The Arizona Constitution: Deeply Skeptical of Power

One of the younger states and the last contiguous state to join the Union, Arizona has a relatively short constitutional history. It continues to use the constitution that went into effect with its statehood in 1912. But it is also one that, over time, has been modified to address changing preferences in executive power, labor relations, and abortion.

In contrast to the moderately conservative constitution developed almost concurrently in New Mexico, Arizona’s founding document was regarded by some at the time as dangerously progressive. William Howard Taft, for example, vetoed statehood on grounds the constitution enabled permitting the recall of judges, which Taft feared would lead to the destruction of judicial independence and even constitutional enforcement altogether. 

A Populist Constitution from a Progressive Era

The drafters of the Arizona Constitution, influenced by the state’s origins in the Progressive era and reflecting the ideology of progressive states’ rights that sought to wield police powers on behalf of labor free from federal intervention, included many pro-labor provisions. These are found mostly in Article XVIII, appropriately titled Labor. Similarly, Article XV establishes a Corporation Commission as an independent agency to deal with regulations related to public service corporations, and information collection for corporations more broadly.

This does not mean that the state’s founders were fundamentally hostile to capital: Michael Cunniff, a primary constitutional mover, was himself a mine owner who disavowed socialism and had an ambivalent relationship to labor unions, even as he, along with the state’s first governor, George Hunt, was one of the two primary leaders of the state’s progressives. Instead, the charter of the Copper State is better thought of as hostile to “concentrations of power” and big institutions in general, preeminent Arizona Constitution scholar John Leshy has suggested.

Some point to Arizona’s right-to-work amendment (passed in 1946 with the help of a pre-Senate Barry Goldwater) as marking the moment Arizona’s political orientation shifted from progressive to conservative. But there is a way to understand that as consistent with, rather than a repudiation of, Arizona’s founding ideas: Big business was the dominant factor in the state’s economy and politics in the 1910s, but reforms including the Wagner Act of 1935 empowered labor unions such that skepticism of concentrated power could plausibly be directed leftward in the late 1930s and early 1940s. Similarly, the immigration skepticism that features in several provisions suggests a similar continuity even as the political valence has changed. In other words, one might think of the Arizona constitutional tradition as more fundamentally populist than progressive, especially as the latter has shifted in meaning.

The recall provision in Article VIII was, at least when applied to judges, the most provocative of the structures incorporated from other reforms of the era. Like other western states, Arizona also included an initiative and referendum, both of which are in use today. Voters have pared back initiatives in recent decades, however. In 2004, they enacted a requirement that future initiatives identify funding sources, and in 2022 they imposed a supermajority ratification requirement for any ballot measure that would increase taxes. The latter creates something of a parallel with a 1992 amendment requiring a supermajority of legislators to approve tax increases. 

Article XXI makes the Arizona Constitution extremely easy to amend: either sufficient signatures or bare majorities of both houses to propose, and a mere majority of voters to ratify. Even so, it has been amended far less frequently than, say, neighboring California, with its similarly flexible process. In 2024, for example, Arizona voters rejected six legislatively referred constitutional amendments and one citizen-initiated amendment, accepting only a provision establishing a state constitutional right to abortion.

One feature that has been occasionally amended is the state’s plural executive, which again reflects concern with concentrations of power. A plural executive is one where multiple officials — a governor, an attorney general, and so on — are independently elected and so do not all come from the same party. In Arizona, the secretary of state has, until recently, succeeded a governor who dies or leaves office during their term, raising the possibility of the successor having a different party affiliation. This possibility led Arizonans in 2022 to approve a moderate exception to the plural executive: a lieutenant governor running on a joint ticket with the governor, which will go into effect in 2026. 

Declaration of Rights

The discussion in the 1910 convention explicitly recognized that, in the years before the U.S. Supreme Court implemented the incorporation of the first eight amendments of the Bill of Rights through the 14th Amendment, Arizona’s Declaration of Rights would be the primary check on state government. But the convention participants did not start from scratch.

The initiative, referendum, and recall was largely borrowed from and heavily associated with Oregon. But that was not the only area in which the Pacific states influenced Arizona’s drafters. The Declaration of Rights was originally taken from Washington state, though it has since been modified. It has less of its own political theory than other state constitutions, with those sections all widely found in other texts. 

Section I, for example, on the importance of fundamental rights in a republican government, was drawn from Washington’s document, but uses language dating back to Virginia’s Declaration of Rights. Section II, a statement of Lockean social contract theory, and Section III, declaring the U.S. Constitution the supreme law, come from Washington as well. 

Beyond that, the list of rights is similar to those of the U.S. Constitution, and state courts have often, but not always, treated analogous sections as duplicative of federal protections. A prominent recent example: A concurrence by Justice Clint Bolick to a major 2019 free speech case, Brush and Nib v. Phoenix, proposed using the state’s own speech text — that “Every person may freely speak, write, and publish on all subjects” — to deal with the tension between public accommodations law and the free speech rights of businesses creating expressive goods and services. However, the majority of the Arizona Supreme Court instead chose to rely on the First Amendment in reaching a result and reasoning akin to what the U.S. Supreme Court later adopted in 303 Creative v. Elenis in 2023.

Other rights in the Arizona Constitution use much more explicit language and thus are less ambiguous than analogous federal texts. As with some roughly 35 states, the Arizona Constitution has a robust, explicitly individual right to keep and bear arms. Reflecting the labor tensions at the state’s foundation, however, that provision holds that the right cannot be construed to authorize “individuals or corporations to organize, maintain, or employ an armed body of men.” In other words, it does not provide a right for a mining company to hire armed strikebreakers, for example.

Like other western states that were required as a price of statehood to include so-called Baby Blaine provisions that prohibit direct government aid to religiously affiliated schools, Arizona is more restrictive of state funding toward religious institutions than federal law. Two related provisions explicitly limit such expenditure, though, as in other states, their enforceability is in doubt since the 2022 U.S. Supreme Court decision in Carson v. Makin, which held that states could not, consistent with the free exercise clause of the U.S. Constitution, add conditions excluding religious participants from generally available tuition benefits. 

Significant changes to the Declaration of Rights since statehood include a lengthy victim’s Bill of Rights provision and successive constraints on bail, as well as limits on affirmative action that went beyond the then-existent federal doctrine. In response to Dobbs v. Jackson Women’s Health Organization ending federal protection for abortion, and the Arizona Supreme Court’s decision that Dobbs reinstated the territorial prohibition on abortion, Arizona voters approved an amendment to the Declaration of Rights, codifying a right to abortion in 2024. 

As one might expect from a state whose politics have long been roiled by large waves of immigration, the Arizona Constitution includes several provisions on that topic. Two sections of the Arizona Declaration of Rights limit bail and punitive damage claims by undocumented immigrants. Another establishes English as the official language of state government. The first version of this, passed in 1988, was invalidated by the Arizona Supreme Court in 1998’s Ruiz v. Hull, in part on federal free speech grounds, leading to an updated version in 2006.

Blending both the nativist streak and protection of organized labor, the original constitution limited the employment of non-citizens in public labor. A federal district court decision striking this down on equal protection grounds was affirmed by the U.S. Supreme Court in 1973, though later rulings have, some believe, restored the legality. A parallel statutory provision, the so-called 80–20 law that limited private workforces to no more than 20 percent immigrant labor and was an early instance of an initiated statute under the state constitution’s direct democracy, was struck down by the U.S. Supreme Court in a major 1915 case, Truax v. Raich, a case whose complicated reasoning invoked federal preemption over immigration, equal protection, and substantive due process.

Despite the strong tradition of states’ rights in Arizona’s political culture, embodied at the founding by progressives Cunniff and Hunt and in the mid-20th century by conservatives Goldwater, William Rehnquist, and Sandra Day O’Connor, Arizona strikingly does not have a 10th Amendment analogue explicitly reserving the police powers to the states. (In this, it is unlike other Mountain West states. The constitutions of Colorado, Montana, and New Mexico all feature such a provision in their declaration or bill of rights.) Despite being structural rather than a right per se, the Declaration of Rights does constitutionalize the anti-commandeering principle that Arizona cannot be forced to assist federal actions the state believes to be unconstitutional.

One right that does not appear in the declaration, even though it’s of critical importance in the West, is water rights. Unlike say, the Colorado Constitution’s thorough description of water rights, the Arizona Constitution merely states a negative, namely that common law riparian rights do not hold in Arizona. Efforts to elaborate water rights foundered at the convention, leading the drafters to compromise simply on what the right would not be. 

Conversations with Federal Constitutionalism

Two Arizona trial court cases — with opinions by future Arizona Supreme Court justices Fred Struckmeyer and Charles Bernstein — in 1953 and 1954 were effectively Arizona’s own Brown v. Board of Education, coming down just before the landmark federal case and based on the state constitution. In Phillips v. Phoenix Union High School and Heard v. Davis, the judges cited the Arizona Constitution to strike down the state’s legislative regime allowing but not mandating local districts to implement segregation. Both judges, whose opinions were reviewed by the Brown Court, rooted their decisions primarily in issues of delegation to local governments and to the legislature’s obligation to provide a system of common schools — in other words, structural features of the Arizona Constitution. 

Arizona has been one of the leading states in innovating school choice policies, and those policies, which have been imitated elsewhere, have been shaped by the Arizona Constitution and state court rulings. Article IX, Section 10 reiterates and extends the logic of the Baby Blaine amendments, joining it with concerns about private favoritism, by more broadly insisting that, “No tax shall be laid or appropriation of public money made in aid of any church, or private or sectarian school, or any public service corporation.” This helps explain why the state has utilized individual educational savings accounts and designated income tax credits rather than vouchers, after the latter was declared unconstitutional by the Arizona Supreme Court in 2009’s Cain v. Horne, with the former having been upheld in 1999 in Kotterman v. Killian.

Perhaps the best known recent decision of the Arizona Supreme Court — certainly the most widely covered — was Planned Parenthood v. Hazelrigg in 2024. While not strictly a constitutional case, the decision was in the shadow of Article XXII, Section 2, which explicitly maintains territorial laws until revoked by the state legislature. In this case, the Arizona Supreme Court concluded that the state’s territorial proscription of abortion, which dated from 1864 and had been suspended under Roe v. Wade, went back into effect after Dobbs v. Jackson Women’s Health Organization. (The Hazelrigg case largely focused on statutory treatment of later abortion laws, which the court found had been intended to supplement rather than displace the original law, and thus, per the Constitution, territorial law held). 

The backlash to this decision led to an almost immediate repeal of the territorial statute by the legislature and, soon after, a citizen initiative adding an explicit right to abortion in a new section of the Declaration of Rights in 2024. Progressive activists angry with the court’s ruling attempted to use the state’s judicial retention elections to vote out the justices who had re-activated the territorial abortion ban. Meanwhile, conservatives in the Arizona legislature proposed an amendment to do away with retention elections except in limited circumstances. The amendment would have instituted a judicial selection method much closer to the federal process — and, proponents argued, would have strengthened judicial independence by insulating judges from the opinions of voters. Voters rejected that amendment in 2024. 

That back-and-forth — implicating multiple parts of the Arizona Constitution, from its initiatives to its judicial selection to its amendment procedure — demonstrates the continued vitality of the constitution to the state’s governance. And as a state that has shaped, perhaps disproportionately, national politics in the 20th and 21st centuries such as by helping to revive a discourse of federalism and, more recently, launching school choice policies, the influence of the Arizona Constitution is not confined to the Copper State.

Sean Beienburg is an associate professor in the School of Civic and Economic Thought and Leadership at Arizona State University, where he has co-directed the Arizona Constitution Project as part of its Center for American Civics.