The 4 differences between the federal and state constitutions
Many people talk about changing the Constitution, but altering the U.S. Constitution is (intentionally) no easy matter, and there have been only 27 amendments in more than 223 years. But constitutional change at the state level is a different story. And this Election Day helps illustrate why.
The upcoming decennial redistricting of the U.S. House of Representatives and state legislatures will take place primarily under state constitutions and state constitutional amendments are being proposed in a few states in a, likely unsuccessful, attempt to block federal healthcare and labor law reform measures.
What is a state constitution?
Any intelligent discussion of these reform efforts and issues requires and understanding of state constitutions themselves, and the variety of ways in which they differ from the more familiar federal constitution. State constitutions are, however, low-visibility constitutions.
When talking about state constitutions, it is often difficult to generalize. Many will feel a familiarity with some state constitutions because of similarities with the federal Constitution. But there are many differences, as well. Here are four of them.
1. State constitutions perform different functions (generally limit plenary powers rather than grant enumerated powers), have different origins (from the people themselves), and have a different (longer) form
2. State constitutions contain many more policy-oriented provisions, built up over time, as well as provisions concerning the character, virtue and even morality of the state’s people. In fact, state constitutions are more democratic than the federal constitution in that they involve the citizenry in approving their amendment and revision, voting to approve borrowing, and in many states like Iowa, electing judges.
3. State constitutions better reflect the input of the alternative voices of African Americans, Hispanics, Native Americans and women—voices that have had little impact on the federal Constitution. The differences can obscure one of the most fundamental aspects of state constitutions: the significant impact that a number of them adopted before the federal Constitution, had on our national legal charter.
4. The mechanisms of revision. While there is but one, relatively difficult, way to amend the federal Constitution, amendments or revisions of state constitutions can be accomplished through legislative, constitutional convention or constitutional commission proposals, as well as by initiative in some states.
There are substantial political difficulties today with state constitutional amendment and revision, including popular distrust of constitutional conventions and other constitution-making processes. Further, there is extensive judicial involvement in litigation considering the substance and procedure of state constitutional amendment and revision. Some processes of state constitutional change can only be utilized, for example, to amend the state constitution but not to revise it.
New Judicial Federalism
One of the more recent developments that has helped create a rebirth in state constitutional study and practice is the growth of what is known as the New Judicial Federalism (NJF), in which attorneys and others mine state constitutions for interpretations that offer more protective rights than similar provisions of the federal Constitution.
Justice William Brennan helped energize this movement when he called states “laboratories of democracy.” This raises the potential for dual, or dueling, claims in state and federal court, which implicate a number of methodology issues, including the sequencing of arguments and development of criteria for recognizing rights beyond the federal minimum standards. Too many state courts fail to acknowledge the possible difference between state and federal rights protections, and others present “lockstepping,” in which they announce that, in the future, the state and federal rights provisions will be interpreted identically or similarly.
Both approaches are problematic. Also, the NJF has given rise to state constitutional amendments aimed at overruling state constitutional rulings providing more rights than required by the federal constitution. Proposition 8 in California, overturning the same-sex marriage decision, is the most recent example.
Professor Williams is the Associate Director of the Center and Distinguished Professor of Law at Rutgers University-Camden and has written extensively in state constitutional law and legislation, including casebooks in those areas and a book on New Jersey Constitutional Law. He also co-produced a television documentary marking the fiftieth anniversary of the New Jersey Constitution.
Photo from Jonathan Thorne on Flickr.