(dissenting) — After due deliberation, our founders renounced a significant commodity: the State’s historical power to sell the involuntary labor of prisoners on the open market. Today, we must decide whether our founders incidentally prohibited prisoners from entering into employment relationships with private entities, a labor relationship unheard of in the nineteenth century. Because we conclude that article II, section 29 of the Washington Constitution did not contemplate, let alone forbid, private employment of prisoners, we dissent.
ANALYSIS
History is critical to our analysis because we interpret constitutional terms as they would have been commonly understood at the time of their promulgation. See State v. Brunn, 22 Wn.2d 120, 139, 154 P.2d 826 (1945); State ex rel. Pub. Util. Dist. No. 1 of Skagit County v. Wylie, 28 Wn.2d 113, 127, 182 P.2d 706 (1947). Our initial task is to determine how “let out by contract” would have been understood in 1889. The majority canvasses the dictionary definitions, and briefly surveys the different modes of convict labor in the late nineteenth century. While scholarly, the majority overlooks a key historical fact: the founders did not consider the prisoners’ right to contract privately for their own labor because, at the time, prisoners had no legal capacity to so contract. Under the prevailing law of the time, the State itself owned the prisoners’ labor. See E. Stagg Whitin, Penal Servitude i (1912) (“The State has a property right in the labor of the prisoner. . . . This property right the state may lease or retain for its own use, the manner being set forth in state constitutions and acts of legislatures.” (emphasis added)). This property right in the labor of prisoners, now *505largely abandoned by the march of history, cf. U.S. Const, amend. XIII, lay underneath each of the five models of prison labor properly cataloged, but not properly contextualized, by the majority.
The majority surveys many contemporary definitions of the terms of article II, section 29. Again, properly read, underlying all of these definitions is the principle that “to let out by contract,” historically, referred to a contractual mechanism, however labeled, whereby some commodity, service, or project controlled by one entity would be contracted to another. As the majority notes, one contemporaneous dictionary defined “let” in part as “[t]o lease or demise for rent or other consideration; put to hire or rent; grant or assign, as to an applicant; frequently followed by out; as to let a contract.” A Standard Dictionary of the English Language 1021 (Issac K. Funk et al. eds., 1897); see also majority at 481.10 Properly read, this definition is in accord with the historical fact underlying article II, section 29.
While our language has changed somewhat over the last 100 years, to “let out” an apartment is still to rent an apartment. E.g., Cole v. McKey, 66 Wis. 500, 29 N.W. 279, 281 (1886) (“the defendant let out his house, in apartments, to several tenants” (emphasis added)); see also Gowen v. Phila. Exch. Co., 1843 WL 5003, at *3, 5 Watts & Serg. 141 (Pa.) (“Its apartments are let for balls, concerts, lectures, auctions, exhibitions, and other purposes ....” (emphasis added)).
*506Similarly, to “let out” a contract to build a road is to submit the contract out to bid, see, e.g., majority at 482 (citing Giffin v. King County, 50 Wash. 327, 329, 97 P. 230 (1908)), just as to “let out” a contract to build a university building is to submit that contract out for bid, RCW 28B.20.140 (originally enacted by Laws of 1909, ch. 97, § 9).
And to “let out” the labor of convicts by contract is to sell, lease, rent, or contract out the State’s property right in convict labor to a private party. Const, art. II, § 29. The majority cites sound sources. It draws the wrong conclusion from them.
The majority’s conclusion that “for the benefit of the state” means something is correct. Majority at 483. The majority’s implied holding that it means that no entity but the state government may benefit from convict labor is unsupported. The 1899 dictionary definition of “benefit” is quite broad: “Whatever contributes to promote prosperity and personal happiness, or adds value to property; advantage: profit.” Noah Webster, American Dictionary of the English Language 125 (Chancey A. Goodrich & Noah Porter eds., rev. ed. 1899). By the time of our constitutional convention, “it had become recognized, and was so recognized by all students interested in the reformation of prisoners, that regular labor of some kind was necessary and essential for order within the prison walls.” Utah Mfrs.’ Ass’n v. Mahey, 63 Utah 374, 226 P. 189, 189 (1924). Put another way, it was recognized that work itself would benefit the State. This benefit “cannot be estimated in dollars and cents as is shown by all the best penologists of the day.” State of Wash., Annual Report of the Penitentiary Commissioners 4 (1890) (reviewing the benefit to the State of prison labor). Providing useful work benefits the State through reducing the cost of corrections, providing useful skills, and, as recognized from the earliest days of our State, providing “great benefit from a mental, moral and physical standpoint.” State of Wash., Gov. Chas. E. Laughton, Message to the Washington Legislature 45 (1891).
*507The majority holds that “it seems clear” that article II, section 29 was “intended to limit Washington to only the public systems of convict labor.” Majority at 483. We disagree. There is considerable evidence that article II, section 29 was a compromise struck by our founders (like those negotiated across the nation at the time) between different interest groups to ameliorate the “antecedent mischief” of convict contract labor. Although some did believe that the problem with convict contract labor was unfair competition, see Convict Labor, Delegates Oppose Leasing the Services of Criminals to Corporations, The Tacoma Daily Ledger, Aug. 10, 1889, at 4 (available in 4 Washington State Constitutional Convention 1889: Contemporary Newspaper Artict.es 4-85 (Penny A. Hazelton ed., 1998)), others believed the problem was the government and the corporate corruption it caused. E.g., Whitin, supra, at 6; James Leonard Fitts, The Washington Convention of 1889, at 95 (1951). Yet others abhorred the inhumane conditions that often accompanied this form of forced labor. See generally Neil B. Corcoran, Bucoda—A Heritage of Sawdust and Leg Irons 24-26 (1976); The Penitentiary, Seattle Weekly Chronicle, Oct. 4, 1883, at 4 (criticizing the contract system at an early Washington prison as “system wrong in principle, and doubly so in practice. It opens the door for the entrance of personal greed of gain, cruelty and neglect of men so kept.”); see also United States Industrial Commission, Report of the Industrial Commission on Prison Labor 6-8 (1900) (hereinafter Report on Prison Labor).
Against this backdrop of considerable antecedent mischief wreaked by convict contract labor, our constitutional convention reached a compromise. It declared that “[T]he labor of convicts of this state shall not be let out by contract.” Const, art. II, § 29. It forbade the State from selling the commodity of contract labor and provided that convicts should work for the benefit of the State. Nowhere in the constitution did our founders mandate the creation of a public use system, and only a public use system. The term was well known; such a thing would have been quite easy. *508If the abolition of convict labor in competition with free labor had been the compromise, the language suggested by labor to accomplished that goal would have been adopted. See The Tacoma Daily Ledger, July 18, 1889, at 4 (available in Washington State Constitutional Convention 1889, supra, at 4-24) (discussing suggested language providing: “Convict labor shall not be employed in competition with free labor.”). The fact the drafters rejected the labor advocates’ language is significant. State ex rel. Gallwey v. Grimm, 146 Wn.2d 445, 464-65, 48 P.3d 274 (2002) (court may consider language rejected by the constitutional convention in determining meaning).
The majority does note the different concerns that prompted article II, section 29. Majority at 484-85. But the majority finds that competition with the private sector was somehow more equal than the other concerns, apparently because of the proximity in time of a specific labor union’s request that convict contract labor be addressed in the new constitution. Majority at 484-86. This overstates the evidence. First, the concern was hardly a surprise; organized labor across the nation had been fighting convict contract labor for decades at the time of our constitutional convention. William J. Farrell, Prisons, Work and Punishment 32, 98 (1994); Blake McKelvey, The Prison Labor Problem: 1875-1900, 25 J. Am. Inst. Crim. L. & Criminology 254, 268 (1925); Whitin, supra, at 7; majority at 488-89. Our founders were well acquainted with labor’s concerns. Second, the progressive opposition to convict contract labor had been growing for decades and there was a strongly progressive streak in our State at that time. See, e.g., Theodore Roosevelt, The New Penology, in American Academy of Political and Social Science, The Annals: Prison Labor 4-5 (1913) (by 1913 an explicit part of the progressive platform was the abolition of the convict contract labor system); 1 Herbert Hunt & Floyd C. Kaylor, Washington West of the Cascades 359 (1917); majority at 486-88. Third, there was growing awareness of the terrible corruption endemic in the sale of the State’s power to force labor. Majority at 489-90; see generally Wash. *509State Dep’t of Inst., State Prison—A History of Adult Corrections in Washington, Perspective 5-7 (Spring-Summer 1966); Report on Prison Labor, supra, at 32; Farrell, supra, at 93; cf. majority at 487-88. All these concerns went into the final compromise. We have no reason to believe labor’s concerns were so overriding in the minds of our founders that the words of the constitution must give way.
Properly understood, the overwhelming case authority from other states also undermines the majority’s historical interpretation. We disagree with the majority’s analysis of the California Court of Appeals decision in Pitts v. Reagan, 14 Cal. App. 3d 112, 92 Cal. Rptr. 27 (1971). See majority at 493-95. Key to the California court’s holding was the fact that, in effect, the State let out the labor of convicts by contract. “There were no individual contracts between the growers and the prisoners. Such contracts as existed were . . . between the growers and state officials.” Pitts, 14 Cal. App. 3d at 116. The California court properly concluded that this was precisely what the California State Constitution prohibited.
Further, the Pitts court stated, and all parties agreed, that a “convict may himself sell or hire out his services to a private person, and that parole or other state officials may assist in such rehabilitative efforts.” Pitts, 14 Cal. App. 3d at 117 (emphasis added).11 This accurately describes our Class I industries.
*510We agree with the majority that, in general, we pay particular attention to the Illinois Constitution, and we recognize that the interpretation of the Court of Claims is contrary to our interpretation. Majority at 496-98 (citing K.&S. Mfg. Co. v. Illinois, 7 Ill. Ct. Cl. 107 (1932)). But the Court of Claims is a department of the Illinois Secretary of State’s Office, not an appellate court. See Illinois Court of Claims, About the Department of Court of Claims, available at www.sos.state.il.us/depts/claims/about.html (last visited May 4, 2004). A hard look at the K.&S. opinion reveals that it is much less about the constitution, and much more about a 1903 statute that did exactly what the majority says our constitution did; it harmed competition. K.&S., 7. Ill. Ct. Cl. at 107. Courts decide cases on statutory grounds if possible; in K.&S., the court reached the right decision under Illinois law. If the Court of Claims were an actual court, rather than effectively a branch of the executive, we would be tempted to dismiss its musings on the Illinois Constitution as mere dicta.
All of the other out of state cases canvassed by the majority, properly read, are predicated on the State’s ownership of convict labor; the very thing article II, section 29 forbids the State from selling. These cases do not support the majority’s implicit holding that our state constitution banned competition qua competition. E.g., Ove Gnatt Co. v. Jackson, 173 N.E. 335 (1930), 177 N.E. 607, 607 (Lockyear, J., dissenting) (Ind. Ct. App. 1931) (“the contract system . . . the state sells the labor of the prisoners to private corporations or individuals, and in each the contractor and prison authorities agree upon a task which is supposed to constitute a reasonable day’s work.”); Rice v. State, 1924 OK 1112, 108 Okla. 4, 232 P. 807, 813 (founders motivated by mercy, not by a desire to end competition with free labor); State ex rel. Greaves v. Henry, 87 Miss. 125, 40 So. 152, 162 (1905) (describing the old convict-leasing system as between the businesses and the State); State ex rel. Davis v. Mortensen, 69 Neb. 376, 95 N.W. 831 (1903); see Thompson v. Bronk, 126 Mich. 455, 85 N.W. 1084 (1901) *511(petitioner who had been subject to convict contract labor whose conviction was later vacated had no right to compensation); People v. Hawkins, 157 N.Y. 1, 13, 28, 51 N.E. 257 (1898) (“contracting” convict labor refers to “practices . . . formerly existed, under which the labor of convicts had become a subject of bargain and sale” and “unpaid, compulsorily enforced labor”); Nugent v. State ofAriz. Improvement Co., 173 U.S. 338, 338-42,19 S. Ct. 461, 43 L. Ed. 721 (1899) (describing legislatively authorized contracts for convict labor); Walton County v. Franklin, 95 Ga. 538, 538, 22 S.E. 279 (1894) (county officials have no power to hire out convicts, therefore contract to do so is unenforceable). The fact that many of these states were using a public use system at the time is simply not relevant.
CONCLUSION
We should not forget that this is a facial challenge to a statute and program that, by state and federal law, specifically requires that the Department of Corrections take steps to ensure that free labor is not displaced. The majority position that a prison labor program which displaces free labor may so frustrate the intent of the founders in propounding article II, section 29 that it must be deemed unconstitutional is foreseeable, but not in a facial challenge. Majority at 492-93. A program that, as a matter of fact, displaces free labor, as applied, may violate article II, section 29—as applied. Since displacement is illegal under state and federal law, we will probably never need to reach the question of whether displacement is unconstitutional. The question answered by the majority is simply not before this court within this facial challenge.
We agree our founders were attempting to avoid many evils. Majority at 492-93. It may be that had our founders contemplated the private employment of prisoners, they would have forbidden the private employment of prisoners. *512But we do not invalidate legislation on a maybe. Because that is what this court does today, I respectfully dissent.
Sanders, Ireland, and Owens, JJ., concur with Chambers, J.
Motions for reconsideration denied August 18, 2004.
Other historical dictionary definitions are in accord. One defines “let” as: “To grant possession and use for a compensation; to lease; as, to let an estate for a year; to let a room for lodgers;—often followed by out.” Noah Webster, American Dictionary of the English Language 766 (Chancey A. Goodrich & Noah Porter eds., rev. ed. 1899) (emphasis added); accord Noah Webster, American Dictionary of the English Language 659 (Chancey A. Goodrich ed., rev. ed. 1853) (“To lease; to grant possession and use for a compensation; as, to let to farm; to let an estate for a year; to let a room to lodgers; often followed by out, as, to let out a farm.”). Another defines “let” in this context as “ ‘[t]o award to one of several persons, who have submitted proposals therefor, the contract for .. . rendering some . .. service to government for a stipulated compensation.’ ” Majority at 481 (quoting 2 Henry Campbell Black, A Dictionary of Law 708 (1891)).
As further support, the opinion has been interpreted in California the same way by the California Attorney General:
In Pitts v. Reagan (1971) 14 Cal. App. 3d 112, it was held that this provision (then of art. X, § 1 of the Constitution), meant “that the state may not let out [i.e., allow to be used, hire out, or permit] convict labor by contract to private employers regardless of whether the state or the convicts or both receive the attendant consideration.” (14 Cal. App. 3d at p. 118 (emhpasis [sic] added).) In that case the labor was arranged pursuant to contract between the employer and the state, not with the prisoner (id., at p. 116), and after reviewing the proceedings of the California Constitutional Convention of1878-1879, the court felt the “rather strong probability, that the delegates, or at least the majority, were concerned with the abolition of contracted convict labor generally. . . .” (Id., at pp. 118-119.)
63 Ops. Cal. Att’y Gen. No. 79-1016, at 33, 36 (1980) (second emphasis added). This accords with my interpretation.