State Constitutions

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The final quarter of the twentieth century brought a resurgence of interest in state constitutions, as lawyers, law professors, and, most famously, U.S. Supreme Court Justice William J. Brennan called attention to the ways in which state courts could engage in independent interpretation of state constitutional provisions. During a time when the Burger and Rehnquist Courts generally proved less eager than the Warren Court to issue expansive interpretations of federal bill of rights provisions, a number of state supreme court judges concluded that their state bills of rights offered a vehicle for providing heightened protection for individual rights. Noteworthy as this phenomenon of independent state court interpretation of state bills of rights has been, it is important not to lose sight of several other ways in which state constitutions have figured prominently in the federal system, whether by addressing issues that are not dealt with in the federal Constitution, experimenting with governing institutions that are distinct from the federal approach, or undertaking innovations that were later proposed and occasionally adopted at the federal level.

DEVELOPMENT

Although the U.S. Constitution has been amended only twenty-seven times since the federal Convention of 1787, the state constitutions have been the subject of periodic revision and regular amendment. All told, there have been 145 state constitutions, over 230 state constitutional conventions, and more than 6,000 amendments to the current state constitutions. To be sure, some state constitutions have proved to be more malleable than others. The Massachusetts Constitution, for instance, has remained in effect since it was adopted in 1780 (though it has been amended 120 times). At the other extreme, Louisianans has been governed by eleven constitutions since 1812. In general, though, it can fairly be said that state constitutions have changed more frequently than the federal Constitution, and that these changes have generally taken place through formal processes of amendment and revision rather than through judicial interpretation and construction, as with the federal Constitution.

The frequency of constitutional change at the state level is due to several factors. In part, this can be attributed to the fact that state constitution makers have been influenced by Thomas Jefferson’s belief that the “earth belongs always to the living generation,” and this has led them to design more flexible amendment and revision processes. A number of states permit amendments to be proposed by a majority of legislators (though in some cases by a supermajority, and in a number of cases, in consecutive sessions) and ratified by a majority of voters. Conventions can also be called more easily than in the federal system, and in fact a number of states go so far as to permit the people to have an opportunity to vote at regular intervals on whether a convention shall be held. Other states go even further and authorize the people to initiate and approve constitutional amendments independently of the legislature.

State constitutional change has also been more frequent because states have been responsible for dealing with the vast majority of policy areas and problems of governance during the course of American history, and state constitution makers have been led to revise their foundational documents in response to issues and concerns that have arisen during this time. Along these lines, the original state constitutions, which were adopted in the 1770s and 1780s prior to the drafting of the federal Constitution, were the subject of widespread revision during the Jacksonian era, as state constitution makers sought to limit legislative excesses and permit the people to play a more direct role in governance. The 1860s brought significant changes to southern constitutions in particular, as a number of states departed and then later rejoined the Union, albeit with different constitutional provisions regarding citizenship and the relationship between the state and federal governments. The Progressive era was the occasion for another round of constitutional revision, as state convention delegates across the country sought to reduce the power of railroads and corporate interests in the political process. Finally, a number of state constitutions were revised in the 1960s, both in order to make wholesale changes in legislative districting processes in response to the U.S. Supreme Court’s reapportionment decisions and for the purpose of modernizing various governing institutions.

Although state constitutions continued to undergo changes in the final two decades of the twentieth century, with a particular focus on issues such as adopting legislative term limits and enacting tax and budget restrictions, these changes were somewhat less frequent than in previous years and took place in a different fashion. Whereas constitutional conventions were called quite frequently during the nineteenth century and with some regularity throughout much of the twentieth century, only three conventions were held throughout the 1980s and 1990s. In part, this reflects the growing reluctance on the part of the people to trust conventions, and the interest groups that would inevitably seek to influence the assembled delegates, with the business of making changes to their foundational documents. This is also due to a greater reliance on constitutional revision commissions to propose amendments, as well as an increased willingness on the part of the people to generate amendments through the constitutional initiative process. To some extent, it is also a by-product of the increasing nationalization of American politics, as citizens have begun to focus most of their attention on the U.S. government, rather than on state governments.

GOVERNMENTAL INSTITUTIONS

These periodic instances of amendment and revision have provided frequent opportunities for the redesign of governing institutions. For the most part, state constitution makers have been content to follow the federal model in regard to the broad outlines of the separation of powers system. None of the states has adopted a parliamentary system, for instance. All states now provide for a gubernatorial veto and recognize the power of judicial review. And, after a period in the late eighteenth century when three states experimented for various periods with a unicameral system, all of the states but Nebraska now operate a bicameral legislature. In several other respects, though, state constitution makers have departed from the institutional arrangements in place at the federal level.

In regard to the legislative branch, state constitutions contain many more limitations on the process and substance of legislation than are found in the federal Constitution. During the course of the nineteenth century, state constitution makers sought to ensure that the legislative process was sufficiently public, deliberative, and general by requiring that bills be read three times, that they contain a single subject that is described accurately in the title, and that they not pertain to particular cases or areas of the state, among other restrictions. At the same time, because state governments possess plenary, rather than limited, powers, state constitution makers were also led to prohibit legislatures from taking any action in certain areas, especially in regard to loaning credit or authorizing debt.

The executive branch has undergone a number of changes throughout the course of state constitution making. At first, those responsible for drafting state constitutions sought to prevent any possibility of executive tyranny by creating an executive office that was much weaker than its federal counterpart, especially insofar as the governor was frequently selected by the legislature and constrained by an executive council. In the nineteenth century, though, state constitution makers began to model the office of the governor more along the lines of the president, and by the turn of the twentieth century, they were intent on endowing governors with even more powers than the president, so as to better check legislatures that were thought to be responsive to particular interests. As a result, a number of governors were given added responsibilities with regard to presenting and reviewing budgets, and the vast majority of governors were granted the power to veto particular items in appropriations bills.

The judiciary has been the subject of a significant amount of state constitutional experimentation, especially in regard to the length of tenure and mode of selection. A few state constitutions do adhere to the federal model by granting judges life tenure, and a number of states follow the federal system in providing for judges to be nominated by the governor and confirmed by one or both houses of the legislature. The vast majority of state constitutions, however, provide for a fixed term of office for judges and make use of an alternative selection system. Mid-nineteenth-century state constitution makers were particularly enamored of popular election of judges, and this is still in effect in many state constitutions, whether in the form of partisan or nonpartisan elections. Beginning in the twentieth century, state constitution makers were increasingly drawn to some version of a merit selection plan, whereby the governor appoints a judge from a list of candidates submitted by a nominating commission, and then the public decides after the first term of office whether to retain the judge for an additional term. Still another group of states has chosen to vest the power of judicial selection solely in the legislature.

In addition, unlike the federal Constitution, which does not permit the people to play any direct role in governance, state constitutions provide a number of opportunities for direct citizen participation. Many states require popular approval before the legislature takes certain actions, such as in regard to authorizing debt. A number of states permit the legislature to submit measures to the people for their approval. Just over half of the states have gone so far as to provide for the popular initiative and/or referendum, by which the people can initiate and approve measures independently of the legislature or force a popular vote on measures that have already been enacted by the legislature. Still another set of state constitutions provides for the popular recall, by which the people can force a vote on the removal from office of executive officials, legislators, and, in some cases, judges.

INDIVIDUAL RIGHTS

As mentioned, several state bills of rights were drafted over a decade before the U.S. Bill of Rights and exerted a significant influence on the drafting of the federal document, and so it is to be expected that many of the provisions in state bills of rights are similar to the corresponding federal guarantees. At the same time, there are several distinctive features of the rights guarantees that have been added to state constitutions through the years.

In general, state bills of rights, while following the broad outlines of federal guarantees such as free speech, religious liberty, and search and seizure protection, contain more detailed treatment of these issues, provide stricter limits on governmental power in several areas, and reflect modern developments in certain respects. For instance, a number of state free speech clauses go beyond merely guaranteeing free expression, as in the federal bill of rights, by also providing that truth shall be a defense in libel cases. In addition, many state religious-establishment guarantees are much stricter than the federal provision, insofar as they explicitly prevent public funds from being appropriated for the benefit of any religious group. Meanwhile, several state search and seizure guarantees have been amended to take account of technological advances, by declaring that the people shall not be subject to unreasonable forms of electronic surveillance.

State bills of rights also include a variety of guarantees that are in keeping with the spirit of the federal Bill of Rights, insofar as they prevent the government from acting to infringe individual liberty, but that have no precise counterpart in the U.S. Constitution. For instance, many states have adopted equal rights amendments that prohibit discrimination on the basis of sex. Over half of the states have enacted victims’ rights amendments of some form, in an effort to ensure that victims are able to attend and participate in relevant judicial proceedings. In addition, several states have adopted provisions that are explicit in establishing a right to privacy. Finally, a few states have enacted a taxpayers’ rights provision.

The twentieth century saw the enactment of a number of state provisions that are different in kind from the federal Constitution, in that they commit the government to provide for the social, economic, or environmental health of the citizenry. Along these lines, several state bills of rights protect the rights of workers to organize and engage in collective bargaining. On the other hand, another group of states guarantees a “right to work,” thereby limiting the power of unions. Still other states have gone farther and directed the legislature to provide for the health and welfare of the citizenry. Another group of state constitutions declares that the people have a right to a clean and healthful environment.

Since the 1970s, state supreme courts have begun increasingly to interpret these and other provisions in state bills of rights in such a way as to provide greater protection for individual liberty than is available through federal court interpretations of the federal bill of rights. Whereas the U.S. Supreme Court has determined that inter-district inequalities in school financing do not violate any federal constitutional guarantees, a number of state supreme courts have invoked various state constitutional provisions in order to invalidate their states’ school financing systems. And though the U.S. Supreme Court eventually concluded that the death penalty did not violate the Cruel and Unusual Punishment Clause in the federal Bill of Rights, several state supreme courts ruled that the death penalty does run afoul of similar clauses in state bills of rights. Decisions of this kind have also been handed down by state supreme courts in the area of search and seizure law, particularly in response to a U.S. Supreme Court ruling that permitted a good faith exception to the exclusionary rule. Similar sorts of state court decisions have also recognized rights in regard to gay marriage, marijuana possession, and the viewing of obscene material.

Of course, these state supreme court decisions have not always stood the test of time. In cases where state judges fail to make it clear that their opinions rest on “adequate and independent state grounds,” the U.S. Supreme Court reserves the right to review the ruling to ensure that it does not rest on a mistaken interpretation of federal constitutional law. In addition, in light of the flexibility of state constitutional amendment processes, several of these state court decisions have been effectively overturned by constitutional amendments that either require state courts to follow the federal courts’ interpretation of a given clause or simply prevent state courts from adhering to a particular interpretation of the state bill of rights. To the extent, though, that state court judgments are grounded solely in interpretations of state constitutional law, and insofar as they are undisturbed by subsequent state constitutional amendments, state courts are free to provide heightened protection for individual rights and will likely continue to do so in the twenty-first century. As a result, state supreme courts will be contributing in their own way to the continuing vitality of state constitutions, albeit in a different fashion than state constitutional conventions in previous years as well as constitutional revision commissions and constitutional initiatives in the contemporary era.

BIBLIOGRAPHY: William J. Brennan Jr., “State Constitutions and the Protection of Individual Rights,” Harvard Law Review 90 (January 1977): 489–504; Daniel J. Elazar, “The Principles and Traditions Underlying American State Constitutions,” Publius: The Journal of Federalism 12 (Winter 1982): 11–25; John Kincaid, “State Constitutions in the Federal System,” Annals of the American Academy of Political and Social Science 496 (March 1988): 12–22; Donald S. Lutz, “The Purposes of American State Constitutions,” Publius: The Journal of Federalism 12 (Winter 1982): 27–44; Robert L. Maddex, State Constitutions of the United States (Washington, DC: Congressional Quarterly, 1998); and G. Alan Tarr, Understanding State Constitutions (Princeton, NJ: Princeton University Press, 1998).

John J. Dinan

SEE ALSO: Brennan, William; Michigan v. Long; New Judicial Federalism; State Constitutional Law; State Courts