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Goldwater Institute: Arizona Constitution leaves many other states’ in the dust

The Arizona Constitution rates better than the constitutions of most other states in part because it guards against government seizing private property and putting public dollars toward private ventures, according to a report by a conservative Goldwater Institute.

“Every bell and whistle you could hope for in a state constitution to protect against excessive spending, imbalanced budgets and corporate bailouts is in the Arizona Constitution,” said Nick Dranias, director of the institute’s Center for Constitutional Government.

The nonprofit institute, named after the legendary conservative, longtime Arizona senator and presidential candidate, promotes limited government and free-market values.

The study, released Sept. 17 as Constitution Day marked the 222nd anniversary of the U.S. Constitution, rated the Arizona Constitution fifth in the nation. It considered 10 categories related to limited government, including property rights, fiscal restraints, due process and taxpayer standing.

Michigan, Ohio, Minnesota and Wisconsin, which ranked ahead of Arizona, have courts that are more receptive to limited government, Dranias said.

The report rated the Arizona Constitution highly in terms of court interpretations restricting the government’s ability to seize private property, especially when it comes to exercising eminent domain on behalf of private entities. A 2006 ballot initiative that codified what courts had interpreted in the Arizona Constitution reinforced that protection, Dranias said.

“The primary benefit is that you keep the government out of the things it does not do best, such as property development and property acquisition,” he said.

The Arizona Constitution also got high marks for keeping public funds from being spent on private interests, another goal of the Goldwater Institute. Dranias pointed to the constitution’s so-called gift clause, which the Arizona Court of Appeals applied late last year when the institute challenged the city of Phoenix’s plans to provide close to $100 million in tax breaks to help a developer provide parking and other infrastructure for a retail, restaurant, office and residential project in north Phoenix.

“The gift clause deters large developers from using their clout to get special favors such as subsidies, cash, tax breaks, whatever it may be, out of the government,” Dranias said.

The Arizona Constitution would have fared better, Dranias said, if not for court rulings that he said allowed state government to create an “inherently unbalanced” budget under Democratic Gov. Janet Napolitano, with approval from the GOP-controlled Legislature.

“The reason we are in the situation we are in today is that gimmickry like rollovers and other measures was used to avoid pay-as-you-go budgeting,” he said.

Paul Bender, a professor who teaches constitutional law at Arizona State University’s Sandra Day O’Connor College of Law, said state constitutions are important because they grant more rights to individuals in areas where the U.S. Constitution may be deficient.

“There are clearly some provisions that are more protective in state constitutions,” he said.

While he hadn’t read the full report, Bender cited Massachusetts’ No. 48 ranking among states as an example of how the Goldwater Institute’s conservative politics could influence the results. He said that a court ruling determining that gay marriage should be legal under Massachusetts’ constitution could be seen as a victory for individual rights.

Dranias, however, said the report didn’t consider individual rights outside of what he called a classical liberal approach to law rather than a libertarian perspective.

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