State Constitutions
July 18, 2013 5:13 PM Subscribe
US Supreme Court decisions and how state law can limit them has made me curious about state constitutions. I understand that the 10th Amendment grants to the states powers not explicitly given to the Federal government.
But these most recent decisions do seemed to have turned on a light for many people to the fact that perhaps the closer a government is to you, the more it directly affects your life. Not to say Federal constitutional questions haven't been or aren't relevant. But people seem to hold them in higher regard. I don't see anybody pulling out little booklets for the Massachusetts or Nebraska Constitution like they do with the Bill of Rights or the Declaration of Independence. Yet, Civil Rights Voting Laws and Gay Marriage legislation as they were interpreted by many states may be radically different from how the Supreme Court ruled. Do people care about state constitutions? Should they?
But these most recent decisions do seemed to have turned on a light for many people to the fact that perhaps the closer a government is to you, the more it directly affects your life. Not to say Federal constitutional questions haven't been or aren't relevant. But people seem to hold them in higher regard. I don't see anybody pulling out little booklets for the Massachusetts or Nebraska Constitution like they do with the Bill of Rights or the Declaration of Independence. Yet, Civil Rights Voting Laws and Gay Marriage legislation as they were interpreted by many states may be radically different from how the Supreme Court ruled. Do people care about state constitutions? Should they?
My experience in Massachusetts is that "caring about the state constitution" is something that is done by specialists, specifically activists on social issues and business interests with edge cases in business and environmental law. But most people don't think about it much.
posted by alms at 5:43 PM on July 18, 2013 [1 favorite]
posted by alms at 5:43 PM on July 18, 2013 [1 favorite]
State constitutions can be very important, but they generally only get much public attention in connection with campaigns to amend them. Some legal scholars have argued that more attempts should be made to litigate civil rights cases using rights guaranteed in state constitutions. One example of a successful case of that sort was the litigation that got civil unions in Vermont using that State's Common Benefit Clause.
One reason why state constitutions are sometimes less influential than might otherwise be the case is that state supreme courts often interpret their constitutions in ways that fit with the federal constitution even when differing language suggests that might not be appropriate.
(I once read the proceedings of Minnesota's constitutional conventions and it was fascinating.)
posted by Area Man at 5:45 PM on July 18, 2013
One reason why state constitutions are sometimes less influential than might otherwise be the case is that state supreme courts often interpret their constitutions in ways that fit with the federal constitution even when differing language suggests that might not be appropriate.
(I once read the proceedings of Minnesota's constitutional conventions and it was fascinating.)
posted by Area Man at 5:45 PM on July 18, 2013
The rule about the interplay between state constitutions and the Constitution is that with respect to individual rights, the Constitution sets a floor, not a ceiling, so states are free to give their citizens more rights and protections than the Constitution affords them. People should definitely care about state constitutions, and especially their state constitution, for precisely that reason.
posted by sevensnowflakes at 5:51 PM on July 18, 2013 [1 favorite]
posted by sevensnowflakes at 5:51 PM on July 18, 2013 [1 favorite]
Do people care about state constitutions? Should they?
This seems kind of chatty, but I think that people certainly care a lot about less relevant things than their state constitutions. People have a duty to know their legal rights and responsibilities, so yes, I think people should care about their state constitutions. Most won't because it is too boring.
Even people who think they "know the constitution" tend to really not. Most people have never heard of Article III standing, let alone explain. The same is likely true at the state level. People are generally aware of provisions giving them stuff, such as a homestead exemption. Most people in my state are probably unaware of the constitutional provisions regarding revenue bonds or marine net fishing. This is kind of like how a lot of people think the US Supreme Court just decides abortion and free speech cases.
I think a good number of people in my state are still aware of the constitutional protection of pregnant pigs.
posted by Tanizaki at 6:21 PM on July 18, 2013
This seems kind of chatty, but I think that people certainly care a lot about less relevant things than their state constitutions. People have a duty to know their legal rights and responsibilities, so yes, I think people should care about their state constitutions. Most won't because it is too boring.
Even people who think they "know the constitution" tend to really not. Most people have never heard of Article III standing, let alone explain. The same is likely true at the state level. People are generally aware of provisions giving them stuff, such as a homestead exemption. Most people in my state are probably unaware of the constitutional provisions regarding revenue bonds or marine net fishing. This is kind of like how a lot of people think the US Supreme Court just decides abortion and free speech cases.
I think a good number of people in my state are still aware of the constitutional protection of pregnant pigs.
posted by Tanizaki at 6:21 PM on July 18, 2013
The Constitution of Florida is a mess. It can be amended in a few different ways, including a simple majority of voters to ballot question in any general election. For example, last November, along with voting for President, Florida voters had 12 different state constitutional amendments on the ballot.
Every election Florida voters alter their constitution. A well run, highly financed campaign can capture a majority of voters on all sorts of weird issues, and then, some well-financed law, proposed by lobbyists, becomes enshrined into the State Constitution.
To cite one famous example, there is an amendment to the Florida State Constitution, which was added by voter ballot, which grants pregnancy rights to pigs (Art X. Sec 21). It was an amendment pushed by animal rights activists, and requires certain humane treatment levels of pregnant pigs on any Florida farm. It may be a laudable law, but it should be a law, and not a constitutionally secured right. (By contrast, in this pro-life state, there are no pregnancy rights granted to human women in the State Constitution.)
posted by Flood at 6:44 PM on July 18, 2013 [3 favorites]
Every election Florida voters alter their constitution. A well run, highly financed campaign can capture a majority of voters on all sorts of weird issues, and then, some well-financed law, proposed by lobbyists, becomes enshrined into the State Constitution.
To cite one famous example, there is an amendment to the Florida State Constitution, which was added by voter ballot, which grants pregnancy rights to pigs (Art X. Sec 21). It was an amendment pushed by animal rights activists, and requires certain humane treatment levels of pregnant pigs on any Florida farm. It may be a laudable law, but it should be a law, and not a constitutionally secured right. (By contrast, in this pro-life state, there are no pregnancy rights granted to human women in the State Constitution.)
posted by Flood at 6:44 PM on July 18, 2013 [3 favorites]
The Illinois state constitution (of 1970) requires a ballot question every 20 years asking if there should be a constitutional convention. So people are at least asked to decide whether they care what's in it. But, since I didn't live in Illinois when that question was on the ballot, the only time I actually stopped to think about the Illinois constitution was when we had to take a test on it in high school. It does actually affect you, though--Illinois has what are called 'home rule units', where municipalities over 25,000 people get special powers that impact how local ordinances interact with state law.* There are some exceptions to parts of the constitution for Chicago and Cook County as well.
*You might have to opt-in to home rule if you're not Chicago or Cook County (who I think got it or the equivalent explicitly). Or maybe you can petition for home rule once you clear some population threshold and it's automatic after some point, I forget. Anyway, the 'is home rule good for our town' question comes up once in a while.
Minnesota seems to have a pattern of legislating by constitutional amendment (apparently, at some point they amended the constitution to make it harder to amend because things got a little out of control), so in that sense it matters what's in it. (I've looked at it since moving here, but it wasn't very memorable.) I've voted on three constitutional amendments since living here: marriage, voter ID and... a sales tax, which seems pretty wacky if you've only ever looked at the Illinois constitution.
Propositions that the voters approve (like the Prop 8 law that attempted to prohibit same-sex marriages) actually become part of the state constitution.
This is not entirely accurate. Propositions don't have to amend the state constitution, but they can. Prop 65, for example, did not amend the state constitution. (California also distinguishes between amending and revising the constitution. Amendments can start as propositions, but IIRC revisions have to start in the legislature (and then be approved by voters). This was the first challenge to Prop 8 before the election--that it was a revision, not an amendment.)
posted by hoyland at 6:56 PM on July 18, 2013
*You might have to opt-in to home rule if you're not Chicago or Cook County (who I think got it or the equivalent explicitly). Or maybe you can petition for home rule once you clear some population threshold and it's automatic after some point, I forget. Anyway, the 'is home rule good for our town' question comes up once in a while.
Minnesota seems to have a pattern of legislating by constitutional amendment (apparently, at some point they amended the constitution to make it harder to amend because things got a little out of control), so in that sense it matters what's in it. (I've looked at it since moving here, but it wasn't very memorable.) I've voted on three constitutional amendments since living here: marriage, voter ID and... a sales tax, which seems pretty wacky if you've only ever looked at the Illinois constitution.
Propositions that the voters approve (like the Prop 8 law that attempted to prohibit same-sex marriages) actually become part of the state constitution.
This is not entirely accurate. Propositions don't have to amend the state constitution, but they can. Prop 65, for example, did not amend the state constitution. (California also distinguishes between amending and revising the constitution. Amendments can start as propositions, but IIRC revisions have to start in the legislature (and then be approved by voters). This was the first challenge to Prop 8 before the election--that it was a revision, not an amendment.)
posted by hoyland at 6:56 PM on July 18, 2013
If you are interested in state constitutions, I highly recommend this hour long video from Montana PBS that chronicles the 1972 Convention that re-wrote Montana's constitution from scratch. Since it is a modern constitution, they were able to avoid the confusion resulting from the language used in the Federal constitution. Here's a few of the Rights in there bill of rights:
Section 1. POPULAR SOVEREIGNTY. All political power is vested in and derived from the people. All government ofright originates with the people, is founded upon their will only, and is instituted solely for the good of the whole.
Section 2. SELF-GOVERNMENT. The people have the exclusive right of governing
themselves as a free, sovereign, and independent state. They may alter or abolish the constitution and form of government whenever they deem it necessary.
Section 3. INALIENABLE RIGHTS. All persons are born free and have certain inalienable
rights. They include the right to a clean and healthful environment and the rights of
pursuing life’s basic necessities, enjoying and defending their lives and liberties, acquiring,
possessing and protecting property, and seeking their safety, health and happiness in all lawful
ways. In enjoying these rights, all persons recognize corresponding responsibilities.
Section 4. INDIVIDUAL DIGNITY. The dignity of the human being is inviolable.
No person shall be denied the equal protection of the laws. Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or
political rights on account of race, color, sex, culture, social origin or condition, or political or
religious ideas.
Section 5. FREEDOM OF RELIGION. The state shall make no law respecting an
establishment of religion or prohibiting the free exercise thereof.
Section 6. FREEDOM OF ASSEMBLY. The people shall have the right peaceably
to assemble, petition for redress or peaceably protest governmental action.
Section 7. FREEDOM OF SPEECH, EXPRESSION, AND PRESS. No law
shall be passed impairing the freedom of speech or expression. Every person shall be free to speak or publish whatever he will on any subject, being responsible for all abuse of that liberty. In all suits and prosecutions for libel or slander the truth thereof may be given in evidence; and the jury, under the direction of the court, shall determine the law and the facts.
Section 8. RIGHT OF PARTICIPATION. The public has the right to expect
governmental agencies to afford such reasonable opportunity for citizen participation in the
operation of the agencies prior to the final decision as may be provided by law.
Section 9. RIGHT TO KNOW. No person shall be deprived of the right to examine
documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.
Section 10. RIGHT OF PRIVACY. The right of individual privacy is essential to the
well-being of a free society and shall not be infringed without the showing of a compelling state
interest.
Section 11. SEARCHES AND SEIZURES. The people shall be secure in their
persons, papers, homes and effects from unreasonable searches and seizures. No warrant to search any place, or seize any person or thing shall issue without describing the place to be searched or the person or thing to be seized, or without probable cause, supported by oath or affirmation reduced to writing.
Section 12. RIGHT TO BEAR ARMS. The right of any person to keep or bear arms
in defense of his own home, person, and property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but nothing herein contained shall be held to permit the carrying of concealed weapons.
Section 13. RIGHT OF SUFFRAGE. All elections shall be free and open, and no
power, civil or military, shall at any time interfere to prevent the free exercise of the right of
suffrage.
posted by 445supermag at 6:57 PM on July 18, 2013 [1 favorite]
Section 1. POPULAR SOVEREIGNTY. All political power is vested in and derived from the people. All government ofright originates with the people, is founded upon their will only, and is instituted solely for the good of the whole.
Section 2. SELF-GOVERNMENT. The people have the exclusive right of governing
themselves as a free, sovereign, and independent state. They may alter or abolish the constitution and form of government whenever they deem it necessary.
Section 3. INALIENABLE RIGHTS. All persons are born free and have certain inalienable
rights. They include the right to a clean and healthful environment and the rights of
pursuing life’s basic necessities, enjoying and defending their lives and liberties, acquiring,
possessing and protecting property, and seeking their safety, health and happiness in all lawful
ways. In enjoying these rights, all persons recognize corresponding responsibilities.
Section 4. INDIVIDUAL DIGNITY. The dignity of the human being is inviolable.
No person shall be denied the equal protection of the laws. Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or
political rights on account of race, color, sex, culture, social origin or condition, or political or
religious ideas.
Section 5. FREEDOM OF RELIGION. The state shall make no law respecting an
establishment of religion or prohibiting the free exercise thereof.
Section 6. FREEDOM OF ASSEMBLY. The people shall have the right peaceably
to assemble, petition for redress or peaceably protest governmental action.
Section 7. FREEDOM OF SPEECH, EXPRESSION, AND PRESS. No law
shall be passed impairing the freedom of speech or expression. Every person shall be free to speak or publish whatever he will on any subject, being responsible for all abuse of that liberty. In all suits and prosecutions for libel or slander the truth thereof may be given in evidence; and the jury, under the direction of the court, shall determine the law and the facts.
Section 8. RIGHT OF PARTICIPATION. The public has the right to expect
governmental agencies to afford such reasonable opportunity for citizen participation in the
operation of the agencies prior to the final decision as may be provided by law.
Section 9. RIGHT TO KNOW. No person shall be deprived of the right to examine
documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.
Section 10. RIGHT OF PRIVACY. The right of individual privacy is essential to the
well-being of a free society and shall not be infringed without the showing of a compelling state
interest.
Section 11. SEARCHES AND SEIZURES. The people shall be secure in their
persons, papers, homes and effects from unreasonable searches and seizures. No warrant to search any place, or seize any person or thing shall issue without describing the place to be searched or the person or thing to be seized, or without probable cause, supported by oath or affirmation reduced to writing.
Section 12. RIGHT TO BEAR ARMS. The right of any person to keep or bear arms
in defense of his own home, person, and property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but nothing herein contained shall be held to permit the carrying of concealed weapons.
Section 13. RIGHT OF SUFFRAGE. All elections shall be free and open, and no
power, civil or military, shall at any time interfere to prevent the free exercise of the right of
suffrage.
posted by 445supermag at 6:57 PM on July 18, 2013 [1 favorite]
...like they do with the Bill of Rights or the Declaration of Independence.
I just wanted to point out that the Declaration of Independence doesn't have any significance in court, aside from the fact that it means we're not part of the British Commonwealth.
posted by Chocolate Pickle at 7:01 PM on July 18, 2013
I just wanted to point out that the Declaration of Independence doesn't have any significance in court, aside from the fact that it means we're not part of the British Commonwealth.
posted by Chocolate Pickle at 7:01 PM on July 18, 2013
The chief elements of a constitution tend to be the formation of government, the separation of powers, and basic civil rights. Much of every state constitution either duplicates or enhances the federal constitution in the civil rights aspect. For those parts that differ, the people whose legal status or activities that are affected by those differences tend to be the ones who are aware of the differences. Marital freedoms, gun laws, liquor pouring, protected classes, and entitlements tend to be hot topics.
posted by Sunburnt at 7:01 PM on July 18, 2013
posted by Sunburnt at 7:01 PM on July 18, 2013
Do people care about state constitutions? Should they?
I feel like in some states this is a bigger deal than in others. Vermont was a republic of its own for a short while (14 years) and the original constitution was really made out as if it were for a nation not just a state in the US. The state constitution which was created from the republic's constitution was sort of a big deal in terms of the rights that it afforded: no slavery, voting for everyone even non property owners. Civil unions came about in Vermont because discrimination is prohibited in the constitution as Area Man mentioned above. I have a civil servant position, Justice of the Peace, that is outlined in my state constitution and swore an affirmation that is in the constitution. I have it printed out and it's on my fridge right next to the universal declaration of human rights. I think a state constitution can be a living document that outlines how the culture of the state may or may not be different from either neighboring states or the federal government and I think that sort of thing is sort of important.
posted by jessamyn at 7:05 PM on July 18, 2013 [1 favorite]
I feel like in some states this is a bigger deal than in others. Vermont was a republic of its own for a short while (14 years) and the original constitution was really made out as if it were for a nation not just a state in the US. The state constitution which was created from the republic's constitution was sort of a big deal in terms of the rights that it afforded: no slavery, voting for everyone even non property owners. Civil unions came about in Vermont because discrimination is prohibited in the constitution as Area Man mentioned above. I have a civil servant position, Justice of the Peace, that is outlined in my state constitution and swore an affirmation that is in the constitution. I have it printed out and it's on my fridge right next to the universal declaration of human rights. I think a state constitution can be a living document that outlines how the culture of the state may or may not be different from either neighboring states or the federal government and I think that sort of thing is sort of important.
posted by jessamyn at 7:05 PM on July 18, 2013 [1 favorite]
I feel like in some states this is a bigger deal than in others.
Agreed. It seems to matter most in small states with long-standing civic traditions (VT, NH) and the very largest states that function like standalone countries. In the middle, there's a lot of indifference to state politics (beyond the governor's race) and the details of state constitutions until the shit hits the fan. Although it's the original modern federal state, the US does federalism pretty badly by comparison with its northern neighbour and pretty much every federation in the developed world.
Area Man's point about the judicial standards of interpretation is important; so is the fact that many state constitutions have vestigial stuff that doesn't get challenged in court because federal supremacy has basically nullified any attempt to enforce it.
As an example, several state constitutions bar atheists from holding public office, even though Supreme Court precedent stamps all over that. Every so often, an atheist gets elected in those states, and certain people huff and puff in a borderline-trollish way about filing lawsuits, but they never actually file them, so the clauses stick around.
posted by holgate at 7:55 PM on July 18, 2013
Agreed. It seems to matter most in small states with long-standing civic traditions (VT, NH) and the very largest states that function like standalone countries. In the middle, there's a lot of indifference to state politics (beyond the governor's race) and the details of state constitutions until the shit hits the fan. Although it's the original modern federal state, the US does federalism pretty badly by comparison with its northern neighbour and pretty much every federation in the developed world.
Area Man's point about the judicial standards of interpretation is important; so is the fact that many state constitutions have vestigial stuff that doesn't get challenged in court because federal supremacy has basically nullified any attempt to enforce it.
As an example, several state constitutions bar atheists from holding public office, even though Supreme Court precedent stamps all over that. Every so often, an atheist gets elected in those states, and certain people huff and puff in a borderline-trollish way about filing lawsuits, but they never actually file them, so the clauses stick around.
posted by holgate at 7:55 PM on July 18, 2013
Late to this party, but in case you're still curious, there's been a recent interest in legal scholarship about state constitutional law.
See, e.g.:
Mary Whisner, Fifty More Constitutions, 104 Law Libr. J. 331 (2012).
Robert F. Williams, Why State Constitutions Matter, 45 New Eng. L. Rev. 901 (2011).
Symposium, State Constitutionalism in the 21st Century, 115 Penn St. L. Rev. 779 (2011).
William J. Brennan, Jr., What Does--And Does Not--Ail State Constitutional Law, 59 U. Kan. L. Rev. 687 (2011).
Symposium, State Constitutions, 62 Stan. L. Rev. 1513 (2010).
James A. Gardner & Jim Rossi, Foreword: The New Frontier of State Constitutional Law, 46 Wm. & Mary L. Rev. 1231 (2005).
There are more, and it's really not a new concept (see William Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977) if you have access through JSTOR or HeinOnline), but these are exemplary recent articles that are all available online.
They seem to indicate that people (or, at least, law professors and law librarians . . .) do, and should, still care about state constitutions.
posted by mnumberger at 1:05 PM on August 8, 2013
See, e.g.:
Mary Whisner, Fifty More Constitutions, 104 Law Libr. J. 331 (2012).
Robert F. Williams, Why State Constitutions Matter, 45 New Eng. L. Rev. 901 (2011).
Symposium, State Constitutionalism in the 21st Century, 115 Penn St. L. Rev. 779 (2011).
William J. Brennan, Jr., What Does--And Does Not--Ail State Constitutional Law, 59 U. Kan. L. Rev. 687 (2011).
Symposium, State Constitutions, 62 Stan. L. Rev. 1513 (2010).
James A. Gardner & Jim Rossi, Foreword: The New Frontier of State Constitutional Law, 46 Wm. & Mary L. Rev. 1231 (2005).
There are more, and it's really not a new concept (see William Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977) if you have access through JSTOR or HeinOnline), but these are exemplary recent articles that are all available online.
They seem to indicate that people (or, at least, law professors and law librarians . . .) do, and should, still care about state constitutions.
posted by mnumberger at 1:05 PM on August 8, 2013
Response by poster: I am working on a project about state constitutions and will post it to Metafilter Projects soon. I would appreciate all of you to take a look at it and give me your comments. Thanks, thus far.
posted by CollectiveMind at 5:02 PM on August 11, 2013
posted by CollectiveMind at 5:02 PM on August 11, 2013
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For example, California's state constitution is incredibly important, and forms the basis for a great deal of law in the state. Propositions that the voters approve (like the Prop 8 law that attempted to prohibit same-sex marriages) actually become part of the state constitution. So it's constantly evolving.
posted by mikeand1 at 5:24 PM on July 18, 2013 [1 favorite]