I Developments in Washington's Law of Law-Making - Gonzaga ...

GONZAGA LAW REVIEW
[Vol. 44:3
H. THE ELEPHANTAS TREE: ROOTS OF THE LAW-MAKING POWER
Lawyers and judges tend to think of "constitutional law" as the institution of
judicial review and the decisions that are the product of that judicial review." But a
state constitution is not merely the sum of the decisions that interpret it. State
constitutional law begins with the state constitution as a political charter. From the
perspective of the legislature, then, a threshold question in any constitutional analysis
of legislation is the nature of the powers granted by the constitution to the state
legislature.
A. The Tree Trunk: Constitutional Structure and Plenary Power
In its length and dynamism, Washington's constitution stands in contrast to the
federal constitution, with its dominant characteristics of brevity and permanence. 21
Like other Western constitutions adopted in the latter part of the nineteenth century,
Washington's constitution extends beyond "fundamental principles" to "constitutional
legislation." 22 These characteristics derive from the structural purpose of a state
constitution: a restriction on the power of government in general and the legislature in
particular.
As this court has often observed, the United States Constitution is a grant of
limited power authorizing the federal government to exercise only those
constitutionally enumerated powers expressly delegated to it by the states,
whereas our state constitution imposes limitations on the otherwise plenary
power of the state to do anything not expressly forbidden by the state
constitution or federal law. 23
legislature, sometimes the court must consider legislation passed by the legislature, shake its head
and think, 'what were they thinking?' And then of course there are times when the legislature reads
an opinion of the court and says the same thing." See Hale v. Wellpinit Sch. Dist., 198 P.3d 1021,
1028 (Wash. 2009) (citing speech of Senator Lisa Brown):
20. "Judicial review is the consequence of the constitutional rule, not the other way around."
Linde, supra note 7, 206-07; see Christian G Fritz, The American Constitutional Tradition Revisited-
Preliminary Observations on State Constitution-Making in the Nineteenth-Century West, 25
RUTGERS L. J. 945, 948-49 (1994) (opining that constitutionalism focuses on U.S. Supreme Court as
judicial arbiter).
21. Fritz, supra note 20, at 958-59 (federal constitution is brief and embodies fundamentals;
restraints on amendment process have resulted in stability); ROBERT F. UTTER & HUGH D. SPITZER,
THE WASHINGTON STATE CONSTITUTION: A REFERENCE GUIDE 2 (G Alan Tarr ed., 2002)
(Washington constitution may be amended with relative ease).
22. Fritz, supra note 20, at 964-65.
23. State v. Gunwall, 720 P.2d 808, 815 (Wash. 1986) (emphasis included). Cf Richard B.
Sanders, Battles for the State Constitution: A Dissenter's VNew, 37 GONz. L. REv. 1, 4 (2002) (Justice
Sanders contends that state government is also limited government, constrained by the Enabling