POLITICAL CHANGES ACHIEVED THROUGH STATE CONSTITUTIONAL PROCESSES

It is important to keep in mind that a number of political changes achieved through state constitutional processes were also achieved in part through other mechanisms. As has been the norm in American political development, groups press their case at various levels (with federal, state, and local governments) and through various institutions (legislative, executive, judicial, administrative, direct democratic, and constitutional processes), and they gravitate to the levels and institutions where they are most successful.

The Design of Governing Institutions

Americans have engaged in an extended inquiry over the past 235 years into how best to structure governing institutions, and state constitutions have figured prominently in various ways. In the first place, the original state constitutions in the 1770s and 1780s served as important vehicles for working out the consequences of alternative institutional arrangements, and delegates to the Federal Convention of 1787 drew heavily on these experiments when drafting the federal constitution. In creating a separation-of-powers system with an independent and strong executive, federal constitution-makers in 1787 were following the lead of state constitutions such as the Massachusetts Constitution of 1780, which were quite different from constitutions such as the Virginia Constitution of 1776. In determining that the executive would be selected in an indirect fashion through an electoral college mechanism, the federal founders were drawing in part on a provision in the Maryland Constitution of 1776 establishing an indirect method of selecting state senators through an intermediate body of electors.

State constitutions have also figured prominently in post-1787 debates about the design of governing institutions, in that movements to democratize governing institutions have had little success in breaching the rigid federal amendment process but have enjoyed significant success at the state level through the more flexible state processes. Few federal amendments have brought important alterations in the design of governing institutions, with the notable exception of a 1913 amendment instituting direct election of US senators. The other federal amendments dealing with institutional design made technical changes to the Electoral College (1804), shortened the time between the presidential election and Inauguration Day (1933), imposed a two-term presidential limit (1951), and provided for presidential disability and succession (1967).

The flexibility of state constitutional processes, by contrast, has permitted state constitution-makers to experiment regularly with alternative arrangements and to adopt a number of significant democratizing reforms without any federal counterpart. State constitutions have been amended in several ways to make judges more responsive to the popular will. The Mississippi Constitution of 1832 was the first to provide for popularly elected judges, and it soon became the norm for state constitutions to require state judges to stand for competitive election or (in many states in the twentieth century) retention election.

State constitutional processes have also been a vehicle for making legislatures more responsive to public opinion. The South Dakota Constitution, by virtue of an 1898 amendment, was the first to institute the popular initiative and referendum, and just under half the states, including most of the newer Western states, followed suit during the twentieth century. More recently, the Oklahoma Constitution, by virtue of a 1990 amendment, became the first since the founding period to impose term limits on state legislators, and a number of other states enacted similar amendments during the 1990s. In each of these cases, reformers have sought to enact similar democratizing amendments at the federal level but have been frustrated by the rigidity of the federal amendment process.¹³

Expansion of the Suffrage

Another set of major changes accomplished in large part through state constitutional processes, but in part also through federal amendments, statutes, and judicial rulings, concerns the gradual expansion (and occasional contraction) of the suffrage. The federal constitution did not originally set a national suffrage requirement; it merely stipulated that individuals permitted by state law to vote in elections for the more numerous chamber of the state legislature were eligible to vote in US House elections (the only federal offices popularly elected at the time). As a result, states have long possessed primary responsibility for defining who can vote in state and federal elections, and they have generally exercised this power by establishing suffrage requirements in state constitutions (though occasionally in state statutes).

In some cases, state constitution-makers have been entirely responsible for extending the franchise to certain groups. No question was more heavily debated in state constitutional conventions during the first half of the nineteenth century than whether to eliminate property and tax-paying suffrage requirements. (The only other question debated as heavily in this period was whether to eliminate legislative malapportionments that favored the older tidewater regions to the detriment of the growing piedmont regions; this goal was also accomplished through state constitutional amendments rather than through a federal amendment.)¹⁴ State constitution-makers gradually removed these suffrage restrictions and achieved universal white male suffrage by the 1850s, without passage of any federal constitutional amendments.¹⁵

In another set of cases, constitution-makers in one or several states took the lead in extending the suffrage to previously disfranchised groups, and then a federal constitutional amendment was later enacted to extend the franchise on a uniform basis throughout the country. Several northeastern states were the leaders in permitting African Americans to vote, although some of these states required African Americans to meet stricter property requirements than whites.¹⁶ When the US Constitution was amended in 1870 to prohibit denial of the franchise based on race, federal constitution-makers were following the trail-blazing states of Massachusetts, Vermont, New Hampshire, Maine, and New York.

However, constitution-makers in many southern states then sought at the turn of the twentieth century to frustrate the intent of this federal amendment by drafting state constitutional amendments preventing African Americans from exercising their right to vote, by imposing “understanding” clauses, literacy tests, poll taxes, or other requirements that were administered in a discriminatory fashion. It was only through federal court decisions, congressional statutes, and a federal amendment in the 1960s that these disenfranchising state provisions were all eliminated and African Americans were finally able to exercise the franchise across the country.¹⁷

State constitution-makers also took the lead in enfranchising women and eighteen- to twenty-year-olds.

Extension of Individual Rights

Another change achieved in part through state constitutional processes was the extension (and occasional contraction) of individual rights. Before a series of US Supreme Court rulings from 1925 onward applying most federal bill of rights guarantees to the states, state constitutional processes were the primary means of defining and extending rights. Therefore before the US Supreme Court’s mid-twentieth-century nationalization of the federal bill of rights, state courts routinely issued decisions interpreting state bills of rights and defining in concrete fashion the meaning of free speech, religious liberty, and the rights of criminal defendants. Additionally, state constitution-makers occasionally registered changes in understandings of these rights through amendments to state constitutions. Among the more notable nineteenth-century changes was the adoption in many state constitutions of “Blaine amendments” explicitly prohibiting public funding of religious schools. US Representative James Blaine first proposed an amendment to the federal Constitution along these lines in the 1870s but failed to obtain the necessary support from Congress.

For a time in the mid-twentieth century, particularly during the 1960s, the US Supreme Court was mainly responsible for expanding protection for individual rights through interpretation of federal Bill of Rights guarantees. However, with the retirement of Chief Justice Earl Warren and the appointment of Warren Burger to succeed him in 1969, the US Supreme Court became less willing to interpret federal constitutional guarantees in an expansive fashion. To be sure, the Burger Court issued a landmark abortion ruling in 1973 identifying a federal constitutional right to an abortion that could not be denied during the first two trimesters of a woman’s pregnancy. And the Court’s interpretation of the federal cruel-and-unusual punishment clause in a 1972 death penalty case led to a four-year moratorium on capital punishment across the country. In these and various other cases the US Supreme Court continued to lead the way in the post-1970 era in issuing expansive interpretations of federal constitutional guarantees. But in other areas, the Burger Court disappointed groups who had come to expect during the Warren Court that the federal judiciary would continue to take the lead in expanding individual rights. The Burger Court declined, for instance, in a 1973 case to recognize a federal constitutional right to inter-district equity in school funding. And in 1976 it issued a key ruling permitting states to re-impose the death penalty. It also proved less willing than its predecessor to issue expansive interpretations of the rights of criminal defendants, especially regarding admission of evidence obtained from an improper search. Whereas the Warren Court had established the exclusionary rule as a national standard, the Burger Court concluded in several key cases that improperly seized evidence could still be admitted at trial if, for instance, police officers had operated in good faith when conducting a search.

At this point, a number of state supreme courts turned to their state constitutions to expand rights protection in areas where the US Supreme Court was unwilling to do so. The California Supreme Court, in a 1972 ruling echoed by several other state courts, interpreted the Cruel-or-Unusual Clause of the California Constitution as prohibiting capital punishment. And in a 1973 ruling that gave rise to many other state court rulings, the New Jersey Supreme Court ruled that although inter-district school spending disparities might not violate the federal Constitution, they ran afoul of the New Jersey Constitution. With encouragement from US Supreme Court Justice William Brennan and various law professors, state courts around the country also began to rely on state bills of rights to go further in protecting the rights of criminal defendants than the US Supreme Court was willing to go.²¹ Thus, several state courts declined to abide by the federal good-faith exception to the exclusionary rule, on the ground that the relevant clauses in their state constitutions did not countenance such an exception. In the most controversial rulings in what has been termed the “new judicial federalism” or the “renaissance in state constitutional law,” the Vermont Supreme Court (1999) was the first to interpret a state constitution as permitting same-sex couples to form civil unions; the Massachusetts Supreme Court (2003), California Supreme Court (2008), Connecticut Supreme Court (2008), and Iowa Supreme Court (2009) went even further in recognizing a right to same-sex marriage.²²

State constitutions can serve as a vehicle for judicial expansion of individual rights beyond federal guarantees; however, the flexibility of state amendment processes also renders these rulings more vulnerable to reversal than comparable federal court rulings. In fact, the “new judicial federalism” rulings issued by state courts in the post-1970s era have generated numerous state constitutional amendments intended to pre-empt or overturn them. Thus, in response to the California Supreme Court’s anti-death penalty decision, Californians initiated and ratified a state constitutional amendment authorizing reinstatement of the death penalty. Expansive state court interpretations of criminal defendants’ rights were greeted with similar state constitutional amendments overturning the rulings and preventing state courts from exceeding the level of protection provided by US Supreme Court decisions. And the Massachusetts Supreme Court’s 2003 same-sex marriage ruling generated constitutional amendments preventing imposition of similar outcomes in over half the states, including in California, where voters in 2008 initiated and approved a constitutional amendment overturning the California Supreme Court’s decision legalizing same-sex marriage issued earlier in the year.²³ In short, the post-1970s era brought a resurgence of state constitutionalism at first on account of expansive state court rulings and then as a result of state constitutional amendments enacted to limit these rulings.

Enactment of Public Policy Reforms

Finally, state constitutional processes have brought about political changes by permitting enactment of public policy reforms at key moments in American history. This phenomenon is best understood as a constant feature of US politics, in that groups and individuals of all types have consistently sought to secure policy goals through the adoption of state constitutional provisions.²⁴ But this reliance on state constitutional processes has been particularly notable during some of the key periods of American political development – the Jacksonian Era (1830s–1840s), the Populist and Progressive Eras (1890s–1910s), the New Deal Era (1930s–1950s), and the Conservative Ascendance (1980s–2000s).

A principal concern of Jacksonian reformers was eliminating political privileges enjoyed by banks and by corporations who were able to secure governmental support for costly internal improvements. At the federal level, debates over a national bank and internal improvements were largely resolved through the political process; no federal constitutional amendments were adopted on these subjects. However, at the state level, opponents of banks, internal improvements, the loaning of state credit, and special incorporation laws concluded that state officials could not always be counted on to restrict these practices. And this was true even when proposed restrictions enjoyed broad popular support, whether because legislators were overly responsive to special interests or because legislators themselves had an interest in perpetuating these practices. As a result, reformers frequently took advantage of flexible state constitutional amendment processes to prohibit legislators from chartering banks, funding internal improvements, loaning state credit, and passing special incorporation laws, as well as to prevent legislators from incurring debt through their participation in these sorts of ventures. Thus, in this Jacksonian period, when the vast majority of governance took place at the state level, state constitutions were a primary means for reformers to overcome legislative resistance and enact their policy goals.²⁵

The Populist and Progressive movements of the late nineteenth and early twentieth centuries were concerned with regulating railroads and other corporations and protecting workers by limiting their hours, increasing their wages, and compensating them for workplace injuries. Reformers achieved some of these goals at the federal level, where they proceeded entirely through political rather than constitutional processes. For instance, Congress passed several statutes prohibiting monopolistic trade practices and regulating railroads and the rates they charged and their treatment of railway workers. But states still retained responsibility for regulating the hours and wages of most workers and establishing workers’ compensation programs for non-railroad employees. And on various occasions reformers turned to state constitutional amendment processes to secure protection for these workers. At times, such as when the California Constitution of 1879 established an eight-hour day on public works, reformers were bypassing legislatures seen as beholden to corporate interests. On other occasions, such as when the New York Constitution was amended in 1913 to authorize a compulsory workers’ compensation system, reformers were seeking to reverse state court rulings that were blocking passage of such protective measures.²⁶

State constitutional processes played a relatively minor role in efforts by New Deal reformers in the 1930s and 1940s to secure protection for labor unions and assistance for the indigent, sick, unemployed, and elderly. For the most part, these goals were achieved through congressional statutes, many of which were adopted in the 1930s under President Franklin Roosevelt. However, in some cases, reformers also sought enactment of these policies on the state level and at times through constitutional amendments.²⁷ Such was the case with the right to bargain collectively, which was secured for private-sector workers in intra-state commerce by a 1938 amendment to the New York Constitution and for private-sector and occasionally public-sector workers by subsequent amendments to four other state constitutions. Several state constitutions, most notably the New York Constitution in 1938, were amended during this period to make the aid and care of the needy a public concern. Old-age pension programs, which had been adopted on a statutory basis in a number of states in the early 1900s, were also occasionally authorized through state constitutional processes, as with a 1936 Colorado amendment.

State constitutional processes have figured somewhat more prominently in the ascendance of modern conservatism in the late twentieth and early twenty-first centuries, as reformers have tried to limit governmental power, primarily by limiting taxes and spending. In fact, the passage of an initiated amendment to the California Constitution in 1978, an amendment limiting increases in property taxes (Proposition 13), is seen as a harbinger of the national movement that led to major tax cuts at the federal level under President Ronald Reagan in the early 1980s. Individuals seeking to reduce the rate of government growth have continued to press their case through state constitutional processes, most notably with passage in 1992 of the Colorado Taxpayer Bill of Rights Amendment (TABOR), which requires popular referendums on tax increases and imposes spending limits on states and localities. Colorado’s tax and spending limits are the strictest of any state, but other states have enacted more modest restrictions, to go along with the balanced budget amendments now in place in thirty-six states but with no parallel in the federal constitution.²⁸

Although state constitutional amendment processes have not been used exclusively for achieving conservative public policy ends in recent decades – liberal groups have won adoption of education-spending and minimum-wage amendments – conservatives have been particularly active in using these processes of late. Among other things, Californian Ward Connerly has won passage of state amendments banning racial preferences in California (1996), Michigan (2006), and Nebraska (2008). Meanwhile, property rights groups such as the Castle Coalition won enactment of amendments banning the use of eminent domain for economic development purposes in a host of states from 2006 to 2009, after the US Supreme Court declined to interpret the federal bill of rights as prohibiting such practices.²⁹