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At just shy of 33,000 words, the Washington State Constitution currently comprises 32 articles and over 100 amendments. Upon its original drafting in 1889, Washington voters went to the polls to either ratify or oppose the recently created document, which ended up passing by a vote of 40,152 to 11,879. On November 11, 1889, President Benjamin Harrison issued a proclamation declaring that Washington’s Constitution was approved, allowing Washington to become the 42^nd state in the union.

As one of the state’s preeminent scholars on the Washington State Constitution, ������Ƶ Professor Hugh Spitzer provides a brief history of when and where the state’s foundational document was drafted and explains how the three branches of government are set up in Washington state. He also compares the state constitution to the U.S. constitution and covers what happens when they conflict.

������Ƶ: Can you provide a brief history of when and where the Washington State Constitution was created?

Hugh Spitzer (HS): Yes. The Washington State Constitution was written in 1889. Congress had passed a statute allowing Washington, Montana and the two Dakotas to become states, but required each state to develop a constitution prior to being admitted to statehood. So, on the Fourth of July in 1889, seventy-five delegates gathered in Olympia and met for six weeks and drafted a constitution.

������Ƶ: How is Washington's constitution different than the U.S. Constitution in the way the executive branch is set up?

HS: People who wrote state constitutions from about the 1840s and onward were suspicious of concentrated executive power. Because of this, they divided up the executive branch. Instead of having just a governor who oversees the executive branch, we have nine independently elected executive officials, eight of whom are named in the original constitution. We have the governor, the lieutenant governor, the attorney general, the secretary of state, the treasurer, the superintendent of public instruction, the state auditor, the commissioner of public lands and the state insurance commission, which came later. These independently elected officials are individually responsible to the voters for certain jobs within the state government, and that's quite different from the national government.

������Ƶ: Switching next to the judicial branch, how are Washington Supreme Court justices selected?

HS: Our Supreme Court justices are elected directly by the people, which is similar to about a third of the states. When there's a vacancy, the governor appoints a person to serve on the court, just like in any judicial office in our state — the Supreme Court, Court of Appeals, Superior Court and District Court. Then, when their term is up, the justices must run for election. While some states have their justices run as democrats or republicans, we don't do that. Ours is totally nonpartisan.

In about a third of the states, the judges are appointed, typically by the governor. Then they have to stand for a retention election after that term ends, and the voters can say yes or no for keeping them in office. And in the other third of states, the judges are appointed and then typically confirmed by the state senate. But in our state, they're elected.

������Ƶ: Regarding the state legislative process, how are bills proposed in the Washington legislature, and by whom?

HS: Any of the state’s 49 senators or 98 representatives can file a bill. What's important, though, is that the bill has to have a title that encompass everything, fundamentally, that's in the bill. The various things that are in the bill must be reflected accurately in that title.

The people in 1889 wanted to make sure that when legislators filed bills anybody could scan those titles and understand what they were about. There's been a lot of litigation since then about the titles because sometimes bills get introduced or initiatives passed that are too broad or contain titles that don't cover what's really in the bill. Those bills will be either tossed out — if they pass — or the parts that aren't adequately reflected in the title will be sliced out of the piece of legislation.

Part of this same concept, which comes from Article II, Section 19 of the Constitution, requires that each bill cover just one topic. And that's known as the single subject rule, or the subject in title rule. Sometimes the legislature will pass a bill that contains disparate topics that aren't adequately related to each other, or aren't adequately covered by the title, and the bill will be tossed out. Or it might have some other topics sneaked into the bill to help it get passed, or because somebody just wanted to slip it in. And if it's not adequately covered in the title, then it's going to get kicked out

������Ƶ: What sets apart Article IX of the Washington constitution from other state constitutions?

HS: The one thing about our state constitution that is close to being unique is Article IX — especially Article IX Section 1. It says, “It is the paramount duty,” — the number one duty — “of the state to make ample provision for the education of all children residing within its borders, without distinction or preference on account of race, color, caste or sex.” That's the 1889 language.

For many years, we thought our state was the only state in the country that ever had a provision with that strong of language. Then one year, one of my students did a deep dive, and she discovered that the Florida constitution, enacted right after the Civil War, had that precise language, but then it was taken out after federal troops left the South in 1876 after Reconstruction ended and the federal troops weren't there to protect African Americans. So, basically the white people in Florida rewrote the Constitution, and they cut out that language about guaranteeing education to all kids, regardless of race, color, caste or sex. So, it disappeared, but in recent times, Florida put that back in their constitution, which is an improvement.

������Ƶ: How does Washington's initiative and referendum process work, and perhaps differ from other states?

HS: Our initiative and referendum provisions, which were enacted in 1912 as part of the so-called Progressive Era, are fairly similar to other types of initiative and referendum sections, mainly in western state constitutions. The whole initiative and referendum movement started in Oregon and then Wisconsin and then spread among some of the Midwestern and western states.

Basically, if people want to challenge a piece of legislation that the legislature has passed — except for provisions having to do with public safety or taxation — they can file for a referendum. If they can get enough signatures to support it, it then goes on to the next general election ballot.

If people want to propose legislation, they do that through an initiative, which is a similar process. One thing that's different about our initiative process from, for example Oregon and California, is that in those states, people can propose constitutional amendments through the initiative process. And that's had some pretty weird results. Luckily, our state senate, back in 1912, pulled that language out, and we don't have amendments to the state constitution. This gives us a stronger constitution.

������Ƶ: In general, when conflicts arise between the federal constitution and the state constitution, which side prevails?

HS: When there's a direct conflict, the U.S. Constitution prevails. That's known as the Supremacy Clause. But in many situations, there's not a direct conflict.

For example, in recent years — especially with the Trump administrations — there’s been more support for charter schools. We have 17 here in Washington, and those are public schools, but they're run and organized as nonprofits and they're run by independent boards. We have a provision in our charter school legislation that forbids our public charter schools from having any religious affiliation at all. That's consistent with our state constitution, which says absolutely no religion in public schools and no public money to any religious schools. So, we can't have charter schools that are tied to a religious entity.

There's a possibility that the U.S. Supreme Court may rule someday saying it's discriminatory to not allow charter schools to be run by religious organizations. The court could rule that religious organizations should have an equal right under the Freedom of Religion provision of the First Amendment to access state money for charter schools, just like the nonreligious ones. But our Article XI of the state constitution does not allow that, and so if that were to happen, we would simply have to shut down all our charter schools, arguably. One of my students did some research, and she's got an argument as to why we can maybe squeak by, but we're just going to have to see what happens, if that ever happens.

������Ƶ: How does Washington's constitution compare to the U.S. Constitution in terms of individual rights?

Hugh Spitzer (HS): It's quite different. In general, state constitutions have much stronger rights provisions than the Bill of Rights of the United States Constitution, and that's for a number of reasons. One is that when the first 13 colonies became the first 13 states, they were really much more powerful than the national government, and nobody expected the federal government to do much besides foreign affairs, interstate commerce and working with the Indian tribes, as well as a few other things.

So, the U.S. government was not viewed as being dangerous to individual liberties. Most of the practical power over people's day-to-day lives was at the state level. When the states created their own constitutions, most of them included at the very beginning declarations of rights, which was modeled after the British Declaration of Rights from 1689. Washington’s declaration of rights, like many state declarations of rights, have strong protections of individual privacy from government interference.

The other thing it has are positive rights that are obligations put on the government. These rights do not simply protect people from the government, but state that the government has obligations, such as to provide for the education of all children residing within its borders. It has a positive obligation to provide protections for workers in hazardous industries. It has a positive obligation to provide a retirement home for veterans. It also has an obligation to provide for institutions of higher education, for the mentally ill and for people with developmental disabilities. And all that is from 1889.

������Ƶ: What happens if there’s a conflict between our state constitution and the U.S. Constitution in terms of protecting individual rights?

HS: Sometimes a state constitution will protect individual rights in a way that's stronger than the Bill of Rights. And the U.S. Supreme Court has said that's okay. The Bill of Rights is the lowest common denominator protector, but if a state wants to protect people more, they're welcome to do it.

For example, the U.S. Supreme Court says that it's okay for the police to look into people's garbage cans under the Fourth Amendment’s search and seizure clause because the people threw out their garbage and it's no longer in their house. Our Washington Supreme Court, however, ruled differently under Article I, Section 7, saying that law enforcement in Washington cannot look in garbage cans because your garbage can is still part of your house and it's part of your castle. So, they can't look in your garbage can without a warrant. And that's just one of many examples like that.

������Ƶ: Finally, was the Washington State Constitution modeled after any other states’ constitutions?

Yes, mostly Oregon, and some language from California. Oregon modeled theirs after Indiana. Indiana’s was in 1854, and Oregon's was 1857, so pretty close together. Indiana’s constitution is, sort of, typical of what we call a Jacksonian provision, coming out of Andrew Jackson's populist movement, where people were suspicious of a concentration of government power and suspicious of large businesses. Indiana is just one of several that were written like that, but that happened to get copied by Oregon, and then we copied a lot of provisions from Oregon.