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This philosophy soon began to change, however, as experience under the new legislative supremacy proved to be less than satisfactory. The range of highly visible legislative abuses, such as suspension of debts, seizure of the property of Loyalists, generous authorization of paper money, and legislative interference with the executive and judicial branches, began to raise concerns. Increased executive veto power came to be viewed as not inconsistent with popular sovereignty but, rather, as a necessary mechanism to limit legislative power. In this way, even within revolutionary republican rhetoric, with its absence of reliance on a hierarchial social structure that had justified “balanced government,” the case could be made for checks on the misuse of power by government officials.24 In Gordon Wood's words, “The Americans' inveterate suspicion and jealousy of political power, once concentrated almost exclusively on the Crown and its agents, was transferred to various state legisla
clusio alterius (the expression of one is the
exclusion of another).26 For these reasons, many apparent grants of authority become, through judicial interpretation, limits on legislative power. This can be a hidden dimension of state constitutional language, which, when interpreted by state courts, can transform grants into limits. For example, many state constitutions contain fairly explicit provisions on legislative compensation which, of course, would be within the legislative power even in the absence of such constitutional provisions. If the legislature seeks, by statute, to provide some other form of compensation, it is often argued that the constitutional provision contains an implied limitation on legislative authority in the area of compensation.27
The transition in American history has been from relatively unfettered legislative power to a more evenly balanced distribution of governmental powers among the branches. In addition, the legislative articles of modern state constitutions reflect two important characteristics: (1) the insertion of specific “constitutional legislation" into state constitutional texts, thereby supplanting legislative prerogatives and sometimes leading to a limitation of legislative alternatives through judicially discovered “negative implications” and (2) the insertion into state constitutions of detailed procedural requirements that the legislature must follow in the enactment of statutory law.
Many state constitutions include provisions that could be relegated to statutory law. When these provisions mandate legislative actions or grant authority to a legislature vested with plenary power, courts can transform these apparent grants of power into limitations on legislative power. As Frank Grad noted:
It must be emphasized that very nearly
The Icgislative articles of virtually all state constitutions contain a wide range of limitations on state legislative processes. Generally, these procedural limitations did not appcar in the first state constitutions. Instead, thcy were adopted throughout the 19th century in response to perceived abuses of legislative powers. Last-minute consideration of important measures; logrolling; mixing substantive provisions in omnibus bills; low visibility and hasty enactment of important, and sometimes corrupt, legislation; and the attachment of unrelated provisions to bills in the amendment process—to name a few of these abuses-led to the adoption of constitutional provisions restricting the legislative process. These constitutional provisions seek generally to require a more open and deliberative state legislative process, one that addresses the merits of legislative proposals in an orderly and deliberative manner.
Familiar examples of state constitutional limitations on the legislature include requirements that a bill contain a title disclosing its content and include only matters on a “single subject";28 that all bills be referred to committee;29 that the vote on a bill be reflected in the legislature's journal;30 that no bill be altered during its passage through either house so as to change its original purpose;31 and that appropriations bills contain provisions on no other subject.32 These procedural restrictions must be distinguished from the common substantive limits on state legislation, such as those prohibiting statutes limiting wrongful death recoveries33 or mandating a certain type of civil service system, 34 and from the general limits contained in state bills of rights.
Such procedural requirements for enacting statutes provoke criticism on a number of grounds, ranging from the claim that the requirements "have caused considerable damage through invalidation of noncomplying laws on technical grounds, "35 to the assertion “that an argument based on the one subject rule is often the argument of a desperate advocate who lacks a sufficiently sound and persuasivc onc."36 Judicial precedents add little certainty to the application of the generally worded title and single-subject requirements.
Despite such criticism, the limitations on state legislative procedure survived the wave of state constitutional revision that occurred during the middle of the 20th century. Therefore, because these limits have, in effect, been readopted in contemporary state constitutions, they reflect policies relating to the nature of the deliberative process in state legislatures. Further, they represent an important limit on legislative authority and illustrate the lasting result of earlier public disillusionment with legislative abuses.
Although the procedural limits outlined above are usually discussed as if they were all of the same quality, there are important differences. Some provisions require the legislature to act affirmatively, while others prohibit certain acts. A violation of certain restrictions, such as title and single-subject provisions, can be seen from examining the text of the final legislative enactment. By contrast, a violation of other restrictions, such as the prohibition of a bill being altered on its passage through either house so as to change its original purpose, will not be reflected on the face of the final legislative enactment. Consequently, a search for this type of violation requires an examination of the procedure leading to the enactment.
State courts have developed a surprisingly wide range of approaches to enforcing restrictions on legislative procedure under circumstances where an act on its face does not violate procedural limitations. Some courts will not "go behind” an enrolled bill, duly signed by legislative officers, to consider evidence of violation of legislative procedure provisions in state constitutions. Other courts will scrutinize the official legislative journals but not other evidence. Still other courts will consider any relevant evidence of such state constitutional violations. Even within single jurisdictions, one can detect inconsistent doctrines and a lack of continuity over time. These widely varying judicial doctrines reflect what are essentially political decisions, made in the context of adjudicating actual controversies, concerning the extent of judicial enforcement of state constitutional norms. On rare occasions, these procedural provisions may invalidate a statute. More importantly, such restrictions make the state legislative process significantly different from, and more rigidly structured than, the congressional legislative process.37
cation of public dissatisfaction with state legislatures. Initiatives enable the public to bypass unresponsive state legislatures, and referenda provide a check on the effect of unpopular statutes. These devices are more sophisticated than the earlier procedural restrictions, most of which reflected general disapproval of legislative actions. The initiative allows the people to take direct action when the legislature refuses to act. The referendum enables the people to target specific enactments rather than depend on the indirect deterrence of procedural restrictions.
Although state constitutions contained specific provisions requiring a referendum on such questions as assumption of debts and changes in the constitutional text, the people of South Dakota began the process of taking back, or reserving to themselves, a measure of general legislative power in a constitutional amendment approved in 1898. Now, 21 states provide for the statutory initiative, and 25 provide for the referendum.38 One observer predicted that "[t]he more direct legislation you have. .. the greater the body of judge-made law."39 This view raises interesting and complex questions of political philosophy, especially today when many major public issues are resolved at the ballot box.40 Legal questions also arise with regard to initiated statutes: (1) Can they be amended or repealed by the legislature? (generally yes, unless the state constitution provides to the contrary); (2) Can they be vetoed by the governor? (generally no); (3) Do the title and single-subject limitations apply? (generally yes); (4) How should courts interpret such statutes? (according to the understanding of the ordinary, intelligent voter).
The State Executive Branch Public distrust of the executive branch, as reflected in the early state constitutions, historically has been inversely related to public distrust of the legislative branch. The executive branch began in disfavor,41 but has gained more power and authority over the centuries. State constitutions have been amended gradually to bring gubernatorial powers closer to those assigned to the President under the federal Constitution, including longer terms of office (all but two states now have four-year gubernatorial terms) and stronger budgetary authority. Constitutional Duties and Agencies
Although the exccutive branch's main responsibility is usually thought of as the faithful execution of the laws, state constitutions directly assign numerous functions to governors and cxecutive branch officials and agencies. For example, constitutions often assign the power of executive clemency to the governor, thereby insulating the exercise of that power from legislative or judicial interference.
The people in many states have created executive agencies through "constitutional legislation."
The initiative and referendum movement that emerged at the turn of this century was another indi
The status of such constitutional agencies or offices in relation to the legislature can be very different from statutorily created executive agencies or offices. For example, the Florida Supreme Court invalidated a statute prohibiting hunting on Sundays on the ground that it conflicted with an administrutive rule of the constitutionally established Gamc and Fish Commission. The rule provided for a one-month hunting season that included Sundays.42
Most state constitutions also provide for the statewide election of executive officials other than the governor. Therefore, such officials as attorneys general, secretaries of state, commissioners of education, state treasurers, and others, in states where such offices are constitutionally created, develop their own constitutional and political base or power, necessarily detracting from centralized gubernatorial power. In Florida, where the governor shares power with six elected executive officials ("the cabinet"), proposals to streamline the system are extremely controversial.43
sure requirements and conflict-of-interest guidelines by executive order which, in the absence of clear legislative authority, were challenged as being beyond the executive power. In the leading case, Rapp v. Carey, 49 the New York Court of Appeals invalidated the executive order:
The crux of the casc is the principle that the
be achieved only through proper means. ase on the proposition that the executive branch may exercise only those powers delegated to it by the constitution or statute, the question of implied powers is often crucial. This consideration may be contrasted with the importance of implied limitations on the legislative branch.
The Veto Power
In 1776, the exercise of a veto by the executive was generally thought to be "aristocratic," and too much like the exercise of the veto by the royal colonial governors. That view began to change, however, as it was recognized that there needed to be some executive check on legislative power. Now, the governors of all states except North Carolina have the power to veto enactments of the legislature.
The gubernatorial “negative voice" in legislation, however, was basically an "all-or-nothing" power. The veto power was, therefore, even more broadly expanded with the advent, around the turn of the century, of the item veto over specific line items in appropriations bills.44 Some states go beyond the item veto and permit governors to reduce such line items without vetoing them.45 President Ronald Reagan suggested that the President be authorized to exercise an item veto similar to that of governors;46 thus, the item veto has become a subject of national debate.47 Gubernatorial exercise of the item veto, originally intended to prevent legislative "logrolling,” presents a range of complex issues. For example, what constitutes an "item" in an appropriations bill? May a governor veto language or restrictions without vetoing the appropriation itself? What constitutes an appropriations bill? These and other related questions have resulted in a relatively large volume of recent litigation.48
The State Judicial Branch State constitutions govern the judicial branch in many respects. They have been the vehicles for streamlining and unifying state court systems. State constitutions usually set forth in some detail the jurisdiction of most state courts. Finally, the method of selection and tenure of state judges is controlled by the state contstitution.
State supreme courts serve a number of important functions within state government and the legal system. Most familiar is their role in common law development and statutory and constitutional interpretation, functions performed in the context of adjudicating cases. Interestingly, state supreme courts developed the concept of judicial review of the constitutionality of statutes well before Marbury v. Madison.50 Most studies of state courts focus on their adjudicatory function in deciding cases. A major focus of the study of state constitutional law, however, should be on the nonadjudicatory functions (outside the decision of cases) of state supreme courts. Rules of Practice and Procedure
Supreme courts in many states have constitutional authority to promulgate rules of practice and procedure for the courts. Although this power is explicitly granted now in many constitutions, earlier commentators regarded it as an inherent judicial power.51 Exercise of the rulemaking power reaches such crucial areas of lawyers' work as discovery and class actions. This grant of power to the courts serves as a limitation on legislative authority. Therefore, statutes that invade thc procedural realm may be invalidated by the courts.
The relationship between statutes and court rules varics from state to state, but common issues arise. For example, in the famous case of Winberry v.
A recent series of cases concerning ethics and conflicts of interest addressed the extent of gubcrnatorial authority to make policy through exccutive orders. Several governors promulgated financial disclo
Salisbury,52 the New Jersey Supreme Court held that the New Jersey Constitution53 prohibits the legislature from statutorily overriding court rules. Other states resolve this issue by reference to the specific constitutional language involved. For example, Florida's constitution provides: “These rules may be repealed by general law enacted by two-thirds vote of the membership of each house of the legislature.”54
The distinction between practice and procedure is easier to define than to apply. For example, does the following formulation apply to the law of evidence? “[S]ubstantive law creates, defines, adopts and regulates rights, while procedural law prescribes the method of enforcing those rights.”55 When the Florida legislature passed a comprehensive statutory evidence code, the Florida Supreme Court resolved the potential conflict by adopting the evidence code as a court rule.56 The Colorado Supreme Court avoided a possible conflict between its rulemaking authority and a rape shield statute by holding that the statute would stand because there was no conflicting court rule on the subject.57 Taking a different view of its relationship to the legislature, the New Jersey Supreme Court has intimated that because it can make substantive law in common law adjudications there is no need for the court to limit itself strictly to practice and procedure in its rulemaking capacity.58
the Judiciary must possess the inherent power to deterrnine and compel payment of those sums of moncy which are reasonable and necessary to carry out its mandated responsibilities, and its powers and duties to administer Justice, if it is to be in reality a coequal, independent Branch of our Govern
ment.64 This claim of inherent powers raises important questions of political theory. However, the issue of whether the branches of state government exercise delegated or inherent powers is largely academic. Because state constitutions provide that all legislative power resides in the legislature, the important task is to define the legislative power, not to quibble over whether that power is inherent or delegated. State constitutions similarly place the judicial power in the judiciary; consequently, rather than debating whether a court's power is inherent, the inquiry should focus on whether the claimed power is properly and necessarily a judicial function. Advisory Opinions
Eleven state constitutions authorize or require state supreme courts to render advisory opinions to various governmental officials.65 States differ, of course, as to which officers may request opinions and when thcy may do so. The courts tend to construe strictly their authority and obligations under these provisions.66 Interesting questions may arise as to the precedential value of advisory opinions. After all, advisory opinions are not adjudications of actual controversies, and are not exercises of the traditional “judicial power.” According to the Supreme Judicial Court of Massachusetts:
It has been uniformly and many times held
decisis. 67 There secms to be evidence that, in the context of advisory opinions, courts do not accord the same presumption of correctness to the actions of the other branches that they do in adjudicating cases. The advisory opinion can be vicwed as an important safety valve standing in the way of unconstitutional actions.
Regulation of the Practice of Law
Another power initially claimed to be inherent in the judiciary relates to the admission and discipline of attorneys.59 Many state constitutions now expressly confer this power on the courts and, again, as a grant of judicial authority, this power serves as a limitation on the legislature. Surprisingly, to many people, state legislatures may not pass statutes concerning the admission and discipline of lawyers. A recent series of cases in Pennsylvania held that the state ethics act could not be applied to lawyers.60 “Sunset” legislation applying to statutes regulating professions may not apply to the practice of law.
Through the exercise of their power to regulate the bar, courts have promulgated the modern student practice rules that form the basis for clinical legal education.61 The New Jersey Supreme Court utilized the power to place limits on attorneys' fces for tort cases, 62 and most courts are now grappling with lawyer advertising and specialization. The Florida Supreme Court, now followed by many others, used the power to regulate the practice of law to initiate an innovative program that permits lawyers to place funds entrusted to them in interest-bearing accounts and to use the revenues for various public service projects.63
Inherent Powers of the Courts
In recent years, particularly with respect to budgetary matters, state courts have been asserting that:
The Position and Function
In addition to these nonadjudicatory functions of state supreme courts, the state courts differ significantly from federal courts even with respect to adjudication. The typical state court system occupies a different institutional position and performs a different judicial function from its federal counterpart. The typical state constitution also differs from its federal counterpart in many ways. Consequently, state court judicial review of state statutes or executive actions is, or should be, qualitatively different from the federal court judicial review of the same statutes or actions. First, as noted earlier, beginning soon after independence, the balance of power between state legislatures and judiciaries has been gradually shifting, increasing executive (as discussed earlier) and judicial authority at the expense of legislative authority. In addition, the wide range of detailed restrictions on state governments contained in state constitutions is enforceable by state courts, bringing them into a much more detailed involvement in the workings of the other branches. For all these reasons, state courts are often deeply involved in the state's ongoing policymaking processes (constitutional and nonconstitutional).68 Although the extent of this involvement may vary from state to state, 69 such judicial involvement nevertheless reflects a very different institutional position from that occupied by the federal courts.
Second, the typical state court's judicial function is different from the federal court's. For example, state courts have traditionally performed much nonconstitutional lawmaking. As Justice Hans A. Linde observed:
Many state supreme courts do not face the same overwhelming caseload pressures and jurisdictional restrictions as does the U.S. Supreme Court. Some state courts even have “reach down” provisions72 that enable them to obtain jurisdiction quickly over state constitutional conflicts requiring early resolution. Therefore, state courts are able to approach state constitutional analysis on a narrower, more incremental basis than the U.S. Supreme Court, which labors under intense pressure for broader, more sweeping pronouncements.
Finally, state courts may be viewed as closer to state affairs and as arguably more accountable to state citizens than federal courts. Many state constitutions provide for an elected judiciary, or periodic revicw of appointed judges. Standing and justiciability barriers are usually lower in the state courts. Furthermore, in certain areas, such as criminal procedure, state trial judges are more experienced than federal judges in the problems of administering U.S. Supreme Court formulations on a daily basis. Many state judges now view their roles as sometimes requiring controversial constitutional rulings.
When a state court alters the law of products liability, abolishes sovereign or charitable tort immunity, redefines the insanity defense, or restricts the range of selfexculpation in contracts of adhesion, its action is rarely attacked as "undemocratic.” Nor is this judicial role peculiar to matters of common law subject to legislative revcrsal. The accepted dominance of courts in state law extends to their "antimajoritarian" role in review of their coordinate political branches in state and local governments.70
By contrast to the federal Constitution, the text of a state constitution may provide explicitly for state judicial review of legislative and executive action. For example, Article I, Section 2, paragraph 5 of the Georgia Constitution provides: “Legislative Acts in violation of this Constitution or the Constitution of the United States are void, and the judiciary shall so declare them." The North Dakota Constitution, however, imposes a voting rule on judicial review: "The supreme court shall not declare a legislative enactment unconstitutional unless at least four of the (five) members of the court so decide” (Article VI, Section 4).
Contrary to the federal experience, most judiciary provisions of state constitutions have been revised and ratified in this century without a serious struggle over the exercise of judicial review. As indicated earlier, judicial revicw existed in the states prior to the federal Constitution and the landmark Marbury v. Mudison decision in 1803, in which Chief Justice John Marshall established the doctrine of judicial review for the U.S. Supreme Court. The fact that state constitutions are so much more easily amended than is the federal Constitution has led to at least some support for an increased level of judicial scrutiny of statutes because “mistakes” can be more easily corrected by the electorate.73
Federal courts, although they certainly have farreaching powers to enforce federal law, have been denied this general lawmaking power since 1938, when, in Erie Railroad v. Tompkins,71 the U.S. Supreme Court declared that federal courts do not have the power to make common law decisions binding on states.
As discussed earlier, most state supreme courts promulgate law through rulemaking powers. They also exercise various "inherent powers," usually at the expense of the legislative branch. Once thought to be legislative in nature, these powers have devolved on state judiciaries during this century.
and State Constitutions Local governments have a very wide range of powers and responsibilities in the American govern