Chapter Three

State Constitutions: Charters or Straitjackets?

Chapter Outline

I. Introduction: the case of New York

A. Numerous calls for constitutional revision by experts

B. But interest groups and parts of the public are opposed

C. In many states, like New York, voters reject new constitutions

D. State constitutions are not symbols of unity

II. The roots of state constitutions

A. Constitutional rigidity and evasion

1. State constitutions contain more details than the U.S. Constitution does

2. Because of the very nature of state government—a state legislature has power to act unless the constitution takes it away—state constitutions are likely to be more detailed, more complex, and longer than the U.S. Constitution

B. Constitutions as roadblocks

1. Details were added to state constitutions to prevent legislative abuse of authority

2. State constitutions are often like straitjackets imposed on the present by the past

C. Getting around the Constitution

1. One device for overcoming formal barriers is judicial interpretation, whereby judges can modify a constitutional provision by their interpretation of its meaning

D. The new judicial federalism

1. In new judicial federalism, state constitutions have taken on greater importance

2. As the Supreme Court has become more conservative, some state judges have started to use their own state constitutions and state bills of rights to review the actions of state and local officials

3. This trend takes its inspiration from the U.S. Supreme Court, which has sent clear messages to state supreme court judges that they are free to interpret their own state constitution to impose greater restraints than does the U.S. Constitution

4. When state judges rely on their own state constitution to protect rights, they do so at some

political peril—they are elected

III. Amending state constitutions

A. Legislative proposals

1. All states permit legislature to propose amendments; the most common method

2. Legislature may appoint a revision commission to make recommendations

for constitutional change that have no force until acted upon by the legislature and approved by the voters

B. Initiative petitions

1. A device that permits voters to place specific constitutional amendments on the ballot by petition

2. In recent years, voters have approved only about 50 percent of amendments proposed by initiative petitions

3. Factors that account for the low adoption rate of initiative measures

a. Initiatives tend to be used for controversial issues that have already been rejected by the legislature

b. Initiatives are also often proposed by narrow-based groups or by reformist elites who lack broad support for their views

c. Measures are sometimes proposed more to launch educational campaigns than to win adoption

C. Constitutional conventions

1. Because amendments involve piecemeal change, many states have advocated writing an entirely new constitution rather than amending the current one

2. The constitutional convention has been the preferred method of writing new constitutions

3. In recent years, voters have rejected calls for a constitutional convention

IV. The politics of constitutional revision

A. Revision effects who gets what from government, so it is controversial

B. Rhode Island amends its constitution

1. Rhode Island’s 1986 constitutional convention produced 14 separate propositions for amending its 1843 constitution

2. Voters approved 8 of the 14 provisions

C. Louisiana revises its constitution

1. The Louisiana Constitutional Revision Commission wrote a streamlined “people’s constitution,” one the average person could understand

D. Changing the Hawaii constitution, 1978

1. When recommendations were placed before the voters, all 34 amendments were adopted

2. Periodic attempts to revise since 1978 have been rejected by the voters

E. Texas keeps its old constitution

1. Texas’s lengthy constitution has been amended more than 370 times

2. The legislature did an unconventional thing by calling into being a constitutional convention consisting of members of the legislature rather than a specially elected body

3. Texas voters rejected the amendments by a 2 to 1 vote

F. Arkansas’s eighth constitutional convention, 1978-1980

1. The voters rejected the new constitution by a 2 to 1 margin

2. The question of a constitutional convention was again put to voters in 1995, but the call was rejected

G. Statehood for the District of Columbia

1. In 1971 D.C. residents were given the right to elect a non-voting delegate to Congress

2. In 1974 they obtained the right to elect their mayor and city council

3. They do not have full representation in Congress