CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, November 29, 2018

Sandefur on Arizona's Private Affairs Clause

Timothy Sandefur (Goldwater Institute) has posted The Arizona Private Affairs Clause: Time for a Second Look (Arizona State Law Journal, Forthcoming) on SSRN. Here is the abstract:

The Arizona Constitution provides that “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, or to analogous provisions in other state constitutions. The language 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 despite their recognition that the state Constitution can and should protect a broader range of rights than the federal Constitution does, Arizona courts have largely failed to appreciate or give effect to the significance of these differences.

In fact, Arizona courts appear never to have held that a search that was valid under the Fourth Amendment was invalid under the Private Affairs Clause. Today, Arizonans live with the anomaly that their courts, while claiming to recognize that the Clause is more protective than federal law, in practice interpret identically with the Fourth Amendment, and disregard Washington precedent that provides far stronger protections in interpretations of identical constitutional language.

In this article, I review the relevant history and text, to explain why and how the Arizona constitutional privacy right must be interpreted more expansively than the Fourth Amendment--and, at a minimum, in line with Washington state law.

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