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State Constitutionalism and the Comparative Project

First, thanks to Zach Elkins and Tom Ginsburg, master scholars, impressarios of the great comparative constitutionalism project, and all-around good guys, for inviting me to guest blog on state constitutionalism and state con law.

Second, by way of introduction, I am the Minerva House Drysdale Regents Chair in Law at the University of Texas, recently decamped from California, where I spent many happy years on the San Diego and Berkeley faculties. I am hard at work on “State Constitutional Law and its Processes” (Aspen Press) and other projects within the same domain.

Let me begin by taking a stab at an answer to the question: “What are we expected to learn from the experience of American state constitutions about state constitutionalism worldwide?” The principal answer derives from the salient differences between state constitutionalism U.S. style and the well-investigated U.S. Constitutionalism. Some highlights:

(1) State constitutions are documents of limit; the U.S. Constitution is a document of grant. State governments possess plenary authority under the police power and the way that this authority, in theory and in practice, differs from federal authority under the more limited princple of delegated power is an interesting window into constitutional power on the ground;

(2) State constitutions have a plural executive. This means that executive authority is parcelled out among separately elected officials (e.g., attorneys general, treasurers, elected lieutenant governors, peculiarly focused officials such as insurance commissioners, fish & game chiefs, etc.). This is by contrast to the so-called “unitary executive” at the national level. The comparative dimenions of this very different approach to administrative authority, separation of powers, regulatory performance, and democratic accountability is, while fascinating, an inexplicably neglected issue in contemporary political science and law. For exceptions, see Roger Noll and Bruce Cain’s work on this topic, and also the superb article by Tom’s colleagues Jake Gerson and Chris Berry in Volume 75 of the U. Chicago Law Review on “the unbundled executive.”

(3) State constitutions contain “positive” rights. These rights include, in all 50 states, a right to education (the source of enormous legal controversy, to be sure) and, in many states, social welfare rights of various types and scope. In this respect, American state constitutions share much in common with constitutions in other countries, such as South Africa, Brazil, and the former Soviet states. The range of comparative constitutional questions involving the origins and performance of positive rights in state constitutionalism are vast indeed.

There are many other interesting features of state constitutions; and there are, too, contemporary controversies (see, e.g., the post-Kelo property rights revolution, same-sex marriage, and the drumbeat for a state constitutional convention in California and New York) that are worthy of scrutiny the context of debates and analysis of constitutionalism worldwide. Or so I hope to illuminate in my stint on this blog. I will look forward to, if not providing particular wisdom on these subjects, at least raising some intriguing questions.

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Published on September 4, 2009
Author:          Filed under: constitutional design, hp, United States
 

3 Responses

  1. Mahalo, Dan, for this opening into a discussion. With particular regard for highlight (1), what recent works would you recommend to delve more deeply into that comparison and contrast (and I am of course interested in your work in the area as well).

    Mahalo again.

  2. Dan Rodriguez

    Interesting question. Let me come at elliptically: Not much has been written about this contrast and, what is out there, is fairly old stuff (some really old: Thomas Cooley writing about constitutionalism in the 19th century). Perhaps the distinction between documents of limit & docs of grant was viewed as more intriguing when the vast expanse of mainstream con law scholarship saw the “delegated power” theory in regard to the nat’l constitution as meaningful. By the early 21st century, and especially after the New Deal, most folks regarded the “grant” theory is a paper tiger. Indeed, some simply insisted that the nat’l gov’t has the police power and that, along with the “nec-&-proper” clause, gave the feds what they need to act — and thus the line between broad fed & state power was a vacuous one.

    So, not much writing on this subject for many decades.

    Three things (at least) have changed in recent years:
    (1) new judicial federalism. Look, in particular, at the debate in U.S. v. Morrison between Rehnquist & Souter. Souter makes the argument for a (narrowly) defeat minority that the feds have the police power and, therefore, the nat’l constitution is essentially a document of limits;

    (2) contemporary debate over nat’l constiution’s so-called “emergency powers.” Some scholars are drawing the connections between the case for such powers and the grant/limit debate. There is still a big ‘ol article to be written on that subject, however. . .

    (3) expansion in recent decades of state const rights, particularly “positive” rights, which have the paradoxical effect of introducing some severe limits on state’s otherwise plenary powers than the essentially “negative” rights embodied in nat’l constitution do vis-a-vis the feds. (Walter Murphy’s recent opus on constit democracy notices this, as I recall).

    So, returning to your question: The state of bibliography re this grant/limit distinction is thin and disappointing. But some revisiting of the old chestnuts (Cooley and also Thayer & even the great Ernst Freund who penned a very large monograph on “the police power”) is warranted.

  3. Tom Ginsburg

    Dan, I found the post and the broader issue of the relation between subnational and national constitutions very interesting as well. Have you developed the points in any of your own work? don’t be shy about letting us know.

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