State constitutional reform: Is it necessary?

AuthorHammons, Christopher W.
PositionNew York State

During the 1994 New York State Commission on Constitutional Revision, a member of the New York chapter of the League of Women Voters argued that the state constitution was too long and too policy-oriented. "The New York State Constitution is one of the wordiest in the 50 states,"(1) Helen Obrist averred. "Much of what it contains should be in a statutory law, not in a basic document like the Constitution."(2) As a result, she continued, the state constitution "is nearly impenetrable and it is, all-in-all, an obsolete document, not suited to 21st Century needs."(3)

Obrist's criticism was offered with suggestion for reform. Improvement of the state constitution, she concluded, could be made by revising the document to make it more like its federal counterpart.(4) Obrist offered the example of a neighboring state that had done exactly that. "In 1967, Connecticut streamlined [its] Constitution to resemble the U.S. Constitution,"(5) Obrist declared. "Connecticut now has a viable, basic document which does the job it was designed to do and is adaptable even as times change."(6)

Concern over the design of the state constitution is not unique to New York.(7) During the last decade the four most populous states in the Union--California, New York, Florida, and Texas oath conducted a serious review of its state constitution. Political scientists, legal scholars, and politicians were involved in varying degrees and capacities. Among their chief concerns was that their state constitutions had become somewhat dated.(8) Compared to the United States Constitution, the state constitutions seemed long, poorly organized, and cluttered by extra-constitutional material.(9)

The preferred solution among reformers is a shorter and more straightforward constitution along the lines of the U.S. Constitution.(10) But to what end? Do we really need to revise our state constitutions? Before we start tampering with our states' fundamental charters, perhaps we should first assess the condition and performance of these important documents. In this article, I hope to show that the design of most state constitutions is not only adequate, but may actually be superior to the proposed model that many constitutional reformers prefer.

THE STATE OF STATE CONSTITUTIONS

One of the most frequent criticisms of state constitutions regards their excessive length and unusual content. Given the statistics provided in Table 1,(11) the concern of state constitutional reformers is easy to understand. Table 1 indicates that the average state constitution contains around 34,000 words,(12) almost five times the length of the 7500 word U.S. Constitution.(13) The Alabama Constitution of 1901 is the longest state constitution, at 310,296 words over forty-one times the length of the U.S. Constitution.(14) The New York Constitution weighs in at 51,700 words, almost seven times the length of the U.S. Constitution.(15) Even the shortest state constitution--Vermont at 8295 words--is longer than its national counterpart.(16) In every instance, state constitutions are longer than the U.S. Constitution. Why?

TABLE 1. State Constitutional Length in Total Number of Provisions (and Total Number of Words) State Provisions (Words) Alabama 5204 (310,296) Alaska 723 (15,988) Arizona 1007 (28,876) Arkansas 1550 (40,720) California 1263 (54,645) Colorado 1168 (45,679) Connecticut 393 (16,608) Delaware 558 (19,000) Florida 793 (38,000) Georgia 960 (37,849) Hawaii 549 (20,774) Idaho 328 (23,442) Illinois 538 (13,700) Indiana 390 (10,315) Iowa 328 (12,616) Kansas 439 (12,616) Kentucky 697 (23,911) Louisiana 1537 (54,112) Maine 361 (13,500) Maryland 937 (41,349) Massachusetts 836 (36,700) Michigan 770 (25,530) Minnesota 353 (11,547) Mississippi 619 (24,323) Missouri 1313 (42,000) Montana 443 (13,726) Nebraska 623 (20,048) Nevada 588 (20,700) New Hampshire 335 (9,200) New Jersey 453 (17,800) New Mexico 838 (27,200) New York 1093 (51,700) North Carolina 410 (11,000) North Dakota 565 (20,564) Ohio 1012 (36,900) Oklahoma 1630 (79,153) Oregon 758 (49,326) Pennsylvania 670 (27,503) Rhode Island 282 (10,233) South Carolina 721 (22,500) South Dakota 601 (23,515) Tennessee 391 (15,300) Texas 1841 (80,806) Utah 500 (11,000) Vermont 233 (8,295) Virginia 579 (21,092) Washington 1232 (50,237) West Virginia 725 (26,000) Wisconsin 405 (14,392) Wyoming 576 (31,800) Average State Constitution 828 (34,000) United States Constitution 240 (7500) Note: Data regarding provisions collected by textual analysis of state constitutions. Data on word counts collected from 33 THE COUNCIL OF STATE GOVERNMENTS, THE BOOK OF THE STATES (2000-2001). State constitutions tend to be longer for four reasons. First, the United States government is a government of limited powers.(17) By default, the U.S. Constitution lists only those powers delegated to the federal government by the states.(18) Therefore, the framework of the U.S. Constitution remains fairly brief because it only deals with a specified number of powers and three major institutional branches.

State constitutions, in contrast, must be of greater length because they encompass a wider range of institutions and powers, caused, in part, by the "need to structure and limit the powers of governments that inherently possess all governmental powers not delegated to the U.S. government."(19) In other words, modern state constitutions must deal with a much broader range of powers and institutions than found at the national level.(20) The result is greater constitutional length.

Analysis of the New York Constitution lends strong empirical evidence to this assertion. Institutions not found in the national constitution--comptroller and attorney general,(21) civil service,(22) judicial officers(23)--are described in some detail in the state constitution, as are a greater variety of powers.(24) The New York Constitution devotes 3839 words to fleshing out the legislative branch, compared to 2268 words used to develop the national legislature.(25) The executive branch in the New York Constitution is described in 2259 words, compared to 1025 words in the U.S. Constitution.(26) And while only 377 words are used to establish the national judiciary, a staggering 15,310 words are used in the New York Constitution(27)--twice the length of the entire U.S. Constitution.

New York is not alone in terms of greater institutional detail. This is a pattern repeated by all fifty states. The average state constitution contains 505 provisions detailing the basic powers and institutions of government--over twice the number of provisions found in the national constitution, which devotes around 226 of its 240 provisions to these basic framework type issues.(28) To this end, the resulting greater length of state constitutions may be less a failure of state governments than a result of our federal system. The few powers delegated to the national government naturally result in a greater number and variety of powers left for the states to handle.(29)

A second reason for the greater length of state constitutions is that they have more extensive bills of rights, which are typically placed at the beginning of their constitutions rather than at the end. The New York Constitution is no exception, with article I detailing the rights and liberties of citizens.(30) This tradition among the states dates back to the earliest constitutions, which were often divided into declarations of rights and then a frame of government.(31) The prominent position of the bill of rights served as a declaration that the rights of the people literally preceded government.(32)

While many of the rights listed in state constitutions mirror those in the national Bill of Rights, they are often more detailed. For example, many states not only forbid cruel and unusual punishment, but also require that punishments be proportionate to offenses and that rehabilitation figure into the sentence for such an offense.(33) In addition to prohibiting the establishment of religion, nineteen states specifically prohibit religious tests for jurors or witnesses.(34) Thirty-five states specifically prohibit expenditures for any sectarian purpose.(35) If the national Bill of Rights contained such provisions, the debate over First(36) and Eighth Amendment(37) freedoms would be radically different.

States' bills of rights also often include more contemporary protections than those found in the federal constitution. The Florida Constitution, for example, provides for equal rights under the law for both men and women.(38) The Washington State Constitution provides for the rights of crime victims.(39) In California, those who do not speak English are guaranteed an interpreter by the state constitution when charged with a crime.(40) The New York Constitution protects the rights of collective action by laborers.(41) In sum, state constitutions are longer because they contain more specific rights and a larger number of rights than the U.S. Constitution.

The third explanation for the greater length of state constitutions is the inclusion of a larger number of statutory-type provisions. State constitutions are notorious for including provisions that seem outside the province of traditional constitutional material. The South Dakota Constitution, for example, provides for state hail insurance(42) and establishes a twine and cordage plant at the state prison.(43) The Alabama Constitution authorizes the state to provide an indemnification program for peanut farmers who lost crops due to the Aspergillus flavus (a crop disease) or freeze damage.(44) Even short-worded Vermont institutes hard-labor punishments to deter crime(45) and establishes guidelines for dealing with the estates of people who commit suicide.(46)

States devote an average of forty percent of their constitutions to these types of issues--matters that most political scientists and constitutional experts consider extraneous at best.(47) When measured in total number of provisions...

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