THE PROMINENCE OF STATE CONSTITUTIONALISM IN US POLITICS
An understanding of the prominence of state constitutionalism throughout American history requires taking account of three key features of the US political system: the federal constitution’s brevity and its creation of a federal government of enumerated powers; the rigidity of the federal amendment process and contrasting flexibility of state processes; and the ability of state courts to interpret state bills of rights in ways that exceed federal guarantees.
One factor contributing to the vitality of state constitutionalism is the federal constitution’s brevity and the fact that it serves primarily to specify the structure of federal institutions and enumerate federal powers. The federal constitution therefore leaves unoccupied a significant extent of constitutional space – to a greater degree perhaps than any other federal system – in which state governments are capable of operating autonomously.1 States are free to structure and arrange their own governing institutions (subject only to the federal guarantee of a republican form of government) and these structural arrangements are generally treated in state constitutions. States have also drafted their own bills of rights, although by virtue of the federal Supremacy Clause they cannot be interpreted as affording less protection than is guaranteed by comparable federal guarantees.
Most important, states retain responsibility for policy issues not included in the federal constitution’s list of powers delegated to the federal government. It is true that over time the federal government has gained significant power by virtue of the passage of the post-Civil War amendments and has also, with the acquiescence of the US Supreme Court, extended its power beyond the strict language of these enumerated powers. However, the federal government continues to be limited in the powers it can exercise, whereas state governments possess plenary power and are therefore free to act unless specifically constrained from doing so.
In part because state governments possess plenary power and therefore any restraints on state power must be made explicit in the state constitution, but also because state constitution-makers have been more willing than their federal counterparts to elevate policy matters to constitutional status, state constitutions address many issues not treated in the federal constitution.The federal constitution of 1787 contained only 4,400 words and even today it contains only 7,700 words; it is exceeded in length by every one of the current state constitutions. The New Hampshire Constitution is the shortest, at just over 9,000 words. Many others are between two and ten times longer than the federal constitution. The Alabama Constitution is the longest, weighing in at over 350,000 words.2 State constitutions are longer in part because they contain more detailed treatments of topics addressed only briefly in the federal constitution, such as the process of law-making and the mode of judicial selection. State constitutions also include more prohibitions on governmental power, such as prohibitions regarding balanced budget requirements and debt limitations. Many state constitutions also deal with subjects such as education and conservation that are entirely absent from the federal constitution.3
State constitutions are not only longer and cover a wider range of issues in more detailed fashion than the federal constitution, they are also easier to amend and have become even more so over time. The federal constitution was designed to be difficult to amend (though easier than under the previous Articles of Confederation) out of a concern that an overly flexible process would lead to the politicization of the document and detract from the veneration seen as essential for governmental stability. The rigid amendment process, together with the understanding that the federal constitution should not be lightly changed (as best expressed by James Madison’s response to Thomas Jefferson’s call for a more flexible process),4 has endured to the present day.
There have been no changes to Article V of the federal constitution, which stipulates that amendments can be proposed by a two-thirds vote of both houses of Congress or through a convention called by petition of two-thirds of the state legislatures. Amendments must then be ratified by three-fourths of the state legislatures or by three-fourths of conventions called in the various states. Nor has there been any notable change in the original understanding by which the federal amendment process should be utilized only on rare and significant occasions. Only thirty-three amendments have been formally proposed by Congress, and only twenty-seven have been ratified, including only seventeen since 1791, when the first ten amendments (the bill of rights) took effect. No conventions have been called since the 1787 convention.5State constitution-makers have been more drawn to the Jeffersonian view that each generation should have an opportunity to revise its constitution and thereby legitimize its continued operation and take due account of progress.6 State constitutions are therefore more easily amended and through a wider range of procedures that have become even more flexible through the years.7 Originally, most states required constitutional changes to be proposed by a supermajority legislative vote in successive sessions and approved by voters. Some states have retained these requirements. But many states now permit amendments to be proposed by a mere legislative majority, occasionally without a successive-session requirement, and then approved by voters (only in Delaware can amendments take effect without approval in a popular referendum). Most states also make explicit provision for the legislature to call conventions, whether by a majority or a supermajority vote, which then must be approved by voters. Fourteen states also follow Jefferson’s specific call for generational constitutional revision, by requiring that citizens be given a chance to vote at regular intervals (often every twenty years) on whether to call a constitutional convention.
One state, Florida, has since 1968 required constitutional revision commissions to meet at regular intervals and empowered them to submit amendments directly to voters for their approval. Eighteen states, beginning with Oregon in 1902, have also made provision for the people to initiate and ratify amendments directly, in most cases without any participation of the legislature.8States have not only made their constitutions easy to amend but have also been willing to use these amendment processes on a regularly. From 1776 to the present, the 50 states have held a total of 233 state constitutional conventions; 146 state constitutions have been adopted; and over 6,000 amendments have been enacted to the current documents. States vary in their willingness to change their constitutions; but in virtually every instance states have been more willing to engage in constitutional change than is the case at the federal level. On one end of the spectrum, Massachusetts still retains its original 1780 Constitution, although the document has been amended 120 times. At the other extreme are Louisiana and Alabama. Louisiana has had 11 constitutions, ranging from its inaugural 1812 Constitution to its current 1974 Constitution, which has itself been amended 154 times in the last three decades. Alabama’s 1901 Constitution has been amended 807 times.9
In the course of this extensive experience with constitutional change, state constitution-makers have encountered little of the stigma attached to proposals for constitutional change at the federal level, even if these proposals deal at times with “policy” matters. The one “policy” provision added to the federal constitution was a 1919 amendment prohibiting the manufacture and sale of intoxicating liquor. However, this is also the only federal amendment to be repealed, through a 1933 amendment, and the lesson drawn from this episode at the federal level is not just that prohibition was an unwise policy but that policy provisions of any sort are ill-suited for the federal constitution.10 No such lesson has taken hold at the state level, where various policy provisions have been added to state constitutions, even in the face of claims that such issues are better handled through political rather than constitutional processes.
A final factor contributing to the vitality of the US state constitutional tradition is the ability of state courts to independently interpret state constitutions, especially concerning civil liberties. The Supremacy Clause of the federal constitution makes clear that state law is invalid to the extent that it conflicts with federal law. However, the US Supreme Court has maintained that state courts can engage in independent interpretation of state constitutions; moreover, state court rulings are not reviewable by federal courts as long as they rest on adequate and independent state grounds.11 Consequently, although state judges cannot interpret state constitutions to provide less protection for individual rights than is guaranteed by federal court rulings, they are free to provide for their citizens a greater degree of protection than the US Supreme Court is willing to establish as a national rule.
Through interpretation of state constitutions, therefore, state judges can bring about political changes in the same fashion as other state officials have done through drafting and amending state constitutions, and state judges have been particularly active in this regard since the 1970s. Before the mid-twentieth century, state courts had undertaken distinctive interpretations of state bills of rights, and because US Supreme Court interpretations of similar federal constitutional guarantees did not yet at that time constrain state governments, these state court rulings constituted prevailing law. However, it was not until the 1970s, after the US Supreme Court had largely applied the guarantees in the federal bill of rights to the states and then began retreating from its more expansive interpretations of some of these rights, that state courts began engaging in a widespread fashion in independent state constitutional interpretation with the intent of securing added protection for rights. Since the 1970s, state courts have relied on state constitutions to provide heightened protection for defendants in criminal proceedings and also regarding the death penalty and same-sex marriage, to name several leading areas.