CHAPTER 6 STATE CONSTITUTIONAL LAW RESEARCH

• Jurisdiction: United States

Chapter 6 STATE CONSTITUTIONAL LAW RESEARCH

A. STATE CONSTITUTIONAL ORGANIZATION

Each state has its own constitution which is generally patterned after the United States Constitution. However, the length or scope of these state constitutions will vary. Some, like the federal Constitution, are relatively brief while others are so voluminous that they include materials which probably should be contained in statutes.

The number of constitutional amendments will also vary. The state constitutions have been amended more frequently than the federal Constitution. Generally, these changes occur at a significant time in the state's history. For example, several revisions of the Texas Constitution coincided with critical periods in the state's political history. Some examples include:

(1) 1836: The new republic adopted a constitution which bore a strong resemblance to the U.S. Constitution in its separation of powers provision and its bill of rights.
(2) 1845: Introduced the change from the status of a republic to that of a state.
(3) 1861: Effected the withdrawal from the Union and a change to the Confederacy.
(4) 1869: Effected the readmittance to the Union.
(5) 1876: The present Constitution. It is long and verbose and has been subject to many amendments.

It is important for the researcher to determine if there is a constitutional provision on point. This is particularly significant when a legislative issue is involved because the constitution gives the legislature power to act. As indicated in the discussion of the federal Constitution, legislative material is based on a hierarchy of law. The constitution is the highest authority of the state and becomes the first tier of legislative materials. State constitutions also enumerate certain powers to the state legislatures. These powers enable the legislatures to act by passing statutes. This form of legislation is the second tier of authority. In addition, the state legislatures have authority to create state administrative agencies which fashion the day-to-day rules and regulations to implement the statutes. These administrative rules and regulations become the third tier of authority.

HIERARCHY OF AUTHORITY

Constitution

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State Statutes

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State Administrative Rules and Regulations

The forms of publication are also similar to federal materials. In other words, there may be an official and unofficial publication of the constitution. At the present time, there are five states which have an official publication. These editions are printed by the State Legislative Council and may be the sole publication of the material within the state. However, the format and the research process for both the official and unofficial publication of a state constitution is basically the same. Once the researcher is familiar with the process, it is simply a matter of looking for that information to complete the research. For example, even the official publication of the code is annotated so that a case can be found. However, in two states, Nevada and Oregon, the annotations are not with the statutory provision but instead are found in separate binders.

As with other types of research, judicial interpretation of the state constitution is important. The annotated code is the most efficient way to find case authority for the constitutional material. However, alternate methods of both finding cases and updating the information are available. For example, the researcher can use the state digest under the appropriate topic and key number. In addition, the state edition of Shepard's, statutes volumes, provides not only updating information about the constitutional provision but also any cases that have interpreted the section.

Another source of information is local secondary authority. For instance, state encyclopedias frequently contain historical information or references to such available materials. In addition, local treatises or law journal articles written by practitioners, the state bar, or student authors may provide background information.

B. STATE CONSTITUTIONAL LAW LOCATION METHODS

[1] State Code Method

Finding the text of the state constitution is a relatively easy matter. Each of the state statutory codes has the text of that state's constitution; this format is similar to federal research in the U.S.C.A. or the U.S.C.S. for the United States Constitution. Generally, the constitutional volumes precede the statutory volumes. For example, in Texas, the first four volumes of the Vernon's Annotated Texas Code contain the Texas Constitution.

In addition, both an official and unofficial state code will be annotated. This is important because of the impact of judicial decisions on constitutional law. Case law has two important functions. First, judicial opinions provide the necessary interpretation to constitutional provisions which by necessity have to be general in nature. Second, the case law analyzes and reviews the statutory language or acts of the parties to determine if they meet the template outlined in the constitution.

The format for research materials is generally the same. Slight variations may exist because of the differences between the many publishers of the state codes. However, these minor differences should not be a problem for the researcher. The constitutional provision will be divided according to articles. Following this major heading, a number of research aids are noted such as: (1) a "table of contents" of the sections within that article; (2) any notations about the article itself such as its title or if it has been amended or repealed; (3) a table of revised section numbers for each revision; (4) the text of the first section; (5) legislative changes to that section; (6) historical notes about the section; (7) a list of law journal articles about that section; (8) an index to the notes of decisions; and (9) the listing of the cases.

[2] General Resources

Although the state code is the most commonly used...