State Constitutions: Charters or Straitjackets?
There is some similarity between the national Constitution and state constitutions. They share the same name, they are the supreme law of their respective jurisdictions, and they have similar structural formats: a preamble, then the establishing of separate branches and granting them certain powers while restricting them from others. But in every other sense, the national Constitution and the state constitutions are very different. We honor our national Constitution and praise it continually; the genius of its framers is constantly proclaimed. In contrast, in some states the state constitution is a source of embarrassment or ridicule. In others it is treated in a rather diffident, matter‑of‑fact way: it exists; we must follow it; if we keep on changing it, it won't hold us back too much.
The national Constitution embodies fundamental law, the bare bones of governmental structure, general grants and restrictions of power. Because of its generality, it is often interpreted and changed by the Supreme Court, but formal amendments are rare — only seventeen since the Bill of Rights was approved.
State constitutions, however, are highly detailed. Many state courts have followed the doctrine that unless a power is specifically granted in the constitution, it cannot be exercised. So state constitutions are chock‑full of grants of powers, descriptions of those grants, and restrictions on those grants. Details on legislative structure, legislative procedures, employee salaries, gubernatorial structure and operations, executive agency structure and operations, numerous courts and their jurisdictions and modes of operation, types of revenues and tax rates allowed and not allowed — all are commonly spelled out in state constitutions. The specificity becomes a wall of rigidity, giving little freedom to state officials to act as times and conditions change. To permit action and to clarify ambiguous and contradictory details, state constitutions have to be formally amended dozens of times each decade.
This is a short chapter, but students will have a hard time sinking their teeth into the complexities of state constitutions. A good beginning is a visual; show the class a copy of your state constitution (often well over 25,000 words and 50 pages), and contrast it with the fewer than ten pages the U.S. Constitution covers in the text.
I. LEARNING OBJECTIVES
1. List the major components of typical state constitutions.
2. Explain why state constitutions tend to be more detailed than the U.S. Constitution.
3. Describe the impact on state government of detailed constitutions.
4. Indicate ways governments have tried to get around their detailed constitutions.
5. Discuss the meaning and impact of the "new judicial federalism."
6. Explain why it is politically perilous for state court judges to take expansive interpretations of constitutional rights.
7. Describe the general process of amending state constitutions.
8. Explain how legislative proposals, initiative petitions, and constitutional conventions typically operate in the states.
9. Examine why many states have had difficulties in adopting new constitutions, but others have not.