There Is a Way to Break Out of Our Constitutional Stagnation
There are two constitutional traditions in the United States. The first is the one we all know, tied to Philadelphia and the framers, the Civil War and Reconstruction. It’s the one that structures our political system and fuels some of our most heated conflicts. The second is a little more obscure, despite the fact that it shapes as much of our political life as the first.
If the first tradition flows from our federal constitution, then the second flows from our other constitutions — the 50 state ones. They represent a history of change, revision and innovation that stands opposed to our largely static, even stagnant, relationship to the Constitution, which has not been meaningfully amended since we lowered the voting age in 1971.
We saw some of this dynamism in the election last week. Voters in California, Michigan and Vermont amended their state constitutions to effectively secure the right to an abortion; voters in Oregon amended their constitution to give every resident a fundamental right to affordable health care; voters in Nevada amended their constitution to allow open primaries and ranked choice voting (they’ll have to vote on this amendment a second time to ratify it) and voters in Iowa amended their constitution to affirm the right to keep and bear arms.
From just these examples we can see that while our national constitution is quite limited in scope, our state constitutions are much more expansive, and state constitutionalism is as concerned with articulating a positive conception of liberty as it is with defining a negative conception of rights.
This is by design. State constitutional conventions have “been a forum for reconsidering, and ultimately revising or rejecting, a number of governing principles and institutions that were adopted by the federal convention of 1787 and that have remained relatively unchanged at the national level,” the political scientist John Dinan writes in “The American State Constitutional Tradition,” a comprehensive overview of American constitution-making at the state level.
The federal constitution, for example, does not permit citizens to play a role in lawmaking other than voting for representatives in Congress (there is no constitutional requirement that voters choose presidential electors). But many state constitutions, Dinan notes, “require certain measures to be submitted to the people before they can take effect” while others “permit legislatures to condition the enactment of statutes on the outcome of a popular vote.” And 24 states have an initiative or referendum process (or both) for laws and state constitutional amendments. Voters have used these tools, in recent years, for both liberal ends (Medicaid expansion) and conservative (anti-abortion measures) ends.
There are many other areas where state constitution makers have disagreed with and sought to modify elements of the federal system. During the Lochner Era at the beginning of the 20th century, when the Supreme Court invalidated laws regulating wages, working conditions and child labor, delegates to constitutional conventions in Massachusetts, Nebraska, Ohio and other states debated the scope of judicial review and called for limits on the courts’ power to overturn laws.
“If a law is unconstitutional, out of seven it should require at least five men to say it is,” declared one delegate to the Nebraska convention of 1919 and 1920. “Otherwise, it is just the caprice of the odd man.” The state would go on to adopt a supermajority requirement for judicial review, which remains in effect.
Nebraska is also where, in a moment of Depression-era radicalism, voters rejected the bicameralism of the federal Congress in favor of a unicameral legislature. In addition to being sites of revision and experimentation, state constitutional conventions have also been served as forums for debating ideas, like the wisdom of a bicameral legislature, that are practically unheard-of in national politics.
Referring to the Supreme Court’s decision in Reynolds v. Sims, which asked states to make an “honest and good faith effort to construct districts, in both houses of the legislature, as nearly of equal population as practicable,” a delegate to the Illinois constitutional convention of 1969 and 1970 observed that “With one man-one vote there is absolutely no reason at all for having two houses of the legislature. It is purely duplicative. It is purely running over the same track twice with different groups of people.”
One of the most interesting aspects of the state constitutional tradition is the extent to which it has been a place where Americans have tried to place social and economic rights directly into the structure of their political arrangements. “One type of positive-rights provision that was widely adopted, particularly in the late nineteenth and early twentieth centuries,” Dinan writes, “concerns the right of individuals to enjoy reasonable work hours, a minimum wage, safe work conditions, and compensation for workplace injuries.”
Reconstruction-era conventions in Alabama, North Carolina and South Carolina — where former slaves were among the participants — wrote provisions “committing state or local governments to address the needs of the poor, disabled, or elderly.” More recently, several delegates to the Maryland convention of 1967 and 1968 argued, unsuccessfully, for the inclusion of economic rights in the state constitution. “There is no freedom without economic freedom,” said one proponent. “There is no liberty without economic freedom, and there is no life, real life, without economic security.”
Part of the significance of all of this — of the revision, experimentation and debate found within the American state constitutional tradition — is that it is a powerful resource for thinking about our national constitution and the ways we might want to change it. As the legal scholar Sanford Levinson observed in “Framed: America’s 51 Constitutions and the Crisis of Governance,” “If one is trying to understand the realities of ‘American constitutionalism,’ it is essential to look beyond the U.S. Constitution to the many other constitutions that are part of the American political system.”
“Even if one accepts the proposition that constitutional federalism — that is, a state autonomy free from national government control — is only weakly protected by the national Constitution,” he continues, “there can be no doubt that many issues of great public importance are decided — or, not adequately confronted — within the states.” State constitutions, in other words, can provide another window into how the structure of government shapes its capabilities and horizons.
I’ve written a few times about the problem of constitutional stasis in the United States. Our system is stuck, and change is nowhere near on the horizon. And yet, it is still vital that we think about change: brainstorm about it, theorize about it and practice the skills we’ll need to eventually make it happen. Among those skills is the ability to deliberate with others, often very different others, as political equals.
Because of their flexibility, because of the frequency and relative ease with which they change, state constitutions and state constitution-making are valuable forums for practicing democracy. Even just reading and rereading the constitutional debates of years past — as I’ve done for this column — has given me some insight into what it might look like to deliberate with others on fundamental issues of political community.
This country needs serious change. And practice, as they say, makes perfect.
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