Volume 71 Issue 3 Issues 3 & 4 Article 4 June 1969 What Should a Model Constitution Contain Albert L. Sturm Virginia Polytechnic Institute Follow this and additional works at: https://researchrepository.wvu.edu/wvlr Part of the Constitutional Law Commons Recommended Citation Albert L. Sturm, What Should a Model Constitution Contain, 71 W. Va. L. Rev. (1969). Available at: https://researchrepository.wvu.edu/wvlr/vol71/iss3/4 This Symposium on Constitutional Revision is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contact [email protected]. Sturm: What Should a Model Constitution Contain WEST VIRGINIA LAW REVIEW [Vol. 71 What Should A Model Constitution Contain? Albert L. Sturm* I am honored by the invitation to participate in this Constitutional Revision Symposium. I am pleased not only with the opportunity to return to Morgantown, where I was a member of the faculty at West Virginia University for more than fifteen years, but also to be a participant in a program addressed to a subject of far-reaching im- portance to West Virginians. My initial interest in the general sub- ject of state constitutional reform, and in revision of the 1872 Con- stitution of West Virginia particularly, dates from my early years on the faculty of West Virginia University. In 1950, the recently created Bureau for Government Research published my first mono- graph on the subject; this study was revised, updated, and expanded in 1961.' 1 return to West Virginia, therefore, with some feeling of gratification in having played a small part in the long and arduous process of stimulating and developing some public interest in con- stitutional reform in West Virginia. I am glad to be here and to participate in this Seminar. A "Model" Constitution The subject on which I have been asked to speak today is "What Should a Model Constitution Contain?" Although I welcome the opportunity to discuss this topic, I approach it with some apprehen- sion. As John Bebout wrote in his Introduction to the latest edition of the Model State Constitution, "Strictly speaking there can be no such thing as a 'Model State Constitution' because there is no model state."2 The National Municipal League published the first edition of the Model State Constitution in 1921, and this document has gone through six editions, the last issued in 1963 and revised in 1968. Each edition was the product of many informed minds and resulted from extensive deliberation and consultation of distinguished practi- tioners and scholars in state government. Each edition of the Model is different and reflects new views, conditions, needs, and emphases in an ever-changing, dynamic society. * University Research Professor of Political Science, Virginia Polytechnic Institute. ' A. STURM, THE NEED FOR CONSTITUTIONAL REVISION IN WEST VIRGINIA (1950); A. STURM, MAJOR CONSTITUTIONAL ISSUES IN WEST VIRGINIA (1961). 2 BEOUT, INTRODUCTION To NATIONAL MUNICIPAL LEAGUE, MODEL STATE CONSTITUTION vii (6th rev. ed. 1968). Disseminated by The Research Repository @ WVU, 1969 1 West Virginia Law Review, Vol. 71, Iss. 3 [1969], Art. 4 19691 A MODEL CONSTITUTION Furthermore, after almost twenty years of working and writing on state constitutional matters, I conclude that practically every careful student and practitioner in state government is at least a potential model builder and has his own ideas about the proper contents of a state constitution, or at least those with which he has a working knowledge. The fact is that the experts differ among themselves, and the longer one labors on constitutional problems the more humble he becomes and the less certain he is that his views should take precedence over those of others. Actually, few persons feel qualified to pass expert judgment on all areas of a state constitutional system. And I am sure that I might be adjudged guilty of "carpetbaggery in reverse" (and probably with some justification) if I should at- tempt to express in "a few thousand well-chosen words" my personal preferences in state constitution-making. All careful students of state government acknowledge that there is no such thing as an "ideal" constitution for all the states, whose organic laws should provide for differing needs and conditions. Nevertheless, from the lengthy experience of American states in making and operating constitutions some consensus has developed regarding the desirable features of these basic instruments. For example, state government scholars would agree that these words of Lincoln in an 1862 message to Congress are as applicable today as in the 1860's: "The dogmas of the quiet past are inadequate to the stormy present." Growing discontent with antiquated and outmoded state con- stitutions has been strongly expressed and reiterated since midcentury. In 1955, the Commission on Intergovernment Relations appointed by President Eisenhower directed the nation's attention to the "very real and pressing need for the States to improve their constitutions."3 Increasingly, public officials and decision-makers, opinion leaders, influential private organizations and other groups have forcefully asserted the need for modernizing the legal foundations of state government.' 3 COMMISION ON INTERGOVERNMENTAL RELATIONS, A REPORT TO THE PRESIDENT FOR TRANSMITTAL TO THE CONGRESS 38 (1955). 4 See, generally, NATIONAL MUNICnAL LEAGUE publications including NATIONAL CIVIc REvIEw, MODEL STATE CONSTITUTION, STATE LEGISLATURES PROGRESS REPORTER, and STATE CONSTITUTIONAL STUDIES; COUNCIL OF STATE GOVERNMENTS, STATE GOVERNMENT; COUNCIL OF STATE GOVERNMENTS, THE 300K OF THE STATES; MAJOR PROBLEMS IN STATE CONSTITUTIONAL REVISION (W. B. Graves ed. 1960); COMMTTEE FOR EcONOMIc DEVELOPMENT, MOD- ERNIZING STATE GOVERNMENT (1967); CHAMBER OF COMMERCE OF THE UNITED STATES, MODERNIZING STATE GOVERNMENT (1967); T. SANFORD, STORM OVER THE STATES (1967). https://researchrepository.wvu.edu/wvlr/vol71/iss3/4 2 Sturm: What Should a Model Constitution Contain WEST VIRGINIA LAW REVIEW [Vol. 71 The major focus of this paper is on the proper contents of a state constitution as viewed by authorities on the subject. But since this is the first presentation in this Symposium, as a preface for further discussion it appears appropriate to me to summarize the salient characteristics of present state constitutions with particular attention to the 1872 West Virginia document. Nature of State Constitutionse As fundamental laws, all American state constitutions embody the basic principles of political democracy, such as popular sovereignty, and especially limited government, which is implemented through the familiar tripartite separation of powers, checks and balances, bills of rights, and by other restrictions. In addition to providing the basic structural framework of government, state constitutions ex- press in varying detail both positive and limiting provisions for the exercise of governmental powers. They define boundaries, specify suffrage qualifications and the manner of conducting elections, and provide methods for amendment and revision. Much verbiage in these documents is accounted for by articles reflecting the complexity and diversity of functional growth-local government, finance, educa- tion, highways, corporations, welfare, agriculture, labor, and other areas of governmental activity. Unlike the makers of the Constitu- tion of the United States, the framers of state organic laws tradition- ally have been much more concerned with limiting government than with enabling and vitalizing it as an effective instrument for ac- complishing social objectives. Number. Until the flood of new countries achieved nationhood during the last decade, American states had more collective ex- perience in constitution-making than the rest of the world combined. As of May, 1969, American states have operated under at least 138 constitutions since the Declaration of Independence.6 Louisiana leads all other states with ten constitutions; Georgia ranks second with eight; South Carolina has had seven, and Alabama and Florida have had six each.' Three states have had five constitutions; nine have 6 See A. STuRm, RECENT TRENDS IN STATE CONSTITUTIONAL REvISION 6-7 (1965); A. STuRM, MAJOR CONSTITUTIONAL ISSUES IN WEST VIRGINIA (1961). 6 Not included in this figure are Hawaii's five constitutions as a kingdom and as a republic, and the Constitution of Puerto Rico adopted in 1952. 7Except where otherwise identified, the sources of statistical data in this paper are questionnaires prepared by the writer and submitted to approximately 125 correspondents in the fifty states and Puerto Rico. Data provided in responses of the correspondents will be included in a monograph on State Constitutional Revision to be published in 1969 by the National Municipal League. Disseminated by The Research Repository @ WVU, 1969 3 West Virginia Law Review, Vol. 71, Iss. 3 [1969], Art. 4 1969] A MODEL CONSTITUTION had four; four have operated under three organic laws, and nine states, including West Virginia, have had two constitutions. Twenty states have had but one basic charter. Thus, with almost two cen- turies of experience, the United States has been the world's principal potential laboratory for experimentation in constitution-making. Age. The average age of state constitutions, as of May, 1969, is 83.4 years. Oldest is the Massachusetts document dating from