Challenges Facing State Constitutions in the Twenty- First Century

• Author: Ann Lousin
• Position: Professor of Law, The John Marshall Law School, Chicago, IL.
• Pages: 17-27

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Professor of Law, The John Marshall Law School, Chicago, IL., Research assistant at The Sixth Illinois Constitutional Convention in 1970. The author wishes to acknowledge with gratitude the memory of two giants in Illinois constitution-making, Professor Rubin G. Cohn and Samuel W. Witwer, Esquire, who really knew what a state constitution should do.

Since 1776, each state in the federal union has had its own constitution. At the cusp of the twenty-first century and after two hundred and twenty-five years, we should ask what the role of the state constitution is, will and ought to be in the next one hundred years. The answers to these questions emerge by addressing the current social, political and economic changes that confront state constitutions. Awareness of our changing environment will help serve as a guide to drafters of future constitutions and help broaden the scope of their constitutions in order to meet the changes underway in their states.

A state constitution is the basic charter of a sovereign state and stands completely apart from the United States Constitution. Nonetheless, the fifty state constitutions must operate within the federal union, whose basic charter provides a model and sets minimum standards. In my view, most state constitutions adopted prior to 2000 have emphasized local issues. Some constitutional provisions are unique to each state. There are agrarian provisions in farm states;¹ home rule in states with large municipalities;² and environmental provisions in states having prized but fragile relationships with the environment.³ Louisiana also has a constitution with local flavor.⁴

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As we enter the twenty-first century after over two hundred years of independence, changes in the structures of state constitutions are forthcoming. In the present and the foreseeable future, the challenges facing the fifty states and the fifty state constitutions are and will be fairly uniform. Each individual state and its constitutional structure must face three, perhaps four, challenges. The first challenge is the trend towards national uniformity, a resurgence of federal power and "nationalism." The second challenge is that of "internationalism" or economic globalization and the development of the "global village." The third challenge is that of computers and other technology, which make it easier and yet more complicated for state governments to gather and process information. These changes will challenge election and tax collection provisions of many state constitutions. Finally, if I were to add a fourth challenge facing state constitutions, it would be the impact of the growing trend to centralize the administration of state educational systems, from kindergarten to graduate degrees, through state-wide funding and state-imposed standards. These challenges will undoubtedly necessitate changes in the structures and content of every state's constitution.

I The Trend Toward National Uniformity And Federalism

With the national growth of communications and transportation, it is fair to say that the American economy is now an interstate or "national" economy. It no longer consists of fifty independent state economies, but rather it has become harmonized and interdependent.

One clear impetus for this is the revolution caused by the Internet and the facility to purchase goods and services through it. Sales in cyberspace are growing in number and value so rapidly that they will soon match those of sales across the counter and by mail. This trend will compound the existing problems that states now have in collecting sales taxes on mail order and interstate sales. Ordinary "Main Street" merchants, who still must collect sales taxes, find themselves at an economic disadvantage against the untaxed Internet sales. For state governments, these Internet sales equate to a decline in sales tax revenue. For state constitutions, provisions on the imposition and collection of state and local sales taxes are therefore less important. Does anybody think that Congress will resist the temptation to impose a national sales tax-one that has uniform definitions, has national application and taxes Internet sales? My thirty years observing state governments have taught me the truth of an old maxim of government: "If it makes money, tax it." The Page 19 pending conflict between a nationally-imposed Internet sales tax and declining state sales tax revenues will undoubtedly cause tension for state constitutions and their sales tax provisions.

Another example of the trend toward national uniformity that will test state constitutions is the proliferation of uniform national laws, especially those produced under the auspices of The National Conference of Commissioners on Uniform State Laws ("NCCUSL"). Over a hundred of these laws have been drafted by representatives from each state, most of them in the last century, and have enjoyed great success in the state legislatures. The Restatements of the Law, drafted by law professors under the sponsorship of The American Law Institute ("ALI"), are black-letter summaries of the states' case law. While some state courts are reluctant to adopt the restatements, others are eager to do so. The trend towards adoption appears to be growing. The ALI's other project, the Model Acts, has also embraced some success, although state legislatures are more likely to adopt a uniform statute than a model act.

The Uniform Commercial Code ("U.C.C."), a project of both the NCCUSL and ALI, is the most successful and best-known example of the national law movement. Even Louisiana, the only state that has not formally adopted the U.C.C., has adopted some of its articles. The United States bankruptcy laws and other federal statutes, coupled with Louisiana's interstate commerce, have undoubtedly influenced its adoption decision.

It is not surprising that one of the current projects of the national law movement is The Streamlined Sales Tax Project, an effort by the states to make the administration of the sales tax more uniform nationally. The growth of Internet sales has undoubtedly spurred this development. By simplifying the administration of their sales tax and reducing costs, especially on interstate sales, states could potentially realize a gain to offset any unexpected decline in gross sales tax revenue.⁵

Two aspects of the "federalization" trend will affect state constitutions: the growth in federal spending in areas formerly reserved to the states and the growth in federal litigation based on federal laws and the United States Constitution. Beginning with the G.I. Bill of Rights in 1944, the federal government has played a growing role in funding university education. Today, many college and graduate students have federally-guaranteed loans. Also, starting in the post-Sputnik era of the late 1950s, the federal government increased its role in funding mathematics and science education in elementary and high schools, the education of sub-university level Page 20 teachers, the rebuilding of schools and the overall financing of education generally. Inevitably, this increased federal funding includes a demand that the federal government hold educational institutions "accountable" for the quality of the teaching and learning at those institutions. This example illustrates another governmental maxim: "control of the course follows control of the purse." Because state education programs are largely based upon state...