CONSEQUENCES OF STATE CONSTITUTIONAL VITALITY FOR AMERICAN POLITICAL DEVELOPMENT
In assessing the consequences of the vitality of state constitutionalism in the United States, it is helpful to consider two effects. First, the flexibility, length, and detail of state constitutions has affected state politics by empowering groups blocked or frustrated by ordinary state political processes.
Second, the flexibility of state constitutional amendment processes, together with the willingness of state courts to independently interpret state constitutions, has affected the federal system by empowering groups blocked or frustrated by federal governmental processes. In both cases, one can identify – and scholars have identified – disadvantages associated with the vitality of state constitutionalism. However, these disadvantages need to be balanced against, and can be seen as largely outweighed by, various benefits.In state politics, groups that have been unable to achieve their goals in ordinary state political process have clearly been advantaged by the flexibility of state amendment processes and by a Jeffersonian understanding that encourages frequent resort to these processes. In fact, it has become progressively easier for groups to resort to state amendment processes, owing to the introduction of the constitutional-initiative procedure in one-third of the states. State constitutional change is now driven not only by broad-based movements acting in conventions, as was often the case in the nineteenth century, but increasingly by groups that can place an issue on the constitutional agenda merely by securing signatures on an initiative petition. Because there is little stigma attached to frequent use of state amendment processes, groups have frequently resorted to these processes to correct what they view as deficiencies in the operation of ordinary state politics.
On one hand, the consequences of this easy availability and frequent resort to state constitutional amendment processes might be viewed as problematic.
Michael Colantuono, for instance, has commented that “[e] stablishing simple and expedient procedures for change, threatens basic values of American constitutionalism.”30 And Kermit Hall has expressed concern that “[p] opulist and majoritarian impulses in the states produced documents of ever greater length that were more like codes than fundamental laws.”31 From this vantage point, the length and detail of these state documents indicates that it has been too easy for groups to entrench their policy views through constitutional processes. On this view, many issues addressed in a constitutional fashion would have been better addressed in the political process, whether because they are essentially statutory or because they need the sorts of frequent adjustments easily made in the political process. One need only look to a failed cigarette tax-increase amendment in Oregon in 2007 for a recent illustration and validation of this concern. Supporters of raising the state cigarette tax and using the revenue to fund an uninsured children’s health program found that they needed more legislative votes to enact a tax hike as a statutory change (a 60 percent legislative vote requirement) than to refer the measure to the people as a constitutional change (a 50 percent legislative vote requirement), and so that is the path they followed, only to see the measure defeated at the polls.32 Insofar as groups advocating for policy change of this sort have seen their efforts diverted into constitutional channels, it would be hard to deny that the consequences are detrimental for state politics.This disadvantage would have to be balanced, however, against the benefits of permitting groups to overcome blockages and deficiencies in ordinary state political processes. At times, state constitutional processes have been a means of securing reforms that entrenched interests had succeeded in blocking in state legislatures. Such was the case when residents of growing piedmont regions secured more equitable legislative apportionments through conventions in the 1820s and 1830s and when the California Convention of 1878–79 required an eight-hour day on public works.
At other times, state constitutional processes permitted enactment of reforms blocked by intransigent state judges, as when the New York Constitution was amended in 1913 to authorize a workers’ compensation program in response to a contrary state court ruling. At still other times, state constitutional processes have been a means of adopting reforms that constrain political officials from taking short-sighted and potentially self-interested actions, as with the adoption of balanced budget requirements in thirty-six state constitutions.The main effect for the federal system has been that groups who are otherwise unable to achieve their goals through federal governmental processes have been advantaged by the flexibility of state constitutional processes and the willingness of state courts to interpret state constitutions independently. In some instances, groups first sought to achieve their goals at the federal level, including through federal constitutional processes, but were blocked at that level and only then turned to state constitutional processes. This was the case, for instance, with efforts to secure court decisions protecting rights of criminal defendants in the 1970s. In other instances, groups pressed their case at both the federal and the state levels but had quicker success through state constitutional processes, as with adoption of women’s suffrage in the late 1800s. In still other instances, groups did little to press their case at the federal level; rather, they sought to achieve their goals primarily through state constitutional processes, as with the elimination of property and tax-paying suffrage requirements in the early 1800s and the legalization of same-sex marriage in some states in the early 2000s.
From one perspective at least, this state of affairs might be seen as suboptimal. Edward Rubin and Malcolm Feeley have presented the clearest and starkest form of this argument in their article “Federalism: Some Notes on a National Neurosis,” where they contend that it makes most sense to view the United States as “a single, functioning nation, and that it generally defines good policy through a national decision-making process.”33 Although they see some virtues in a system of decentralization, Rubin and Feeley discern little value in maintaining a truly federal system.
Against contrary claims that there might be some value in permitting state variation and that this might in fact lead to profitable experimentation, Rubin and Feeley respond that “very few people argue that normative variation within a polity is inherently desirable,” and, moreover, that arguments from experimentation have “the odd effect of consigning some people to bad policies so that others may benefit from good ones.”34 To take a recent illustration that might support this view, one can well understand why some scholars and citizens might be troubled by a system that permits same-sex marriage to be legalized through state court interpretation of state constitutional provisions in certain states but not others. Other examples could be adduced from previous eras to further illustrate critics’ concerns along these lines. Critics might well inquire, for instance, how one can countenance the fact that women were given the right to vote through constitutional amendments in some states in the late nineteenth and early twentieth centuries but not in other states, before passage of a federal amendment.From another perspective, though, one might conclude that these concerns about a lack of uniformity owing to the vitality of state constitutionalism are outweighed by the advantages. Thus, it might in fact be possible, contra Rubin and Feeley, to view normative variation in a polity as inherently desirable, especially if it permits a better fit between diverse state political cultures and their public policies and governmental institutions. For instance, the ability of a number of state courts to interpret their state constitutions as permitting a good-faith exception to the exclusionary rule while other state courts chose not to provide this exception could well be seen as a virtue of the US federal system, in that this came closer to approximating the optimal policy preferences of the various states than would have been provided by a uniform national policy.
The same could be said of the fact that citizens in almost half the states have relied on their state constitutional amendment processes to establish the popular initiative and/or referendum, whereas the other half of the states opted against adopting these reforms.Second, and also in response to critics’ concerns, one might well appreciate the virtues of permitting state constitutional experimentation without necessarily concluding that such a system consigns some people to bad policies so others can enjoy good ones. For instance, one might view state constitutional experimentation as advantageous because it permits good policies to be adopted for more people more quickly than if the only possible means of adopting such policies was through federal constitutional processes. One might view the adoption of women’s suffrage in this way. Precisely because western states were initially able to grant women the right to vote and the experiment was deemed a success and then adopted at the federal level, more women were able to vote more quickly than if they had been forced to wait until a consensus had been obtained in favor of federal action and if there had not been a testing ground for dispelling critics’ fears about this innovation. Nor are the benefits of state constitutional experimentation confined to cases where state innovations are deemed successful and later adopted through federal constitutional processes. State constitutional experimentation can be just as valuable when it leads to rejection of a failed state innovation, as when Colorado amended its constitution to permit popular recall of judicial decisions, but this reform was not adopted in any other state constitution or in the federal Constitution. Better to have a chance for this reform to be tested and shown wanting in a single state, one might conclude, than for it to have been adopted as a federal amendment and imposed on the entire country.
In conclusion, although the prominence and vitality of state constitutionalism in the United States might be seen by some scholars as problematic, these disadvantages should be balanced against and can be seen as outweighed by the benefits associated with such an arrangement, both for state politics and for the federal system.
1 This concept of subnational constitutional space is developed by Robert F. Williams and G. Alan Tarr, “Subnational Constitutional Space: A View from the States, Provinces, Regions, Länder, and Cantons,” in G. Alan Tarr, Robert F. Williams, and Josef Marko, Federalism, Subnational Constitutions, and Minority Rights (Westport, CT; Praeger, 2004), 3–24.
2 John Dinan, “State Constitutional Developments in 2009,” in The Book of the States, 2010, vol. 42 (Lexington, KY: Council of State Governments 2009), 11.
3 G. Alan Tarr, Understanding State Constitutions (Princeton, NJ: Princeton University Press 1998), 20–3.
4 Federalist No. 49.
5 David E. Kyvig, Explicit and Authentic Acts: Amending the U. S. Constitution, 1787–1995 (Lawrence: University Press of Kansas 1996).
6 The Jeffersonian view is set out in his “Letter to James Madison,” (6 September 1789), in Merrill D. Peterson, ed., The Portable Thomas Jefferson (New York: Penguin Books 1975), 444–51, and his “Letter to Samuel Kercheval,” (12 July 1816), ibid., 552–61.
7 John J. Dinan, The American State Constitutional Tradition (Lawrence: University Press of Kansas 2006), chap. 2.
8 See Gerald Benjamin, “Constitutional Amendment and Revision,” in G. Alan Tarr and Robert F. Williams, eds., State Constitutions for the Twenty-first Century, vol. 3: The Agenda of State Constitutional Reform (Albany, SUNY Press 2006), chap. 7; G. Alan Tarr and Robert F. Williams, “Getting from Here to There: Twenty-first Century Mechanisms and Opportunities in State Constitutional Change,” Rutgers Law Journal 36 (summer 2005), 1075–1124.
9 Dinan, “State Constitutional Developments in 2009,” 11.
10 Kathleen M. Sullivan, “Constitutional Amendmentitis,” The American Prospect, 21 September 1995.
11 Michigan v. Long, 463 U. S. 102 (1983).
12 This initial period of state constitution-making is analyzed in, among other works, Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era (Chapel Hill: University of North Carolina Press 1980); Donald S. Lutz, Popular Consent and Popular Control: Whig Political Theory in the Early State Constitutions (Baton Rouge: Louisiana State University Press 1980); Marc W. Kruman, Between Authority and Liberty: State Constitution Making in Revolutionary America (Chapel Hill: University of North Carolina Press 1997).
13 These institutional innovations are treated in Dinan, The American State Constitutional Tradition, chaps. 3–5.
14 Merrill D. Peterson, ed., Democracy, Liberty, and Property: The State Constitutional Conventions of the 1820s, foreword by G. Alan Tarr (1966; Indianapolis, IN: Liberty Fund 2010).
15 Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States (New York: Basic Books 2000), chap. 2.
16 Ibid., 54–9.
17 Ibid., 257–68.
18 Ibid., chapter 6.
19 Ibid., 277–81.
20 Dinan, The American State Constitutional Tradition, 235.
21 William J. Brennan Jr, “State Constitutions and the Protection of Individual Rights,” Harvard Law Review 90 (January 1977), 489–504.
22 A comprehensive treatment of independent state court interpretation of state constitutions is Robert F. Williams, State Constitutional Law: Cases and Materials, 4th ed. (Saddle River, NJ: LEXIS-NEXIS 2006); see also Robert F. Williams, The Law of American State Constitutions (New York: Oxford University Press 2009), chap. 5.
23 John Dinan, “Court-Constraining Amendments and the State Constitutional Tradition,” Rutgers Law Journal 38 (summer 2007), 983–1039.
24 The use of state constitutional amendment procedures to achieve public policy reforms throughout American history is discussed in various works, including James Q. Dealey, Growth of American Constitutions from 1776 to the End of the Year 1914 (New York: Ginn and Co. 1915); Morton Keller, “The Politics of State Constitutional Revision, 1820–1930,” in Kermit L. Hall, Harold M. Hyman, and Leon V. Sigal, eds., The Constitutional Convention as an Amending Device (Washington, DC: American Historical Association and American Political Science Association 1981).
25 Tarr, Understanding State Constitutions, 109–13.
26 Dinan, “Court-Constraining Amendments and the State Constitutional Tradition.”
27 Tarr, Understanding State Constitutions, 148–9.
28 Ibid., 157–61.
29 Dinan, “State Constitutional Developments in 2009,” 5.
30 Michael G. Colantuono, “The Revision of American State Constitutions: Legislative Power, Popular Sovereignty, and Constitutional Change,” California Law Review 75 (1987): 1473, 1512.
31 Kermit L. Hall, “The Irony of the Federal Constitution’s Genius: State Constitutional Development,” in Peter F. Nardulli, ed., The Constitution and American Political Development (Urbana/Champaign: University of Illinois Press 1992), 236.
32 John Dinan, “State Constitutional Developments in 2007,” in The Book of the States, 2008, vol. 40 (Lexington, KY: Council of State Governments 2008), 8.
33 Edward L. Rubin and Malcolm Feeley, “Federalism: Some Notes on a National Neurosis,” UCLA Law Review 41 (1994) 903, 935.
34 Ibid.