What is a Gunwall Analysis?
A Gunwall analysis is used by Washington State courts to determine if the Washington Constitution provides greater protection than the United States Constitution in a particular context. A Gunwall analysis must be performed, if litigants want the court to consider whether a parallel constitutional provision affords differing protections.
A Gunwall analysis consists of evaluating six nonexclusive neutral criteria. These criteria are relevant to determining whether, in a given situation, the constitution of the State of Washington should be considered as extending broader rights to its citizens than does the United States Constitution.
The six factors are:
- The textual language of the state constitution. The text of the state constitution may provide cogent grounds for a decision different from that which would be arrived at under the federal constitution. It may be more explicit or it may have no precise federal counterpart at all.
- Significant differences in the texts of parallel provisions of the federal and state constitutions. Such differences may also warrant reliance on the state constitution. Even where parallel provisions of the two constitutions do not have meaningful differences, other relevant provisions of the state constitution may require that the state constitution be interpreted differently.
- State constitutional and common law history. This may reflect an intention to confer greater protection from the state government than the federal constitution affords from the federal government. The history of the adoption of a particular state constitutional provision may reveal an intention that will support reading the provision independently of federal law.
- Preexisting state law. Previously established bodies of state law, including statutory law, may also bear on the granting of distinctive state constitutional rights. State law may be responsive to concerns of its citizens long before they are addressed by analogous constitutional claims. Preexisting law can thus help to define the scope of a constitutional right later established.
- Differences in structure between the federal and state constitutions. The former is a grant of enumerated powers to the federal government, and the latter serves to limit the sovereign power which inheres directly in the people and indirectly in their elected representatives. Hence the explicit affirmation of fundamental rights in our state constitution may be seen as a guaranty of those rights rather than as a restriction on them.
- Matters of particular state interest or local concern. Is the subject matter local in character, or does there appear to be a need for national uniformity? The former may be more appropriately addressed by resorting to the state constitution.
Does the Washington State Constitution really provide greater protections?
The simple answer is yes. The Washington State Supreme Court repeatedly states that some provisions (not all) of the Washington State Constitution provide greater protections than the United States Constitution.
Washington is one of many states that rely on their own constitutions to protect civil liberties. Since the recent retrenchment of the United States Supreme Court in this area, the appellate courts of a majority of the states have interpreted their state constitutions to provide greater protection for individual rights than does the United States Constitution.