Rediscovering State Constitutions – The American Conservative
State constitutional assemblies are an opportunity to protect the diversity of our country.
According to former New Jersey Supreme Court Justice Morris Pashman, state constitutions provide residents of all 50 states with “a wholly independent resource for the protection of fundamental rights and freedoms.” But this protection has been contested in many states. Thankfully, residents of three will soon have an opportunity to remind us all of the value of state constitutions.
Like a forgotten Corvette sitting in the garage, state constitutions have many uses, but only when properly maintained. Unfortunately, our mechanics neglected basic maintenance. In fact, some state supreme courts have slashed the hoops of their respective constitutions, insisting that they be interpreted in “lock step” with the US Supreme Court’s interpretation of the relevant clause in the federal constitution.
Covered in moss, flat tires, broken mirrors – we’ve got fifty Corvettes sitting idle. Residents of New Jersey, Missouri and New Hampshire can remind the rest of us of the importance of our state constitutions by voting to host constitutional assemblies in the November 2022 election. Each of these three states has recurring automatic voting references for constitutional conventions, and eleven other states have similar provisions. These three states could start a new New Federalism movement, and boy do we need that?
It is unlikely that the next generation of lawyers will restore states’ constitutions to their rightful place as the source of “fundamental rights and freedoms.” Most law schools do not teach their students about state constitutions. Only a few offer courses in constitutional law.
Many lawyers fail to enforce their clients’ claims under the respective state constitution. This neglect is understandable given that scholar James Gardner characterized state constitutional law as “a vast wasteland of confusing, contradictory, and essentially incomprehensible utterances.” Former Oregon Supreme Court Justice Hans Linde concluded that “a generation of attorneys seems literally speechless when confronted with questions of state constitutional law.” and Judges in state courts have not helped. They, too, have failed to “offer a coherent discourse of state constitutional law,” Gardner said.
The New Federalism, a movement championed by US Supreme Court Justice William Brennan, recognizes the crucial role of states in our dual sovereignty system. Brennan and others sought to rekindle a common sense from our nation’s founding days—that the federal and state governments are each independent sovereigns with specific areas of action. Our founding fathers, fiercely loyal and devoted to their states, theorized in federalist No. 45 that states—not the federal government—would lead the way to safeguard “the lives, liberties, and property of the people.” Sure, the federal government would take the lead in extraordinary times marked by “war and danger,” but state government operations should dominate in “times of peace and security.”
New federalists like Gardner believe that a state must be a “self-governing political society of individuals comprising a subset of all American citizens.” Of course, state constitutions play a crucial role in this self-government because, as Gardner put it, they are “intended to reflect the fundamental values and ultimately the character of the people of the state who have adopted them.”
This wish was never realized in many states. My home state of Oregon, for example, all but copied and pasted portions of Indiana’s constitution and borrowed heavily from the constitutions of Wisconsin, New York, Ohio, Michigan, and Maine to draft its own. So instead of living under a constitution that reflects their basic character, they adhere to a Frankenstein constitution that has become even more confusing, contradictory, and incurable with the hundreds of amendments that have followed its passage.
Residents of Oregon and residents of many other states live under state constitutions that do not fulfill the role our founders intended. That makes the potential for constitutional conventions in New Jersey, Missouri and New Hampshire newsworthy. A modern state constitutional assembly would have tools at its disposal, unimagined by the founding fathers, to ensure that the resulting document reflects the character, priorities, and interests of the state’s residents. Like Iceland, state constitutional conventions could use YouTube, Facebook and Twitter to share drafts of their constitution and solicit feedback. As in Ireland, these Congresses could use randomly selected residents (similar to how we select jurors) to help draft drafts. As in Chile, these conventions could guarantee the participation of certain cultural groups excluded from the first round of drafting the state constitution.
Most importantly, these three states could capture the imagination of Americans. As more coastal residents relocate, taking their politics and money to new states, it is imperative that existing residents have recourse to protect the character of their state. Some people may dispute the validity of such efforts — after all, isn’t the idea that people should “vote with their feet” and move to states that reflect their values?
This was certainly not the case in practice. For one, some people don’t have the financial means to move and relocate to a new state. And the people who move are not afraid to bring their politics with them, rather than accepting the unique political environment of their new home. In other words, people are veto with their feet. Just ask residents of Kalispell, Montana, who are dealing with an influx of Californians who have a very different perspective on life but were so enthralled with the show yellowstone that they had to uproot Montana and claim it as home. These new residents aren’t afraid to assert their views rather than adjust to the character of their new neighbors.
National attention to three state constitutional conventions may be key to Americans across all 50 states dusting off their state constitutions and taking their metaphorical Corvette for a spin. This would correspond to the vision of the founders of states as independent sovereigns, guarantors of unique rights and protections, and political bodies with their own character and beliefs.
Kevin Frazier is the editor of The Oregon Way, a nonpartisan online publication. He is pursuing a JD from UC Berkeley School of Law and an MPP from Harvard Kennedy School.