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Looking to state constitutions

By Jack M. Balkin

Too many members of the American legal academy--and, for that matter, political scientists who study "constitutionalism"--are almost willfully ignorant of what John J. Dinan calls The American State Constitutional Tradition. His excellent book has just been published in paperback by the University of Kansas Press, with a foreword by yours truly. Having assigned it in a course I'm giving this semester at Harvard College, and will give next semester at the University of Texas Law School, I can attest to its pedagogical excellence. He analyzes various debates held at a multitude of state constitutional conventions and thus provides an easy way for students immediately to appreciate what can be said pro and con about, say, bicameralism, various forms of gubernatorial veto, direct democracy, or how to select judges, among other things. My own view is that everyone should read Dinan's book, but it is especially important for academics to do so.

The debates about the Constitution in 2020 (or 2030, or whenever) are still unfortunately fixated almost exclusively on the United States Constitution, and mavens in comparative constitutional law are most likely to look abroad, which allows people like Justice Scalia to accuse them of being unAmerican. It is literally incoherent to say that one is unAmerican in looking to American state constitutions for potential wisdom. One might begin with Nebraska's wise (and "progressive") decision to abolish its Senate in 1934! Or consider the fact that the overwhelming number of states are distinctly "non-unitary" in organizing the executive branch, with separately elected governors and attorneys general (for starters). This provides a level of oversight of potential executive overreach that certainly does not obtain, by and large, at the national level of government, especially, of course, when the AG comes from a different political party. With regard to "progressive constitutionalists," it is surely relevant that many state constitutions guarantee "positive rights," the most important one being education (and, consequently, one can find a lot of interesting data on whether such guarantees are simply "parchment promises" or in fact serve as the basis for either strong judicial enforcement or create a "constitutional culture" that leads legislatures to behave responsibly).

Most interesting, from my perspective, is that 14 state constitutions require that the electorate be offered the opportunity, at stated intervals, to vote yea or nay on whether to have a new constitutional convention. This is only one of the many ways that state constitutions may be closer to the best part of the American political tradition in that they actually express some actual trust in the ability of "we the people" to govern ourselves. I continue to believe that contemporary American "progressivism" will flail in the wilderness until its adherents break free of their de facto Hamiltonian fear of "the people" and actually emulate some of the right-wing populists who have no such fears. And if we emulated many state constitutions by having a legislative initiate and referendum, we wouldn't be at the mercy of the Baucuses and the idiotic filibuster rule that makes meaningful legislation near impossible. Isn't it ironic that the i&r in California was supported by early 20th century "progressives"? There are problems with i&r, to be sure, but wouldn't it be interesting to see what might happen in our truly dreadful Senate if a national movement developed that threatened to strip them of their power to kill any and all legislation they don't like, whatever its degree of support from the House of Representatives or the White House? A more "moderate" approach, drawn from many of the other countries around the world that have bicameral systems, would be to have some procedure to break deadlocks between the two houses. We have the worst of all bicameral systems, where a totally malapportioned Senate that fails any 21st century test of "one person/one vote" is also able to kill legislation with no recourse. As Bob Dole might say, where is the rage? Or is there a consensus that we're simply stuck, in 2020, 2030, and thereafter, with the institutions we have, so that there is literally no point even in pointing out their relevance to actually being able to achieve what "progressives" legitimately want.

Although I'm allowing the posting of options, I truly hope that those of you who aren't "progressives" will refrain from bothering to comment how much you admire the ability to the Senate to block legislation. I'm sure you do. That can be taken as a given, and it needs no further expression. What interests me is why self-identified "progressives" would be equally accepting of the institutional status quo. Given that most "progressives" necessarily live in states with constitutions quite different from the U.S. Constitution, I'm curious if they would necessarily trade in their state constitutions for the national one. If they actually like their state constitutions, then why not look to them as potential templates for reform of the national version?

Full post as published by Balkinization on September 30, 2009 (boomark / email).