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Chapter 4— The States and Civil Liberties
A State Civil Liberties Law?
The First State Constitutions ....
State Courts and Constitutions
More Protections Than the Supreme Court Finds within the U.S. Constitution.
State Courts and Economic Rights in the 19th Century
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Part III: State Constitutional Law and Public Policy
Change and the Diffusion of New Ideas
The States and Education: An Historical Perspective .
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Part IV: Conclusion
Chapter 10—State Constitutional Law: The Ongoing Search for Unity and Diversity
in the American Federal System
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1. State Constitutions “Complete"
and "Balance" the Nation's
The state constitutions and the U.S. Constitution are coordinate documents which, together, provide the total framework for government within the United States. Neither can stand alone. However, with the rise to prominence of federal constitutional law and the expansion of federal power, public and judicial understanding of state constitutional law has been weakened, so much so that when most people think of constitutional law, they think only of federal constitutional law.
Yet, all of the states in the original confederal Union had constitutions or charters of their own before the U.S. Constitution was drafted and ratified in 1787-1788. Those state constitutions did then, and still do, provide the framework for many aspects of government not covered by the U.S. Constitution. In addition, they provide alternative approaches to aspects of government also addressed in the U.S. Constitution. In some cases, state constitutions supplement and go beyond provisions in the U.S. Constitution.
Some of the matters addressed in the state constitutions, but not in the U.S. Constitution, are the structure, functions, and finances of state and local governments; the constitutional standing of local governments in disputes with the state; state-local relationships in the broadest sense; limits on the ability of the state to mandate functions and expenses on local governments; and the regulation of property, including the land development process. These are matters of immense significance for intergovernmental relations and for the American federal system. It is impossible to appreciate the dynamics of this federal system, and to realize its potential for producing diversity within unity, without a sound and fully developed understanding of state constitutional law.
2. The States Are Independent Polities with
Their Own Philosophies of Government
Until the present U.S. Constitution was created, the states were sovereign governments in their own right. In ratifying the U.S. Constitution, they delegated certain of their powers to the federal government and transferred a certain degree of sovereignty. However, they reserved all residual powers to themselves and to the people.
The state constitutions are based on diverse understandings and philosophies of government, are substantially easier to amend than the U.S. Constitution, provide for direct citizen involvement in the process of amendment and change (unlike the federal Constitution), have a tendency, therefore, to accumulate detailed provisions that some people believe should be left to statutory law, and have bills of rights that often are different from the U.S. Bill of Rights. It is important to understand these differences between state constitutional law and federal constitutional law if the full potentials of the states, and of their local governments, are to be realized within the American federal system.
3. The United States Constitution
Allows Substantial Room for the
The study of state constitutional law reveals a number of federal constitutional doctrines that potentially limit federal intrusions into state and local affairs, and that limit the jurisdiction of the U.S. Supreme Court and federal district courts over matters reserved to the states. For example:
A state constitutional grant of authority to statc and local governments is unlikely to be preempted by federal courts when it (1) regulates a subject matter traditionally left to the states, (2) uses historic police power objectives concerning health, safety or mor
als, (3) involves objectives that are compat-
statutory law. Thus, the federal judiciary has created certain opportunities, within its understanding of the U.S. Constitution, for state foresight and assumption of responsibility. The current movement to integrate state constitutions into the process of state lawmaking opens the possibility that the promises of diversity within unity in American federalism can be realized.
legislatures frequently are involved in providing leadership for constitutional change. Interpretations by statc judges, who often are elected, are also a major force for change. However, because of the direct role of citizen participation in state constitutional development, amendment plays a larger role in the change process than it docs for the U.S. Constitution. Judicial interpretation, which is the dominant means of giving new meanings to the U.S. Constitution, plays a smaller, though still important, role in keeping state constitutions up to date. Thus, the politically responsive nature of state constitutions is more directly apparent than that of the U.S. Constitution.
The prolific amendment capacity of state constitutions has yielded many reforms in recent years, as well as certain causes for concern. Examples of reforms include home rule, strengthened executive management and budgeting, and more capable legislatures. However, concerns arise when the state judiciaries, often subject to the electoral process, become embroiled in political campaigns, when legislators or governors promote excessive constitutional restrictions on local governments, when citizens fail to vote for constitutional amendments that seem to be too obscure or complex to understand, or when emotional issues of the moment produce constitutional changes that lack foresight or sensitivity to certain groups of citizens.
5. State Constitutional Law
Is an Underdeveloped Field
A 1988 Commission poll revealed that only 44 percent of Americans know that their state has its own constitution. Even among lawyers, state constitutional law is relatively unknown and little practiced. Compared to the U.S. Constitution, state constitutions are less frequently mentioned in the history and civics classes of public schools or the university, and regular reporting of state constitutional decisions, as well as the statistics of state court activities, has been, until very recently, quite rare. Even the law schools seldom offer courses in state constitutional law. If the American federal system is to be properly balancedgiving full rein to the potentials of local governments, the states, and the national government-then the field of state constitutional law needs to be developed more fully.
4. State Constitutions Are the Business
of Governors, Legislatures, the People,
Most state constitutions are amended much more easily and frequently than the U.S. Constitution. Citizens promote or affirm these changes by initiative or referendum. In addition, governors and
Recommendation 1 Promoting Public Understanding of and Support for State Constitutional Law
The Commission finds that widespread public understanding of and support for the vital role that state constitutions and state constitutional law play in maintaining a proper balance in the American federal system is essential for the full development of the nation's potential. The importance of voter initiatives and referendums in the process of revising state constitutions is a major reason for this finding. Yet, most citizens are unaware even of the existence of the 50 state constitutions.
The Commission recommends, therefore, that:
Developing the Capability
The Commission finds that adequate capability to fully develop the field of state constitutional law does not yet exist within thc legal profession or within the political leadership of the states.
The Commission recommends, therefore, that law schools teach state constitutional law as part of their regular curriculum, that state bar examiners include a section on state constitutional law in their bar exams, and that public and private institutions support research on state constitutional law. Among the issues that should be addressed are: the interaction of state judicial, legislative, and executive agencies in the development of an independent state constitutional law; the implications for state constitutional law of elected judiciaries and constitutional documents that are fairly easy to change; how developments in state constitutional law spread from one state to another; and what legal and other barriers exist to inhibit the development of an independent state constitutional law.
The Commission recommends, in addition, the establishment of a clearinghouse for information on state constitutional developments. Such a function could be undertaken by an existing organization (such as the National Association of Attorneys General or the National Center for State Courts) or by a new organization created for the purpose.
The Commission on the Bicentennial of the U.S. Constitution recognize the importance of state constitutions and constitutional law in "completing" the U.S. Constitution.
State bicentennial commissions and humanities councils include consideration of state constitutions in their public programming. State associations of judges and legislators include consideration of state constitutions and constitutional developments in their continuing education programs. State and local education agencies require schools to teach units in state history and/or government in which the state constitution and its development are discussed. (State judges, legislators, and executive officials should involve themselves in this activity.) Colleges and universities give attention to state constitutions and state constitutional law on a par with that given to the U.S. Constitution in history and government courses. The mass media provide regular coverage of state constitutional developments.
for State Constitutional Action The Commission finds that the growing responsibilities being placed on the states and their local governments require adequate and responsive provisions in state constitutional law. These matters must be addressed independently within each state, taking into account the unique traditions and philosophies of government that exist in each state as well as the direct role played by citizens in the development of state constitutional law in contrast to federal constitutional law.
The Commission recommends, therefore, that citizens, legislatures, and governors recognize their own responsibilities for advancing and reforming state constitutional law rather than relinquishing that role entirely to the courts or consigning the most difficult issues to the U.S. Supreme Court.
The Commission also recommends that each state give renewed attention to the adequacy and responsiveness of its constitution for today's world, and that the development of state constitutional law be understood as a joint responsibility of the Icgislature, governor, courts, and citizens. The Commission encourages state high courts to develop independent bodies of state constitutional law, but also to recognize that U.S. Supreme Court models of jurisprudence are not always appropriate to the shared roles of citizens, legislatures, and governors in state constitutional change and enforcement.
The Commission further recommends that the high court or courts in each state establish principles for attorneys practicing before the courts of the state that would require them to look first to the state constitution as the basis for litigation rather than to the U.S. Constitution.
The Commission recommends, furthermore, that states take steps to identify and resolve intergovernmental issues and problems that may arise from existing state constitutional law. Given the decline in federal aid to local governments and the shifting of responsibilities taking place in the federal system, issues likely to need attention now include the provision of adequate local government authority and capacity to meet growing responsibilities, stronger state-local relationships to compensate for weakened federal-local relationships, and revised allocations of functions and financial responsibilities between the states and local governments and among local governments. State constitutions and statutes should provide for flexibility of form, function, and finance for local governments.
rebalancing is recognition of and respect for the coequal importance of state constitutional law in the American system of constitutional government. The vitality of federalism rests on two constitutional pillars: (1) independent state constitutional law and (2) protections of federalism in U.S. constitutional law.
The Commission, therefore, commends the U.S. Supreme Court for honoring the "adequate and independent state grounds" doctrine, and recommends that the Court continue to honor this doctrine and to allow the states to experiment with solutions to the difficult issues that confront our society and to develop their own principles of state constitutional law appropriate to the goals and conditions of the people, institutions, and political subdivisions of the different states.
The Commission also recommends that both the Congress and the Supreme Court refrain from imposing restrictions on the independence of the states and their political subdivisions unless there is clear federal constitutional authority to do so and (1) a clear threat to national unity, (2) a clear need for uniform national policy, or (3) a clear conflict with express provisions of the Constitution of the United States. It is as important, for example, to provide antitrust immunity to the political subdivisions of the states as to the states themselves.
More specifically, the Commission recommends that the following federal constitutional doctrines be applied consistently by the courts to limit federal intrusions into state and local affairs concerning matters reserved to the states:
A state constitutional grant of authority to state and local governments should not be preempted by federal courts when it (1) regulates a subject matter traditionally left to the states, (2) uses historic police power objectives concerning health, safety, or morals, (3) involves objectives that are compatible with or supplemental to the purposes of any federal regulation in the subject area, (4) concerns a subject area that has not been explicitly preempted by federal law, and (5) affects dimensions of an activity not comprehensively regulated by federal law.
of State Constitutional Law
The Commission finds that the recently renewed interest in state constitutional law by judges, attorneys, scholars, and state and local policymakers is an important development in American federalism. Rebalancing of responsibilities in the federal system is necessary in order to give state and local governments greater authority and discretion to serve the needs of their citizens. One necessary feature of such
The "dormant commerce clause" doctrine, although it furthers the federal interest in national free trade, should also be used to bolster deference to state government rulemaking in the commercial realm when it (1) is designed to promote traditional police power objectives, such as health or safety, rather than the business interests of the state's own residents, (2) treats out-of-state and in-state economic entities in an evenhanded manner, and (3) does not vary from