The Washington Supreme Court last week issued an astonishing decision in Yim v. Seattle* that demonstrates how “judicial restraint” can often itself be a form of “judicial activism.” In a sweeping 23-page opinion, the court announced that the Washington Constitution’s due process clause would no longer be interpreted as more protective of the rights of property owners than is the federal Constitution’s due process clause. In the process, it overruled fifty-one separate Washington precedents, some more than a century old—all while characterizing its actions as “great [judicial] restraint.”


The Yim decision rejected the argument by property owners that Seattle violated their rights by enacting an ordinance that forbids them from rejecting tenants based on criminal records. The owners argued that this restriction on their right to decide how to use their property exceeded the limits of the state Constitution, which forbids cities from depriving citizens of property without “due process of law.” Since at least the seventeenth century, that phrase has been understood as forbidding the government from depriving people of property rights for illegitimate reasons, or in ways that are unduly intrusive. This idea—which was labeled “substantive due process” in the 1930s—was taken for granted by lawyers in the 1880s, when the Washington State Constitution was written. Not until 1934 did the U.S. Supreme Court invent a new, less protective standard called the “rational basis” test, under which states may restrict property rights for virtually any reason lawmakers consider worthwhile.


Even after 1934, however, Washington courts remained more protective of property rights than their federal counterparts. That made sense, because there’s no reason for state courts, when interpreting state constitutions, to follow jurisprudential developments that occur in federal courts—even where the state Constitution borrows language from the federal Constitution. If Washington’s founders wrote their due process clause based on what’s now called the “Lochner-era” understanding of its language (a dysphemism used to refer to the era in which property rights and economic liberty were taken seriously by judges), then that understanding should persist regardless of the fact that federal courts later decided to go a different way. Washington judges, after all, swear an oath to support the Washington Constitution—not to copy and paste federal jurisprudential trends. To do so outsources state constitutional law to federal courts and makes the state judges into (in the words of the Mississippi Supreme Court) “balloons to be blown up or deflated…in accord with the interpretation [by] the U.S. Supreme Court…[of] words in the U.S. Constitution.”


Yet the Yim court did precisely that. Asserting that “this court traditionally has practiced great restraint in expanding state due process beyond federal perimeters [sic],” it concluded that it “ha[d] never before required” a standard of scrutiny different from that of federal courts—and then proceeded to declare that “[o]ur precedent suggesting otherwise can no longer be interpreted as requiring a heightened standard of review,” and to list in a separate appendix 51 separate precedents that were no longer valid law. It’s perplexing that the court would be forced to reverse that many cases in order to make clear something that it claimed had always been true.


Even more puzzling was Yim’s assertion that those who argued to the contrary—that the Washington Constitution protects property owners more than the pro-government “rational basis” test created by federal courts—had failed to “provide[] a principled basis on which to recognize enhanced protections as a matter of independent state law.” This was odd because it is typically not the duty of a party who cites existing precedent to prove that such precedent should still be followed.


Perplexing, too, was the court’s assertion that those 51 state precedents were flawed due to the fact that they were “based on opinions of the United States Supreme Court.” That may be true, but the rational basis standard the court then endorsed is also derived from federal Supreme Court opinions. The difference is that the test it rejected was derived from precedents dating to the 1890s—the same era during which the Washington Constitution was written—whereas the rational basis test it preferred was invented a half century later, in 1934, long after the writing and ratification of the Washington Constitution.


It’s also bizarre to speak of “expanding state due process beyond federal perimeters”—when the state’s founders would never have thought there were any such perimeters. On the contrary, they wrote at a time before the federal Bill of Rights was fully incorporated, and they therefore assumed the state due process clause would be the leading edge, not the trailing edge, of property rights law. Even in our own day, courts typically don’t view the federal Constitution as imposing a “perimeter” on how states may interpret their own constitutions. Quite the reverse: The federal Constitution creates the minimum protection, with states providing greater protections when appropriate.


The theory of “judicial restraint” typically holds that courts should be slow to interpret constitutional language aggressively in ways that may limit the more “democratic” branches (although this terminology breaks down in states like Washington, where judges are themselves elected). But Yim demonstrates that the phrase can just as well be applied to the opposite: to the judiciary’s refusal to employ its powers as the constitution anticipates, thereby expanding political control over what the constitution ought to protect. A court that reverses generations of legal precedent, disregards centuries of common-law theory, and embraces a legal theory created by federal courts a half century after the state constitution was written can hardly claim that it’s acting in the name of “restraint.”


* * *


Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute and author of The Right to Earn A Living: Economic Freedom and the Law (Cato Institute, 2010).


*-My colleagues at the Goldwater Institute filed an amicus brief in the case.