I am honored to participate in the dedication of this issue of State Constitutional Commentary to Justice Stanley G. Feldman of Arizona. He has long been an insistent voice urging lawyers with difficult problems to consult the state constitution for possible remedies. In part, at least, this view of the importance of the state constitution stems from his life-long fascination with political history. It also, no doubt, derives from the populist character of the Arizona Constitution. As an admiring friend of the justice--he was a member of the first law class that I taught in 1955 as a young lawyer called to substitute for a teacher who had fallen ill--I have followed his career with some care and know how strongly he has always felt that the state constitution frequently offers protection for individual rights that the federal constitution does not.
Justice Feldman was appointed to the Arizona Supreme Court in 1982 by then-Governor Bruce Babbitt. He was elevated by his colleagues to chief justice in 1992 and served in that position for a five year term. He retired from the court at the end of 2002. By dint of his relentless energy, intellectual reach and powerful writing, he has had a profound effect on the Arizona court and its work. Part of that effect has grown naturally from his interpretations of various provisions of the Arizona Constitution.
Adopted in 1912 during the Progressive Era, the Arizona Constitution is a populist document bearing the stamp of a coalition of a labor union and populist members of the constitutional convention. (1) It provided for the initiative, (2) the referendum, (3) the recall of public officials (including judges), (4) outlawing black lists, (5) abolishing the fellow servant defense in negligence actions, (6) directing the legislature to enact an employer's liability law and a worker's compensation law. (7) It also prohibited the abrogation of the right of action for damages for personal injuries and any limitation on the amount of such damages. (8) A unique provision required that the defenses of assumption of risk and contributory negligence be question of fact for the jury in "all cases whatsoever." (9)
Justice Feldman's emphasis on state constitutional law is particularly important given the U.S. Supreme Court's creation of a new doctrine of federalism, something my colleague Professor Ana Maria Merico-Stephens has called "the mystical world of Supreme Court federalism." (10)
In United States v. Lopez, (11) invalidating the Gun Free School Zone Act, and in United States v. Morrison, (12) holding unconstitutional the Violence Against Women Act, the United States Supreme Court found limitations on Congress's commerce power that would not have been found in years past. In a series of cases, the court, relying on a newly invigorated interpretation of the Tenth and Eleventh Amendments, has elevated the states' sovereign immunity to constitutional stature. It has held that Congress cannot abrogate that immunity in legislation under the Commerce Clause. (13) Subsequent cases have held that Congress's sole remaining authority for abrogating sovereign immunity, section five of the Fourteenth Amendment, is subject to severe and amorphous restrictions. (14) As a result of these developments, substantial power and responsibility of addressing social issues has shifted from the federal government to the states. Moreover, these restrictions on federal power make the interpretations of state constitutional provisions, which have always been important, even more critical than ever.
In the course of his tenure on the Arizona court, Justice Feldman has written many opinions construing important provisions of the Arizona Constitution. One case in particular is instructive where protection for civil liberties is at stake. …