...has just been published in the Arizona State Law Journal. You can read it here.
Excerpt:
The Arizona Constitution says “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” This language is notably different from that used in the federal Constitution’s Fourth Amendment and analogous provisions in other state constitutions. It is found in only one other constitution: that of Washington State, from which it was copied, and where courts have developed a robust and protective Private Affairs jurisprudence. Yet Arizona courts have not done the same. On the contrary, despite repeatedly acknowledging that the Arizona Constitution can and should protect a broader range of rights than the federal Constitution, they have largely failed to give effect to that principle and have so far developed virtually no significant protections of private affairs that differ from federal protections.
Arizona courts have claimed that the Private Affairs Clause is “generally coextensive” with the Fourth Amendment, except in cases “concerning officers’ warrantless physical entry into a home.” But the Clause expressly protects both “private affairs” and also the home, indicating that it should protect a significantly broader set of substantive rights. Nonetheless, courts have largely neglected the linguistic and historical differences between the state and federal provisions, with the result that Arizonans now live with an anomaly: Their courts, while giving lip service to the idea that the state constitution is more protective than federal law, apply it no more broadly in practice. At the same time, Washington case law that interprets language identical to the Arizona Clause does provide stronger protections than federal law.
This article is the first to attempt an overall interpretation of the Private Affairs Clause. I review the relevant history and text, to explain why and how the Arizona constitutional privacy right must be viewed as broader than that protected by the Fourth Amendment—and, at a minimum, in line with Washington state law.
Comments policy