STATE CONSTITUTIONS

When the American colonies broke with the mother country, several traditions led to the drafting of constitutions for the newly independent states. Steeped in the writings of john locke, Americans might have viewed themselves as being in a kind of state of nature; writing state constitutions would therefore be the adoption of social compacts. British constitutionalism offered a precedent; although Britain had, of course, no written constitution, the colonists, during the years up to the American Revolution, had become accustomed to relying upon "liberty documents" such as magna carta. Americans could look as well to the example of their colonial charters, whose guarantee of the "privileges, franchises, and immunities" of Englishmen they had invoked against British policies on revenue and other subjects during the 1760s and 1770s.

In 1775, Massachusetts proposed that Congress draft a model constitution for all the states. Congress chose not to take this step. In May 1776, Virginia's convention, meeting in Williamsburg, instructed its delegates in Congress to introduce a resolution declaring the colonies to be free and independent states. The Virginia resolves viewed the drafting of state constitutions as best left to the several states.

The drafting of a constitution was, in 1776, a new art, but drafters did not want for advice. As early as November 1775, john adams had offered his ideas on a constitution for Virginia in a letter to richard henry lee; Adams's plan was of a distinctly democratic flavor. Others, like Carter Braxton, looked to the British constitution, in the form it took after the Glorious Revolution of 1688–1689, as the best model for Americans. thomas jefferson, then in Philadelphia, thought that the people ought to have a say if a state constitution was to be written. As early as 1776, work on, and thinking about, state constitutions foretold the emergence of comparative constitutionalism.

Virginia's convention set to work on two documents: a "declaration of rights" and a "plan of government." george mason of Fairfax County had a central role in the drafting of both documents. The virginia declaration of rights became especially influential. It served as a model for the bill of rights subsequently adopted in other states, and it foreshadowed the bill of rights added to the United States Constitution in 1791. Indeed, French scholars have traced the influence of Mason's draft on their declaration of Rights of Man and Citizen, adopted in 1789.

In the 1770s the distinction between a constitution and ordinary laws was still imperfectly perceived. One thinks of a constitution as the ultimate act of the people, yet the first state constitutions were commonly drafted by revolutionary conventions or legislative assemblies and then enacted by the same bodies, without referendum. This pattern of enactment presented something of the paradox found in British notions of Magna Carta as a superstatute, yet, like other acts of the realm, subject to alteration or repeal by Parliament. Both Thomas Jefferson and james madison argued that Virginia's 1776 convention had no authority to enact anything but ordinary legislation; by such reasoning, the 1776 constitution was only an ordinance. Jefferson called for a constitution resting "on a bottom which none will dispute."

It fell to Massachusetts to perfect the idea of a constitution based upon popular consent. In western Massachusetts, the Berkshire constitutionalists called for a "social Compact" so that there would be a clear distinction between fundamental law and the acts of the legislature. There must be, as an address from Pittsfield to the General Court put it, a foundation "from which the Legislature derives its authority." When the Commonwealth's leaders sought in 1779 to produce a constitution without full popular participation, western Massachusetts resisted. In 1780 a constitutional convention was elected specifically to draft a constitution, which was then submitted to the voters for their approval. The political theory underlying the massachusetts constitution of 1780 is explicit in the document's declaration that it is "a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good."

The early state constitutions varied in important particulars. For example, in some states, legislatures were to be bicameral, and in others, unicameral. Notwithstanding such variations, however, the early state constitutions reflected certain shared assumptions. There was common ground, not simply in the tenets of political theory but more immediately in Americans' political and social experience during the colonial period, a gestation period for what became the framework of American constitutionalism. The first state constitutions bespoke a belief in limited government, the consent of the governed, and frequent elections. They were based, by and large, on a Whig tradition emphasizing direct, active, continuing popular control over the legislature in particular and of government in general.

In these constitutions, professions of theory sometimes conflicted with reality. A commitment to the separation of powers was common, yet the early state constitutions in fact made the legislature the dominant branch of government. State governors were, by contrast, virtual ciphers. Only in New York and Massachusetts was the governor elected by the people. In the other states, he was elected by the legislature, lacked the power of veto, and executed the laws with the advice of a council of state chosen by the legislature. Jefferson criticized Virginia's 1776 constitution for disregarding its own proclamation of the separation of powers: "All the powers of government, legislative and judicial, result to the legislative body. The concentrating of these in the same hands is precisely the definition of despotic government."

State courts at the outset had little power or stature. The principle of judicial review—the power of a court to declare a legislative act unconstitutional—was not spelled out in the first state constitutions (just as it was not made explicit in the United States Constitution). After 1776, state judges gradually began to declare the power of judicial review. In a famous obiter dictum in commonwealth v. caton (1782), george wythe declared that should the legislature "attempt to overleap the bounds, prescribed to them by the people," he would be obliged to point to the Virginia constitution and say that "here is the limit of your authority; and hither, shall you go, but no further."

The states' experience with their constitutions between 1776 and 1787 was an important proving ground for constitutional principles and structure. The idea of a bill of rights proved especially powerful. The same George Mason who drafted Virginia's Declaration of Rights saw the constitutional convention of 1787 defeat his call for a bill of rights in the proposed federal Constitution. He and his fellow Anti-federalists came so close to thwarting ratification of the constitution, however, that the Federalists undertook to add a bill of rights as soon as the new federal government came into being—a pledge James Madison redeemed in drafting proposed amendments in 1789.

As to the frames of government created by the first state constituions, draftsmen of national constitutions were able to point to the states' documents as models to be imitated or avoided. The members of France's National Assembly, debating in 1789 what that nation's new constitution should look like, found the American precedents relevant. One faction, led by J. J. Mounier, argued for a bicameral legislature and an executive veto. The other faction, led by the Abbé Sieyès, saw such devices as being impediments to the popular will. The latter group, which ultimately prevailed, depended on popular sovereignty for a constitution's enforcement—rather like the path taken by the drafters of the first American state constitutions.

The delegates at the Convention of 1787 in Philadelphia read the state experience quite differently. Concerned that there were too few fetters on state legislative majorities, James Madison and others at Philadelphia looked to institutional safeguards to protect the constitutional order. Thus, the Madisonian constitution, relying on such devices as the separation of powers and checks and balances, stands in striking contrast to the Whig constitutions found in the states.

In the two centuries since the founding era, the federal Constitution has only occasionally been amended (sixteen times since 1791). Most of what the Framers of 1787 wrote endures. State constitutions, by contrast, have seen frequent amendment and, in many states, periodic overhaul. Indeed, the people of most states seem to have honored Jefferson's advice that each generation ought to examine and revise the constitution so that laws and institutions will "go hand in hand with the progress of the human mind."

The evolution of the states' constitutions has mirrored the great movements and controversies of American history. The early years of the nineteenth century saw the rise of jeffersonianism and jacksonianism. Growth and migration of population brought rising pressures to rewrite state constitutions that, in the older states, tended to insulate the existing order from change: reform brought the progressive abolition of property qualifications for voting, representation in state legislatures became more nearly equalized, governors gained power and status, limits began to be placed on legislative power (to protect against abuses by members of that branch), and explicit provisions were made for the revision and amendment of constitutions.

The era of civil war and reconstruction brought another period of great activity in the writing and rewriting of state constitutions. Between 1860 and 1875, eighteen states adopted new or revised constitutions. Reconstruction resulted in constitutions obliging the former Confederate states to respect the rights of the newly freed slaves. After federal troops left the South, Bourbon democracy emerged and southern states rewrote their constitutions yet again. This time the thrust was to institutionalize Jim Crow and to achieve widespread disenfranchisement of blacks through the poll tax, discriminatory registration requirements, and other devices.

The proponents of populism and progressivism used state constitutions to battle what they saw as the excessive power of corporations and other economic interests. Drafters sought to bypass legislatures by writing detailed provisions regarding the regulation of railroads and corporations. Oklahoma's 1907 constitution concerned itself with enumerating who would be permitted to ride on railroad passes and with legislating the eight-hour day in public employment. Opinions on such state constitutions varied. william howard taft called Oklahoma's constitution a blend of "Bourbonism and despotism, flavored with socialism." William Jennings Bryan declared that Oklahoma had "the best constitution today of any state in this Union, and a better constitution than the Constitution of the United States." The resemblance of such constitutions to codes of law struck james bryce, who concluded, "We find a great deal of matter which is in no distinctive sense constitutional law … matter which seems out of place in a constitution because [it is] fit to deal with in ordinary statutes."

Progressives pressed for forms of direct government—the initiative, the referendum, and recall, with Oregon leading the way. By the mid-1920s, nineteen states had adopted constitutional provisions providing for initiatives to enact legislation, fourteen states had provided for initiatives to approve constitutional amendments, twenty-one states had adopted the use of the referendum, and ten states had provided for recall measures.

As notions of the role of government expanded, including the delivery of services, some observers sought to recast state constitutions in a managerial mode. "Good government" groups sought to streamline state government. Emphasizing efficiency and rational administration, they argued that state constitutions should be revised to give more power to the government, make fewer offices elective (by way of the "short ballot," thus concentrating more power in the executive branch), and create a civil service. The paradigm of this kind of state charter is the National Municipal League's Model State Constitution (first drafted in 1921 and periodically updated).

Much of the mid-twentieth century was marked by a decline of interest in state constitutions. Several factors were at work. Too often state courts showed little interest in enforcing their own state charters. Moreover, state constitutional law tended to be eclipsed by the activism of the warren court. During those years of judicial activism on the High Court, state judges could do little more than try to keep pace with advances in federal constitutional law. There seemed little time or opportunity for state courts to develop doctrine under state constitutions.

The passage of time brought a renaissance of interest in state constitutions. The burger court continued to plough new ground, but in some areas—notably in criminal justice opinions—a more conservative note was sounded. As the Supreme Court trimmed back earlier efforts to impose national standards on state criminal proceedings, litigants began to turn to state courts, asking them to use state constitutions to impose higher standards than those required by federal decisions.

After ronald reagan became President in 1981, his efforts to cut back the role of the federal government was paralleled by the states' acceptance of enhanced responsibility. Indeed, partly because of federal mandates (one person, one vote, decisions of the courts, and the operation of the voting rights act of 1965), the states were healthier entities, better able to function as the social and political "laboratories" proclaimed by Justice louis d. brandeis.

There is ample evidence of state courts' taking state constitutions seriously. Leading state judges—Oregon's Hans Linde and New Jersey's Stewart Pollock, for example—have called for more reliance by lawyers and judges on state constitutions. Even Supreme Court Justice william j. brennan, a leading architect of the Warren Court's activism, joined the chorus of those urging greater use of state constitutions.

One key to understanding the independent role that state constitutions play in shaping American constitutional law is to recognize that the state and federal documents are separate documents, each to be enforced in its own right, independently of the other. A state judge is of course obliged to enforce the United States Constitution, just as is a federal judge. But, while a state court cannot do less than the federal Constitution requires, the court is free to look to the state constitution for imperatives quite beyond anything found in federal constitutional law. If a state court decides that a state law or other action violates the state constitution, the ruling in itself raises no federal question and the Supreme Court will decline review of the case (citing the "adequate and independent state ground" doctrine).

The Supreme Court has explicitly recognized the terrain thus left to state courts. The Supreme Court of California held that its state constitution gave right of access, for purposes of expression, to a privately owned shopping center, even though the United States Supreme Court had previously held that the first amendment conferred no such right. Upholding California's action, Justice william h. rehnquist saw nothing in the federal Supreme Court's prior rulings that would limit the state's authority "to adopt in its own constitution individual liberties more expansive than those conferred by the Federal Constitution."

State courts have sometimes used constitutions where the United States Constitution has little or nothing to say about the issue at hand. In other instances, a state court will use the state charter in areas in which federal doctrine exists but there is room for additional state interpretation. Examples include the following:

1. Economic regulation. Since the so-called constitutional revolution of 1937, the Supreme Court has abdicated the earlier practice of using the Fourteenth Amendment due process clause to second-guess state social or economic legislation. State courts, however, often use state constitutions to review economic measures. For example, a state court might invalidate a law restricting entry into a given trade (such as hairdressing) where it is evident that the purpose of the law is not to protect the public interest but to give special advantages to a favored group.
2. Environment. The federal courts have refused to recognize a federal constitutional right to a decent environment. State constitutions, however, often have provisions protecting the environment. State courts may, for example, give force to a "public trust" in state resources such as rivers and wetlands.
3. Education. The Supreme Court has refused to use the Fourteenth Amendment to require that states equalize expenditures for wealthy and poor school districts. Education is, however, dealt with at length in state constitutions. Courts in some states have used various state constitutional grounds to require more-equal funding of schools throughout the state.
4. Criminal justice. Through the incorporation doctrine, the Supreme Court has applied most of the provisions of the Bill of Rights to the states. Thus, federal constitutional standards regarding police practices (such as police interrogation and confessions and search and seizure) and criminal trials (such as the right to counsel) bind the states, as they do the federal government. Even in this highly federalized area of constitutional law, state constitutions play a role. For example, courts in some states have read the state constitutional ban on unreasonable search and seizure as forbidding police actions that might be upheld under the Supreme Court's fourth amendment decisions.

If one were to review these and other uses state courts make of state constitutions, it would be difficult to label such decisions as being, in sum, liberal or conservative. Those who may benefit from a state court's decision may be as diverse as business enterprises, criminal defendants, or environmentalists.

State court interpretation of state constitutions raise questions about judicial role. The familiar debate over the legitimate bounds of judicial review by the federal courts applies in somewhat altered form to the state courts' displacement of judgments made by state legislatures or by other political forums.

State judges, no less than their federal counterparts, should be aware of the way that judicial review, state and federal, triggers a tension between two principles. One is the principle that in a democracy decisions are made by agents ultimately accountable to the people. The other principle, embodied in judicial review, is that the commands of the Constitution should be enforced, even in the face of a legislative or popular majority.

At the federal level, there are some potential checks on judicial power, for example, the President's power to fill vacancies on the bench or Congress's Article III power to alter the Supreme Court's appellate jurisdiction. Practice among the states offers more opportunities for popular discontent with judicial decisions to be manifested. In particular, it is far easier to amend state constitutions than to amend the federal Constitution. Voters have used the amendment process to curb state courts' ability to decide when there had been illegal search and seizure (California and Florida) and to overturn court decisions invalidating capital punishment on state constitutional grounds (Massachusetts and California).

No function of a constitution, state or federal, is more important than its use in defining a people's aspirations and fundamental values. The federal Constitution is, however, more concerned on its face with structure and process than with substantive outcomes. State constitutions, in the American tradition, tell us more of a people's values. It is in their state constitutions that the people of a state have recorded their definitions of justice, their moral values, and their hopes for the common good. A state constitution, in short, defines a way of life. In so doing, these state charters derive from the tradition given in George Mason's precept (in Virginia's Declaration of Rights) that "no free government, nor blessings of liberty, can be preserved to any people" but by a "frequent recurrence to fundamental principles."

A. E. Dick Howard
(1992)

Bibliography

Adams, Willi Paul 1980 The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era. Chapel Hill: University of North Carolina Press.

Howard, A.E. Dick 1976 State Courts and Constitutional Rights in the Day of the Burger Court. Virginia Law Review 62:873–944.

Mc Graw, Bradley D., ed. 1985 Developments in State Constitutional Law: The Williamsburg Conference. St. Paul, Minn.: West Publishing Co.

Peterson, Merrill D. 1966 Democracy, Liberty, and Property: The State Constitutional Conventions of the 1820s. Indianapolis: Bobbs-Merrill.

Symposium 1985 The Emergence of State Constitutional Law. Texas Law Review 63:959–976.

——1987 New Developments in State Constitutional Law. Publius: The Journal of Federalism 17:1–179.

——1988 State Constitutions in a Federal System. Annals of the American Academy of Political and Social Science 496: 1–191.

Williams, Robert F. 1988 Understanding State Constitutional Law: Cases and Commentaries. Washington, D.C.: United States Advisory Commission on Intergovernmental Relations.