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State Constitutions

STATE CONSTITUTIONS

STATE CONSTITUTIONS. Every state in the United States possesses its own constitution. Historically, state constitutions have been longer than the 7,500-word U.S. Constitution and more detailed regarding the day-to-day relationships between government and the people. For instance, the New York state constitution is 51,700 words long while Alabama's sixth and most recent constitution, ratified in 1901, is 310,296 words long. Differences in length and detail can be attributed to the different purposes of the documents as well as to the different approaches to constitutional uses between the federal and state governments. Both the federal and state constitutions are organic texts: they are the fundamental blueprints for the legal and political organizations of their respective sovereign entities. But both state and federal constitutions go beyond this. While the U.S. Constitution prescribes the limits of federal power, state constitutions describe the details of structure and process of those governmental powers not delegated to the federal government. Many state constitutions also address very specific issues deemed by the states to be of sufficient importance to be included in the constitution rather than in an ordinary statute.

In addition to the bills of rights, which in contrast to the federal Bill of Rights were adopted as part of the original state constitutions and are at their beginning, state constitutions generally contain a large number of statute-like provisions. South Dakota's constitution, for instance, contains provisions, often of very restricted scope, for state hail insurance. Also included is a provision that establishes a twine and cordage plant at the state prison. The Alabama constitution provides specific protection for the loss of peanut crops resulting from disease or bad weather. There are two reasons for including such provisions in the constitution. First, doing so accords them a constitutional status that gives them an enhanced prestige. Second, when a particular rule is included in the state constitution it becomes significantly more difficult to change than if it were simply passed as a statute by a state legislature. It is for these reasons, for example, that the rules protecting the Adirondack Park in upstate New York were incorporated into a late-nineteenth-century revision of the New York constitution rather than simply incorporated into existing statute law.

Most Americans look to the U.S. Constitution as the basis for civil rights. Until passage of the Fourteenth Amendment in 1868, however, it was the bill of rights embedded in each state constitution that enumerated the protections afforded individual citizens of the state. In 1833 Chief Justice John Marshall, writing for the United States Supreme Court, underscored the authority of the state over its citizens by specifically holding in Barron v. Baltimore that the federal Bill of Rights provided no protection for individual citizens against any state's action. After ratification of the Fourteenth Amendment, it was the U.S. Constitution that provided the basic protections to an individual's civil rights, while state constitutions provided various additional protections, such as an explicit right to privacy and rights for crime victims. Many legal scholars believe that such provisions in state constitutions provide an important second level of protections of individual rights in areas such as disability laws and privacy rights, areas in which federal courts have tended to narrow such rights under the U.S. Constitution and Bill of Rights.

Revolutionary Era Constitutions

At the time of the American Revolution, two political notions predominated. First was the belief that the new government must be republican in format, taking its inspiration from the political ideas of ancient Greece and Rome, thereby setting America forever apart from the long history of monarchical government in England. The new state constitutions manifested this distrust of monarchy by establishing strong legislative bodies with generally weak executive and judicial branches. Many early state "presidents" or governors were elected every year with term limits in place. To protect government from the sway of the mob and because greater power was placed in these early legislatures, rather than the executive or judiciary branches of state government, in many states it was the legislature that voted on the governor and not the general electorate. Second, it was believed that the new states had to have written constitutions as opposed to the "unwritten" British constitution. The strong belief in the importance of a written constitution infused American life from the beginning at every level. From these intertwined roots, however, the state constitutions evidenced the disparate beliefs and tensions that threatened to overwhelm the new country. There was, and to some extent remains, a constant tension between those who have believed in popular democracy and those who have feared it. In the beginning, and for decades to come, the vast majority of state constitutions did not contemplate a voting population that was other than adult, male, white, and generally possessed of property. It was not until after the Civil War, for instance, that most states granted a right to vote to African Americans, and it was not until the twentieth century that women of any color were allowed to vote in all elections.

The state constitutions adopted between 1776 and 1780 were each the product of a struggle between reactionary forces, loyalists, patriots, great landowners and merchants, and the general populace. The resulting documents directly reflected the success of one group or another in achieving and promoting their visions of the proper political and social order for the new country. In Pennsylvania, the state constitution of 1776 established a House of Representatives to be elected annually, with an Executive Council and an annually elected president who would possess no lawmaking powers. Every adult male taxpayer who lived in the state for one year was eligible to vote. The major qualification to serve in the House of Representatives was a two-year residency in the state. In a further bow to the democratic impulse, each bill considered by the house was to be printed for consideration and comment by the general public in order to afford the public the opportunity to express its views. In short, the Pennsylvania constitution established a form of government strongly inclined to broad public participation and supportive of liberal democratic principles.

The New York state constitution of 1777, on the other hand, was a more conservative document and established a legal and governmental order designed to favor the interests of the wealthy and landed classes. This constitution established a bicameral legislature. The lower house, the assembly, was to be elected annually from counties while the upper house, the senate, was elected in a staggered four-year rotation from only four districts. The governor was to be elected every three years. The assembly had the exclusive right to initiate money bills, but in all other matters the two houses enjoyed equal powers. To vote for an assemblyman, male citizens were required to own land worth at least £20 or possess a renthold of at least forty shillings value. To vote for senator or governor, the elector had to possess a freehold worth £100. A proposal was also put forward to require New York City residency and £10,000 in order to run for senator. This, however, was too biased toward the wealthy elite and was discarded by the drafters. Nonetheless, that proposal illustrates the fears of unbridled democracy among the elite members of the drafting committee.

In Maryland, a state dominated by a small group of large planter-landlords, the constitutional structure of government was even more conservative and anti-democratic. According to its 1776 constitution, general elections were to be held only once every three years and then only for county sheriff and the representatives to the lower house in the state legislature. State senators were to be chosen for five-year terms by a college of electors. The two houses of the state legislature would jointly choose the governor every year. To be elected to the lower house, a man had to prove assets of at least £500; to be elected senator or to serve on the governor's council, a man was required to have assets worth at least £1,000. To be governor, a candidate had to prove a personal fortune of at least £5,000. Only a small percentage of the adult white male population qualified to run for statewide office under these requirements.

These early state constitutions were influenced by such political philosophers as Montesquieu, Rousseau, and John Locke and by English jurists such as Edward Coke and William Blackstone. Most, as a result, reflected the dominant political and legal philosophies of the late eighteenth century. However, they were not intended to be, nor did they remain, static documents. Each constitution contained provisions for revision and supplementation, which almost immediately came into play as states realized their powers and limitations within the framework of dual sovereignty that they shared with the federal government and as the perceived needs of each state changed over time. At each stage in U.S. history, state constitutions have either been amended, often resulting in the bloating of these documents, or simply replaced. For instance, during the populist Jacksonian era, many states sought to curb the abuses of corrupt legislatures, which were under the influence of large and powerful lobbyists and special interest groups. The states did this by giving increased powers to the executive branch and increasing the power of judicial review while limiting the power of the legislative branch. In many cases, the financial power of legislatures was reined in. In Maryland, for instance, the governor's term was increased from one year to four years and the legislature was prohibited from enacting laws using state credit for the benefit either of individuals or private corporations. The state also was prohibited from contracting debts for more than $100,000.

From the Civil War

The Civil War and Reconstruction brought renewed debates on the role and structure of state government. Between 1864 and 1879, thirty-seven new state constitutions were written and ratified as new western states were added and as the political situation changed dramatically. In the South, the so-called carpetbagger constitutions, designed to aid and protect newly enfranchised African Americans, were enacted. They were soon replaced with constitutions designed to ensure white supremacy. The Tennessee Constitution of 1870 prohibited miscegenation and white and black children to attend public school together. To prevent emancipated blacks from exercising political power, state constitutions across the South were amended or re-written to deprive them of the franchise. Mississippi's constitution of 1890 established a poll tax of two dollars and required that in order to vote a man had to be able to read, understand, and interpret any section of the state constitution. In Louisiana, which added a similar provision to its constitution in 1893, a grandfather clause excused all but African Americans from this exclusionary qualification. The 1895 South Carolina constitution required that a citizen be able to read and understand the state constitution or own $300 in real property in order to vote. By the end of the nineteenth century, voting requirements in state constitutions prevented as many as 90 percent of African American voters in the South from voting. These state constitutional changes were supported by many state statutes and court decisions and by the U.S. Supreme Court in cases such as Plessy v. Ferguson (1896), which gave the Court's stamp of approval to the concept of "separate but equal" and prolonged legal segregation in America for another sixty years. This concept was implemented until landmark federal court cases and legislation of the 1950s and 1960s ruled the principle of "separate but equal" to be prohibited under the U.S. Constitution. All state constitutions continue to exist within the complex legal and political context created by dual sovereignty. The U.S. Supreme Court ruling in Bush v. Gore (2000) that followed the 2000 presidential elections reflects this complexity. The Court referred not only to the U.S. Constitution but also to the Florida constitution in considering the scope and power of the Florida legislature to set voting standards and processes within the state and the decision that was reached in this case will, inevitably, have an impact on the future shape of state constitutions.

BIBLIOGRAPHY

Countryman, Edward. The American Revolution. New York: Hill and Wang, 1985.

Friedman, Lawrence M. History of American Law. New York: Simon and Schuster, 1985.

Hammons, Christopher W. "State Constitutional Reform: Is it Necessary?" Albany Law Review 64 (2001): 1327–1347.

Robert B.Dishman

KarenbethFarmer

M. H.Hoeflich

See alsoBarron v. Baltimore ; Bill of Rights in State Constitutions ; Bush v. Gore ; Constitution of the United States ; Debts, State ; State Sovereignty ; Suffrage ; Suffrage, African American .

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