This dissenting opinion by Justice Sanders (Wash. S. Ct.) is a vivid illustration of all that is wrong with so-called "constitutional law." Namely, it is not law, and has nothing to do with the Constitution.
Here's a quick taste:
| ..... | American Legion Post #149 (the Post Home) [is] a private member-run organization whose membership is limited to those who served in the military or Merchant Marines during a time of armed conflict . . . . The question is whether the Act [Initiative 901, 2006] prohibits smoking at the Post Home and, if so, is the Act constitutional. . . . .
. . . .
. . . I would hold the Act does not apply to the Post Home as a private facility. Alternatively, if the Post Home's status as a private facility does not limit the Act's application, I would hold the Act is void for vagueness; unduly interferes with the Post Home's right of intimate association; violates the Post Home's substantive due process rights absent actual proof of a real and substantial relation between secondhand smoke and workplace dangers; and violates equal protection by distinguishing between two classes of business without reasonable grounds. | ... |
Read the
whole thing. This is, to be sure, a dissenting opinion--and one signed by only a single jurist. But what makes the opinion so remarkable is that in everything but its non-conformist
outcome, it reads precisely like the most celebrated constitutional cases of the past half century.
Shameless second-guessing of a populist judgment, in an area where the judiciary has no real competence?
Check. Resolves a controversial issue by resort to the most ambiguous constitutional text imaginable?
Check. Uses precedent only in furtherance of an independently arrived-at end?
Check. Pretends, nonetheless, to merely be applying neutral principles of law?
Check.In tone and method, it could easily pass for a Warren Court opinion.
