Constitutions and Charters - Pearson

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Constitutions and Charters

Learning Objectives

Understand how state and tribal constitutions and municipal and school charters establish basic individual rights and the fundamental rules of the game for governance.

Appreciate the effects of regional historical developments on state constitutions. Know the common, basic provisions of constitutions. Recognize the major types of local governments.

In 2004, a total of 27 states amended their constitutions to ban same-sex marriages and, in most cases, civil unions that provide rights and responsibilities similar to those in a marriage relationship. Supreme courts in Massachusetts, Iowa, and California have interpreted their respective state constitutions to provide same-sex couples with the right to marry. Voters in California amended their constitution in 2008 to overturn their supreme court and deny same-sex couples the right to marry. In August 2010 a federal judge ruled that the California vote violated the equal protection clause of the Fourteenth Amendment to the U.S. Constitution. California halted marrying same-sex couples while the federal ruling was being appealed. High courts in Maryland, New York, and Washington ruled that their constitutions do not provide a constitutional right or prohibition regarding same-sex marriage, leaving it to the legislature and governor to address this issue. In 2011, New York passed a law authorizing same-sex marriage. State constitutions, in other words, are key in defining rights, and in doing so these documents may not conflict with the U.S. Constitution.

L andlords and tenants typically sign contracts that specify what the landlord must do to maintain the property, what the tenant must not do to the property, the rate of the rent and when it must be paid, and what limits there are to the tenant's behavior (i.e., having pets, raising children, inviting guests, producing noise).

? Contracts are fundamental to our social and business relationships. ? Contracts are agreements that specify what the respective parties must do,

may do, and must not do.

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? Contracts can bind heirs and successors. ? In anticipation of potential changes in circumstances, processes exist for

amending, replacing, and even voiding contracts.

Similarly, citizens enter into a fundamental agreement with one another about what their government must do, may do, and must not do, and about what obligations individuals have toward government. That agreement is a constitution. A constitution differs from a contract in that it is not an agreement establishing a relationship between two different parties; instead, it is a document that stipulates how all citizens will be governed.

Constitutions, like contracts, set forth the basic rules of the game. A constitution describes in some detail the institutions and processes of the government. It also specifies what the government is empowered to do (i.e., seize private property with just compensation when necessary for the common good) and what it may not do (i.e., force individuals to practice a certain religion). Many countries consider marriage a religious act and outside the scope of government authority or concern. This would translate into a constitutional provision that limited government to recognizing agreements between two individuals to share responsibilities and obligations, but would not have governments conferring marital status on the couple.

Every state has a constitution, as does the federal government. Most American Indian tribes, under pressure from the federal government, have adopted constitutions similar to those of state governments but with some adaptations designed to preserve important tribal traditions.

Local governments, however, are creatures of state governments. The institutions, processes, and scope of authority of local governments are set by state statutes and by charters issued by state governments. States establish counties, school districts, and water districts. As people settle in an area, they need to have a city, town, or village government. However, a group of people cannot, on their own, agree to be a city and agree on how that city or school district will be run. To have legal authority, individuals who want to have their own city or school district must secure formal recognition from the state. Once they do so, and depending on the type of local government they qualify to be, state laws will provide them with a charter that gives authority to make certain laws, provide specific services, collect taxes or fees, and perhaps even enforce their laws. Since 1992, state governments have allowed for the creation of charter schools--public schools with their own individual "constitutions"--giving them the authority to act differently from other public schools.

State constitutions and the laws establishing local public authorities are critical to the face-to-face interaction between individuals and governments. These laws affect the authority and discretion of public officials. School officials are limited in the problems that they can solve in part because school districts are limited by state government in what they can do. Public school officials may want to provide funds to a farm family that has been

constitution Written document establishing the basic authority, rules, and procedures for national, state, and tribal governments.

charters State or local laws that establish the basic authority, rules, and procedures for municipal governments and, in some cases, schools.

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History of State Constitutions 89

devastated by a storm, but they cannot do so unless a law authorizing that expenditure was passed in accordance with the provisions of the charter or law establishing that school. A police officer may be convinced that a sex offender who has just been released from prison is going to repeat the crime, but the state (and federal) constitution requires due process before anyone can be detained or incarcerated. Discretion is a function of what is allowed. Constitutions and charters provide and limit legal capacity or authority.

History of State Constitutions

Constitutions are legal documents of fundamental importance in the United States. It must be acknowledged that constitutions are also political documents. The battles at constitutional conventions and the drives for and against constitutional change reflect not only differences in philosophies but conflicts between major groups in society. Constitutions make relatively dry reading material. The history of constitution writing, on the other hand, is fascinating.

The First State Constitutions: Guarantee Individual Rights, Weaken Executive Powers

The 13 original states had constitutions before the United States did. To define the institutions and processes of government, officials in the new states modified their colonial charters. The charters, which were only about five pages each, formally defined the governing authority granted by the British throne to the governors of each colony. These included provisions for a legislative body to advise the governor and pass laws in certain areas, subject to the governor's veto. The modifications made to create state constitutions obviously removed references to the British monarch. They also weakened the executive branch of government and strengthened the legislature. The founders designed their new state legislatures to be the dominant institution, in large part as a response to what they regarded as tyranny and oppression by British governors.

The state constitutions also included a bill of rights, identifying some basic individual liberties--such as freedom of expression and the right to due process when accused of a crime--that government had to recognize.1 Colonial charters did not include a bill of rights. A major concern of those writing the first state constitutions was to limit the scope and powers of government. All the original state constitutions included sections that protected individual rights from government intrusion.

The authors of state constitutions drew from the political philosophies of John Locke and Jean-Jacques Rousseau, who were prominent at the time.2 These authors are identified with social contract theory, which views a government as the result of an agreement, implicit or explicit, among individuals about how they are going to work together to serve their common interests without unnecessarily sacrificing certain basic interests and rights they have as individuals. Constitutions come fairly close to being empirical examples of such contracts.

bill of rights Provisions in a constitution that prohibit government from restricting certain individual liberties.

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Despite the egalitarian, democratic rhetoric that goes with social contract theory and the American Revolution, the initial constitutions were highly elitist. Only white males who owned property could vote or hold office. Government, like other institutions of status and authority, was considered the responsibility and the province of wealthy, well-educated, white men. A more accessible and responsive form of government came later, in response to the demands from those excluded.

The Federal Constitution: Strengthen National Government

As Chapter 3 explained, the U.S. Constitution contains ambiguities and contradictions in provisions that describe the relative powers and roles of the national government and the state governments. That disparity has led to a dynamic relationship between the two levels of government. In general, federal constitutional developments have established a clear legal supremacy of the national government, although the U.S. Supreme Court has placed limits on how extensively Washington, D.C., can control the state.

The dominant legal position of the national government has had important effects on state constitutions written after the ratification of the U.S. Constitution in 1787. When the first state constitutions were written, a major concern was limiting the power and discretion of government. When states sent delegates to Philadelphia to repair the flaws in the Articles of Confederation, the major concern was empowering the national government. Not part of the original Constitution, the Bill of Rights was drafted to address concerns about the scope of federal power, and some reluctant, skeptical states made the addition of those first 10 amendments their condition for ratifying the Constitution.

The original emphasis on empowerment not only laid the groundwork for the legal supremacy of the national government, but also affected the constitutions of states that joined the United States after the adoption of the U.S. Constitution. No longer were existing states coming together to form a union. Instead, territories were seeking to join an existing union. The body with the authority to accept new states was the national government, rather than the existing state governments. Thus, the national government determined the criteria for joining and judged whether those criteria had been met. One criterion was an acceptable state constitution. Not surprisingly, Congress and the president made sure that new states had constitutions similar to those of existing states.

Northwest Ordinance of 1787: Copy Original Constitutions and Add States

One of the final legislative acts of the national Congress under the Articles of Confederation was to pass the Northwest Ordinance of 1787. This law continued to be recognized by the federal government under the U.S. Constitution. The Northwest

Northwest Ordinance of 1787 Law passed by Congress under the Articles of Confederation that established the process by which the territories of Ohio, Indiana, Illinois, Michigan, and Wisconsin would be governed and admitted as states.

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Ordinance was a response to demands by settlers, in what is now Ohio, that they be under the services and protection of the U.S. government and that they be recognized as a state. The easy part was to establish basic institutions and principles for governing the area as a territory. The demands for statehood, however, raised more troubling issues. The 13 original states feared a loss of relative power, and they were not certain they had the resources to serve the needs of populations on the expanding frontier. Congress, however, felt that the added resources of an expanded United States offset these concerns.3

The Northwest Ordinance established a framework for adding what are now the states of Ohio, Illinois, Indiana, Michigan, and Wisconsin to the United States. It also set precedents for the other states that would follow. The ordinance took the fundamental step of recognizing that a territory governed by the United States could be admitted to the federation as a state, equal in status to existing states. A key criterion for admission stated in the ordinance was the presence of at least 60,000 free inhabitants. Slaves and Native Americans did not count. The basic text of the Northwest Ordinance follows:

1. Congress shall appoint a governor, a secretary, and three judges for the Northwest

Territory. These officials shall adopt suitable laws from the original states. When the territory has five thousand free male inhabitants of full age, they shall be allowed to elect representatives. These, together with the governor and a legislative council of five, shall form a general assembly to make laws for the territory.

2. The inhabitants shall be entitled to the benefits of trial by jury and other judicial

proceedings according to the common law. 3.Religion, morality, and knowledge being necessary to good government and

the happiness of mankind, schools and the means of education shall forever be encouraged. 4.There shall be formed in the said territory not less than three nor more than five States. . . . And, whenever any of the said States shall have sixty thousand free inhabitants therein, such State shall be admitted, by its delegates, into the Congress of the United States, on an equal footing with the original States. 5.There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted.

When Congress considered petitions from these states for admission to the United States, it insisted that the petitioners have a constitution that was consistent with those of the original states and that was compatible with the U.S. Constitution. This requirement was relatively easy to meet. The common pattern of initial migration to the Northwest Territory was from the original states, primarily New York and Massachusetts, as well as individuals coming directly from Europe.4 Not surprisingly, the new state constitutions read almost exactly the same as those of New York and Massachusetts. The executive, legislative, and judicial institutions of state government had common designs among all the states. Differences were minor.

The original states all limited suffrage to white males who owned at least enough property to be liable to taxation. Ohio began the move to allow all white men to vote, even if

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