CONSEQUENCES OF THE USE OF SUB-NATIONAL CONSTITUTIONAL SPACE

Dissenting in New State Ice Co. v. Liebmann, Justice Louis Brandeis of the US Supreme Court noted that “it is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory, without risk to the rest of the country.”⁶⁵ Brandeis’s underlying assumption was that a multiplicity of policy experiments would be more likely to discover good public policy than would a single effort.

Existing sub-national constitutions serve as models, either positive or negative, for constitution-makers in other constituent units. This is hardly surprising. The practice of drawing upon or copying provisions reflects in part a respect for the efforts of earlier constitution-makers. As Willard Hurst explained in describing the evolution of American state constitutions: “There was a sort of stare decisis about this making of constitutions; it was altogether natural in a country in which men moved about readily taking with them the learning and institutions of their former homes.”⁶⁷ This willingness to draw on the experience of other states is enhanced by the recognition that constituent units face common constitutional and policy problems.

Although Brandeis focused on the United States, sub-national constitutional borrowing is not confined to a single country. Peter Quint has documented that similar borrowing occurred as part of sub-national constitution-making during German reunification:

Even the most modest of these new state constitutions reflect the lessons of the GDR past and the 1989 revolution, and – with all their similarities to the Basic Law – can still be said to represent a distinctly different, and distinctly eastern, constitutional consciousness. One important question of future constitutional development in Germany is the extent to which the consciousness… may ultimately make its way, through constitutional revision or judicial interpretation, into the constitutional consciousness of the unified nation and the west itself.⁶⁸

There is even evidence of the borrowing of constitutional innovations beyond the borders of a single federation. For example, the initiative and referendum provisions added to the Oregon Constitution in 1902 were based on an idea of direct democracy reflected in the constitutions of the cantons of Switzerland.⁶⁹

Yet if commonalities among constituent units encourage borrowing of constitutional provisions, differences among constituent units may discourage such borrowing. Put differently, insofar as conditions and values differ within a federation, it is less likely that constituent units will emulate the sub-national constitutional innovations pioneered in “different” units. Thus, when constituent units are organized to reflect differences within the population of a federation, those differences – and the attempt to give them constitutional expression – may lead to the creation of distinctive constitutional provisions that are appropriate only within the particular unit.

When constituent units occupy the constitutional space available to them, this may also affect constitutional politics at the federal level, because the process of imitation and emulation can work vertically as well as horizontally. Our analysis here focuses on the United States, but presumably it has broader application as well. State constitutional provisions played an important part in the drafting of the United States Constitution, as the framers both borrowed ideas from state constitutions (for example, the president was modeled quite closely on the governor of New York) and rejected state constitutional experiments that they found misguided (for example, the power of citizens to “instruct” their representatives).⁷⁰ State constitutional provisions also influenced the federal Bill of Rights.⁷¹ And since the founding, both federal statutes and amendments to the federal Constitution have drawn on state constitutional models. For example, the right to vote for African-Americans, women, and eighteen-year-olds was pioneered in state constitutions before being incorporated into the federal charter.⁷² So, too, were provisions guaranteeing equal protection of the laws, banning poll taxes, and prohibiting the sale or use of alcohol.⁷³ Thus, one ironic consequence of this is that states occupying constitutional space with successful innovations may encourage the federal government to adopt those innovations. But this federalizing of the issue may diminish the scope of sub-national constitutional control.

The American experience also reveals that when states occupy the constitutional space available to them, this can produce active avoidance rather than emulation. This result has occurred when states have sought to occupy constitutional space by creating state constitutional rights broader than what was available under the federal Constitution. A recent highly publicized example involved rulings by state supreme courts in Massachusetts, California, Connecticut, and Iowa recognizing same-sex marriage as mandated by their state constitutions. Instead of emulation, these rulings prompted actions by other states to prevent the diffusion of these innovations, to pre-empt similar rulings within their own borders by constitutionally prescribing that marriage is limited to male-female couples. The rulings also prompted an unsuccessful effort to define marriage in the federal Constitution, an attempt to federalize the issue not in order to follow the states’ lead but in order to circumscribe state constitutional space.