Uncle Sam’s Fifty Brothers: The Power and Promise of State Constitutions

“That’s unconstitutional!” is a cry that sparks debates in kitchens, bars, coffee houses, and court houses. The notion of a constitution runs deep and divisively in American culture, but it also unites us in a common “rights talk.”

Yet how much attention do we give to the 50 state constitutions? The potential and power of state constitutions struck me when several activists asked whether I would agitate for a constitutional convention in Illinois. Every twenty years, Illinoisans must vote on whether they want a convention. Voters approved the last one in 1968 and an amended constitution won a majority vote in 1970. The people who took part in that convention were the “founding fathers” of a new generation. With voter dissatisfaction running high in 2008, we may get another convention, with delegates drafting a new constitution. In the end, however, voters must approve whatever comes out of the convention thus checking extremism on the part of convention delegates.

With visions of periwigs and the Federalist Papers dancing in my head, I started to read state constitutions, one “edition” after another. For a full list, see this link

Some of the issues addressed in state constitutions are hot and contentious. While the nation awaits the U.S. Supreme Court’s ruling on the meaning of the federal “right to bear arms,” state constitutions already guarantee an “individual” right to bear arms “in defense of himself and the state”—the common language dating back to the early 1800s. See the prolific scholarship of Stephen P. Halbrook.

Other constitutional provisions addressed matters since amended by the people of a state: lotteries come to mind. States as varied as California, Nevada and Mississippi originally banned state lotteries. The bans simply drove gambling “underground,” private enterprise flourished, and the states received no revenue. Voila! The rebirth of the state lottery, coupled with the criminalization of private competition. Uncle Sam’s 50 brothers always want some of your dough. Since the 1960s, states have lifted their constitutional bans thus legalizing a state monopoly on gambling. While libertarians may approve of a “voluntary tax,” the gimmick has only fueled faster rises in spending. Call it “fool’s gold” for classical liberals. (Disclosure: I am the coauthor of an Independent Review article critical of state lotteries).

On the other hand, tax revolts have produced amendments to state constitutions. The Illinois state constitution, as amended in 1970, caps the corporate income tax. Most famously, “Proposition 13” (1978) amended the California constitution to limit property taxes. Alas, these states found new ways to grab money, including steady sales tax increases.

Occasionally, the public reacts to unpopular interpretations of the U.S. Constitution by passing state laws superseding the federal interpretation (but only for that state). Case in point: the backlash against the U.S. Supreme Court’s unpopular Kelo defense of current eminent domain practices. Eminent domain is a bulldoze-and-tax policy opposed by libertarians as an illegitimate “taking” of private property. Opponents of eminent domain abuse lost the battle (Kelo) but fought on at the state level. Since the 2005 decision, many states have passed “anti-Kelo” laws and at least two supreme courts (Ohio and Oklahoma) rejected Kelo on state constitutional grounds. See Bert Gall, “Post-Kelo America: An Optimist’s View,” Reason (May 2, 2007)

At other times, state supreme court rulings run counter to public sentiment. When several state supreme courts ruled that their constitutions required same-sex marriages, voters quickly acted to pass initiatives and amendments defining marriage as between a man and a woman (California did so in 2000). As an aside, the original constitutional provisions on marriage were even stricter: California banned all divorce. Of course, that was before Hollywood. Yet even with the arrival of “celebrities,” the rich and famous had to run off to Mexico or Nevada for a “quickie divorce.”

What does this all mean? There is enough in the 50 state constitutions to inspire and infuriate people across the political spectrum. But it is helpful to remember this avenue of choice. If you are unhappy with “x” law in your state, then you may move to another state that does not regulate “x.” Or, one can stay and fight through state courts, initiatives, referenda, and so on.

So, get thee to the Internet or your local library and look up your state constitution. You might be surprised by what you find—and what you can do. Who knows? You might become one of the “founding fathers” of your state’s next constitution!