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 institutional arrangements that differ from the federal approach, or undertaking innovations that were later proposed and occasionally adopted at the federal level.
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 144 state constitutions, over 230 state constitutional conventions, and more than 7,000 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 in part attributable to flexible amendment and revision processes whose design was influenced in part by Thomas Jefferson’s belief that the “earth belongs always to the living generation.” 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. State constitutional conventions can also be called more easily than at the federal level, and in fact a number of states permit the people to vote at regular intervals on whether a convention shall be held to revise the state constitution. Some states authorize the people to initiate and approve constitutional amendments independently of the legislature.
State constitutional change has also been undertaken at a brisk pace 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. The original state constitutions, which were adopted in the 1770's and 1780's 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 1860's 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. A number of state constitutions were also revised in the 1960's, 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 have continued to undergo changes in the final decades of the twentieth century and the early twenty-first century, recent changes have taken place in a different fashion than in prior years. Whereas constitutional conventions were called frequently during the nineteenth century and with some regularity throughout much of the twentieth century, not a single full-scale convention has been held since Rhode Island’s 1986 convention. 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, to make 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 go along with a continued reliance on legislature-generated amendments. To some extent, the decline of state constitutional conventions 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.
These periodic instances of amendment and revision have provided frequent opportunities to alter the design of state 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 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 nineteenth century, state constitution makers adopted provisions regulating the process of lawmaking, by requiring that bills be read three times and contain a single subject that is described accurately in the title and apply state-wide and not be tailored to certain localities. Additionally, because state governments possess plenary, rather than limited, powers, state constitution makers often barred legislatures from acting in areas where they were deemed incapable of acting responsibly, leading to prohibitions on operating lotteries, investing in private corporations, loaning the credit of the state, and authorizing excessive 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. 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. A number of governors were given added responsibilities to present and review budgets and 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 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 some sort of alternative selection system. Two states retain their founding-era practice of vesting judicial selection solely in the legislature. Mid-nineteenth-century state constitution makers were particularly enamored of popular election of judges, and this method 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 and each subsequent term whether to retain the judge for an additional term. 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 authorizing debt. 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. One-third of the state constitutions provide 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.
As mentioned, several state bills of rights were drafted over a decade before adoption of 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 provisions in state bills of rights are similar to the corresponding federal guarantees. At the same time, state bills of rights contain a number of distinctive guarantees.
In some cases, such as regarding religious liberty, the right to keep and bear arms, and search and seizure protection, state bills of rights contain more detailed treatment, provide stricter limits on governmental power, or reflect modern developments. For instance, many state religious-establishment guarantees are much stricter than the federal provision, in that they explicitly prevent public funds from being appropriated for the direct or indirect benefit of religious schools or other institutions. A number of state right-to-keep-and-bear-arms clauses are more detailed and expansive than the federal guarantee, often by making clear that the right is an individual and not a collective right and is not tethered only to militia service. 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 guarantees with no precise counterpart in the U.S. Constitution. Just under half of the states have adopted equal rights amendments that explicitly prohibit discrimination on the basis of sex. Two-thirds of the states have enacted victims’ rights amendments. Ten states have adopted provisions that are explicit in establishing a right to privacy. More than twenty state constitutions contain provisions guaranteeing a right to hunt and fish.
Other state constitutional provisions 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 state constitutions direct 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 1970's, state supreme courts have begun increasingly to interpret these and other provisions in state bills of rights 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 determined that inter-district inequalities in school financing do not violate any federal constitutional guarantees, a number of state supreme courts have invoked state constitutional provisions in the course of invalidating their states’ school financing systems. Although the U.S. Supreme Court has declined to hold that the death penalty per se violates the Cruel and Unusual Punishment Clause in the federal Bill of Rights, several state supreme courts have relied on their state bills of rights to bar capital punishment altogether. Occasionally, state courts have interpreted state religion clauses to prohibit school-voucher programs, even though the U.S. Supreme Court has indicated that these programs do not run afoul of the religious liberty guarantees in the U.S. Constitution. State courts also began interpreting their state bills of rights as requiring recognition of same-sex civil unions (as in Vermont) and same-sex marriage (as in Massachusetts), more than a decade before the U.S. Supreme Court eventually recognized such a right on federal constitutional grounds.
These state supreme court decisions have not always stood the test of time. In cases where state judges fail to rest their opinions 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, state court decisions can be effectively overturned by state 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. In this way, state supreme courts contribute in their own way to the continuing vitality of state constitutions in the contemporary era.
William J. Brennan Jr., “State Constitutions and the Protection of Individual Rights,” Harvard Law Review 90 (January 1977): 489–504; John J. Dinan, The American State Constitutional Tradition (Lawrence: University Press of Kansas, 2006); Sanford Levinson, Framed: America’s 51 Constitutions and the Crisis of Governance (New York: Oxford University Press, 2012); G. Alan Tarr, Understanding State Constitutions (Princeton, NJ: Princeton University Press, 1998); G. Alan Tarr and Robert F. Williams, eds., State Constitutions for the Twenty-first Century, Volume 3: The Agenda of State Constitutional Reform (Albany: State University of New York Press, 2006); Robert F. Williams, The Law of American State Constitutions (New York: Oxford University Press, 2009); Emily Zackin, Looking for Rights in All the Wrong Places: Why State Constitutions Contain America’s Positive Rights (Princeton, NJ: Princeton University Press, 2013).
John J. Dinan
Last Updated: December 2017