tarr@camden.rutgers.edu
Alan Tarr was founder and director of the Center for State Constitutional Studies and is now Board of Governors Professor Emeritus of Political Science at Rutgers University-Camden. He served as editor of State Constitutions of the United States, a 50-volume reference series (Oxford University Press) and as co-editor of the three-volume State Constitutions for the Twenty-first Century (State University of New York Press), of Constitutional Origins, Structure, and Change in Federal Countries (McGill-Queen's University Press), and of Federalism, Subnational Constitutions, and Minority Rights (Praeger). He is the author of Without Fear or Favor (Stanford University Press), Understanding State Constitutions (Princeton University Press) and Judicial Process and Judicial Policymaking (Rutledge); co-author of State Supreme Courts in State and Nation (Yale University Press) and of American Constitutional Law (Rutledge).
Abstract
Americans revere the United States Constitution and the Founders who created it, so they rarely amend the Constitution, and they rely on the United States Supreme Court to elaborate its meaning. But they have a very different relationship to their state constitutions. They regularly amend their state constitutions or replace them altogether, and they have no compunction about jettisoning what the constitutions’ founders created. When they disagree with how a state court interprets the state constitution, they adopt amendments to overrule the judges or even vote them out of office. This dual constitutionalism encourages a distinctive political practice. Americans treat the U.S. Constitution as a repository of political principles, but they view their state constitutions as a species of ordinary law and use them rather than revere them, including in them provisions that could as easily be put in statutes. This facilitates popular control over government. The result is a system of dual constitutionalism that combines stability at the national level with dynamism at the state level, statements of fundamental principle at the national level with the vigor of popular input at the state level.
The National Constitution Center, which opened in Philadelphia in 2003, honors what the Center’s website breathlessly describes as “the greatest vision of human freedom in history.” (National Constitution Center, 2023) The Center’s exhibits celebrating the U.S. Constitution and its history culminate in the Hall of Founders, which features life-size sculptures of the 55 delegates to the Constitutional Convention. A few blocks away, at Independence Hall, visitors can see where the delegates met and hear an account of their deliberations. Like history education more generally, these sites aim to instill reverence for the Constitution and for the wisdom of those who created it, and these efforts have largely succeeded. Americans may have only a limited knowledge of the particulars of the Constitution, but it remains a treasured national symbol.
Needless to say, there is nothing even remotely comparable for American state constitutions. The sites where convention delegates drafted state constitutions are not treated as sacred shrines—the guides at Independence Hall never even mention that the Pennsylvania Constitutions of 1776 and 1790 were also drafted there. There are no statues of the delegates to state constitutional conventions, and even their names are largely forgotten. Americans do not celebrate the wisdom of these founders, and frankly in some cases there are good reasons why they don’t. After all, who wants to honor John Knox, president of the Alabama Constitutional Convention of 1901, who proclaimed that the aim of the convention was to enshrine white supremacy in the state’s fundamental law? And if most Americans lack a detailed knowledge of the Federal Constitution, some polls suggest that many are not even sure whether their states have a constitution at all.
Yet these polls are misleading, because they ignore how Americans continually rely on their state constitutions. Just consider some recent political history. In September of 2021, more than half of California’s eligible voters cast ballots to decide whether or not to recall Governor Gavin Newsom before the end of his term of office. Among the nation’s most contentious political issues are voting and elections, with Americans divided on whether to frame the issue in terms of access to voting or safeguarding against election fraud, and so it is not surprising that in 2020 voters in 14 states were presented with ballot measures related to elections. That same year state voters also addressed proposed constitutional amendments dealing with issues as diverse as taxes, gambling, education, and the rights of crime victims and with policy issues ranging from medical marijuana to the gig economy. Alabama voters in 2022 decided on nine constitutional amendments, on issues ranging from bail in criminal cases and the death penalty to economic development and to regulation of the internet.
Most likely state voters, whether in Alabama or in other states, did not pause to consider that it was their state constitutions that secured them the right to vote on these issues. Nor did they likely reflect on why their state constitutions should be far more malleable than the Federal Constitution or why they as citizens exert far greater control over the contents of those constitutions. They simply treated their state constitutions as part of the legal landscape of their lives. For the meaning of the Federal Constitution, Americans are accustomed to awaiting the pronouncements of the U.S. Supreme Court. But at the state level they determine for themselves the meaning of their state constitutions. They do so by regularly replacing those constitutions with newer ones—altogether the American states have adopted 144 constitutions, with most states adopting 3 or more. Even more frequently they amend their state constitutions—current state constitutions have on average been amended more than 130 times. Utah, for example, has had only one constitution, but it has amended that constitution 129 times, averaging almost exactly one amendment per year. And if they don’t like how state courts have interpreted the state constitutions, they don’t wait for the judges to change their minds. They select new supreme court justices who have a different legal perspective, an alternative facilitated by the fact that in 22 states the justices are chosen by popular vote. Or they change the constitutions to overrule the courts. And they jealously safeguard their authority to make such changes—in 2023 Ohio voters overwhelmingly rejected a constitutional amendment that would have made future amendment of the Ohio Constitution more difficult. In short, they have a very different relationship to their state constitutions than they do to the U.S. Constitution.
The U.S. Constitution’s enormous symbolic value is tied to its durability, its relative unchangeability, and as a result the sense that it is a special sort of law above ordinary politics. In a recent speech Justice Amy Coney Barrett sought to defend the Supreme Court by invoking this understanding of constitutional law as above politics, insisting that the justices as constitutional interpreters are “not a bunch of partisan hacks.”(Duster, 2021) Whatever the truth of that claim, Americans don’t perceive their state constitutions as a special sort of law. Instead they view their state constitutions as ordinary law, no different in character from statutes or other legal enactments, practical measures designed to create good government and promote a just and prosperous society. And to be changed whenever necessary to accomplish those ends.
A distinctive political practice flows from this perception of state constitutions as a species of ordinary law, one that we use rather than reverence. This affects first of all the contents of American constitutions. At the national level, Americans distinguish sharply between matters that are fundamental and so belong in a constitution and matters that are not. Thus the U.S. Constitution defines the structure of the Federal Government, establishes the procedures by which it operates, and states our governing principles, but it largely leaves policy matters to ordinary law–statutes, administrative regulations, and the like. But constitutional practice in the states is very different. Americans don’t sharply distinguish between matters that are constitutional in character and those that are not, so they insert their state constitutions a level of detail that is absent from the Federal Constitution, and they address in those constitutions matters that might have as easily been addressed in statutes. The Utah Constitution illustrates this. It includes separate articles dealing with Labor, with Education, with Corporations, with Water Rights, with Forestry, and with Public Lands. Each of these articles deals with its topic in great detail—the Labor article, for example, bans the employment of children under age 14 in underground mines, specifies an eight-hour workday on public works, and prohibits corporations from blacklisting employees. The articles also confirm the legislature’s authority to enact statutes addressing these issues, thereby precluding legal challenges.
Why have Americans chosen to insert into their state constitutions provisions that could have been adopted as statutes? They do so in part to insulate their policy choices from judicial invalidation—a statute may be struck down as unconstitutional, but a constitutional provision cannot. They also do so to make it more difficult for future majorities to reverse their policy choices—it is easier to pass a law than to amend a constitution. Finally, they insert policy provisions in their state constitutions because constitutionalizing political issues affects the mode of enactment. Legislatures enact statutes, but if voters fear that state legislators are unresponsive to their constituents or are too responsive to special interests, they can circumvent the legislature by writing their favored policies directly into the constitution. During the nineteenth century, they tended to do this primarily during the conventions called to devise or revise state constitutions. In 1889 Governor Arthur Mellette made the case for this in the South Dakota Constitutional Convention: “If it is right, if you know the proper thing to embrace in your legislation, the more there is in the constitution the better for the people.”(Hicks 1923: 54) Why? Because convention delegates are not concerned about reelection, they are more likely to represent the people and less likely to cater to the views of powerful special interests.
Since the twentieth century, as the number of constitutional conventions has declined, constitutional amendments have served this same purpose. This is particularly the case in states that have the constitutional initiative, which allows ordinary citizens to craft proposals and then submit them directly to the people for ratification. This procedure not only sidesteps the state legislature but also tends to inoculate measures from judicial invalidation under the state constitution.
So what are the effects of making state constitutions repositories of ordinary law? The insertion of detailed policy provisions in state constitutions certainly adds to their length–Utah’s Constitution is 20,700 words long, more than twice as long as the U.S. Constitution. And critics have compared the Alabama Constitution, with its over 900 amendments, to the gargantuan novel Moby Dick. But length by itself is less important than the frequency of amendment and the level of detail in constitutional provisions. For the Federal Constitution, there is a single set of Founders with a common political perspective whose views guide our interpretation of the Constitution. But the frequency of state constitutional amendment makes it difficult to honor the constitution’s founders, discover their original intent, or even identify who the founders are, because each amendment is in effect a little refounding. After more than 500 amendments spread over 144 years, who do we identify as the founders of the California Constitution?
The insertion of detailed policy prescriptions in state constitutions also encourages frequent amendment. Such provisions run the risk of becoming outdated as a result of changing conditions—for example, some state constitutions specified the pay for legislators or judges with no mechanism for dealing with inflation. State provisions also may need amendment when the conditions change that prompted their adoption in the first place. The Louisiana Constitution established an administrative board in New Orleans made up of the presidents of three New Orleans colleges, but a couple decades later one of those colleges closed. The legislature duly proposed a constitutional amendment to reconstitute the board—but amazingly, voters rejected the amendment. Or state provisions may be subject to amendment when societal or political perspectives shift. For example, in 2002 Nevada adopted a constitutional amendment forbidding same-sex marriage, but in 2020 it repealed that amendment.
It may be easy to laugh at instances of state constitutional malpractice while reverencing the majestic unchangeability of the U.S. Constitution. But unchangeability is a virtue only when change is not desirable, and it would likewise be easy to compile a list of proposed changes to the U.S. Constitution that enjoy broad popular support but have failed because the process of federal constitutional amendment is so difficult. It may be that Americans have, likely inadvertently, created a system of dual constitutionalism that combines stability at the national level with dynamism at the state level, statements of fundamental principle at the national level with the vigor of popular input at the state level. At least that is the way the system Americans have developed now operates, and there is no likelihood that they will change it anytime soon.
Suggested citation: Tarr, A. 2023. ‘American State Constitutions as Ordinary Law’, 50 Shades of Federalism
References
Duster, Chandelis. “Justice Amy Coney Bryant Says Supreme Court Is ‘Not a Bunch of Partisan Hacks’.” https://www.cnn.com/2021/09/13/politics/amy-coney-barrett-supreme-court-not-partisan/index.html .
Hicks, John D. 1923. The Constitutions of the Northwest States. Lincoln: University of Nebraska University Studies.
National Constitution Center website. https://constitutioncenter.org/about .
Further Reading
Dinan, John J. 2018. State Constitutional Politics: Governing by Amendment in the American States. Chicago: University of Chicago Press.
Sutton, Jeffrey S. 2018. 51 Imperfect Solutions: States and the Making of American Constitutional Law. New York: Oxford University Press.
Tarr, G. Alan. 1998. Understanding State Constitutions. Princeton: Princeton University Press.