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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