William Swindler, "State Constitutions for the 20th Century" Nebraska Law Review 50 (Summer 1971): 583-86, 588-89. 1971 Nebraska Law Review. Reprinted by permission. The State Constitutional Phase In the last quarter of the nineteenth century, the center of political gravity was still in the states. In the Great Plains and the Rocky Mountains, indeed, the process of creating states out of territories was still going on, and at least one observer felt that the initial constitutions in these areas were "drawn up and adopted... with very little study by frontiersmen strongly under the influence of the tenets of Jacksonian democracy."26 However that might be, the record of the older states to the east showed the developments which were to come; many of these states were, by the eighties and nineties, operating under the second or third constitution adopted since statehood, and the basic changes usually were spaced at intervals of a generation, thus suggesting that new charters emerged from a substantial alteration in the social or economic structure of the area. Certainly the new constitutions grew in size as their writers sought to come to grips with new issues. The first general wave of revision in the Ohio and Mississippi Valleys, for example, in the 1840's and 1850's sought to deal with the problem of underfinanced state banks and the issuance of unsecured banknotes. The generation after the Civil War was concerned with the depredations of the rapidly spreading railroads and, by the eighties, with the problems of the interstate corporation and ultimately the trust. Two constitutional developments, in Illinois in 1870 and in Missouri in 1875, marked the beginning of modern state constitutionalism. The Illinois constitutional amendment brought grain elevators and warehouses under government supervision and thus substantially developed in American law the concept of the administrative regulatory agency.30 Its constitutionality was upheld in 1877.31 The Missouri inno vation was the so-called "home rule" article in the state constitution of 1875, which for half a century thereafter would be cited as the touchstone of modern organization for local government.32 There were other changes fermenting during this period generally; a writer in 1892 found that in four contemporary adoptions of new charters, two in states just admitted to the Union (Idaho and Wyoming) and two postReconstruction Southern states (Kentucky and Mississippi), there were a number of startling challenges to orthodox common law and public law. The secret ballot, woman suffrage, limitations upon hours of labor, and numerous reforms in tort law were among the novelties.33 These constitutional innovations, and the legislation drafted in implementation of them precipitated a certain amount of litigation both in state and federal courts. The ultimate question, of course, was whether these state attempts to cope with new economic and social issues unanticipated by the earlier constitutions were derogatory of any fundamental theories held to be ingrained in English common law, natural law or some vaguely conceived "higher law."34 The results of this constitutional testing in the courts were ambivalent; generally, the judicial course in the area of economic regulation was one of retreat from the position taken in Munn v. Illinois. The rapid ascendancy of laissez-faire philosophy in federal constitutional law during this period would mean that what was forbidden to national government was likely also to be forbidden to state government, and periodically the Supreme Court would deliver an opinion to that effect. The injunction against state impairment of contracts was the most common refuge of laissez-faire; thus, in 1878, a North Carolina constitutional amendment increasing the exemption of debtors' property from sale upon execution of a judgment was held invalid as to prior obligations.36 Many communities which had sought relief from their state governments for obligations undertaken in the heyday of railroad promotion, after the railroad developments failed to materialize, were held fully liable on their bonds to holders in due course.37 On the other hand, state efforts to prohibit discriminatory rate practices among railroads were often frustrated by the Court's reliance on the Commerce Clause.38 32 Mo. CONST. art X, Sec. 16 (1876). See Swindler, supra note 28. 33 See Dealey, supra note 26, at 53 et seq. 34 See Corwin, The Higher Law Background of American Constitutional Law 42 HARV. L. Rev. 149 (1928). 36 Edwards v. Kearzey, 96 U.S. 595 (1878). 37 Rees v. Watertown 86 U.S. (19 Wall.) 107 (1873); Ralls County v. United States, 105 U.S. 733 (1881); Louisiana ex rel. Nelson v. St. Martin's Parish, 111 U.S. 716 (1884); Mobile v. Watson, 116 U.S. 289 (1886). 38 Wabash, St. L. & Pac. Ry. v. Illinois, 118 U.S. 557 (1886). Conservatives were even more aghast at the constitutional experiments of the Progressive Era. The provision for the initiative and referendum in the Arizona constitution caused a strong effort in Congress to block Arizona's admission to statehood, even though the Supreme Court had already declared that once admitted to the Union a state could enact virtually any domestic legislation it desired.39 Taft's Attorney General, George W. Wickersham, inveighed against the Arizona provisions: "The uncertain sands of shifting popular inclination... are far remote from the conceptions of the frames of... the Constitution of the United States."40 A New York eight-hour day for bakers was set aside,41 although an Oregon law fixing maximum hours for women was upheld,42 thanks, in large measure, to the classic "Brandeis brief" which was submitted in support of the state's power. The attempts of the states to develop modern constitutional power to deal with modern economic and social issues were thus all too often to be thwarted by a conservative Court obsessed with restraining government from interfering with the free enterprise system. The result, for state constitutional 39 Coyle v. Smith, 221 U.S. 559 (1911). 40 Wickersham, New States and Constitutions, 21 YALE L. J. 1, 24 (1911). 41 Lochner v. New York, 198 U.S. 45 (1905). 42 Muller v. Oregon, 208 U.S. 412 (1908). Accord, Bunting v. Oregon, 243 U.S. 426 (1917). Discussion Notes 1. For specific, in-depth treatment of state constitution making in specific eras or regions, see Fletcher M. Green, Constitutional Development in the South Atlantic States, 1776-1860 (Chapel Hill: University of North Carolina Press, 1930, DaCapo reprint, 1971); Merrill Peterson, Democracy, Liberty and Property: The State Constitutional Conventions of the 1820's (Indianapolis: Bobbs-Merrill, 1966); Gordon M. Bakken, Rocky Mountain Constitution Making, 1850-1912 (Westport, Conn., Greenwood Press, 1987); Elmer E. Cornwell, Jay S. Goodman, and Wayne R. Swanson, State Constitutional Conventions: The Politics of the Revision Process in Seven States (New York: Prager, 1975). See generally Albert L. Sturm, "The Development of American State Constitutions," Publius: The Journal of Federalism 12 (Winter 1982): 57-98. 2. Judicial interpretation of constitutions is one form of constitutional change. "Inasmuch as judicial interpretation supported by the doctrine of judicial supremacy is controlling, it has without question had the most profound effect upon constitutional meaning and content." Frank E. development during the second and third quarters of the twentieth century, has been a critical increase in the movement of political power toward the national government and away from the states. It is difficult to deny the contention that the adamance of the narrow constructionists on the Court, in the first three decades of the century, created a vacuum in state constitutionalism which, in the depression of the thirties, invited federal occupancy. Thus the constitutions of the various states, by the midway point in the twentieth century, together with the decisional law deriving from the documents, indeed appeared to be at a crisis, although the nature of the crisis has not been too clearly analyzed up to now. The metamorphosis in federal constitutional law between 1937 and the end of the Warren Court in 1969 contrasts sharply with prevailing doctrine in state constitutional law. While various new State charters had been adopted in the first half of the century it is fair to say that hardly any fresh concepts in state government, with the possible exception of the experiment in unicameralism introduced in Nebraska in 1937,67 were developed in any of them. As for the piecemeal amendment process, it not only has failed to keep the existing constitutions up to date, but often "added further complications to existing inadequacies." 67NEB. CONST. art XV. Horack, Jr., "Coopérative Action for Improved Statutory Interpretation," Vanderbilt Law Review 3 (April 1950): 384. Is the role of judicial interpretation as important a source of constitutional change for the states as it is for the federal government? See Cornwell, Goodman, and Swanson, State Constitutional Conventions, p. 8: We should not overemphasize the importance of constitutional change by interpretation at the state level, however. Because of the detailed language of most state constitutions, conservative legislatures and judges have been inclined to follow a rather strict construction. There has been far less interpretative constitutional development at the state than at the national level. As a method of constitutional change, it is probably true that interpretation has been less important than the more formal processes of amendment and revi sion. Do you agree with this conclusion? Keep it in mind as you consider the rest of the materials. Frank P. Grad, "The State Constitution: Its Function and Form for Our Time" Virginia Law Review 54 (June 1968): 928-29, 942-43, 1968 Virginia Law Review Association and Fred B. Rothman and Co. Reprinted by permission. day's circumstances, and it is the charters of the late nineteenth century which were too closely concerned with the solutions of many narrowly specific and immediate problems that have become obsolete and that interfere with contemporary solutions because of their mass of detail and resulting rigidity in scope. It is common to refer to a state constitution as an instrument of government, and it has been so characterized here. An instrument is a tool. The suitability and adaptability of a tool can only be gauged in the relationship to its set task. The last ten or twenty years have seen an unprecedented wave of activities in state constitutional revision and reform. State after state has formed constitutional commissions, has convened state constitutional conventions, or has submitted massive blocks of state constitutional amendments to the electorate. Much of the discussion relating to the improvement of state constitutional documents has worn a somewhat utopian cast. The effort is frequently pictured by some of the more idealistic civic groups, as well as by some of the more visionary newspapers, as one of achieving something that comes close to an "ideal" state charter.' It is the underlying thesis of this article that this aim overshoots the mark, and that in state constitution-making we must be content with something less that the Platonic ideal; we must aim rather for a constitutional document that is designed to enable the state to carry on its work of government today and in the foreseeable future with efficiency and economy and with minimum interference by unnecessary restrictions. That is not to say that a state constitution should be so narrowly concerned with the state's immediate problems as to turn it effectively into a prescriptive code of laws for their solutions; rather, the state constitution should be an instrument of government that, like any good instrument or tool, is suited to the performance of many tasks and not just the immediate task at hand. Viewed in that light, we are likely to discover that a flexible and adaptable instrument which helps us in the solution of today's problems is likely to be flexible and adaptable, with only minor modifications, in managing tomorrow's tasks as well. It is precisely the broad and flexible charters of an earlier day that are still useful in to 'This view was shared, at least in the past, by some academicians. See, e.g., Munro, An Ideal State Constitution 181 ANNALS 1 (1935). The Content of State Constitutions- Inclusion and Exclusion There has long been common agreement that a state constitution should be brief and should limit itself to "fundamentals," avoiding all "legislative" matter. Little progress has been made, however, toward developing more definite guides to help the constitution-maker in drawing the distinction. Unless he is to be content with the notion that "fundamental matter" is matter which he wishes to include, and "legislative matter" is a term of opprobrium to stigmatize everything he wishes to keep out,45 he needs more specific criteria to aid him in determining what matter is appropriate and what is inappropriate for inclusion in the state constitution. There are some, in fact, to whom the words "fundamental" and "legislative" do seem to furnish a sufficient distinction, or who would rely heavily on the Constitution of the United States to make their point for them. Professor Munro, for example, has commented in a much cited article: A state constitution should confine itself to fundamentals. This of course begs a question as to what one means by "fundamentals." True enough, it is hard to define, but everybody knows what it means. Or, if any one does not, he need only read the Constitution of the United States to acquaint himself with an organic document which comes measurably near fulfilling the requirement.46 It may be questioned, for example, how far the constitution for a government of delegated and limited powers can serve as a satisfactory model for the preparation of a constitution for a state government 45V. O'Rourke D. Campbell, Constitution-Making in a Democracy 198-201 (1943) suggests that this is precisely the use made of the distinction at the 1938 New York Convention. 46 Munro, An Ideal State Constitution, supra note 2, at 5. of plenary, inherent powers. The view that the national constitution furnishes an adequate guide, however, continues to receive some support.47 In calling for constitutional inclusion of "fundamental" or "basic" matter only, Professor Munro echoes earlier commentators, and is the forerunner of many later ones. In a review of four late nineteenth century state constitutions-two framed by older states, Mississippi and Kentucky, and two by states then recently admitted to the Union, Wyoming and Idaho, a contemporary observer commented: One of the most marked features of all recent State constitutions is the distrust shown of the Legislature.... Enough of these constitutions has been quoted to show their manifest faults, their verbosity, and their omissions. They all err in incorporating into the organic law matter that should have been left for legislation.... A constitution should affirm general principles, leaving details to legislation.48 All the sources reviewed which lay stress on the "fundamental"-"legislative" distinction appear to share a number of underlying assumptions: (1) that, although there may be an intermediate area of doubt, there is, on the one hand, a set of constitutional provisions which are clearly fundamental or basic, and that, on the other, there are provisions which are clearly more appropriate for legislation; (2) that the terms "fundamental" and "legislative" have more or less readily ascertainable and applicable content unaffected by time or place; (3) that a brief constitution, one that is limited to "fundamental" matters, is better than a long constitution that contains "legislative" detail. The position taken here is that these assumptions are only partly true, and that a consideration of the problems and criteria of constitutional inclusion and exclusion must concern itself with a balancing of the purposes of the constitution and the needs of government, rather than with an attempt to supply a fixed meaning for the valuative terms "fundamental" and "legislative." It is argued here that although there is a more or less agreed upon "core" area of constitutional content, criteria of inclusion and exclusion must take account of the needs of government as 47E.g., R. Dishman, State Constitutions: The Shape of the Document 12 (New York: National Municipal League, 1960). 48 Eaton, Recent State Constitutions, 6 Harv. L. Rev. 53, 121, 122 (1892). conditioned by time and place. And although constitutional brevity has generally been found to be of advantage to state government, it is only one of several values to be achieved, and not necessarily the most important one. To put the last point differently, the best state constitutions are usually brief-but they are not the best because they are brief, but because they best meet the needs of state government. Some Essential Considerations in the The discussion which follows seeks to aid the framer of a state constitution in the determination of what subjects are appropriate for constitutional treatment, and how they are to be treated, including the degree of detail appropriate. Recognition must, of course, be given in such an endeavor, first, to the need for inclusion of certain "core" subjects which common experience and tradition support as basic for the proper functioning of state government, and second, to the practical necessity-depending on the particular circumstances in a state at a given time-of including other matters so important to the state as to call for constitutional treatment. This brings us to a consideration of the significance of treating a subject in the state constitution rather than leaving it to be dealt with by ordinary law. The significance is simply this: (1) it places the matter included in the constitution beyond change by normal law-making processes, and (2) it places it at the highest level of the legal authority of the state. Selfevident as they may seem, the two effects of constitutional, rather than, for instance, statutory treatment of a subject bring with them a large array of consequences. The development of criteria for inclusion and exclusion thus becomes mainly an endeavor of weighing these consequences in particular con texts. Without anticipating the detailed consideration of the matter, it must be recognized at the outset that the twin effects of constitutional treatment have consequences which, depending on the circumstances, may be considered beneficial or harmful. The enduring quality of a provision of the state constitution may protect a desirable policy from frivolous changes by the legislature, or it may delay or prevent the change to a new and better policy from one embedded in a constitution which is no longer responsive to current needs. The fact that a constitutional provision stands at the pinnacle of the state's legal authority may protect a major interest of the people against encroachment by any branch of government, or it may nullify inconsistent laws or other governmental acts, regardless of their intrinsic merit and regardless of the fact that changed circumstances may have given them a higher importance in a changed scheme of values. It ought to be added, too, that the beneficial consequences are usually intended, whereas the harmful ones are, more often than not, unintended and the result of changed circumstances. Inflexibility in the face of changed circumstances results in constitutional obsolescence and diminished power to act responsibly on the part of government organs. These factors in turn breed constitutional instability as a consequence of the need for frequent amendment. In the light of these various possible consequences, the decision as to inclusion or exclusion of particular subjects in the constitution becomes a matter of weighing the advantages against the potential costs of inclusion. In Conclusion The basic inquiry in evaluating any proposal to include a particular subject or provision in a state constitution should be whether the value of embodying this proposal in higher law, beyond change by normal lawmaking processes, is greater than the cost of so doing. In the balancing process necessary to reach a final decision, the importance of the provision to the people and to the effective government of the particular state must be weighed against the cost in terms of in Discussion Notes 1. Is the argument that a proposal is not appropriate for constitutional treatment likely to convince the advocates of the proposal? Is this an argument that we can assume is applied consistently by constitution makers? See Robert F. Williams, "The Anatomy of Law Reform: Dissecting a Decade of Change in Florida In Forma Pauperis Law," Stetson Law Review 12 (Winter 1983): 385-386. 2. Would the United States Constitution be an appropriate model to follow in drafting state constitutions? Why or why not? 3. For another view of the proper principles to be included in a state constitution, see A.E. Dick Daniel J. Elazar, "The Principles and Traditions Underlying State Constitutions" Publius: The Journal of Federalism 12 (Winter 1982): 18-22. © CSF Associates, Philadelphia. Reprinted with permission of Publius. flexibility, obsolescence, decreased responsibility of the government, constitutional instability and the nullification of inconsistent government action. In reaching a decision, consideration should also be given to whether the policy embodied in the proposal is one likely to endure, or whether it is likely to suffer rapid obsolescence by reason of societal or technological changes. Another factor to be considered is whether adequate means other than inclusion in the constitution are available to achieve the particular objective. It is clear that the criteria proposed will require difficult judgments of degree, and the factors taken into consideration may be evenly balanced. But in view of the fact that all of the provisions in state constitutions operate as limitations on the legislature and on the government as a whole, and in view of the fact that the cost of including a proposal is likely to be high in the terms described, the burden of proof concerning the need for inclusion should be squarely on its proponent, and any doubts on the issue should be resolved against inclusion and in favor of the freedom of government to respond to emerging problems without constitutional limitations, express or implied. Howard," "For the Common Benefit': Constitutional History in Virginia as a Casebook for the Modern Constitution-Maker," Virginia Law Review 54 (June 1968): 860-869. 4. A well-known ex-Governor observed in 1967: State constitutions, for so long the drag anchors of state progress, and permanent cloaks for the protection of special interests and points of view, should be revised or rewritten into more concise statements of principle. Terry Sanford, Storm Over the States (New York: McGraw-Hill, 1967), p. 189. Six Constitutional Patterns There appear to be six constitutional patterns among the American states. These patterns are rooted in the original constitutional conceptions of the founding era plus differences among the types and goals of pioneers who first settled the Northern, Middle, and Southern colonies of the New World. Subsequent migrations carried the constitutional ideas of these sections westward and, in some cases, resulted in significant changes as settlers mixed, confronted new environments and sets of governmental problems, and framed their constitutions at different times, thereby incorporating conceptions of government prevalent at the times of their writing. |