James T. Mchugh.Pdf

Ex Uno Plura SUNY series in American Constitutionalism Robert J. Spitzer, Editor Ex Uno Plura State Constitutions and Their Political Cultures James T. McHugh State University of New York Press Chapter 6, “Louisiana: Constitutional Patriarchy,” was previously published in a slightly different version as “On the Dominant Ideology of the Louisiana Constitution,” 59 ALB. L. Rev. 1579 (1996). © Albany Law Review. Used with permission. Chapter 7, “Utah: A Liberal Theocracy,” was previously published in a slightly different version as “A Liberal Theocracy: Philosophy, Theology, and Utah Constitutional Law,” 60 ALB. L. Rev. 1515 (1997). © Albany Law Review. Used with permission. Published by State University of New York Press, Albany © 2003 State University of New York All rights reserved Printed in the United States of America No part of this book may be used or reproduced in any manner whatsoever without written permission. No part of this book may be stored in a retrieval system or transmitted in any form or by any means including electronic, electrostatic, magnetic tape, mechanical, photocopying, recording, or otherwise without the prior permission in writing of the publisher. For information, address State University of New York Press, 90 State Street, Suite 700, Albany, NY 12207 Production by Judith Block Marketing by Michael Campochiaro Library of Congress Control Number McHugh, James T., 1961– Ex uno plura : state constitutions and their political cultures / James T. McHugh. p. cm. — (SUNY series in American constitutionalism) Includes bibliographical references and index. ISBN 0-7914-5749-4 (hbk. : alk. paper) — ISBN 0-7914-5750-8 (pbk. : alk. paper) 1. Constitutional history—United States—States. 2. Constitutional law—United States—States. 3. State governments—United States. I. Title. II. Series. KF4541.M38 2003 342.73’029—dc21 2002045265 10987654321 To Eve Contents Acknowledgments ix Preface xi Table of Cases xv Chapter 1 Introduction. American Constitutionalism and Political Culture 1 Chapter 2 Alaska. Frontier Autonomy 27 Chapter 3 California. Diverse Microcosm 49 Chapter 4 Georgia. Southern Republicanism 78 Chapter 5 Hawaii. A Multi-Ethnic Heritage 107 Chapter 6 Louisiana. Constitutional Patriarchy 135 Chapter 7 Utah. A Liberal Theocracy 161 Chapter 8 Vermont. A Republic Apart 192 Chapter 9 Wyoming. Communitarian Ideal 221 Chapter 10 Conclusion 249 Notes 255 Index 319 vii Acknowledgments Several people were very helpful in the ultimate creation and production of this book. One of my most enthusisatic supporters was Dr. Vincent Bonventre (who, I am pleased to add, recently completed his Ph.D. as a complement to his academic and professional credentials in law), a professor at Albany Law School and editor of the annual State Constitutional Notes and Commentaries issue of the Albany Law Review. Additional advice and encouragement was received from the eminent specialist on federalism, Dr. G. Alan Tarr from Rutgers Uni- versity, the gifted comparative constitutional expert, Dr. Kenneth Holland from the University of Memphis, and Professor Robert G. Johnston, dean of the John Marshall Law School, Chicago. The editorial staff of the State University of New York Press has been instrumental to the final success of this book, including Dr. Michael Rinella, the series editor, and Judith Block, the production editor. I am, as always, indebted to the love and support of my family (especially my parents, Thomas and Annette McHugh) in everything I do, including schol- arly projects such as this one. ix Preface Several years ago, I was interviewed for a faculty position at Caspar College in Caspar, Wyoming as I was finishing my doctorate. I was informed, at that time, that one of my responsibilities would be to teach a state-mandated course in Wyoming constitutional law. I was reassured by one of the faculty members that the task would not be as mundane as it might seem, for the Wyoming Consti- tution includes, I was told, unique and interesting variations upon the usual American constitutional themes. For example, I was told that land owners in Wyoming are constitutionally barred from holding exclusive property rights over the water found on their land. This reference to Wyoming’s constitutional provision of state-controlled riparian water rights seemed to contradict a common and popular image of this state and its political community. The popular image of Wyoming as an archtype of the “Old West” and the spirit of the rugged, individualistic cowboy, gun slinger, and frontier entrepreneur would have led me to believe that individual property rights (especially as vested in the category of real property that is typified by a land claim) would be jealously and rigidly guarded and lauded by the Wyoming constitutional tradition. This apparent contradiction forced me to think seriously about the nature and sources of the fundamental values that would make public ownership of water on a person’s otherwise-private property a constitutionally entrenched principle of Wyoming society. So, even though I ultimately did not become a member of the faculty at this Wyoming institution of higher education, I did take from this brief experience a desire to explore this matter further, as though I had, indeed, accepted the responsibility for teaching the sort of course that this faculty position would have required of me. The final result of that inquiry, several years later, is this book. Just as this book was about to enter its final production, the Vermont Su- preme Court ruled on a landmark case that reinforced this same inquiry. It provided, therefore, an intellectual “bookend” to the process of critical thought that began in Wyoming, several years earlier. The 2003 case of State of Vermont xi xii Preface vs. Jonathan L. Sprague reinforced, dramatically, the first premise of the thesis that this book has sought to prove: constitutions are political and philosophical documents that reflect (in the tradition of legal positivism) the ultimate will of the sovereign, especially in terms of that sovereign’s most fundamental beliefs, values, ideals, and cultural norms. Chapter one, article eleven of the Vermont Constitution was invoked, within Vermont vs. Sprague, as providing a more stringent standard of privacy than the federal constitutional tradition, consistent with previous rulings that have pon- dered the singular history and heritage of Vermont. The argument underlying this unanimous Vermont Supreme Court ruling and its evaluation of a uniquely Vermont understanding of the right to privacy is not merely a legal one; it reveals the special role that constitutions play in identifying and shaping the political culture of a society. That process is particularly obvious and effective regarding relatively cohesive and homogeneous societies that small American states, like Vermont, most often provide. But the validity of this sentiment re- mains true, even when it is not so obvious. The full thesis of this book is fourfold: (1) constitutions are political expres- sions that are understood particularly well within the framework of a political- culture method of analysis; (2) that analysis requires the inclusion of traditional, normative political philosophy, considerations of historical influences (especially regarding the presence and migration of various peoples), and an evaluation (even if only isolated or cursory) of examples of cultural expression through the work of artistic, religious, and literary elites; (3) American states are not merely geographically-manufactured entities defined by arbitrary boundaries but unique societies with their own special histories and cultures; (4) this political-culture analysis of select state constitutions provides important insights into the true political nature of constitutional law and its proper role within the American federal polity. Therefore, this book begins with a general overview of the political culture of the broader American constitutional tradition, including a review of widely accepted analyses of the competing variations of American liberal democracy. Then, several state constitutional traditions are examined (varying in size, re- gion, diversity, and heritage), providing an original analysis of each one from this legal, philosophical, and political culture perspective. The book concludes with observations regarding the increased relevance of state constitutions to American society and its many political systems. A decentralizing trend in American judicial federalism has made the study of state constitutions increasingly important. That trend parallels a general and ongoing need for political, social, and philosophical analyses of American states and local communities. Constitutional law began, as an area of serious study and application, within the discipline of political science; it was included within the general law school curriculum only later. This book seeks to contribute to the Preface xiii search for insight in this vital area, in addition to the attempt to remove constitutional jurisprudence and public law from the parochial and overwhelming dominance of technical practitioners and return them to their origins in the study of the humanties and, especially, the social sciences. Laws, after all, are not created by law clerks but by politicians representing (in a democracy) a sovereign people. In a federal system, such as the United States, those people function at more than one level of sovereign social and political existence. These people are motivated by profound beliefs, values, and

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