Vol. 3 State Constitutions for the Twenty-first Century The Agenda of State Constitutional Reform Edited by G.Alan Tarr and Robert F.Williams State Constitutions for the Twenty-first Century, Volume 3 SUNY series in American Constitutionalism Robert J.Spitzer,editor State Constitutions for the Twenty-first Century, Volume 3 The Agenda of State Constitutional Reform G. Alan Tarr and Robert F. Williams, editors State University of New York Press Published by State University of New York Press,Albany © 2006 State University of New York All rights reserved Printed in the United States of America No part of this book may be used or reproduced in any manner whatsoever without written permission.No part of this book may be stored in a retrieval system or transmitted in any form or by any means including electronic,electrostatic, magnetic tape,mechanical,photocopying,recording,or otherwise without the prior permission in writing of the publisher. For information,address State University of New York Press, 194 Washington Avenue,Suite 305,Albany,NY 12210-2384 Production by Michael Haggett Marketing by Anne M.Valentine Library of Congress Cataloging-in-Publication Data State constitutions for the twenty-first century.Volume 3,The agenda of state constitutional reform / edited by G.Alan Tarr and Robert F.Williams. p.cm. — (SUNY series in American constitutionalism) Includes bibliographical references and index. ISBN 0-7914-6711-2 (hardcover : alk.paper) 1. Constitutional law—United States—States. 2. Local government—Law and legislation—United States—States. 3. Finance,Public—Law and legislation— United States—States. I. Title: Agenda of state constitutional reform. II. Tarr,G.Alan (George Alan) III. Williams,Robert F.(Robert Forrest),1945– IV. Series. KF4550.Z95S6823 2006 342.7302—dc22 2005014629 ISBN-13: 978-0-7914-6711-4 (hardcover : alk.paper) 10 9 8 7 6 5 4 3 2 1 Contents Introduction 1 G.Alan Tarr Chapter One Rights 7 Robert F.Williams Chapter Two The Legislative Branch 37 Michael E.Libonati Chapter Three The Executive Branch 67 Thad Beyle Chapter Four The Judicial Branch 85 G.Alan Tarr Chapter Five Local Government 109 Michael E.Libonati Chapter Six Voting and Elections 145 James A.Gardner Chapter Seven Constitutional Amendment and Revision 177 Gerald Benjamin Chapter Eight State and Local Finance 211 Richard Briffault v vi CONTENTS Chapter Nine Education 241 Paul L.Tractenberg Chapter Ten The Environment and Natural Resources 307 Barton H.Thompson Jr. Bibliography 341 Contributors 355 Index 357 Introduction G.Alan Tarr The state constitution is the fundamental law of the state.As such,it should embody the aims and aspirations of the citizens of the state and serve as the foundation for the state’s political life.It also should facilitate—rather than retard—political,social,and economic progress in the state. Despite their diversity,American state constitutions share certain common features.A state constitution establishes the institutions of state government and prescribes how those institutions shall operate.Through its rights guarantees and its prohibitions on governmental action,a state constitution largely determines the scope of state powers,and it distributes those powers among the branches of state government and between state and locality.1A state constitution also estab- lishes qualifications for state office and prescribes how state officials are to be chosen.Thus it channels political conflict in the state and provides mechanisms for its resolution.In addition,many state constitutions,not content to structure state government,enshrine fundamental policy choices,sometimes providing broad direction for public policy and sometimes prescribing its content in con- siderable detail.It is therefore no exaggeration to suggest that the effectiveness and responsiveness of state government,the policies that it pursues and the val- ues that it advances,all depend fundamentally on the state constitution.2 As a glance back through history reveals,state constitutions have played a crucial role in the development of American governmental institutions.In part this has occurred through individual states pioneering constitutional reforms that were subsequently adopted by other states throughout the nation.Examples of the operation of this horizontal federalism include the movement to white man- hood suffrage that occurred in emulation of the Alabama Constitution of 1819, the adoption of partisan election of state judges that followed the example of the influential Iowa and New York Constitutions of the mid-nineteenth century,and 1 2 INTRODUCTION the spread of the initiative that followed its adoption by Oregon in 1902.3State constitutions have also had an impact on national politics.In some instances state experiments,such as the enfranchisement of women and the direct election of the upper house of the legislature,have been incorporated into the federal Constitu- tion.Even when state initiatives have not been adopted nationally,they have often furnished the agenda for those seeking to improve the operation of the fed- eral government.Recent examples of this vertical federalism include the cam- paigns for a presidential item veto and for a balanced-budget requirement. Finally,state constitutions in a sense “complete”the federal Constitution by including elements not found in that constitution that are essential to American government.4For example,the original federal Constitution did not need to de- fine voting qualifications because state constitutions had already done so.Even today,the federal Constitution need not address education and local government, to take but two examples,because state constitutions deal comprehensively with those matters.Thus many matters that are dealt with in the national constitutions of other countries are in the United States addressed in state constitutions. This is not to say that state constitutions always succeed in achieving the objectives sought by their drafters.Indeed,the history of state constitutions is largely a history of constitutional change,fostered by the conviction that con- stitutional reforms would improve the performance of state government.Only nineteen states retain their original constitutions,and most states have adopted three or more constitutions.Even when states have not jettisoned their consti- tutions,they have continued to tinker with them.The states’current constitu- tions contain more than 6,000 amendments, with most state constitutions averaging more than one amendment for every year they have been in opera- tion.5 The frequency of state constitutional change through revision and amendment suggests both an acknowledgment of the problems plaguing cur- rent state constitutions and an optimism that their defects can be corrected. The problems that provide the impetus for state constitutional change take various forms.Specific defects in a state constitution may prompt piecemeal re- forms designed to address those defects.Many state constitutional amendments serve this purpose.In addition,a state constitution may over time cease to serve the broad social,political,or economic ends for which it was created,in which case fundamental changes may be introduced to achieve those ends more effec- tively.For instance,the perception at the outset of the twentieth century that state constitutions no longer sufficiently ensured the accountability of govern- ment officials prompted constitutional reformers to introduce elements of direct democracy—the initiative,referendum,and recall—into state constitutions.A state constitution may also be changed because the citizenry wishes to make spe- cific substantive choices different from those in the former constitution and wants to devise new institutions or procedures for implementing those choices.6 Examples include the constitutions adopted in the South after Reconstruction G.Alan Tarr 3 that were meant to reassert white political control,as well as Illinois’“Granger” Constitution of 1870 and Montana’s “environmental”Constitution of 1972.Al- ternatively,a state constitution may be changed to renew original constitutional commitments when political practice departs too much from the original con- stitutional design.When constitutional reformers do this,they are heeding the admonition of the Virginia Declaration of Rights that “no free government,nor the blessings of liberty,can be preserved to any people but by ...frequent recur- rence to fundamental principles.”7Finally,a state may adopt a new constitution or substantially alter its old one to respond to new problems or new conditions. In doing so, the states are following the advice of Thomas Jefferson, who claimed that constitution making is a progressive enterprise,that each genera- tion can draw on a broader range of political insight and experience in address- ing the changing constitutional challenges confronting it, and that frequent constitutional change is thus desirable.8The adoption of the New Jersey Con- stitution of 1947,the Connecticut Constitution of 1965,and the Florida Con- stitution of 1968 illustrates this phenomenon. Although only a few states followed the lead of New Jersey,Connecticut, and Florida in revising their constitutions during the mid-twentieth century,the political,social,and economic changes that promoted constitutional reform were hardly unique to those states.This is true more generally.Many of the problems and concerns that encouraged state constitutional change in the past were com- mon to all the states,rather than idiosyncratic.And this is the case at the begin- ning of the twenty-first century as well.All the American states are assuming new responsibilities for policy development and implementation as power is de- volved from the federal government and as new tasks arise for government at all levels.All the states likewise are seeking to address endemic problems in areas of traditional state responsibility,such as education,economic development,and the environment.All face budget difficulties to a greater or lesser extent.Moreover, all are confronting their responsibilities,new and old,amid rapidly changing po- litical,economic,and social conditions.How effectively individual states respond to the challenges facing them will depend to a significant extent on the quality of their state constitutions,because these constitutions structure and guide the operation of state government.9 This,however,is a cause for concern.More than two-thirds of the states now operate under constitutions that are more than a century old,that were de- signed to meet the problems of another era,and that are riddled with piecemeal amendments that have compromised their coherence as plans of government.In addition,the public disdain for government at all levels,together with the in- creasing reliance on direct democracy for policy making in the states,suggests a need for constitutional reforms designed to increase the responsiveness of state institutions and to promote popular involvement that does not preclude serious deliberation about policy options.Many state constitutions would benefit from