(concurring).
“I have got to say, that’s a good no-call.” Phil Simms
CBS Sports Announcer
Super Bowl XLVII
February 3, 2013
I concur with the result reached by the court. When subjected to a facial challenge under Minnesota’s Constitution, the City of Red Wing’s rental inspection and licensing ordinance passes constitutional muster, but only by the skin of its teeth. What our court does today is make a “good no-call” on a close issue of constitutional law. This is the way it should be when we are rendering a decision on whether a legislative act is repugnant to our constitution.
The majority does an excellent job of explaining the reasons behind our traditional reluctance to declare a legislative act unconstitutional. This reluctance is especially appropriate when we are considering whether, on its face, a legislative act like the Licensing Inspections provision in the Rental Dwelling Licensing Code (RDLC) *526violates article I, section 10, of the Minnesota Constitution. Article I, section 10, prohibits unreasonable searches and seizures. Facial challenges like the one before us today are disfavored because they often rest on speculation, and thus require a showing that, when applied, the legislative or executive act being questioned will “ ‘always operate[ ] unconstitutionally.’ ” McCaughtry v. City of Red Wing, 808 N.W.2d 331, 339 (Minn.2011) (quoting Black’s Law Dictionary 261 (9th ed.2009)) (emphasis omitted). Operating within constitutional restraints grounded in the concept of the separation of powers, we must approach a constitutional challenge to the exercise of powers by one of the other two branches of government with restraint and with “much delicacy.” See Fletcher v. Peck, 10 U.S. 87, 6 Cranch 87, 128, 3 L.Ed. 162 (1810). We must “seldom, if ever ... in a doubtful case” hold that another branch of government has “transcended its powers” such that its acts are “to be considered as void.” Id.
Chief Justice John Marshall, the fourth Chief Justice of the United States Supreme Court, articulated this fundamental principle of constitutional law and judicial review more than two centuries ago when he said:
The question, whether a law be void for its repugnancy to the constitution, is at all times a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative, in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station, could it be unmindful of the solemn obligations which that station imposes. But it is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.
Id. Under this long-standing and firmly-established precedent, we are to exercise restraint when reviewing a legislative act to determine whether that act is repugnant to the constitution. Applying Chief Justice Marshall’s precedent from more than two centuries ago, I believe that our court has acted properly in deciding the ease before us today.
Notwithstanding my agreement with the result reached by the court, my concern regarding the validity of the City’s ordinance as applied to the citizens of Red Wing is the reason I write separately. The City’s ordinance survives a facial challenge because it contains a provision that, when a citizen of Red Wing withholds consent to an inspection under the ordinance, the City must seek permission “from a judicial officer through an administrative warrant” before the City can proceed with an inspection. Red Wing, Minn., City Code § 4.04, subd. 1(C)(9) (2012). Even though the ordinance does not require individualized suspicion before the City can make an inspection, there is nothing in the ordinance that prohibits a judicial officer — the district court — from requiring that the City establish this level of suspicion before a warrant is issued. Therefore, because a judicial officer may require individualized suspicion, I am able to agree that the ordinance is not unconstitutional in all of its applications and, thus, it survives this facial challenge.
But I also conclude that the city officials and judicial officers charged with providing oversight of the City’s use of administrative warrants must proceed in a diligent and exacting manner in order to avoid violating the rights of Red Wing’s citizens under both the federal and state constitutions. If the city officials and judicial offi*527cers do not proceed properly, the City runs a substantial risk of having its ordinance invalidated in an as-applied challenge.
My conclusion as to the vulnerability of the ordinance to an as-applied challenge is bolstered by the fact that, to date, the Goodhue County District Court has on three occasions rejected requests by the City for the issuance of an administrative warrant. On the one hand, this result is heartening because judicial oversight of the application of the City’s ordinance is not only required by the ordinance but is necessary for the ordinance to pass constitutional muster. Judicial oversight is critical because I conclude that the Minnesota Constitution prohibits the issuance of an administrative warrant to conduct a housing inspection unless there has been some showing of individualized suspicion of a housing code violation.
On the other hand, the oversight process employed thus far is disheartening because the district court denied the City’s administrative warrant applications by finding the requested warrants unreasonable under Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). This result is disheartening for two reasons. First, Camara is not the appropriate standard to apply because the Minnesota Constitution mandates a higher standard than the federal constitution as interpreted in Camara for allowing an inspection of an individual’s private residence. I do not believe that the standard articulated in Camara is sufficient in light of how we have applied the Minnesota Constitution. Camara attempts to define a difference between administrative warrants and a standard search warrant. Id. at 535-39, 87 S.Ct. 1727. The distinction articulated by the Court in Camara falls short of the rights guaranteed to Minnesotans by their constitution. Further, the level of suspicion in Camara is so imprecise that the Court essentially leaves it up to the City to decide the reasonableness of its own conduct. We have previously found a similar approach to be constitutionally deficient, meaning that such a standard is definitely a departure from what we require in Minnesota. See Ascher v. Comm’r of Pub. Safety, 519 N.W.2d 183, 186-87 (Minn.1994).
Second, the fact that the district court has on three occasions rejected the City’s request for an administrative warrant, even when the district court was employing a standard with a threshold lower than what the Minnesota Constitution requires, provides some hint as to the minimal legal threshold the City believes it must cross before invading a citizen’s home.1 Moreover, whatever proof has thus far been required, there is a real risk that such proof may not be uniformly required by a “judicial officer” in future instances.
On several occasions we have said that, in order to adequately protect the right of Minnesota citizens to be free from unreasonable searches and seizures, we are willing to look beyond the United States Su*528preme Court’s interpretation of the United States Constitution and look to article 1, section 10, of the Minnesota Constitution. The Minnesota Constitution provides' that:
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized.
Minn. Const, art. I, § 10. Despite language that we have said is “textually identical” to the Fourth Amendment, State v. Wiegand, 645 N.W.2d 125, 132 (Minn.2002); see also State v. Harris, 590 N.W.2d 90, 97 (Minn.1999), we have, when necessary, construed article I, section 10, to provide greater protection than the federal constitution, see State v. Carter, 697 N.W.2d 199, 210 (Minn.2005); Ascher, 519 N.W.2d at 187. But we have been careful when we have done so.
“We adhere to the general principle of favoring uniformity with the federal constitution,” and will “not independently apply our state constitution absent language, concerns, and traditions unique to Minnesota.” Kahn v. Griffin, 701 N.W.2d 815, 824-25 (Minn.2005). But we have also stated that the Supreme Court’s interpretation of a textually identical federal provision “is of inherently persuasive, although not necessarily compelling, force.” Id. at 826 (citation omitted). Thus, we will not reject the Court’s interpretation “merely because we want to bring about a different result,” id. at 824, nor will we depart based “on some slight implication and vague conjecture,” id. at 828.2
Under the Minnesota Constitution, a legislative act like the City’s ordinance cannot be used as an unfettered vehicle for the City to inspect a citizen’s home. A citizen’s private residence is the place where that citizen’s privacy interest is most heightened and our constitutional protections are at their greatest. See, e.g., State v. Carothers, 594 N.W.2d 897, 900 (Minn.1999) (“Minnesota has long adhered to the common law recognition of the home’s importance.... ”); accord Payton v. New York, 445 U.S. 573, 587, 596-97, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (“Freedom from intrusion into the home or dwelling is the archetype of the privacy protection secured by the Fourth Amendment,” and “the freedom of one’s house was one of the most vital elements of English liberty”) (citations omitted) (internal quotation marks omitted). We have explicitly acknowledged the historical roots of these rights when we said that “a man’s home is his castle.” State v. Casino Mktg. Grp., Inc., 491 N.W.2d 882, 888 (Minn.1992) (citation omitted) (internal quotation marks omitted). Further, it is axiomatic that Minnesota law requires searches to be supported by individualized suspicion. See State v. Henning, 666 N.W.2d 379, 385 (Minn.2003) (noting the “general requirement of individualized suspicion”).
Minnesota has a proud tradition of applying its constitution more broadly than the United States Constitution when acting to protect the privacy interests of its citizens. We do so by requiring a high standard before the government can conduct warrantless searches. In the context *529of the case before us, this tradition can best be defined by three of our leading cases: Ascher, 519 N.W.2d 183; State v. Larsen, 650 N.W.2d 144 (Minn.2002); and Carter, 697 N.W.2d 199.
Ascher involved the use of a temporary roadblock to stop cars to investigate for drunk driving. 519 N.W.2d at 184. Although the roadblock procedure used by the police was challenged under both the federal and state constitutions, the federal claim was foreclosed by the Supreme Court’s decision in Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990). We declined to follow Sitz and instead looked to the Minnesota Constitution for guidance. Although we did not disagree with the Supreme Court’s balancing test in Sitz, we took issue with the Court’s “ ‘radical’ departure from the way the test has been and should be applied, with the result that for Fourth Amendment purposes police, in effect, are allowed to decide the reasonableness of their own conduct.” Ascher, 519 N.W.2d at 186 (footnote omitted). We also questioned the Court’s apparent conclusion that “as long as stops are not discriminatory — that is, as long as everyone is stopped — stops need not be based on individualized suspicion.” Id. Based primarily on the State’s failure to show that there was individualized suspicion, we held that the use of such roadblocks “violates Minn. Const, art. I, § 10, which we have long held generally requires the police to have an objective individualized articula-ble suspicion of criminal wrongdoing before subjecting a driver to an investigative stop.” Id. at 187 (first emphasis added).
In Larsen, we held that a conservation officer’s warrantless and suspicionless entry into an ice-fishing house was unreasonable under both the federal and state constitutions. 650 N.W.2d at 153-54. As in Ascher, we balanced privacy interests against the gravity of public concerns and the extent to which the police conduct advanced the public interest. Id. at 148-49. We emphasized the privacy interest in an ice-fishing house, noting its similarity to a home. We concluded that this privacy interest was “at least as great as that of the motor vehicle occupants in Ascher.” Id. at 150. Although we acknowledged that the State “clearly has a strong interest in regulating and protecting its wildlife,” that interest was “surely no greater” than the interest in protecting human lives by deterring drunk driving in Ascher, and could not outweigh an individual’s privacy interest in the ice-fishing house. Id. at 150, 153. Accordingly, we held that the constitutional balance weighed in favor of the individual, and a conservation officer’s warrantless entry was thus “per se unreasonable” under both the state and federal constitutions. Id. at 154.
Finally, in Carter, we considered whether the police’s use of a drug-detection dog outside of a fenced self-storage unit violated either the federal or state constitutions. 697 N.W.2d at 202. We concluded that a warrantless dog sniff outside of a storage unit does not require any suspicion to justify it under the federal constitution. Id. at 209. But we then concluded that a person’s expectation of privacy in a storage unit is greater under the Minnesota Constitution than it is under the federal constitution. Id. at 210-11. We relied on the fact that the storage unit was comparable to a garage, was a fixed location used to store personal effects, and was large enough to contain numerous possessions and even to conduct some personal activities. Id. at 210-11. We held that we must apply the standard of reasonable articula-ble suspicion in order to strike the proper balance between the privacy interests and the public interest in effective criminal investigations. Id. at 211-12.
*530Given that the home is universally considered to be the most private and protected space for citizens, these are important constitutional principles that we can and must take away from our case law that relate to the sanctity of the home. Indeed, our court has been willing to extend protections under the Minnesota Constitution that are stronger than those in the United States. Constitution even in situations outside of the home, where citizens’ privacy interests are less heightened — including traffic stops {Ascher), dog sniff searches of a storage unit (Carter), and an ice-fishing house (Larsen). While nothing in our case law suggests that the right to privacy in the home is absolute or that the level of reasonable suspicion or official governmental justification required by the constitution is inflexible, our case law does indicate that it is a right that we must treat with great respect — even reverence. Our cases also reflect the principle that the overarching requirement of the Minnesota Constitution, like the federal constitution, is reasonableness. See State v. Davis, 732 N.W.2d 173, 178 (Minn.2007). We do not apply “a mechanical interpretation” of the constitution, and “what constitutes an unreasonable search must be assessed based on the facts of each particular case.” Id.
When and if our court is faced with making a determination as to the ultimate constitutionality of the City’s inspection ordinance as applied, we will proceed under the overarching principle of reasonableness but also in light of our prior cases that demonstrate the broad constitutional protections Minnesotans have under their constitution. There will also understandably be additional fact issues facing us and we will need to consider those facts if and when they arise and are presented to us. Nevertheless, our prior case law and the broader protections provided by the Minnesota Constitution lead me to conclude, at least at this point, that some level of individualized suspicion will be required before the administrative warrants are issued. If individualized suspicion is not required, the warrants may violate a citizen’s rights under the Minnesota Constitution. If the City of Red Wing continues to pursue, or in the future judicial officers grant, administrative warrants under the ordinance without some reasonable individualized suspicion, then an as-applied challenge to the ordinance should succeed.
A final observation is in order before I end this concurrence. There are several commentators who describe the role of the judiciary in our separation of powers system of government as being similar to the role of an umpire calling balls and strikes or a referee calling fouls. See Thomas B. Colby, In Defense of Judicial Empathy, 96 Minn. L.Rev.1944, 1947 & n. 7 (2012) (citing Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 55 (2005)). I always wince a bit when I hear this description because I do not believe that it provides an accurate description of the judiciary’s role as a coequal branch of government. That said, the place where the foregoing description comes closest to being an apt metaphor is when courts like ours interpret and apply the constitution to the acts of the other two branches of government. Issues like the one we address today are among the most important types of issues we address as a supreme court — the constitutional validity of an act done by one of the other two branches of government.
As a court of last resort we are frequently asked to determine if one branch of government has trespassed on the territory of the other, see, e.g., Brayton v. Pawlenty, 781 N.W.2d 357 (Minn.2010) (considering constitutionality of unallotment by the Governor), or whether anoth*531er branch has exceeded the limited powers granted to it by the people in the constitution — for instance in Ascher, 519 N.W.2d 183, Carter, 697 N.W.2d 199, and Larsen, 650 N.W.2d 144. As previously noted, when deciding such cases, the judiciary must exercise its power with restraint and with “much delicacy.” Fletcher, 6 Cranch at 87. The issue in these cases most often comes down to what is too much restraint and what is too little.
Like a referee who calls a game too closely — calls too many fouls — if courts too readily hold the act of another branch of government to violate the constitution, judicial decisions can disrupt the nature, substance, and the end result of the delicately balanced decision-making process in our democracy. On the other hand, if courts are too lax or benign — call the game too loosely — the democratic process, much like an athletic game, can become excessively physical, uncalled fouls will occur, and people will get hurt.3 If the Supreme Court or our court is unmindful of its solemn obligation to hold as void a law that is repugnant to the constitution, it will have failed in its duty “to guard the Constitution and the rights of individuals from the effects of ill humors” that sometimes arise in our democratic society. The Federalist No. 78 (Alexander Hamilton).
While decisions like the one we make today rank among the most important and difficult decisions we make, we do have some helpful guidelines for making them. Chief Justice John Marshall gave us such guidance when he said: “The opposition between the constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.” Fletcher, 10 U.S. at 128. Here, even though I have significant concerns as to how the City’s ordinance will ultimately be applied to the citizens of Red Wing, I agree with the result reached by the majority. When examining this facial challenge to the City’s ordinance, I am not left with a clear and strong conviction that the ordinance is incompatible with the Minnesota Constitution in all of its applications. Therefore, even though there are significant problems with the City’s ordinance, “I have got to say, that’s a good no-call”4 we are making today.
. The City’s argument in its brief and at oral argument did little to assuage my concerns about how the City plans to enforce its ordinances. As appellants pointed out, the City may well have overstated the extent of its housing problem and how difficult it is to detect problems. In addition, the scope of the inspections allowed under the ordinance is ill-defined, as are the limitations on both the nature of the search and how the information from it is shared. There is only the language in the Code itself wherein there are no apparent policies on what and when information may be shared — or even under what circumstances an inspector can open cabinets and closets. Further, the extent to which law enforcement may gain access on the City’s intranét to information from or relating to a search is also not clearly defined.
. But we have also explicitly described the criteria we will use when we apply the Minnesota Constitution beyond the scope of the federal constitution. See Rickert v. State, 795 N.W.2d 236, 247 (Minn.2011) (outlining criteria); see generally Paul H. Anderson & Julie A. Oseid, A Decision Tree Takes Root in the Land of 10,000 Lakes: Minnesota’s Approach to Protecting Individual Rights Under Both the United States and Minnesota Constitutions, 70 Alb. L.Rev. 865 (2007).
. See e.g. Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010) (invalidating restrictions on political expenditures by corporations and labor unions on the ground that such restrictions violate the First Amendment); Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905) (invalidating a New York regulation limiting the hours of laborers in bakeries to ten hours per day or sixty hours per week by utilizing the theories of social Darwinism and laissez-faire economics to formulate policy rather than interpret the law).
. During Super Bowl XLVII, CBS sports announcer and former NFL quarterback Phil Simms exclaimed, "I have got to say, that’s a good no-call” after the referees made a controversial "no-call” during the final two minutes of the game. With the Baltimore Ravens leading the San Francisco 49ers, Ravens’ cor-nerback Jimmy Smith and 49ers' wide receiver Michael Crabtree came into physical contact in the Ravens' end zone during a fourth-down play that started at the Ravens’ five yard line. If Smith committed a foul during the play, the 49ers would maintain possession of the ball and would have four more downs to try to score. Many observers claim that when Smith put his hands on Crabtree he committed pass interference, while others claim that there was as much or more physical contact initiated by Crabtree and that, regardless of the physical contact, the pass was not catchable. In any case, on this key play, with the result of the game hanging in the balance, the referees did not call a penalty, the pass was ruled incomplete, the 49ers’ *532drive ended, and the Ravens won Super Bowl XLVII. The play and the referees’ controversial "no-call” illustrate how the approach taken by a referee, or a court, in deciding whether to call a foul on a close play at a critical time, or whether to make a "no-call” can have a dramatic impact on the tone and outcome of a game — or how the law is construed and applied in our democratic society.