Advisory Commission on Intergovernmental Relations July 1989 Constitutions Selected Issues and Opportunities for State Initiatives Preface The following study of state constitutional law governments during the Revolutionary War and the examines a vital aspect of the reinvigoration of the period of Confederation. The U.S. Constitution, states in our federal union. The study also comple- therefore, is one of limited, delegated powers. The ments ACIR's pathbreaking report State Constitu- state constitutions encompass, in principle if not now tional Law: Cases and Materials (1988). In addition, in practice, the many fundamental powers of govern- this study sheds light on several issues that have been ance that have been reserved to the states and to the examined in various ways by the U.S. Advisory Com- people by the Tenth Amendment to the U.S. Consti- mission on Intergovernmental Relations during the tution. The erosion of these inherent state powers by past three decades, especially balance in the federal an imperial vision of federal constitutional law system, the constitutional integrity of federalism, the threatens the very foundation of the federal system. strengthening of state capabilities, and the sorting The U.S. Constitution does not replace state consti- out of responsibilities in the federal system. tutions; instead, it supplements those constitutions The American federal system rests on two consti- by providing for constitutional governance nation- tutional pillars: the 50 state constitutions and the wide on matters of general public interest and, in so United States Constitution. Metaphorically speak- doing, protects the states as co-sovereign constitu- ing, if one or the other pillar is cut down in size or tional polities and guarantees each state a republican raised too high, then the federal system becomes un- form of government. balanced. In manyrespects, this is what has happened A renewal of the vitality of state constitutional to our federal system. The law of the U.S. Constitu- law is also the foundation for strengthening state ca- tion, particularly as developed by the U.S. Supreme pabilities. This is so for three reasons. First, in a con- Court during the past 50 years, has come to over- stitutional democracy, any enhancement of state shadow state constitutional law to such an extent that capabilities must take place within the context of con- state constitutions are, for many citizens, out of sight stitutional rule. In the states, this means that the peo- and out of mind. For example, ACIR's 1988 national ple must decide on the scope and powers of the state poll (see Changing Public Attitudes on Governments government. Second, most state constitutions con- and Taxes, 1988) found that fewer than half of the re- tain a great deal of detail, much of which limits state spondents even knew that their state has its own con- government. Although contemporary reformers stitution. Yet state constitutions are important often criticize this detail as being too constraining for democratic governing documents, and they can be all elected officials, it should be remembered that much the more important if their role in the federal system of the detail represents efforts by past reformers to is understood properly. As such, a renewed apprecia- assert greater public control over government. The tion of state constitutional law is essential for restor- real question is not detail per se, but what kind of ing a better balance of national-state authority in the constitutional detail represents general public inter- federal system. ests rathcr than spccial interests, and what kind of de- A strengthening of the state constitutional pillar tail is harmful rathcr than beneficial to state action. is also essential for protecting the constitutional in- Third, state capabilities vis-a-vis the federal govern- tegrity of the federal system. This integrity depends ment cannot be enhanced significantly unless there is not only on fidelity to the principles of federalism em- strength in, and respect for, the states as constitu- bodied in the U.S. Constitution but also on the inde- tional politics in their own right (see also ACIR's The pendent vitality of the state constitutions. This state Question of State Government Capability, 1985). constitutional pillar was built first by Americans The development of state constitutional law is when they sought to establish home-rule republican also relevant tothe sorting out of responsibilities in ii Advisory Commission on Intergovernmental Relations the federal system. One sees this sorting out occur- values federalism, however, and the dual consti- ring in the "new judicial federalism" whereby the tutionalism that underlies it, then one cannot let U.S. Supreme Court has shown greater solicitude for opinions about particular developments overshadow independent state court protections of individual the more fundamental issues of the place that state rights and liberties. If states had no important or in- constitutional law should occupy in a strong and bal- dependent governing responsibilities, there would be anced federal system. The prominence of that place no need for state constitutions. The very existence of is one question; whether that place should be liberal dual constitutionalism signifies both a division and or conservative, activist or restraintist is another sharing of responsibilities between state and nation. question. Furthermore, many new issues emerging on the pub- It is the second question that has to be answered lic scene are not easily encompassed by the U.S. Con- by the actual constitutional choices made by the stitution, but are, or can be, encompassed by state citizens of each of the 50 states. Fortunately for the constitutions. vitality of American democracy, state constitutions We should add, however, that not everyone will provide the general public with many direct and indi- be happy with all of the state constitutional law devel- rect vehicles for shaping the development of state opments reported in this study. Those who believe, constitutional law. Hence, state constitutions, unlike for example, that federal courts have expanded cer- the U.S. Constitution, call on citizens to participate tain rights, such as criminal rights, too far will be dis- very directly in framing the fundamental law of their mayed by activist state supreme courts that have respective polities. expanded rights even further. Others will be dis- mayed that many state courts are not yet active Robert B. Hawkins, Jr. enough in developing state constitutional law. If one Chairman Advisory Commission on Intergovernmental Relations iii Acknowledgments This report was prepared by a study team at the Each member of the study team read and com- Center for the Study of Federalism at Temple Uni- mented extensively on all of the draft chapters, so versity. The team members responsible for the vari- that this final report is truly a joint effort. ous chapters are as follows: Thanks are expressed to each of these authors, and also to the following individuals who participated Ellis Katz, Temple University Chapter 1: in reviewing the study as it progressed through vari- Chapter 2: David Skover, Indiana University ous stages: Phyllis Bamburger, Norman Beckman, School of Law Joyce Benjamin, John Callahan, Ronald K. L. Col- lins, William Colman, Vicki Jackson, Carolyn Jour- Chapter 3: Robert F. Williams, Rutgers School of Law, Camden dan, John Kamensky, Mary Kazmerak, Susan Lauffer, Michael Libonati, James Martin, Hon. Mil- Chapter 4: G. Alan Tarr, Rugters University ton Mollen, Thomas R. Morris, John Pittinger, Chapter 5: G. Alan Tarr and Robert F. Wil- Stewart G. Pollock, Douglas Ross, Lee Ruck, Martin liams A. Schwartz, John Shannon, and Harry Swegle. At ACIR, secretarial assistance was supplied by Chapter 6: William W. Greenhalgh and Jeanne Lori A. Coffel. N. Lobelson, Georgetown Univer- ACIR is grateful for the help of all those who sity Law Center contributed advice, research materials, and critical Chapter 7: Peter J. Galie, Canisius College review for this study. Full responsibility for the con- tent of the report, however, lies with the Commission Chapter 8: Mary Cornelia Porter, I3arat Col- and its staff. lege (Emerita) and William Bcans, Northern Illinois University School John Kincaid of Law Executive Director Chapter 9: Ellis Katz, with the assistance of Charles Robinson, Temple Univer- Bruce D. McDowell sity Director Chapter 10: Ellis Katz Government Policy Research iv Advisory Commission on Intergovernmental Relations Contents Findings ................................................................................ 1 1. State Constitutions "Complete" and "Balance" the Nation's Constitutional Framework: State Constitutions Are Essential .................................................... 1 2. The States Are Independent Polities with Their Own Philosophies of Government .......... 1 3 . The United States Constitution Allows Substantial Room for the Development of a Separate Discipline of State Constitutional Law .................................... 1 4 . State Constitutions Are the Business of Governors. Legislatures. the People. and the Courts . 2 5 . State Constitutional Law Is an Underdeveloped Field with Great Potential ................. 2 Recommendations ...................................................................... 3 Recommendation 1-Promoting Public Understanding of and Support for State Constitutional Law 3 Recommendation 2-Developing the Capability to Improve State Constitutional