Workshop One: What Should a State Constitution Do?

 

            The first speaker, Bruce Cain, argued that some state constitutions, such as California’s, attempt to do “too much” and that this attempt to constitutionalize too much imposes costs in terms of governmental decision-making.  State constitutions should, first of all, address individual rights, as the dual protection of rights gives opportunities for rights expansion and for a dynamic dialogue between nation and state over the scope and character of rights.  State constitutions should also address the organization and role of government.  With respect to electoral systems, constitutions should be fairly majoritarian; with respect to governance, they should be somewhat anti-majoritarian, with veto points providing opportunities for deliberation and consensus-building.  Finally, state constitutions should establish procedures for change but should avoid the  “hyper-amendability” found in California and other states.  The difficulty here is that once policy choices are constitutionalized, to change policy requires constitutional amendment, and thus the constitutionalization of policy continues.  

            If inclusion of policy in constitutions creates problems, should any policy areas be included?   Cain argued that the inclusion of any policy in state constitutions is highly problematic, in part because there is no principle to distinguish what should or should not be “in.”  If any policies are to be included in a state constitution, they should be policies that reflect a broad consensus within the population.  What should not be included are policies that divide the populace and that are adopted by slim majorities of voters that are not representative of the populace of the state.  Because the initiative, at least as it now operates, permits–and perhaps encourages--the constitutionalization of divisive policy, it is not a good mechanism for undertaking constitutional change.

            The second speaker, Ann Lousin, focused on the challenges likely to face state constitution-makers in the twenty-first century.  One challenge is that of nationalization, which involves both the nationalization of issues and the nationalization of the tax system.  A second challenge is posed by internationalization and globalization, which increase the importance of foreign policy, a field in which the states have little role.  A third challenge involves the advance of technology, especially communications technology, and its implications for both privacy and accountability.  A final challenge involves education and the importance of equipping all citizens to deal with a more complex and technologically sophisticated society.

            A summary of the remarks of the third speaker, Alan Tarr, follow.

            The discussion focused primarily on issues of constitutional design and constitutional change.  Some commentators argued that the managerial model of constitutionalism proposed by constitutional reformers had the effect of depoliticizing politics and urged the importance of inquiring as to what sort of political dynamics was embodied in the constitution.  Others insisted that the inclusion of aspirational elements in state constitutions was counter-productive.  Hugh Spitzer proposed a dual system of constitutional change, with a layer of governmental structure and rights firmly entrenched and difficult to change and a layer of policy that was easier to amend.

Summary of remarks of Alan Tarr:

One way to approach this issue is to ask whether there can be a model state constitution.  In one sense, obviously, there can - one can go to the library and find there the National Municipal League’s Model State Constitution.  In fact, even prior to the National Municipal League’s efforts, there were model state constitutions in the sense that state constitution-makers from the earliest years of the Republic relied on existing constitutions for direction, self-consciously borrowing and copying.  Of course, constitution-makers needed to borrow wisely and to adapt the provisions they borrowed to the distinctive conditions within their own states, but that having been said, there is no reason that a model state constitution cannot serve a useful purpose.

The problem is not really whether there can be a model to guide state constitution-makers, but what that model should be.  Certainly, the constitutional models that attracted convention delegates in the late 19^th century were far different than the model that has dominated state constitutional reform for much of the 20^th century.  Simplifying a great deal, late 19^th century constitution - makers believed that the main aim of a constitution was to check legislative abuses.  In contrast, for most of the 20^th century, reformers have insisted that state constitutions should empower state legislatures - and state governments more generally--to take vigorous action to confront the problems confronting their states.  More recently, the constitutional changes introduced in California, Colorado, and various other states through the constitutional initiative - term limits, super-majorities for tax increases, spending limitations, etc.--suggest a quite different understanding of what state constitutions should be about, a view more akin to that of 19^th century reformers.

The differences in the constitutional models dominant in various eras cannot be explained simply by some greater sophistication possessed by 20^th and 21^st century Americans in things constitutional.  Rather, the differences reflect conscious choices, taken after serious deliberation about what sort of state government is desirable and what evils needed to be combated.  Put differently, because a constitution is a technology, a means to an end, what one wants from state government will affect the sort of state constitution one chooses.  For, as political science jargon has it, institutions influence outputs.   

Well, is the Model State Constitution still a good model or, at least, a good enough model, to guide constitutional reform?  The answer, I believe, is no.   This is not to deny the virtues of the Model - we do need a state government that is well managed, that can act decisively, and that is not hamstrung by outmoded constraints. The Model State Constitution was designed to achieve these ends, and insofar as states have introduced is  or do we need a new model for the 21^st century?  I would have to cannot in a few minutes elaborate fully what a state constitution for the 21^st century should look like.  But I can offer some observations.  First, many of the managerial reforms introduced to make state government more effective were necessary, have worked, at least to some extent, and should be extended, not curtailed.

 

Workshop Two: State Constitutional Reform Efforts: What Have Recent Attempts Taught Us?

 

This workshop concentrated on the processes through which state constitutional change has been attempted in recent years. The participants included Gerald Benjamin (Dean of the College of Arts and Sciences at SUNY-New Paltz), Margaret Fung (of the Asian-American Legal Defense Fund), and Gerald Kogan (retired Chief Justice of the Florida Supreme Court), each of whom had been involved in a recent

constitutional revision effort (with Benjamin and Fung having worked with the New York State Temporary Revision Commission on Constitutional Revision, and Kogan having served on the Florida Constitutional Revision Commission). In their remarks, and in the ensuing discussion, the panelists were particularly concerned with detailing the major decisions that they had faced in the course of their constitutional revision efforts and that were likely to be faced by individuals who might become involved in future revision efforts.

A good portion of the workshop was concerned with discussing the particular lessons that could be gleaned from the New York and Florida experiences. In the case of New York, a Temporary Commission on Constitutional Revision was established by Governor Mario Cuomo in 1993, in preparation for an automatic twenty-year popular vote on constitutional revision. Appointed by Governor Cuomo, the members of the Commission held a series of public hearings and meetings, and then concluded by issuing a final report in 1995 (from which several individuals dissented, in part out of a concern that the constitutionally-prescribed method of convention delegate selection might be inconsistent with the Voting Rights Act). In the 1997 election, the people of New York went to the polls and voted "No" on the question of whether to call a constitutional convention.

The workshop also gave a good amount of attention to the work of the Florida Constitutional Revision Commission of 1997-98, which is authorized to meet every twenty years and to submit amendments directly to the people for ratification. Pursuant to the Florida Constitution, the Revision Commission consisted of thirty-seven members, fifteen of which were appointed by the Governor, nine of which were appointed by the President of the Senate, nine of which were appointed by the Speaker of the House, three of which were appointed by the Chief Justice of the Supreme Court, and one of which was the Attorney General. The Commission held a series of meetings and public hearings at various locations around the state, and in the end it recommended nine amendments, eight of which were approved by the people in the 1998 election.

Although a good amount of attention was given to the case studies of New York and Florida, the workshop participants were also of the belief that these experiences might be instructive for constitutional reformers in other states around the country. The general consensus was that these experiences demonstrated that there were a number of crucial decisions and challenges that were likely to be encountered by nearly all turn-of-the-century constitutional reformers.

There is, in the first place, the initial question of whether to call a constitutional revision commission. In Florida, this question is settled by the constitution, which mandates the appointment of a commission at periodic intervals. But in the fourteen states such as New York, where the constitution

provides for an automatic popular vote on whether to call a revision convention, the governor and the legislators have a good amount of discretion over whether or not to establish a commission in preparation for that vote.  And it was generally agreed that the establishment of a preparatory commission was an

important step in contributing to a public support for the calling of a convention.

Another set of questions concerns the selection of the commission members. There is, to begin with, the question of who should make the appointments (the governor, the legislative leaders, the supreme court chief justice, or a combination of the three). Then there is also the general question of who

should be appointed, which also leads to a variety of particular questions in regard to the mix of elected non-elected officials and lawyers and non-lawyers that should be selected.

A final set of questions concerns how best to attract public interest in the work of revision commissions.  It became clear that, in some respects, this is out of the control of the commission members, insofar as public interest often depends on the particular substantive issues that are put forward at any given

time. In other respects, though, it was thought that commission members do have an opportunity to influence the level of public interest, through their ability to work with the media and various interest groups to promote constitutional reform, and through their ability to build public support through forums and public hearings.

 

Workshop Three:  Protection of Rights Under State Constitutions: Practices and Prospects

 

 

This workshop had as its focus the rights provisions in state constitutions, which have become much more important in the last generation because of the New Judicial Federalism where state courts have begun to interpret their state constitutional rights provisions in a more protective fashion than the United States Supreme Court interprets the federal Bill of Rights.  The participants were Hans Linde (retired Justice, Oregon Supreme Court, retired Professor of Law, University of Oregon School of Law), Neil McCabe (Professor of Law, South Texas College of Law), and Robert F. Williams (Distinguished Professor of Law, Rutgers University-Camden, and Associate Director, Center for State Constitutional Studies).  Each of the participants has been involved in the New Judicial Federalism as scholars, lawyers, and, in the case of Linde, as a state supreme court justice.  The remarks of the panelists had relevance both for the judicial interpretation of current state constitutional rights provisions, and for the possibility of changes to such rights provisions in the future.

 

Professor McCabe explored the relationship of judicial interpretation of state constitutional rights provisions to such interpretation of federal constitutional rights provisions.  He highlighted the phenomenon of "forced linkage" (where state rights provisions must be interpreted identically with federal rights provisions) as it has arisen both in state constitutional amendments (Florida, California, and through judicial decision (threatened in Texas)).  McCabe also explored a variety of changes to state constitutional rights particularly in the area of criminal procedure, with a specific focus on victims' rights provisions.  He indicated a variety of areas where such new provisions will have unanticipated consequences for criminal prosecutions. 

 

Professor Williams indicated that rights provisions (particularly through judicial interpretation) can be found in other parts of state constitutions than just Declarations of Rights.  He indicated that the New Judicial Federalism began with criminal procedure cases, and spread to other kinds of rights cases.  He pointed to the paradox of state constitutional rights protection where state courts can recognize greater rights than those protected by the federal constitution, but that through state constitutional amendment these rights can be changed by a mere majority vote.  Williams summarized some of the current proposals for new rights to be added to state constitutions, including parental rights, privacy, and, particularly, the issues that will arise in the future from "private" police and security, prisons, shopping malls, and housing arrangements. 

 

Justice Linde pointed out that the practice has been, until recently, to view the rights contained in state constitutions as mirroring those in the federal constitution.  Most federal constitutional rights, he noted, relate to criminal procedure (except for free speech).  These arose from the grievances against King George III, when criminal law was used against the "people."  In modern times, by contrast, the "people" see criminal law as protecting them, not as being used against them.  This has lead to the lack of popular support for criminal procedure rights, each of which is distinct in response to a separate problem.  He discussed the victims' rights movement, indicating that most of these rights could be statutory rather than constitutional.  A number of the victims' rights proposals are presented as a "wrapper" around pro-prosecution proposals, particularly when the initiative process is utilized.

Justice Linde indicated that the institutional structure of a state government can have important implications for rights protection.  For example, the presence of elected judges and elected prosecutors can influence the extent of protection of rights.  State courts tend to be weaker than federal courts, particularly when it comes to remedies that require the expenditure of funding.  State court judicial technique is still dominated by federal constitutional analysis.  With respect to privacy rights in the future, Justice Linde made an important distinction between informational and personal privacy.  He also noted that the enthusiasm for positive rights will result in a change in institutional law-making power, shifting authority from the legislature to the courts.

Professor Williams noted the number of participants at the conference who had experience in state constitutional commissions (Linde, Benjamin, May, Cain, Kogan, Fung, and attendees Lauer and Corbin).  Professor Williams indicated that the constitutional commission is a relative newcomer to the process of state constitutional revision, being only about 120 years old.  The state constitutional convention is a mechanism that preceded the commission by over a century.  Generally commissions served a preparatory purpose either for a convention or for the legislature.  Such commissions were created and funded by the legislature, or sometimes by the Governor.  They were often created to take advantage of expertise and efficiency, neither of which a busy legislature possessed.  Constitutional commissions are not set up by state constitutions anywhere except in Florida.

Florida's commission is unique, having been created in the 1968 Florida constitution.  It is an appointed commission that meets automatically every 20 years, and it may place its proposals directly on the ballot.  No other state has this mechanism.  Once the commission is appointed, it operates just like an unlimited state constitutional convention, except that the delegates are not elected.  In this mechanism of state constitutional revision, therefore, the people do not authorize the body to consider state constitutional revision but rather serve as a check on the commission's proposals. The 1997-98 Florida commission was relatively successful, with 8 of its 9 proposals being accepted by the voters. These proposals included a strengthened right to education, a revised judicial selection process, an expanded set of environmental provisions, a moderate gun control provision, a state equal rights amendment, and several others.

Workshop Six: Taxing, Spending, and Borrowing Under State Constitutions

 

Although the U.S. Constitution is virtually silent on matters of public finance, state constitutions contain a number of provisions regulating tax, spending, and borrowing.  Many of these provisions date from the nineteenth century, when convention delegates responded to legislative overspending by enacting a variety of expenditure limitations. But a number of these constitutional provisions are of more recent vintage. Beginning with the passage of Proposition 13 in California, the last quarter of the twentieth century has seen a variety of tax-limitation measures that have been imposed through the popular initiative

process. The participants in this workshop - Richard Briffault (Vice Dean of the Columbia University Law School), John Kincaid (Director of the Meyner Center for State and Local Government at Lafayette College), Jack Kraft (a municipal bond lawyer in New Jersey), and Robert Martin (a New Jersey State Senator and the Director of the Center of State and Local Government Law at Seton Hall University Law School) - were concerned with identifying and evaluating recent trends in state constitution-making in regard to these tax and expenditure limitations.

These sorts of state constitutional provisions fall into several categories. In the first place, a number of state constitutions contain tax and expenditure limits. Some of these limitations are of a substantive character, in that they limit the amount of debt that can be incurred, the rate of taxation, or the

growth in the rate of spending. Other limitations are of a procedural character, in that they provide that certain forms of debt must be approved in a popular vote, or they require a supermajority vote before legislatures can levy taxes or incur debts. And then there are assorted other public-finance provisions,

including requirements that taxes and appropriations be dedicated to a public purpose, as well as requirements that legislatures adopt a balanced budget.

Although convention delegates in the nineteenth century and voters in the late-twentieth-century voters have placed a great deal of importance on the enactment of these tax and expenditure limitations, legislatures and courts have not treated them so favorably. It was pointed out that over the last several years, legislatures have developed all sorts of creative ways to finesse these constitutional limitations, in part through the redefinition of taxes, debts, and public entities so that they are not subject to these

constitutional provisions. Meanwhile, courts have been inclined to interpret these constitutional limitations liberally, and as a result the courts have generally supported the legislative evasions that have taken place. In fact, in the case of New Jersey (which attracted a good deal of attention from the workshop participants), the state supreme court could even be seen as having in some ways encouraged the legislature to overstep these limitations, insofar as its school-finance-equalization rulings have had the effect of leading the

legislature to incur significant amounts of debt.

            The central question that emerged out of these discussions was how state constitution-makers ought to respond to the disfavored nature of these constitutional tax and expenditure limitations. One possible response would be for constitution-makers to draft even more detailed provisions and to encourage

courts to enforce these provisions in a more stringent fashion. This is the approach that has been followed in recent years by voters in a number of states. But, in the view of a good number of the panel participants, the general record of the last few decades was thought to cast doubt on the overall effectiveness of this approach.  And as a result, a number of the panelists suggested that this might be a situation in which these sorts of constitutional limitations are not well suited to the modern demands of governance, and that they are likely to continue to be disfavored by legislatures and courts.

 

Workshop Seven: Direct Democracy, Constitutional Change, and State Constitutionalism

 

The participants in this workshop included Hans Linde (retired Justice of the Oregon Supreme Court), Gerald Benjamin (former Director of Research for the New York State Temporary Commission on Constitutional Revision), Janice May (Professor of Political Science at University of Texas-Austin), and Harry Scheiber (Professor of Law and History at the University of California-Berkeley). Although each of the presenters was concerned, in some way or another, with the broad issue of popular participation in the state governmental process, most of the discussion focused on two particular issues. First, the participants were interested in discussing the principal methods by which states provided for constitutional change. Second, the participants were concerned with evaluating the operation of direct democratic institutions.

In regard to the processes of constitutional change, the participants made note of the wide variety of methods by which states provide for the amendment and revision of their constitutions. In general, and acknowledging the inevitable exceptions, most states permit constitutional change to take place through some or all of the following procedures: by amendments proposed by the legislature and ratified by the people, by conventions that are called either by the legislature or by the people, by revision commissions, and by amendments that are proposed and ratified through the constitutional initiative process. That having been said, several states follow a distinct approach to constitutional change, with Delaware, for instance, permitting the legislature to amend the constitution without first obtaining popular approval, and Florida authorizing a constitutional revision commission to submit amendments directly to the voters. In addition, several states have provided that amendments dealing with certain subjects or sections of the constitution can only be ratified upon a supermajority vote.

Although the conventional wisdom holds that state constitutions are being amended at a rather fast pace, the panelists argued that the picture turns out to be quite complex. For one thing, it is important to distinguish among the various state experiences. It is true that certain states can be counted upon to enact multiple amendments to their constitutions during each election cycle. But it is also the case that the vast majority of states enact very few amendments each year. In addition, it is unclear whether the current rate of amendments is higher or lower than one would desire, and a case can be made on both sides of this issue.

In regard to direct democratic institutions, the workshop participants took note of the recent resurgence of interest in the initiative and referendum, especially over the last quarter of the twentieth century.  The general view was that these institutions might at one time had the virtue of permitting the people to take a more direct role in governance and to overcome entrenched legislative interests, but at the present time they were actually contributing to the very problems that William Simon U'Ren and the Progressives had originally sought to combat.  Although the Progressives believed that the initiative would open up additional avenues of popular participation, by the late twentieth century, the level of voting on initiatives was actually quite low, due in part to the ballot drop-off associated with the sheer number of

initiatives, and due in part to the fact that initiative votes were occasionally held in non-general elections.  In addition, although the Progressives believed that the initiative would have the effect of reducing the influence of special interests, in a number of cases special interests have actually turned out to be the prime beneficiary of  initiative measures. Finally, although the initiative was originally put forth as a device by which government could be held more accountable, it has become evident in recent years that the

initiative process has actually reduced the level of accountability, insofar as it has become more difficult to assign responsibility for the consequences associated with the passage of controversial initiative measures.

Insofar as state constitutional reformers might be interested in limiting the use of the initiative process, there are several options that might be considered. One possibility would be to impose constitutional limitations on the subjects that could be addressed through the initiative. It would be

possible, for instance, to prohibit initiated measures dealing with civil liberties or with the state budget. Another possibility would be to require initiated amendments to receive a higher percentage of popular votes than would be required to approve initiated statutes.  For instance, whereas statutes would be approved upon the vote of a popular majority, constitutional amendments would have to receive the support of a supermajority before they could take effect. Finally, steps could be taken to provide that initiated

measures can only take effect if the total number of affirmative votes exceeds an absolute minimum figure.

 

Workshop 8:  Separation of Powers, the Governor, and the State Legislature

 

 

This workshop was concerned with the distribution of power among the three branches, the relationship of the branches to each other, and possible adjustments in these power relationships.  Participants were Robert Schapiro (Professor of Law, Emory University), David Schuman (Professor of Law, University of Oregon, on leave as Chief Deputy Attorney General of Oregon) and Robert F. Williams (Distinguished Professor of Law, Rutgers University-Camden, and Associate Director, Center for State

Constitutional Studies).

 

Professor Schapiro pointed out that the separation of powers approach was justified to promote efficiency in government and to avoid tyranny where one branch amasses too much power.  The branches may come into conflict with each other, but do not necessarily have to.  Thinking about separation of powers is, as in other areas of constitutional law, dominated by the federal doctrine.  Professor Schapiro pointed out, however, that state separation of powers doctrine could be viewed quite differently.  First, the branches at the state level are often somewhat weaker than the federal branches.  A plural executive, a state legislature encumbered with procedural restrictions, term limits, and limited sessions, and a state judiciary which is elected all present pictures of branches that are weaker than their federal counterparts.  Also, at the state level there are a number of special bodies, which present hybrids of the three branches.  An example is an administrative board created by statute, but whose members are appointed by the legislature or legislative leaders. 

 

Professor Schapiro pointed out the recent United States Supreme Court decisions that restrict judicial remedies against states in both federal and state courts.  In this modern era of devolution, this leaves a "remedial gap" that may need to be filled by state constitutions, law, and courts.  This may need to take the form  of a waiver of immunity.  Even the remedial gap does not absolve states of their requirement that they follow federal law.  Questions of institutional competence will arise with respect to new state remedies, and who can waive the immunities, the legislature or the courts?  Professor Schapiro outlined a number of circumstances in which state courts have recognized new causes of action, and waived immunities.

 

Professor Schuman indicated, in response to Professor Schapiro, that at least in the Oregon Attorney General's office state agencies were advised to follow federal law, and that the Attorney General would not defend them if they do not.  He went on to describe a number of concrete separation of powers problems that have arisen in Oregon, particularly in an era of mixed government with a Democratic executive and Republican legislature.  Oregon, like many states, has a textual provision on separation of powers.  He made a particular point of how the initiative has interfered with the traditional separation of powers by, for example, confusing the appointment process for governmental officials.

 

Professor Williams indicated that the relative powers of, and the relationships between, the branches of government have undergone some major changes over the more than two centuries that state constitutions have been in existence.  The legislature's powers have been circumscribed while the executive's powers have grown.  Also the judiciary has grown more independent, and gained authority over rulemaking, regulation of the bar, advisory opinions, and other matters.  There are essentially no federally mandated separation of powers requirements for state constitutions.  Most state constitutions have a textual separation of powers provision, but the state courts interpret these quite differently.  Professor Williams pointed out the presence of hybrid bodies (as mentioned by Professor Schapiro) such as railroad or corporation commissions (dating from the populist era) which are often elected and have legislative, executive and judicial powers.  These sorts of bodies, in addition to officials in a plural executive, build up constituencies that resist change.  Professor Williams pointed out that the governor's item veto regularly brings the executive into conflict with the legislature (particularly with mixed government), with the judiciary serving as referee.