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.