Wednesday, October 22, 2008

State of the state constitutions

Earlier this week I was in Chicago, and the political talk, besides the Presidential election, centered around whether or not Illinois voters should approve forming a new constitutional convention. That got me to pondering how it is that I think of the U.S. Constitution a lot, but I almost never think of the state ones.

I'm not alone. Writes Professor Lawrence M. Friedman, "(L)egal scholarship does not pay much attention to the state constitutions. Legal education ignores them almost entirely. So does the public" (American Law in the 20th Century, 2002, p. 344.) Small wonder, because as Friedman goes on to note, "(State constitutions) lack the magic of the federal Constitution. They symbolize nothing in particular. Nobody gets choked up at the thought of these documents. Nobody preserves them in shrines under glass" (p. 345).

The most interesting thing I've ever seen on state constitutions is actually a table appended to an essay by Donald S. Lutz contained in the book Responding to Imperfection: The Theory and Practice of Constitutional Amendment (1995) edited by Sanford Levinson. This table, on pages 248-249, provides seven bits of information on each state's constitution. The three data sets of most interest to me are the number of constitutions each state has had in its history, the year each state's current constitution took effect, and the length of each constitution prior to amendment. (The information was current at it's compilation in 1991).

Let me briefly make a point about Illinois, since it is their consideration of a constitutional convention that got me started on this. The present constitution in that state went into effect in 1971, and it's rather remarkable that Illinois voters gave it a thumbs up. I say that because according to Friedman (pp. 344-345), seven states held constitutional conventions at about the same time as Illinois, and in five of those seven the voters shot the finished work down. (The states besides Illinois were Rhode Island, New York, Maryland, Hawaii, New Mexico, and Arkansas. Friedman states that Hawaii was the other state in which a new constitution drafted in the 1960s was approved, but that doesn't match the data in the Lutz table, and the Hawaii Legislative Reference Bureau website indicates the fiftieth state has had only one constitution, subsequently amended, which went into effect in 1959.) So before Illinois voters authorize a new constitutional convention, they should reflect on how likely it is--based on the experiences of other states--that a convention's hard work could be rendered fruitless by voter disapproval.

If you had to guess which states have had the most constitutions, I'll bet you'd say they were in the South, because the southern states had to draft new constitutions after the Civil War. Well you'd be right--there are nine states that have had five or more constitutions and all are in Dixie except Pennsylvania. Louisiana leads with eleven constitutions; my Georgia is second with ten of them.

At the other end of the spectrum, nineteen states figured they got it right the first time, including Massachusetts with its 1780 document still holding court. (And yes, it's a bit archaic: check out this provision from Chapter II, Article 1: "There shall be a supreme executive magistrate, who shall be styled, The Governor of the Commonwealth of Massachusetts; and whose title shall be -- His Excellency." Can you imagine a Boston Globe reporter calling Mitt Romney that when he held the office?)

I was most interested, however, in the line in Lutz's table that has the number of words in each state's current constitution, prior to amendment. The original articles of the U.S. Constitution, contain 4,300 words; even with amendments it still contains fewer than eight thousand words (Amar, America's Constitution: A Biography, 2005, p. xi.). Amar calls that "notable brevity," but the state constitutions are far from that. The average one has 18,300 words.

Okay, so here's another quiz: which states do you think have the longest constitutions? If you'd asked me before I looked this up, I'd have guessed the biggest states have the most bombastic constitutions. It would make sense that a New York or a California would need the most lengthy documents to cover all contingencies among such vast populations, right?

Or not. Actually, the four states that have constitutions of over thirty thousand words are not population giants: Alabama, Louisiana, Missouri, and Oklahoma. Alabama has the most lengthy constitution, 65,400 words--three and a half times longer than the average such document!

As to why Alabama's constitution is so blasted long, it doesn't take too much nosing around in it to see that this is because it contains a lot of minutiae other states would just put in their regular legislative code. Check out section 86 of the Alabama Constitution:

"The legislature shall pass such penal laws as it may deem expedient to suppress the evil practice of dueling."

Or section 267:

"The legislature shall not have power to change the location of the state university, or the Alabama Polytechnic Institute, or the Alabama Schools for the Deaf and Blind, or the Alabama Girls' Industrial School, as now established by law, except upon a vote of two-thirds of the legislature taken by yeas and nays and entered upon the journals."

Riveting stuff, huh? In fairness to the folks just west of me, their constitution is now better than a century old; I doubt if Alabama had a constitutional convention today the delegates would produce something longer than could reasonably be read during halftime of the Alabama-Auburn football game, an annual event which now basically takes the place of dueling in the Yellowhammer State.

Vermont has the shortest constitution; the unamended document is a quick 5,200 words. I didn't see anything there about moving schools or dueling. Or even about maple syrup.

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