibit interference with contracts, which could be applied more expansively to constrain economic regulations that interfere with private contractual arrangements. Several state courts have Gift clauses. Several state constitutions prohibit government from providing interpreted their due gifts. Such provisions could be used to prevent various types of corporate welfare, especially direct subsidies. Taxpayers should have standing to challenge process and equal such practices in state courts. protection clauses to

Private or local bill clauses. State constitutions often prohibit state legislatures protect economic liberty. from creating legislation concerning a specific private or local interest that is not separate, stand-alone legislation. Such provisions are designed to prevent “log- rolling” and pork-barrel spending (if only the U.S. Constitution contained such a provision!). Budget bills containing all manner of new programs that have not been subjected to separate legislative votes are prime targets for such provisions.

Tax and borrowing restrictions. Many constitutions limit government taxa- tion and borrowing. Sophisticated taxpayer organizations could back up their fiscal analyses with litigation to enforce constitutional constraints against governmental entities that play fast and loose with the rules.

Victim rights. Over half of state constitutions provide protections to crime victims. But in an ordinary criminal prosecution, none of the attorneys are charged with the protection of victims’ rights, and many of the victims’ rights are unenforced. Several groups now are seeking to enforce those rights by providing independent legal representation to victims in criminal prosecutions.

Anti-forfeiture provisions. Many state constitutions contain provisions for- bidding forfeiture of estates in criminal cases, excessive fines, and cruel and unusual punishment. Such provisions, along with due-process guarantees, could be wielded against abusive government civil asset forfeiture practices, and to limit excessive awards in tort cases. 24 GOLDWATER INSTITUTE

Municipality ultra vires. Here’s a Latin phrase worth knowing. The federal government and many state governments generally are considered omnipotent, so that courts will uphold exercises of their power unless constrained by specific constitutional limitations. Under most state constitutions, however, municipal governments, including cities, school boards, and other local entities, possess only such powers as are expressly conferred by the state constitution or statute. Hence, taxpayers may challenge municipal power not only under specific constitutional limitations but on the grounds that the power exceeds the entity’s corporate powers. That is, of course, the way constitutional review of all government power ought to be conducted, but at least it still exists with regard to municipal power, which all too frequently is abused.

Such provisions barely scratch the surface of the many structural limits of government power and substantive protections of individual rights found in state constitutions. But like the proverbial falling tree in the forest that makes no sound because there is no one to hear it, these abundant protections of freedom in state constitu- But like the proverbial tions remain toothless unless someone acts to vindicate them. Constitutional protections, as people in totalitarian countries quickly learn, are not self-executing. Dozens falling tree in the forest of state constitutional protections will remain essentially moribund unless or until that makes no sound committed advocates attempt to breathe life into them.

because there is no one to That raises the issue of state judges. As in the litigation context, pro-freedom activists have concentrated their efforts on the federal judiciary, often ignoring state judicia- hear it, these abundant ries. That can come back to haunt them in states where courts engage in judicial law- protections of freedom in lessness, which, if predicated on independent state constitutional grounds, cannot be challenged in a federal judicial forum.25 state constitutions remain The quality of state judges varies widely. Many are conscientious and have great toothless unless someone integrity. Many others are more politically minded. Only a few are steeped in the acts to vindicate them. intricacies of state constitutional law, making it all the more vital that advocates come well prepared. In many states, judges are elected; in other states, advocates can influence judicial selection through the appointment or confirmation process. As well, in some states, the state bar or judicial nomination commissions play a major role in the confirmation process. The freedom movement needs to involve itself heavily in the selection of state judges. And regardless of who the judges are, we must remember that they can only vindicate state constitutional guarantees if the right cases are brought before them.

The Freedom Movement in Action

Although the freedom movement as a whole has not yet engaged systematically in an effort to vindicate state constitutional guarantees, a number of organizations have done so episodically and gainfully. A few examples illustrate the potential:26

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Institute for Justice. In 2001, the Institute for Justice began creating state chapters to focus on state constitutional litigation in its principal mission areas: private property rights, economic liberty, school choice, and freedom of speech. Institute for Justice chapters presently operate from fully staffed offices in Phoenix, Seattle, and Minneapolis. TheBailey eminent domain case, litigated by the Arizona chapter under the state constitution, is a paradigm success story for state constitutional litigation that likely could not have been won in federal courts. Among other cases, the Minnesota chapter successfully challenged the state’s cosmetology licensing regulations under the “rights and privileges,” equal protection, and due process provisions of the state constitution. The Washing- ton state chapter is challenging a similar law under the analogous provisions of its state constitution, along with a Seattle law prohibiting bed and breakfast inns in certain parts of the city. Both the Arizona and Washington state chapters have challenged sign ordinances under their state constitutions, pushing to create greater protection for commercial speech than is provided by federal case law. The Arizona chapter also is defending three school choice programs against state constitutional challenges. Although the freedom

Pacific Legal Foundation. The Sacramento-based Pacific Legal Foundation movement as a whole has (PLF), which has branch offices in Washington state, Florida, and Hawaii, has been very active in state constitutional litigation, especially in California. PLF not yet engaged systematically sued successfully in multiple cases to enforce the provisions of Proposition 209, in an effort to vindicate the California Civil Rights Initiative, against recalcitrant government officials. PLF has challenged, successfully so far, a major state borrowing scheme that vi- state constitutional olates the California Constitution’s requirement that state debt be approved by guarantees, a number of the voters. PLF also has provided amicus curiae briefs in eminent domain cases raising state constitutional issues in California and Oregon. Especially in its organizations have done so California base, PLF has played an essential and effective constitutional watchdog role and has compiled a highly successful track record despite a daunting episodically and gainfully. judicial terrain.

North Carolina Institute for Constitutional Law. The recently founded North Carolina Institute for Constitutional Law (NCICL) quickly established its credibility in litigating state constitutional issues by hiring former North Carolina Supreme Court Justice Bob Orr as its director. Its first lawsuit challenged a corporate subsidy package awarded to Dell Inc. by the state and local governments as a violation of multiple provisions of the state and federal constitutions. NCICL also has challenged a state lottery law, based on the improper way it was passed. The center is building upon the foundation of a number of successful state constitutional cases that were brought in recent years by private practitioners.

Center for Constitutionality. Another newcomer organization, the New Jer- sey–based Center for Constitutionality, is headed by attorney David W. Rob- inson. Among its many legal actions, in 2006 the center sued Governor Jon Corzine to stop the unlawful funding of pork-barrel grants, as a violation of separation of powers. 10 GOLDWATER INSTITUTE

Evergreen Freedom Foundation. The Washington state–based Evergreen Free- dom Foundation (EFF) has been involved in a decade-long effort to enforce the provisions of Initiative 134—the nation’s first “paycheck protection” law—on behalf of teachers who object to paying union dues for political activities. EFF has propelled state law enforcement officials to take action, and its efforts have resulted in a pair of cases presently before the U.S. Supreme Court that will determine the power of states to require unions to obtain permission from members to use their dues for political purposes.

Excellent Education for Everyone. The New Jersey–based education reform group Excellent Education for Everyone, known as E-3, has sponsored a class- action lawsuit on behalf of 60,000 children in failing public schools seeking a voucher remedy under the state constitution’s guarantee of a “thorough and ef- ficient” education. The lawsuit is backed by the Alliance for School Choice, and E-3’s partners include the Black Ministers Alliance and the Hispanic Leadership Council. It has received enormous favorable publicity in a state where educational ...the freedom movement conditions are deplorable and the climate for systemic change is brightening.

need not re-create the Mackinac Center. The Michigan-based policy organization’s Legal Studies wheel. To the contrary, an Project submits amicus curiae briefs in a number of cases and provides legal analysis and commentary. excellent infrastructure, Goldwater Institute Center for Constitutional Litigation. While this blue- painstakingly built over print was in progress, the Board of Directors of the Phoenix-based Goldwa- the past few decades, exists ter Institute, one of the nation’s premier market-oriented policy organizations, voted to establish a Center for Constitutional Litigation and to hire me as its in the form of highly director. The center is scheduled to open on or about June 1, 2007. Itwill mark the first time that a market-oriented policy organization will engage in effective market-oriented direct litigation as a core part of its mission, focusing on a number of the issues policy organizations, highlighted in this blueprint. The Institute hopes that theC enter for Constitu- tional Litigation will serve as a model for other policy organizations around the taxpayer groups, and nation. The Goldwater Institute also has a Center for Constitutional Govern- ment, which produces amicus briefs and constitutional law studies. business associations in states all across the nation. These activities by market-oriented organizations illustrate the types of state constitutional actions and the variety of legal claims that can be pursued by creative litigators. But, in sum, they barely scratch the surface of the realm of the possible and of the urgently needed.

Making It Happen

To engage gainfully in state constitutional litigation, the freedom movement need not re-create the wheel. To the contrary, an excellent infrastructure, painstakingly built over the past few decades, exists in the form of highly effective market-oriented policy organizations, taxpayer groups, and business associations in states all across 11 the nation. It is simply a matter of adding litigation to their existing policy arsenals. GOLDWATER INSTITUTE

This section raises and answers many of the questions that such organizations and their supporters might have in considering such an enterprise.27 I add the following advice: Do it!

1. Who Should Start a Litigation Entity? Any organization— whether state-based or nationally based with state affiliates—that seeks to influence public policy at the state or local level should consider developing a litigation component. Litigation is the flip side of the policy agenda advanced by many market-oriented organizations, since many policy issues have important legal di- mensions or solutions. Likewise, business associations and taxpayer groups often provide a watchdog function that could be aided by strategic litigation. Litigation can significantly increase the influence of policy organizations. -Of ten, if government officials know that policy proposals may be followed by litigation, they will pay far greater heed—if only to avoid bad publicity or the threat of attorney fees. Liberal activists have repeatedly demonstrated that for groups involved in the legislative process, litigation can provide a useful prod to action. ...litigation differs from 2. How Should the Litigation Program Be Structured? First, it is important to note that public interest litigation falls squarely within lobbying in an important the 501(c)3 tax-exempt, tax-deductible status of most policy organizations. With possibly minor exceptions, policy organizations need not alter their tax way that it tends to status at all to engage in public interest litigation; unlike substantial lobbying operate in black and white activities, which require a 501(c)4 organization or at least an “H election.” Con- tributions to public interest litigation are fully tax-deductible. rather than shades of gray The major structural decision that must be made is whether the litigation program should be carried out within an existing organization (“integrated model”) – lawsuits are usually or as a separate entity (“separate model”). That decision depends on how the either won or lost. sponsoring organization and supporters view the most comfortable fit. An integrated structure—adding a litigation component to an existing policy organization—offers the benefits of capturing significant economies of scale and providing greater heft to the organization’s policy agenda. By working within an existing organization, the litigation entity can avoid start-up costs; share personnel; avail itself of the same development, administrative, and communications resources; and immediately develop brand identity. The policy and litigation functions can be closely coordinated. In return, adding the litigation dimension can make the organization’s policy prescriptions much more salient and muscular. Some policy organizations that have resisted entering the lobbying realm have done so to maintain philosophical purity, and similar concerns might be raised in the context of litigation. However, litigation differs from lobbying in an important way in that it tends to operate in black and white rather than shades of gray—lawsuits are usually either won or lost. Judges may make compromises, but the key players rarely do, as contrasted with the legislative process, in which trade- offs that could compromise a policy organization’s principles are a way of life.

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Groups that prefer not to add a litigation component can create new litigation organizations, either by themselves or in tandem with like-minded organizations. Overlapping boards and staffs—including shared personnel and overhead expenses—and close strategic coordination between the organizations can help capture the benefits of an integrated structure while maintaining formal separation. Either model can succeed. The Goldwater Center for Constitutional Liti- gation has adopted the integrated model. Illustrating the separate model, the North Carolina Institute for Constitutional Law works closely with the John Locke Institute, but the two organizations are distinct entities. Policy organizations also can serve as parties to legal actions, represented either by their own staff lawyers or by outside lawyers. They can act as parties on behalf of members who have standing to sue or, in the less-likely scenario, if the organization’s own interests are implicated. The main advantages of serving as a party are that conflicts between lawyer and client are minimized and that the case caption will feature the organization’s name. Having a policy organization as the lead party increases the organization’s control over the case (see discussion The biggest bang for the of ethics issues below); however, it diminishes the flesh-and-blood dimension of the lawsuit, which often carries with it important advantages. buck usually is delivered 3. What Types of Activities Should the Litigation by direct litigation, Program Take On? There are a variety of legal actions that state-based typically when the public organizations can pursue. It largely is a matter of resources and preferences.

interest law firm represents Direct litigation. The biggest bang for the buck usually is delivered by direct litigation, typically when the public interest law firm represents plaintiffs challenging plaintiffs challenging illegal government activity or barriers to opportu- illegal government activity nity. Direct litigation is the most expensive type of legal action, but it is the only way for the entity to control the terms of the debate. or barriers to opportunity. Intervention. Intervenors are interested individuals or entities who are not original parties to litigation but who join the litigation, either as plaintiffs or defendants, usually with full-party status and all the rights that accompany it. Intervention is often important when good legislation (e.g., school choice or welfare reform) is enacted and is challenged in court. By intervening, a public interest law firm can ensure passionate and effective representation (which government officials charged with the defense of such programs may not provide) and that the interests of those most deeply affected by the program are represented.28 Or a pro-freedom group might add a different perspective in a lawsuit filed by a different group, which it can do by intervening as a plaintiff. Educational equity suits illustrate possibilities for intervention on both the plaintiff and defendant side. Taxpayers might intervene as defendants to make sure that a vigorous defense is presented. Parents and children might intervene as plaintiffs to offer a more effective remedy (e.g., school choice). Rules for intervention vary by state and usually require timeliness (i.e., quick action is required) and a showing that the interests of the inter- 13 GOLDWATER INSTITUTE

vening party are not already adequately represented. Sometimes, existing parties will stipulate to intervention; other times, one or both will resist it tenaciously. Intervention can be less expensive than direct litigation because the intervenor can determine to some extent the scope of its involve- ment and can share costs with the party on the same side.

Amicus curiae briefs. Policy organizations—even without creating a litigation entity—can make a useful contribution to jurisprudence through amicus curiae (friend of the court) briefs. The upsides are that amicus briefs are inexpensive and can be made for any argument—even nonlegal ones (e.g., economic analysis). The downsides are that amicus briefs often are ignored, and amici have no rights in the litigation (e.g., presentation of evidence or oral argument, unless granted by the court). But generally, the lower the court, the rarer it is to see an amicus brief, and therefore the more significant it can be. Hearkening to the talking horse from television’s black-and-white era, the Institute for Justice determines whether to file an amicus brief by applying the “Mr. Ed rule”: it speaks only when it has something to say or ...the Institute for Justice someone distinctive, such as a prominent authority or an unusual coalition, to say it. All policy organizations, whether they create litigation entities or determines whether to file not, should consider providing amicus briefs in important cases in which they have policy expertise (in other words, frequently). an amicus brief by applying the “Mr. Ed Regulatory proceedings. One area in which liberal activists—particularly consumer and environmental groups—have played a significant role rule”: it speaks only when but market organizations generally have not is regulatory proceedings. An enormous amount of law—at the federal, state, and local levels—is cre- it has something to say or ated by regulatory agencies, from public utilities commissions to zoning someone distinctive, such boards. In many instances, comments on proposed rules and other actions can be taken by concerned individuals and organizations. Often they pro- as a prominent authority vide valuable expertise or exert significant political influence. They also or an unusual coalition, become part of the record in subsequent litigation. Comments typically can be very informal; like amicus briefs, they can be filed even by policy to say it. organizations that do not have litigation components (indeed, unlike amicus briefs, they usually need not be signed by an attorney). Rules and opportunities for influencing regulatory actions vary by jurisdiction. Policy organizations and litigation entities should become adept at providing such influence within the scope of their policy expertise. Sometimes, regulatory proceedings are necessary as a precondition to litigation. In many instances, usually where a government agency is involved, a prospective plaintiff must exhaust his or her administrative remedies— such as they are—before having the right to sue in court. In some cases, the administrative agency may not have jurisdiction to consider constitutional issues (and it is usually unlikely to do so in a favorable manner anyway). Exhaustion of administrative remedies can be, in a word, exhausting. But it is better to pursue the administrative process than to file a lawsuit only to have it dismissed for failure to exhaust administrative remedies. 14

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Litigation by letterhead. Once a litigation entity establishes credibility, it can win victories without filing lawsuits, by sending letters to government officials warning them of illegal actions or unconstitutional laws. Sometimes the governmental entity will preemptively capitulate to avoid the costs or bad publicity of litigation. If not, from a public relations standpoint, it can help to have warned the entity in advance of its unlawful conduct.

State cases vs. federal cases. State-based litigation groups should consider filing cases in federal courts, where appropriate. Sometimes a case affecting important interests at the local level, where state judges might be reluctant to act, or one that uniquely raises federal constitutional issues—such as a case involving federalism—could better be litigated in federal court. Some local issues are so politically charged or infused with local interests that it is difficult to secure a fair hearing in state court. And federal decisions, of course, have greater precedential impact. But it is far easier to get into state court and stay there, especially for taxpayers, than in federal court. ...to the general question Plaintiffs in state court may raise both state and federal constitutional issues (and generally should do so to preserve the possibility of appealing an about whether a pro-freedom, adverse federal constitutional issue to the U.S. Supreme Court), while the converse generally is not true. Most important, as discussed previously, the state-based litigation freedom movement has many more weapons—many of them representing organization files cases in virgin constitutional territory—at their disposal under state constitutions. Whether a case should be filed in state or federal court is an important state or federal court, strategic decision. But to the general question about whether a pro-freedom, state-based litigation organization files cases in state or federal court, the the answer should be answer should be “yes” to both. “yes” to both. 4. What Is the Ideal Case? The key to selecting cases is to find those cases for which you can provide a strong legal basis for the judge to rule in your favor and can make the judge want to rule in your favor—in other words, a good blend of law and equity. It is important to recognize that public interest law is about evolving the law, so the combination of a viable legal argument and a strong equitable one is key. An ideal case encompasses the following elements:

Simple facts. The ideal case has simply explained facts for a variety of reasons. The average person can understand simple facts, and so cana judge. If the facts are simple and readily established—or if the number of factual disputes is minimal—the case can be litigated in a much less costly manner, through summary judgment (in which a case is submitted purely on issues of law without a trial) or a short, inexpensive factual hearing. Moreover, simple cases make for broader legal precedents: the less easy it is to distinguish the factual context of one case from another, the more applicable the rule of law.

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Outrageous facts. Facts that outrage the public often outrage judges as well. Typically, I use the cocktail party standard: if an ordinary person I encounter at a cocktail party finds the facts of a prospective case compel- ling, that means it’s usually a good one. (That technique also provides a good excuse to attend cocktail parties.) If, on the other hand, my conver- sation partner’s eyes glaze over or he or she begins stifling yawns, that is a good signal to look for another case.

Sympathetic plaintiffs and heinous villains. It is no accident that the In- stitute for Justice’s first successful challenge to eminent domain abuse pitted the proverbial elderly widow against Donald Trump (or, more specifically, the local government doing The Donald’s bidding). Pro-freedom public interest litigation should always pit David vs. Goliath. Where possible, it is useful to unmask the special interest groups that are using government power for their own benefit. Remember that the courtroom and the court of public opinion are two arenas in which it pays to be the little guy. Not all cases are ideal. Nontraditional alliances. Given that the litigation center almost certainly will be subject to easy characterization by opponents (“right-wing group,” Many cases are what I “extremists,” “pro-business,” etc.), it is vitally important to disrupt that perception wherever possible. The best way to accomplish nontraditional call “havta” cases – you do alliances is by selecting plaintiffs who break the mold. Another technique them because you simply is choosing a cocounsel who represents a different perspective or amicus briefs and/or opinion pieces from nontraditional allies. have to.

Carefully developed legal theory. Don’t become unduly discouraged by a paucity of supporting case law on a given issue. After all, if the law was where we wanted it to be, there would be no reason to engage in litigation. But you must have a viable legal theory (or theories), based on constitutional history or precedent, or you will face sanctions. Don’t forget to look to cases in other jurisdictions if there are none from your own state.

Logical first step or next step. Advocates who seek too much usually come away empty-handed. Courts are evolutionary, not revolutionary, in- stitutions. I can’t tell you the number of times that I have seen overzealous advocates convince themselves that a court was prepared to take a major leap, such as overturning long-established precedents, only to have the court step back from the precipice and reinforce the existing rule of law. The most successful public interest advocates are ambitious and passionate yet measured in tone. When considering a possible case, it is important to ask whether it is the best possible case to establish a new precedent, or the next logical case to advance the course of jurisprudence. Not all cases are ideal. Many cases are what I call “havta” cases—you do them because you simply have to. The issues are crucial: a case arises that will settle an issue but that someone else has formulated; a government policy is enacted that absolutely needs to be attacked or defended 16 GOLDWATER INSTITUTE

even though the equities appear to be on the other side (e.g., a challenge to a minimum wage law); and so on. Likewise, many taxpayer cases may be decidedly “unsexy” or technical. Even then, it is important to adhere to as many of the criteria for an ideal case as possible. If the relevant factors weigh too heavily in the wrong direction, it may be prudent to take a pass on the case. There are too many opportunities to make good law to invest precious resources in a sure debacle.

5. What Personnel Should the Litigation Program Have? It is very important to have on staff at least one full-time lawyer, particularly one who can gain instant credibility. For instance, the North Carolina Institute for Constitutional Law hired former state Supreme Court Justice Bob Orr as its director. The ideal director is energetic, creative, and experienced. Beyond that, staff might include a staff attorney and/or a paralegal. Law clerks often are a very good investment for low-cost, high-return legal research and litigation support. credibility also can be enhanced by a high-profile governing or advisory board comprising well-established lawyers who share the litigation center’s prin- ...the incentives of public ciples and objectives. Law professors, former government officials, and big-firm interest law are opposite of partners are especially useful. volunteer lawyers can substantially leverage the litigation center’s resources. those in private practice: The Federalist Society is an especially good source of volunteer lawyers. Large public interest lawyers are firms often face conflicts that preclude them from representing plaintiffs in cases challenging governmental actions. Still, it is useful to cultivate pro bono motivated to minimize assistance, not only for direct case representation but also for strategic advice, case referrals, amicus briefs, moot courts, and so on. costs and to avoid disputes that do not directly 6. How Much Will It Cost? For anyone who has had to bear the cost of private legal representation, the costs of public interest litigation may prove sur- advance the mission of prisingly modest. When you hire a private lawyer at upward of $300 per hour, you typically are paying for enormous overhead. A large firm recently quoted the litigation. me a price of $2.5 million for litigating a relatively simple constitutional case from trial court to the U.S. Supreme Court. The same case, litigated by public interest lawyers, usually will cost about one-fifth as much. By having lawyers in-house, the litigation center’s principal expenses are salaries (which are high, but nowhere near the typical hourly fees in private practice) and the direct costs of litigation (which usually are modest). Filing fees, depositions, trial costs, and even expert witnesses (who often will waive or reduce their fees for a good cause) are finite.M oreover, the incentives of public interest law are opposite of those in private practice: public interest lawyers are motivated to minimize costs and to avoid disputes that do not directly advance the mission of the litigation. Case selection also is key to keeping costs low. For an experienced lawyer plus a less experienced lawyer or a paralegal, along with a regular supply of law clerks, a litigation center with four ongoing cases

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should cost between $300,000 and $500,000 annually, depending in large part on whether there are economies of scale (e.g., research, public relations, physical facilities) that can be gained through affiliation with a policy center. Litigation can be an attractive investment for funders, who often value the tangible results as well as the human causes that are championed. Moreover, many public interest cases are eligible for attorney fees as a prevailing party. While attorney fees should never be assumed, they can provide enormous leverage for the center’s resources, as many left-wing public interest law firms have demonstrated.

7. What Significant Ethical Issues Are Presented? Again, organizations that are contemplating taking on a litigation function should seek advice regarding local rules. But two principal ethical issues are presented by public interest litigation. Properly handled, neither should present an obstacle. First, even though a public interest lawyer is paid by a nonprofit organization, his or her ethical obligations continue to flow directly to the client. The best ways to avoid conflicts of interest between the nonprofit organization and the client are (a) to carefully consider cases before deciding to file them and (b) Public interest lawyers are to carefully clarify roles and objectives in a client retainer agreement. The agree- free to advise people that ment should set forth the extent of the representation (e.g., through trial court, with a separate decision regarding appeal), the goals of the litigation, and the their constitutional rights nature of the legal arguments. The greater the meeting of the minds among the sponsoring organization, the attorney, and the client, the less likely the chances have been violated and for conflict. Even then, sometimes the organization’s interest will diverge from offer to represent them. the client’s. For instance, in an eminent domain case, an attorney is duty-bound to convey to the client any offers of compensation (indeed, you may find that governmental officials are constantly trying to buy off your clients). But care- ful client selection—choosing clients who share the organization’s principles and objectives—and a clear understanding of the goals of the litigation should minimize such conflicts. Relatedly, non-lawyers may not control the conduct of litigation. Nonlawyer boards or committees may approve litigation and funding, but they cannot make decisions regarding the course of litigation. If a nonprofit group wants to exert ongoing control over the litigation, it should create a legal review committee com- posed entirely of lawyers, and thoroughly explain its role to the client.29 One benefit that public interest lawyers enjoy is that they are not subject to constraints that limit the ability of private lawyers to solicit clients. Public interest lawyers are free to advise people that their constitutional rights have been violated and to offer to represent them. Public interest representation is not limited to indigent clients. Tax-exempt nonprofit organizations may represent clients who could afford to pay for legal representation, so long as the case raises significant public interest issues. From the standpoint of public perception, however, it may be unwise to represent affluent clients unless there are no others who could raise the issues equally well.

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8. How Do We Get Underway? After deciding to take the litigation plunge and what structure it should have, the sponsoring organization should take the following steps:

Survey the State Constitution. The organization should hire a legal scholar, prominent lawyer, or the prospective director to canvass the state constitution from stem to stern, identifying the provisions that dovetail best with the organization’s mission and assessing the relevant case law to create a constitutional blueprint setting forth the most fruitful areas of activity. The blueprint can be adapted into law review articles or policy papers to begin creating the foundation for the subsequent litigation campaign.

Scour the Landscape for Potential Cases. Once the blueprint is created and the litigation priorities are established, the fledgling center should begin the search for cases. Here is where the policy organization’s staff, combined with law clerks and networking, can provide enormous ben- The organization should efit. The sponsoring organizations can search newspaper archives, send out Freedom of Information–type requests, gather records from public hear- hire a legal scholar, ings, draft op-eds, and so on to identify potential cases and clients. Or if it knows which laws it wants to attack, the organization can manufacture prominent lawyer, or the a case by finding aggrieved parties. The staff should identify and recruit prospective director to potential experts and allies, develop its legal theory, and share drafts of the complaint with legal advisors so that when the case is filed, the organiza- canvass the state tion is ready to hit the ground running.

constitution from stem Put Together the Litigation Team. Once a case is identified, the litigation to stern, identifying the team should be assembled. In addition to the legal staff, it should include policy, public relations, and development staff, along with the clients, legal provisions that dovetail advisors, and allies. All of those are important components of the litigation team that should be brought together as needed throughout the litigation to best with the organization’s maximize effectiveness, to make sure all the relevant bases are covered, and mission and assessing the to keep the litigation on course. The team should develop both the litigation mission, against which strategic decisions will be tested and measurements relevant case law to create of success will be made, and strategic overriding communications objectives (SOCOs) so that all team members are on message. a constitutional blueprint setting forth the most Launch the First Case. A litigation center should never announce its exis- tence by telling the world what it plans to do. Instead, it should file its first fruitful areas of activity. lawsuit, which not only will speak for itself but also show that it means business. Hence, the first case should reflect the paradigm of what the -or ganization wants to accomplish, and it should be as close to the ideal case as the organization can make it. As soon as possible thereafter, the center should file its second case, preferably in an area different from the first, to further define its mission and to demonstrate momentum. Two cases probably are plenty for the first several months—if the litigation team does its job, the cases will cre- 19 GOLDWATER INSTITUTE

ate substantial buzz. During this period, the lawyers need to concentrate on effective legal advocacy. The center should never let the well go dry; cases can disappear quickly for reasons both positive and negative, and case development can take considerable time. As a result, new product development always should be in the pipeline.

Have Fun! As any lawyer can attest, cases raising important constitutional issues and involving important causes are rare. Having the opportunity to engage in public interest law for a living is an incredible privilege. Like- wise, for those engaged in the world of public policy, it is too infrequent that policy ideas translate into real-world, David-versus-Goliath struggles. When they do, it can be enormously rewarding. The Institute for Justice’s motto, which I am proud to have helped create and effectuate, ought to be adopted by all who are involved in public policy and public interest litigation: Change the world, and have fun doing it!

A Word about Judges The Institute for Justice’s Appropriately, the conservative movement has made federal judicial selection, and motto...ought to be adopted particularly the appointment and confirmation of U.S. Supreme Court justices, a top priority. And what a difference it has made. Indeed, nowhere does the Reagan by all who are involved in Revolution endure with greater ongoing vitality than in the federal judiciary. With public policy and public luck, the judicial appointments of President George W. Bush will push the federal judiciary in a pro-freedom direction for many years to come. interest litigation:

But with few exceptions, such as business interests supporting tort reform, the con- Change the world, and servative and libertarian movements have paid little attention to state judicial ap- have fun doing it! pointments, despite the fact that much of the law that affects individuals in their daily lives—tort law, family law, education law, and most criminal law—is decided by state judges. There, too, a tremendous difference can be made, as witness left-wing decisions by state courts in all of those areas of law.

Conservatives and their allies have involved themselves in state judicial matters episodically with success. They turned out of office activist liberal justices fromthe California and Alabama Supreme Courts through judicial retention elections. They have helped elect conservative supreme courts in North Carolina and Texas. Gov- ernor John Engler made the appointment of conservative judges a top priority, and the Michigan Supreme Court today is one of the most reliable protectors of property rights in the nation. In Florida, however, conservatives failed to make a serious attempt to oust three activist Florida Supreme Court justices who appeared on the November 2006 ballot.

Each state varies in its mechanisms for the appointment, confirmation, or election of state court judges. Pro-market policy organizations should master the process and weigh in wherever possible.30 State court judges often toil in obscurity, and many are very sensitive to public opinion. Judicial scorecards—compiling and assessing judi- 20 GOLDWATER INSTITUTE

cial opinions—can be a useful tool in making sure that judges know that people are paying attention. As well, such watchdog efforts can heighten the awareness of the importance of the judiciary among the key decisionmakers, whether governmental officials or the electorate.

A Call to Arms

The freedom movement has enjoyed some tremendous victories over the past few decades. Yet it seems that the growth of government is inexorable. Even some of our most fervent friends, once elected to office, seem too often to jettison the principles that impassioned their supporters. And for a while, at least, it seems that the freedom movement has lost some of its electoral steam, tarnished as it is by so many who were elected purporting to uphold its ideals but who failed to do so. It seems that freedom is on the defensive, perhaps never more so than now, and its fate cannot be entrusted to politicians.

Throughout my professional career, I have operated on the maxim that if you can’t The time is right to begin beat them any other way, sue them. The courts uniquely were empowered in our vindicating in earnest the constitutional design to vindicate the underdog when the majority—or the minority, fueled by the resources of special interests—runs roughshod over precious liberties. great promise of liberty And within the constitutional pantheon, state courts were intended to provide the first line of defense. that the constitutions of all of our states embody. The joining of pro-market, state-based policy organizations with litigation programs can be a marriage made in heaven. Principled and creative litigators can build upon the strong policy foundations developed over years of painstaking research by the policy groups. In turn, they can make that research tangible and add serious heft to the underlying policy prescriptions.

In the battle to preserve freedom against ever-growing and voracious government at every level, we need to deploy every conceivable weapon at our disposal. The time is right to begin vindicating in earnest the great promise of liberty that the constitutions of all of our states embody.

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______CLINT BOLICK is director of the Goldwater Institute Center for Constitutional Litigation and serves of counsel to the Rose Law Group in Scottsdale, Arizona. Bolick is also a research fellow with the Hoover Institution. Bolick’s latest book is David’s Hammer: The Case for an Activist Judiciary (Cato Institute).

The author is grateful for the financial support for this project provided by the Randolph Foundation and the JM Foundation, as well as the assistance of many of the groups whose fine work is discussed in these pages.

NOTES 1 I set forth this argument in much greater detail in my forthcoming book, David’s Hammer: The Case for an Activist Judiciary (Cato Institute). 2 See Clint Bolick, Leviathan: The Growth of Local Government and the Erosion of Liberty (Stanford, CA: Hoover Press, 2004), and Grassroots Tyranny and the Limits of Federalism (Washington, DC: Cato Institute, 1993). 3 See Bolick, David’s Hammer, chapter 5. 4 See, e.g., Benjamin Barr, “Defining the Fundamental Principles of the Arizona Constitution: A Blueprint for Constitutional Jurisprudence,” Goldwater Institute Policy Report no. 214, November 1, 2006. 5 Kelo v. City of New London, 125 S.Ct. 2655, 2661 (2005). 6 Ibid., 2662. 7 Bailey v. Myers, 76 P.3d 898, 903 (Ariz. Ct. App. 2003). 8 Ibid., 902. 9 Ibid., 904. 10 See Jason Massad, “Impact of Prop. 207 Vexes City Officials,”East Valley Tribune, November 26, 2006. 11 See Dennis Cauchon, “Pushing the Limits of ‘Public Use,’” USA Today, April 1, 2004. 12 See Adam Klawonn, “Hawker Keeps Mayor’s Job; Props. 104, 105 to Change Way Leaders Manage,” Arizona Republic, March 11, 2004. 13 For an examination of the conservative and libertarian public interest law movement, see Lee Edwards, ed., Bringing Justice to the People: The Story of the Freedom-Based Public Interest Law Movement (Washington, DC: Heritage Foundation, 2004); and Ann Southworth, Conservative Lawyers and the Contest Over the Meaning of “Public Interest Law,” 52 UCLA L. Rev. 1223 (2005). 14 See Bolick, David’s Hammer, chapter 5. 15 Alexander Hamilton, John Jay, and James Madison, The Federalist (Modern Library College ed.): 339. 16 William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 491 (1977). Justice Brennan often employed libertarian rhetoric, and sometimes he meant it. Regardless, the appeal of his argument to libertarians is obvious. 17 William J. Brennan, Jr., The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights, 61 NYU L. Rev. 535, 537 (1986). 18 Ibid. 548. 19 411 U.S. 1 (1973). 20 See, e.g., Serrano v. Priest, 487 P.2d 1241 (Cal. 1971); and Robinson v. Cahill, 303 A.2d 273 (N.J. 1973). 21 Brennan, State Constitutions, 90 Harv. L. Rev. 502. 22 Brennan, Bill of Rights, 61 N.Y.U. L. Rev. 551. 23 Ibid. 550. 24 See, e.g., Timothy Keller and Jennifer Wright, “Policing and Prosecuting for Profit: Arizona’s Civil Asset Forfeiture Laws Violate Basic Due Process Protections,” Goldwater Institute Policy Report no. 198, November 15, 2004. 25 A classic example is Bush v. Holmes, 919 So.2d 392 (Fla. 2006), in which the Florida Supreme Court construed its state constitution in a tortured manner to strike down the opportunity scholar- ship program for children in failing public schools. 26 The author is indebted to each of the organizations discussed for their outstanding work and for providing case materials for this blueprint. 27 Although this blueprint provides generic guidance, in all instances, organizations considering a litigation component should seek legal counsel, particularly regarding tax status, organizational issues, and legal ethics issues, the latter two of which may vary from state to state. 28 most of the litigation effort in support of school choice has involved representation of beneficiary parents and children as defendant-interveners. For a description of that legal strategy and a primer on public interest litigation generally, see Clint Bolick, Voucher Wars: Waging the Legal Battle Over School Choice (Washington, DC: Cato Institute, 2003). 29 If the organization itself is the party, the Board may control the litigation. 30 See William E. Merritt, Courting Trouble: Unpacking Oregon’s Judiciary (Cascade Policy Institute, October 2006); and Mark Brnovich, “Judging the Justices: A Review of the Arizona Supreme Court, 2003-2004,” Goldwater Institute Policy Report no. 203, April 8, 2005. 22 THE GOLDWATER INSTITUTE The Goldwater Institute was established in 1988 as an independent, non-partisan public policy research organization. Through policy studies and community outreach, the Goldwater Institute broadens public policy discussions to allow consideration of policies consistent with the founding principles Senator Barry Goldwater championed – limited government, economic freedom, and individual responsibility. The Goldwater Institute does not retain lobbyists, engage in partisan political activity, or support or oppose specific legislation, but adheres to its educational mission to help policymakers and citizens better understand the consequences of government policies. Consistent with a belief in limited government, the Goldwater Institute is supported entirely by the generosity of its members.

GUARANTEED RESEARCH The Goldwater Institute is committed to accurate research. The Institute guarantees that all original factual data are true and correct to the best of our knowledge and that information attributed to other sources is accurately respresented. If the accuracy of any material fact or reference to an independent source is questioned and brought to the Institute’s attention with supporting evidence, the Institute will respond in writing. If an error exists, it will be noted on the Goldwater Institute website and in all subsequent distribution of the publication, which constitutes the complete and final remedy under this guarantee.

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