January 9, 2020
By Timothy Sandefur

We filed a friend of the court brief with the Arizona Supreme Court over the holidays asking the justices to enforce the long-neglected provision of the Arizona Constitution that protects people’s “private affairs” against unjustified government interference. The case—called Mixton—involves government obtaining information about the location of a person’s computer without getting a warrant. The defendant challenged this under the federal Constitution’s Fourth Amendment—but also under the Arizona Constitution, which provides: “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.”

What’s interesting about that wording—which was written in 1910—is that it’s entirely different from the Fourth Amendment. The Fourth Amendment, which was written in 1789, says “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause….”

Why the differences? As explained in this recent Goldwater Institute policy report (and in more detail in the Arizona State Law Journal), the state clause was written in order to provide stronger protections against unjustified searches. Note, for example, the word “unreasonable” in the Fourth Amendment. That word doesn’t appear in the state Constitution at all. As a result, federal courts often hold that searches that are “reasonable” are valid even if they’re done without a warrant. But under the state Constitution, no search that is “without authority of law” is valid, even if that search is reasonable.

Unfortunately, Arizona courts haven’t always followed the state Constitution. On the contrary, they’ve typically just copied and pasted the legal precedents created by federal courts interpreting the federal Constitution, and they followed those precedents without addressing the fact that they involve an entirely different body of law. For example, Arizona courts often apply the “reasonableness” concept—even though that has no place at all under the Arizona Constitution’s Private Affairs Clause.

In the Mixton case, in fact, state prosecutors have urged the state Supreme Court to ignore the difference between the two Clauses entirely. They’ve asked the Court to read the state and federal Constitutions as though they were “uniform.” But that makes no sense—no matter what interpretive method you employ. Whether you’re an Originalist or a believer in a “Living Constitution,” or anything else, two constitutional provisions that use entirely different wording simply must be interpreted differently.

If you’re an Originalist, it’s wrong because the authors and ratifiers of Arizona’s Constitution chose the wording they did because they did not expect courts to apply the state Constitution as if it were “uniform” with the federal Constitution. And for courts today to impose such “uniformity” contrary to the wording of the Constitution would be an act of extraordinary “judicial activism.” If you believe the state Constitution is a “living” document, then it’s the responsibility of Arizona courts to develop the meaning of the Arizona Constitution—and it’s wrong for Arizona judges to outsource that responsibility to federal courts by simply following federal Fourth Amendment cases in lockstep.

You can read more about the case here. This is the second brief we’ve filed in the case—the first can be found here.

Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.

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