The ANNALS of the American Academy of Political and Social Science

State constitutionalism has undergone a certain revitalization in recent decades due to the efforts of state electorates and officials to reform and modernize state government, the willingness of many state high courts to redevelop state constitutional law as an independent body of law, and the expansion of federal constitutional law requiring adjustments in state constitutional law. State constitutions remain important as instruments of local self-government even though the field of state constitutional choice has been circumscribed by federal constitutional law. A basic distinguishing characteristic of state constitutions is their reliance on direct popular consent and control. This characteristic is a matter of conflict in state constitutional change because it produces long and detailed constitutions subject to easy popular amendment. Despite reform efforts to streamline state constitutions and limit majoritarian influences, most state electorates continue to prefer more consent and control of government under state constitutions than are available under the U.S. Constitution.

Viewing the Constitution of the United States of America as a political text leads to the application of techniques of textual analysis when reading it. Textual analysis shows the Constitution to be incomplete, both as a constitution and as a founding instrument of the federal union. A complete text of a constitution for the United States requires inclusion of the state constitutions, and a complete text of a founding instrument for the United States requires inclusion of the Declaration of Independence. Any meaning to be derived from the U.S. Constitution, including the intentions of the Founders, requires taking into account the purpose for which the Constitution is being read, what constitutes a complete text for that purpose, and the context in which the document was written.

Scholars have tended to neglect the history of state constitutions, though these are interesting in themselves and also shed light on federal developments. State constitutions have tended, on the whole, to be less durable and to contain more superlegislation than the U.S. Constitution. Early state constitutions provided for a weak executive. In the nineteenth century, states began to restrict legislatures as well. Recent state constitution making has tended to be technocratic, less overtly political than in the nineteenth century, although the use of initiative and referendum processes is a somewhat contradictory trend. Judicial review in state courts developed along lines generally parallel to those in federal courts. Judicial review flowered after the Civil War; in this period, many innovative doctrines first arose in state courts. The center of innovation shifted to the federal courts in the twentieth century. Judicial review continued and grew in state courts, however, and the recent expansion of the doctrine of independent state grounds may increase the power and significance of state courts.

The crucial questions surrounding the first state constitutions concerned suffrage, officeholding requirements, legislative structure, and the relationship of legislative to executive power. These questions were debated vigorously, and a vision of the proper structure of government based on unicameralism, a weak executive, and no checks and balances was advocated in nearly all the states by radical democrats. Their most conspicuous victory was in Pennsylvania in 1776, where a unicameral legislature was established and powers were separated but no checks were provided for legislative encroachments upon the other branches' responsibilities. Constitutional framers in other states rejected Pennsylvania's example, delayed their constitutional drafting processes, and succeeded in adopting a more balanced government with checks, such as upper houses and gubernatorial vetoes. Still, legislative supremacy prevailed under all the new state constitutions, making possible the legislative policies of the founding decade on debtor-creditor relations, paper money, and taxation that were of such great concern to the framers of the United States Constitution.

Since the late 1960s, more and more state high courts have placed greater reliance on their own state constitutions in extending rights protections to individuals. Because many state bills of rights are more expansive than the federal Bill of Rights, state courts have often extended rights protections beyond those granted by the U.S. Supreme Court under its interpretation of the U.S. Constitution. As a result, one can speak of an emerging agenda of rights protection in state constitutional law. Among the important items on this agenda are privacy rights, education as a fundamental right, aid to religious schools, Miranda warnings, searches and seizures, self-incrimination, discriminatory peremptory challenges, obscenity, and freedom of speech, including free speech in shopping centers. Such state court activity suggests a revitalization of federalism, at least within the judicial sphere.

State constitutional provisions concerning church and state differ in specificity and substance from the First Amendment's establishment clause. In large part, these differences reflect the fact that the state provisions originated in concrete historical disputes. After the American colonies declared independence, conflict over established churches led states to adopt provisions safeguarding freedom of worship and prohibiting aid to religious institutions. During the nineteenth century, conflict between Protestants and Catholics over education resulted in the adoption in most states of provisions banning aid to parochial schools and prohibiting religious influences in schools receiving public funds. Reliance on either state or federal constitutional guarantees, therefore, should result in invalidation of religious exercises in public schools. In other cases, however, outcomes may depend on the constitutional basis for decisions. Whereas various indirect aids to parochial schools have survived scrutiny under the establishment clause, they may run afoul of state constitutional bans; and whereas the U.S. Supreme Court has upheld religious displays, some state courts have ruled that they violate state constitutional prohibitions.

The recent movement among state supreme courts to affirm rights not protected by the United States Supreme Court has occasioned much favorable commentary. In one area of this new judicial federalism—economic rights protection—the response has been less enthusiastic. State courts used various clauses of their respective constitutions to protect these rights even before the Civil War and have continued to do so despite the U.S. Supreme court's abdication of any serious role in the realm of economic rights. This persistence by state courts is justified by a historically valid substantive content of the due process clause, the numerous clauses in state constitutions concerned with the protection of property, and the role of the state courts in the American constitutional system. The arguments frequently invoked by critics of judicial activism on the part of the federal judiciary do not apply with the same force to the state judiciary. State courts can contribute to American constitutional liberties by actively protecting an area of rights that would otherwise find no forum for vindication.

The idea that public employees are able to assert any constitutional rights against their government employers is a relatively recent development in American law. Federal constitutional law no longer permits the wholesale invasion of public employee rights to free speech, though it still reflects a tendency to treat public employees as second-class citizens. State constitutional law is just beginning to make contributions to the public employee's rights of privacy, equality, and free speech. State constitutional guarantees that protect these three interests tend to be more explicit and, therefore, potentially more protective of employee liberties than federal law. Enforcement of these state guarantees, however, is seriously hampered by lack of legislative enthusiasm. State legislators should fulfill their solemn oath to protect and defend the state constitution by enacting laws that provide compensation for victims of unconstitutional acts.

Commentators on state constitutional law have been generally critical of those state courts that follow lockstep analysis. Often these criticisms have relied heavily on the concept of federalism. This reliance is misplaced; lockstep analysis is entirely consistent with basic notions of state autonomy. Instead, it is courts using other approaches that have at times ignored the basic theory of federalism.

In the aftermath of the American Revolution, the relationship between local governments and their states could have been conceptualized in terms of four competing models of legitimacy: (1) custom and practice, (2) community autonomy, (3) corporate status, and (4) subordination to the sovereign. The implications for local autonomy and state-local relations of accepting each of these models is discussed in this article. Historically, the triumph of the theory of state hegemony over local government was reflected in judicial adoption of Dillon's Rule, the doctrine of implied preemption, and the idea that local governments have no rights under a state constitution. Recent state-court cases recognizing the capacity of local governments to assert procedural, dignitary, and substantive claims against the state, however, may signal the demise of the theory that local governments are merely creatures of their states and may herald a reconceptualization of the meaning of local autonomy.

It is a truism of state constitutional law that states have plenary authority over local governments. Some scholars believe that giving local governments more power would be an appropriate reform. A review of the school finance and exclusionary zoning litigations of the past two decades, however, indicates that local governments have considerable autonomy and that many state courts are committed to notions of local control. This state court commitment to localism has frequently been grounded in concerns for protection of the home and family. Such localism is problematic given the limited fiscal capacity of many localities and the external effects of certain local actions. Many localities would, in fact, be better off if the states were compelled to assume greater oversight and fiscal responsibility for local affairs.

Can the existence and modifications of state constitutions be viewed as being among the nourishing fountains of federalism? A comparative analysis suggests two caveats. While in the United States and Switzerland both the birth and subsequent modification of state constitutions confirm a two-way traffic in federal practices between federal and state governments, in other systems, though labeled “federations,” state constitutions rarely reflect political assertions of regional autonomy from below. Instead, subnational constitutions in such federations may only represent a unitary or dictatorial delegation of some administrative powers to territorial subunits, a delegation that can easily be revoked by the central government. On the other hand, due to a federal political tradition, federal practices may flourish in some unions whose territorial components lack indigenous subnational constitutions, as in Canada and Australia.