State Constitutional Law

• Author: Hans A. Linde
• Pages: 2495-2499

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American constitutionalism is more than the United States Constitution as interpreted by the United States Supreme Court. Each of the fifty states has its own constitution, which is the chief charter of government and of limitations on government in that state. State constitutions offer contrasts to common assumptions, based only on the United States Constitution, concerning both government and constitutional law.

STATE CONSTITUTIONS preceded the Constitution of the United States. State governments had to be formed when colonial governments were displaced in the move to American independence. The CONTINENTAL CONGRESS called upon each colony to establish its own government, but the Congress decided not to propose a single model for all. Eleven of the original thirteen states adopted written constitutions between 1776 and 1780; Connecticut and Rhode Island established their governing institutions without adopting constitutions until well into the nineteenth century. The generation that drafted the United States Constitution and the BILL OF RIGHTS first applied many of its political theories to forming the state constitutions.

One tradition dating from the early state constitutions is to place the declaration of rights at the beginning of the document. The rights so declared differed among the states, but together they covered virtually all of the guarantees later added to the United States Constitution. As to the structure of government, all states except Pennsylvania adopted bicameral legislatures (today only Nebraska's is unicameral), but they diverged on how and by whom representatives were elected. The theory of a separation of legislative, executive, and judicial powers was widely approved and expressly incorporated in Virginia's and other constitutional texts, but the legislatures were dominant in most states, electing governors, other executive officers, and judges.

By 1800 most of the original state constitutions had been replaced by revised documents. Nineteenth-century constitutions reflected the changing political concerns of old and new states as the nation expanded westward. Jeffersonian and Jacksonian views of democracy and equality broadened political participation and extended popular election from legislative to virtually all executive, administrative, and judicial offices. By mid-century, legislative profligacy with public credit in pursuit of economic development led to constitutional restraints on taxing and borrowing, on "lending the state's credit" or granting special PRIVILEGES OR IMMUNITIES to private persons, and on individual incorporation acts or other special or local laws. New governmental programs such as public education and regulation of banks, railroads, and public utilities were not left to ordinary legislation but were added to state constitutions, often to be administered by separately elected officials. State constitutions address such social problems as alcoholic beverages, gambling, and lotteries. The movement toward populist government reached its climax at the beginning of the twentieth century when many states provided for referenda on legislation and constitutional amendments upon petition by the requisite numbers of

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voters. Eventually many states had constitutions resembling haphazard legal codes.

After WORLD WAR II a number of states adopted substantially new or modernized constitutions, including Missouri (1945), New Jersey (1947), Hawaii and Alaska (1959), Michigan (1960), Connecticut (1965), Florida and Pennsylvania (1968), Illinois and Virginia (1970), Montana (1972), Louisiana (1974), California (1976), and Georgia (1982). Others retain their original constitutions as revised by individual amendments. Altogether the fifty states have had a total of nearly 150 constitutions, with corresponding diversity among the states.

Although guarantees of individual rights dominate judicial and public attention, the primary function of constitutions is the organization and allocation of governmental authority. When this is done in a written constitution, the legitimacy of actions even by the highest elected officials depends upon compliance with the constitution and can be challenged for failure to comply. A comparison shows that in a number of respects the constitutional law of state government is more complex than that of the United States, although in one respect it is not.

The authority of states as such is not derived from their constitutions, as the early examples of Connecticut and Rhode Island show; unless limited, state authority is as plenary as that of the British Parliament. State constitutions therefore have no need for lists of legislative "powers" like those granted Congress in the United States Constitution. The great residue of the COMMON LAW concerning private transactions and property is state law. Although elected officials of local governments exercise lawmaking, taxing, and executive powers, their relation to the state is the reverse of that between the state and the federal government insofar as local governments have only the powers defined in state law. The "home rule" provisions found in many state constitutions, however, introduce one complexity comparable to the constitutional problems of FEDERALISM.

There are other contrasts. Federal executive officers are appointed by the President and must trace their actions to some act of Congress except for those powers given the President directly by the Constitution. Although the typical state constitution refers to an executive department of government, many executive officials, such as state treasurers, attorneys general, superintendents of public...