CHAPTER SUMMARY - Cengage
CHAPTER 3
State Constitutions
CHAPTER SUMMARY
State constitutions have evolved to the point where they often provide civil rights greater than
those guaranteed in the federal constitution. This phenomenon has been termed judicial
federalism and it is reminiscent of the early history of the United States. The original thirteen
state constitutions were based largely on the colonial charters and represented limited government
by an aristocracy, but they did establish some enduring principles: a bill of rights, separation of
powers, and a system of checks and balances. They also reflected distrust toward executive
authority and vested most power in the legislatures.
Because legislative bodies had difficulty meeting the demands of a rapid growing society and
coping with the changes brought on by the Industrial Revolution, the power of the executive
branch was increased. The centralizing power shift was somewhat diluted by pressures in the
Jacksonian era for popular election of government officials. The result was an increasingly
fragmented executive branch. Erosion in confidence in state government, as well as broader
social and economic changes, led to increasing amendments and even complete revision of state
constitutions in the latter part of the 1800s and early 1900s. By the 1950s, many states had long,
archaic, unnecessarily detailed constitutions. Only the original constitution of the Commonwealth
of Massachusetts survives, although amended more than one hundred times. It remains a model of
the composite wisdom of the foremost political philosophers of the eighteenth century.
Excessive detail in other state constitutions inevitably led to burdensome litigation in the state
courts. But constitutional change is a more complex process than legislative enactment of
statutes, and resistance to change by special interests slowed efforts to modernize. Nevertheless,
supporters of reform eventually gathered a number of influential voices in the 1950s for a return
to using state constitutions as fundamental law and the abandonment of the practice of using them
as a catchall for topics best left to statutory law. Most noteworthy among the voices were the
Presidential Commission on Intergovernmental Relations (known as the Kestnbaum Commission)
and the National Municipal League. The latter developed a Model State Constitution that was to
serve as an influential guide for efforts to rewrite state constitutions. The results of these efforts at
reform are reflected in many of today¡¯s more concise and practical state constitutions.
State constitutions are political documents, and detailed provisions intended to protect or favor
special interests creep into the best of them. Thomas Jefferson thought that it was appropriate to
adjust constitutions every twenty years. Two constitutional traditions appear in modern efforts at
reform¡ªthe positivist-law tradition by which detailed and lengthy documents usurp the
lawmaking powers of the legislature or the higher-law tradition represented by the Massachusetts
and U.S. Constitutions, and National Municipal League¡¯s Model State Constitution. There is no
one right way, but today the latter formula seems to be most in favor.
There are informal and formal methods for amending state constitutions. Interpretation of the
existing constitution to meet new problems by any of the three branches of government
constitutes the single informal method. Among those who interpret the constitution, state supreme
courts increasingly exercise a right of judicial review; a step that now earns some state courts a
reputation as judicial activists. The formal procedures for constitutional change are legislative
proposal, initiative, constitutional convention, and constitutional commission. All involve two
basic steps, an initiation step by the legislature or a constitutional initiative by the voters,
followed by the second and final step¡ªratification. The proposed amendment, whatever its
origins, requires voter approval.
Initiation by legislative proposal, permitted in all fifty states, is most common and most often
successful. Eighteen states permit citizens to initiate action, but those proposals succeed less often
in the ratification step. All fifty states provide for constitutional conventions, and four states
consider such conventions every ten or twenty years. Voters tend to be more skeptical of
sweeping change, and delegates are well advised to consider presentation of piecemeal change
rather than an all-inclusive one. Constitutional commissions or study commissions may be
created by the governor or legislative action in all states. A commission¡¯s efforts are advisory and
popular with elected officials because they may avoid volatile issues using the commission as a
symbolic effort. In Florida, however, the commission can send its proposals directly to the voters.
In all, only twenty-eight commissions have operated in all fifty states since 1970, but they have
the capacity to provide high-quality and inexpensive research.
The old-style constitutions inhibited the states¡¯ abilities to cope with change. Revisions carried
out in the four decades since the Kestnbaum Commission report have aided in the modernization
of state government and its ability to regain a strong place in the federal system. Since the mid1960s some forty states have substantially amended or adopted new constitutions. Problems
persist, but state constitutions are, in general, much improved over those that existed forty years
ago. They are increasingly documents for the ages rather than documents designed to fulfill the
needs of the moment.
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