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State
Constitutions
in the
Federal

System
Selected Issues
and Opportunities
for State Initiatives

KF 4550 .295 5791 1989

Preface

The following study of state constitutional law examines a vital aspect of the reinvigoration of the states in our federal union. The study also complements ACIR's pathbreaking report State Constitutional Law: Cases and Materials (1988). In addition, this study sheds light on several issues that have been examined in various ways by the U.S. Advisory Commission on Intergovernmental Relations during the past three decades, especially balance in the federal system, the constitutional integrity of federalism, the strengthening of state capabilities, and the sorting out of responsibilities in the federal system.

The American federal system rests on two constitutional pillars: the 50 state constitutions and the United States Constitution. Metaphorically speaking, if one or the other pillar is cut down in size or raised too high, then the federal system becomes unbalanced. In many respects, this is what has happened to our federal system. The law of the U.S. Constitution, particularly as developed by the U.S. Supreme Court during the past 50 years, has come to overshadow state constitutional law to such an extent that state constitutions are, for many citizens, out of sight and out of mind. For example, ACIR's 1988 national poll (see Changing Public Attitudes on Governments and Taxes, 1988) found that fewer than half of the respondents even knew that their state has its own constitution. Yet state constitutions are important democratic governing documents, and they can be all the more important if their role in the federal system is understood properly. As such, a renewed appreciation of state constitutional law is essential for restoring a better balance of national-state authority in the federal system.

A strengthening of the state constitutional pillar is also essential for protecting the constitutional integrity of the federal system. This integrity depends not only on fidelity to the principles of federalism embodied in the U.S. Constitution but also on the independent vitality of the state constitutions. This state constitutional pillar was built first by Americans when they sought to establish home-rule republican

governments during the Revolutionary War and the period of Confederation. The U.S. Constitution, therefore, is one of limited, delegated powers. The state constitutions encompass, in principle if not now in practice, the many fundamental powers of governance that have been reserved to the states and to the people by the Tenth Amendment to the U.S. Constitution. The erosion of these inherent state powers by an imperial vision of federal constitutional law threatens the very foundation of the federal system. The U.S. Constitution does not replace state constitutions; instead, it supplements those constitutions by providing for constitutional governance nationwide on matters of general public interest and, in so doing, protects the states as co-sovereign constitutional polities and guarantees each state a republican form of government.

A renewal of the vitality of state constitutional law is also the foundation for strengthening state capabilities. This is so for three reasons. First, in a constitutional democracy, any enhancement of state capabilities must take place within the context of constitutional rule. In the states, this means that the people must decide on the scope and powers of the state government. Second, most state constitutions contain a great deal of detail, much of which limits state government. Although contemporary reformers often criticize this detail as being too constraining for elected officials, it should be remembered that much of the detail represents efforts by past reformers to assert greater public control over government. The real question is not detail per se, but what kind of constitutional detail represents general public interests rather than special interests, and what kind of detail is harmful rather than beneficial to state action. Third, state capabilities vis-a-vis the federal government cannot be enhanced significantly unless there is strength in, and respect for, the states as constitutional polities in their own right (see also ACIR's The Question of State Government Capability, 1985).

The development of state constitutional law is also relevant to the sorting out of responsibilities in the federal system. One sees this sorting out occurring in the "new judicial federalism" whereby the U.S. Supreme Court has shown greater solicitude for independent state court protections of individual rights and liberties. If states had no important or independent governing responsibilities, there would be no need for state constitutions. The very existence of dual constitutionalism signifies both a division and sharing of responsibilities between state and nation. Furthermore, many new issues emerging on the public scene are not easily encompassed by the U.S. Constitution, but are, or can be, encompassed by state constitutions.

SL Stacks Lepos-USA 2-1-89

We should add, however, that not everyone will be happy with all of the state constitutional law developments reported in this study. Those who believe, for example, that federal courts have expanded certain rights, such as criminal rights, too far will be dismayed by activist state supreme courts that have expanded rights even further. Others will be dismayed that many state courts are not yet active enough in developing state constitutional law. If one

values federalism, however, and the dual constitutionalism that underlies it, then one cannot let opinions about particular developments overshadow the more fundamental issues of the place that state constitutional law should occupy in a strong and balanced federal system. The prominence of that place is one question; whether that place should be liberal or conservative, activist or restraintist is another question.

It is the second question that has to be answered by the actual constitutional choices made by the citizens of each of the 50 states. Fortunately for the vitality of American democracy, state constitutions provide the general public with many direct and indirect vehicles for shaping the development of state constitutional law. Hence, state constitutions, unlike the U.S. Constitution, call on citizens to participate very directly in framing the fundamental law of their respective polities.

Robert B. Hawkins, Jr.

Chairman

Acknowledgments

This report was prepared by a study team at the Center for the Study of Federalism at Temple University. The team members responsible for the various chapters are as follows:

Chapter 1: Ellis Katz, Temple University
Chapter 2: David Skover, Indiana University

School of Law
Chapter 3: Robert F. Williams, Rutgers School

of Law, Camden
Chapter 4: G. Alan Tarr, Rugters University
Chapter 5: G. Alan Tarr and Robert F. Wil-

liams Chapter 6: William W. Greenhalgh and Jeanne

N. Lobelson, Georgetown Univer

sity Law Center Chapter 7: Peter J. Galie, Canisius College Chapter 8: Mary Cornelia Porter, Barat Col

lege (Emerita) and William Beans, Northern Illinois University School

of Law Chapter 9: Ellis Katz, with the assistance of

Charles Robinson, Temple Univer

sity Chapter 10: Ellis Katz

Each member of the study team read and commented extensively on all of the draft chapters, so that this final report is truly a joint effort.

Thanks are expressed to each of these authors, and also to the following individuals who participated in reviewing the study as it progressed through various stages: Phyllis Bamburger, Norman Beckman, Joyce Benjamin, John Callahan, Ronald K. L. Collins, William Colman, Vicki Jackson, Carolyn Jourdan, John Kamensky, Mary Kazmerak, Susan Lauffer, Michael Libonati, James Martin, Hon. Milton Mollen, Thomas R. Morris, John Pittinger, Stewart G. Pollock, Douglas Ross, Lee Ruck, Martin A. Schwartz, John Shannon, and Harry Swegle.

At ACIR, secretarial assistance was supplied by Lori A. Coffel.

ACIR is grateful for the help of all those who contributed advice, research materials, and critical review for this study. Full responsibility for the content of the report, however, lies with the Commission and its staff.

John Kincaid Executive Director

Bruce D. McDowell

Director Government Policy Research

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