The State Of State Constitutions

• Author: G. Alan Tarr
• Pages: 3-16

Page 3

This article is a slightly revised version of the keynote address delivered at a conference on "The State of State Constitutions," conducted by the Center for State Constitutional Studies in Philadelphia, Pennsylvania, on May 4-6, 2000. As Director of the Center for State Constitutional Studies, I wish to acknowledge the generous financial support of The Ford Foundation, which made the conference possible, the invaluable research assistance of Helen Safos and Nancy Leso, and the valiant secretarial assistance of Karen McGrath.

Distinguished Professor of Political Science and Director, Center for State Constitutional Studies, Rutgers University-Camden. B.A., College of the Holy Cross, 1968; M.A., University of Chicago, 1970; Ph.D., Political Science, University of Chicago, 1976.

For the American states, this might well seem like the best of times. Over the past few years, thanks to a vibrant national economy, the fiscal situation in most states has seldom been better. Tax revenues have outpaced estimates in recent years, allowing many states to cut taxes without reducing spending on popular programs, and several states have boasted substantial budget surpluses.¹ In addition, the devolution of power from Washington, D.C. has afforded the states new opportunities to innovate and to experiment.²Meanwhile, recent Supreme Court rulings on federalism, together with congressional enactments such as the Unfunded Mandates Reform Act of 1995, have guaranteed to the states a measure of autonomy.³ One can well understand, then, why Governor Cecil Underwood would proclaim to the West Virginia legislature that "I can't remember a time brimming so completely with optimism and opportunity."⁴

Yet, if one surveys the challenges facing the American states as they embark on the new millennium, one might well choose to temper that optimism. After all, the optimism about state prospects Page 4 stems largely from the fact that a robust American economy has filled state coffers to overflowing. Obviously, one cannot expect the economic boom to last forever-indeed, as I write in mid-2000, there are disquieting signs on the horizon-although one suspects that most politicians are fervently praying that the boom continues at least until after the next election. When the economic good times end, as inevitably they must, will the states be able to generate the revenues necessary to meet their responsibilities?

This is not an idle question. Devolution has not only increased the states' autonomy but has also expanded their responsibilities, and meeting those responsibilities costs money. Moreover, the states may discover that their ability to generate revenue has diminished. Traditionally, a major source of funding for state governments has been the sales tax, but the expansion of internet commerce is likely to reduce revenues from that source.⁵ And, there is no obvious new source of revenue, like gambling during the 1980s and 1990s, that states can look to as a substitute for funding via taxes.⁶ Further complicating the fiscal future of certain states are constitutional restrictions that have been imposed in recent decades in California, Colorado, Nevada, and other states that limit the authority of state legislatures to tax and/or spend.⁷

Page 5

The challenges facing state governments at the dawn of the twenty-first century, of course, are not exclusively fiscal. The devolution of policy-making responsibility from Washington D.C., as well as the responsibilities that state governments have traditionally shouldered, means that the states must discover how to address new problems and must seek solutions for long-standing, intractable ones. During the 1960s and 1970s, commentators frequently raised questions about state government capacity and whether states had the ability to manage and implement programs to deal with pressing concerns.⁸ These concerns led to notable reforms in state government, ranging from strengthening the governors' appointment, personnel, and budgetary powers to professionalizing state legislatures and consolidating state bureaucracies.⁹ Despite these noteworthy innovations, one must acknowledge that those same questions remain today.

Finally, state governments must address the twin specters of citizen disinterest and citizen dissatisfaction, or what might be called the D & D challenge. Public interest and involvement in state Page 6 government is minimal. The turnout of eligible voters in state elections was abysmal and it is declining from that level. In 1998, for example, congressional seats and important state races were at issue; however, the national turnout was only thirty-six percent, just over 1/3 of the eligible electorate.¹⁰ In states that hold their state elections in odd-numbered years, when there are no national races to excite interest, the figures are even more discouraging. In my own state of New Jersey, for example, only thirty-one percent of eligible voters bothered to participate in electing the state legislature in 1999.¹¹These figures illustrate a continuing pattern of citizen disengagement from state government and from government in general. This pattern is troubling and must be addressed.

Even as state legislatures reduced taxes and funded programs in the late 1990s, presumably popular courses of action, poll data revealed a pervasive dissatisfaction and distrust of state government. Once again, this is part of a nationwide pattern affecting all levels of government. A national poll conducted in 1995, for example, found that only a quarter of respondents indicated "a great deal" or "quite a lot" of confidence in state government.¹² And when citizens have had the opportunity, they have expressed their distrust by approving measures designed to limit the tenure of state officeholders, to circumscribe their powers, and to transfer policymaking responsibilities to the people acting directly.

Thus, during the 1990s, voters in twenty-one states established term limits for state legislators, and in five states they placed such limits on executive branch officials as well.¹³ California complemented its attack on incumbency with the adoption of Proposition 140, which prohibited legislators from earning state Page 7 retirement benefits and required major reductions in legislative agencies and staff.¹⁴ Other states have amended their constitutions to authorize the recall of state elected officials. Minnesota in 1996 brought the number of states employing this device to eighteen.¹⁵Initiatives in three states have required a super-majority in the legislature to enact tax increases. Initiatives in two other states have tied increases in spending to the rate of inflation and to population increases. Additionally, a Colorado initiative has required voter approval for all new taxes.¹⁶ Indeed, the proliferation of constitutional initiatives itself suggests a profound skepticism about whether the institutions of state government can be relied upon to enact good policy.¹⁷

It would be naive, of course, to suggest that all of the problems I have described are constitutional problems, or that they all are susceptible to a constitutional resolution. Yet, I think it would be equally naive to assume that state constitutions are irrelevant to solving any of these problems. Simply put, state constitutions do matter. They create the institutions of state government, and the structure of those institutions affects the policies that they produce. State constitutions influence how effectively state governments can address policy concerns. They also forge the links between state governments and the citizens of those states, and at their best, they embody the aspirations of those citizens.¹⁸

The crucial role played by state constitutions underscores the importance of reexamining them periodically.¹⁹ Several basic questions suggest themselves. What is the state of state constitutions? Do they need to be revised to deal with the aforementioned problems and with other challenges facing state governments as they enter the twenty-first century? If they do, how should they be changed to promote more effective, more responsive, Page 8 and more accountable government? And once reformers have determined the direction of constitutional reform, how can they overcome the obstacles that have blocked such reform in the past?

I offer no pat answers to those questions.²⁰ But, let me offer a few broad-brush observations about contemporary American state constitutions, keeping in mind always that, given their diversity, almost any statement made about state constitutions is bound to be true of some of them and not true of others.

First, American state constitutions tend to be "old"-the average state constitution has been in operation for over a century.²¹ Most current constitutions date from the late nineteenth century. Only twelve states revised their constitutions during the twentieth century, although five others did draft their initial constitutions within the last one hundred years. Of course, there is nothing intrinsically wrong with "old" constitutions-the Federal Constitution was drafted in Philadelphia two hundred and thirteen years ago, and most of us have no desire to see it replaced. Indeed, one might suggest that for constitutions, durability is a virtue rather than a vice.²² Yet, unlike Page 9 the Federal Constitution, contemporary state constitutions do not continue in operation because of popular veneration for the document or for its drafters.²³ Indeed, state constitution-makers during the nineteenth century, when most of these constitutions were written, would have rejected outright such a deference to the past. They viewed constitution-making as a progressive enterprise, and they assumed that periodic revision of state constitutions was not only proper but necessary.²⁴ Certainly the poll data mentioned earlier belie any notion that the "old" state...