State & Local Government

1. State & Local Government State Constitutions and the U.S. Constitution

2. Constitution: Root • The term constitution comes from the Latin constitutio, which refers to issuing any important law--usually by the Roman emperor. • Later, the term was widely used in canon law to indicate certain relevant decisions, mainly from the pope.

3. Constitution: General Definition • The set of rules prescribing the political process government institutions must follow to reach and enforce collective agreements • Written or unwritten guideline outlining the formal rules and institutions of government and the limits placed on its powers

4. Constitution Characteristics • Most constitutions seek to regulate the relationship between institutions of the state, in a basic sense the relationship between the executive, legislature and the judiciary--but also the relationship of institutions within those branches. • Most constitutions also attempt to define the relationship between individuals and the state, and to establish the broad rights of individual citizens. • It is thus the most basic law of an area from which all the other laws and rules are hierarchically derived; in some areas it is in fact called "Basic Law".

5. Constitution Classifications • Three Classifications of Constitutions • Codified • Partially Codified • Uncodified • A codified constitution is one that is contained in a single document, which is the single source of constitutional law in a state. • An uncodified constitution is one that is not contained in a single document, consisting of several different sources, which may be written or unwritten.

6. Classifications (con’t) • The Constitution of Australia is an example of a partially codified constitution in which constitutional law mainly derives from a single written document, but other written documents are also considered part of the constitution. • The Constitution of the United Kingdom is an example of an uncodified constitution which consists of both written and unwritten sources and has no single written fundamental document.

7. Supreme Law of the Land • As the ‘basic’ of ‘fundamental’ law of the country, the Constitution is the supreme law of the land. • Thus any state enactments, federal statutes, regulatory policies, etc. are subservient to the Constitution and are null and void when they conflict with the Constitution. • From this principle stems the power of ‘judicial review.’

8. State Constitutions State Constitutions are the supreme law of the state. They take precedent over any state laws, regulations, or executive decisions in conflict with them. In the original colonies, state constitutions had their roots back to the royal charters under British rule.

9. The Colonies & Constitutions • Colonists looked to their charters to protect against British interference with colonial politics. • In 1685, King James ordered the repeal of Connecticut’s charter and the government in Hartford was dissolved. • The colonists hid the charter (in an oak tree) and, following the revolution of 1688, reinstituted it as their fundamental law.

10. U.S. Constitution vs. State Constitutions The U.S. Constitution specifies the organization of government, the processes of decision-making, and establishes fundamental rights. While State constitutions also do this, they also are used for specific policy-making (taxes, regulations, education policy, gambling, etc.). While interest groups continue to agitate for these kinds of constitutional amendments, reforms have worked against such uses of constitutions.

11. U.S. Constitution • Two general points • The Constitution was founded in philosophical principles • The Constitution was founded in a series of political compromises

12. Philosophy in the Constitution • The Framers were versed in the ancient Greek and Roman philosophical texts (Aristotle, Plato, etc.) • The Framers were strongly influenced by 17th and 18th century liberal philosophers on economics and government (Adam Smith, David Hume, John Locke, the Baron de Montesquieu, etc.) • As such the Constitutional framework represented conscious philosophic choices: • Democracy as opposed to monarchy or an autocratic form • Representative rather than direct democracy • Encoded protection of individual liberty

13. The Federalist Papers • Combined Philosophy & Politics • The Federalist Papers are a series of 85 articles arguing for the ratification of the United States Constitution. They were first published serially in New York City newspapers. A compilation, called The Federalist, was published in 1788 • Authors wrote under the nom de plume of "Publius", in honor of Roman consul Publius Valerius Publicola.. • Most important & influential Federalist Paper was Federalist #10 dealing with the problem of faction

14. Democracy in the States Direct Democracy: people are the government and thus initiate and decide policy questions by popular vote. Founders: Highly skeptical of direct democracy. “A pure democracy can admit no cure for the mischiefs of faction. A common passion or interest will be felt by a majority, and there is nothing to check the inducements to sacrifice the weaker party. Hence it is, that democracies have ever been found incompatible with personal security or the rights of property; and have, in general, been as short in their lives as they have been violent in their deaths.“ – Federalist # 10

15. Federalist 10 • Federalist No. 10 continues the discussion of a question broached in Hamilton's Federalist No. 9. Hamilton had addressed the destructive role of faction in breaking apart a republic • Federalist #10: The Union as a Safeguard Against Domestic Faction and Insurrection." • He defines a faction as • "a number of citizens, whether amounting to a minority or majority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community." • Federalist #10 Provided the justification for a republican form of government rather than a direct democracy. • In a direct democracy, there is no check against the tyranny of the temporary majority against the minority (see Socrates for piece de resistance)

16. Federalist #10 • Faction cannot be suppressed without crushing liberty, and creating a homogenous society is impractical and antipathetic to liberty. • Hence faction must be controlled: harnessed to serve the state • Madison argues a small democracy cannot avoid the tyranny of a majority faction • Hence a large representative republic is necessary to protect against faction

17. A March Away from Madison • The late 19th and early 20th century saw American government take a decided shift away from Madisonian Republicanism. • The Progressive Era saw reforms designed to increase popular involvement in politics: • Direct election of senators • Voting in primaries to determine nominees • The inititive process (state constitutions) • The referendum process (approve legislative decisions) • Recall: remove elected officials

18. 7 Founding Principles of Constitutionalism • Representation • Popular Rule • Limited Government • Separation of Powers • Federalism • Federal Supremacy • Judicial Review

19. Representation • Developed out of the theories of Hobbes & Locke • As Madison argues, representation is a practical necessity given the size of the republic • Hinged on: • Developing diverse and competing interests • The nascent concept of government as umpire • Representation is geographic-based under the Constitution

20. Popular Rule • Ultimate authority rests with the people (the people are sovereign per Locke) • Preamble: “We the People of the United States…” • 10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” • All government officials are responsible to the people under the Constitution • Congress, the most directly responsive to the people, is the 1st branch addressed • Grew from dislike of the King

21. Popular Rule (con’t) • The colonies had a long history of popular rule • colonial legislatures popularly elected • 1750, they were more popular and powerful than most governors, who were appointed by the crown • only 3 of 13 governors served more than 1 year term • only 1 governor had veto power • most colonial legislatures dealt directly with British Parliament

22. Limited Government • Constitution is document of specific, enumerated powers • Government is empowered to do only certain things • Concept developed from writings of John Locke & Adam Smith • Smith: An Inquiry into the Nature and Causes of the Wealth of Nations • Experience with assertive monarchs • Frontier distrust of politicians

23. Limited Government (con’t) • Not satisfied with the checks in the original Constitution, first Congress amends it: Bill of Rights • 10th Amendment: power remains with the people except for those powers specifically delegated by the Constitution • Caveat: A tension between this founding principle and the demands of the 20th century emerges • Door was left open for the expansion of federal role in the economy and society: • Article 1, Section 8, Congress shall “make all laws necessary and proper” to fulfill enumerated responsibilities.

24. Separation of Powers: Checks & Balances • Baron de Montesquieu’s trias politica or “three branches of government” • Argued for specifically in Federalist #51: “The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments“ by Madison: “In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”

25. Checks & Balances

26. Checks & Balances • Republican form of Government (Federalist #10) • A Bill of Rights • to secure certain individual rights against the government • Federalism (again #10) • Division of power between state and federal governments guards against any one faction taking over • Division of government into three branches • (executive, legislature, & judiciary) as well as different terms and different constituencies for each • CAVEAT: Are Powers *really* separate? • Separate Branches, Shared Powers

27. State Constitutions & Separate Branches All state constitutions reflect the political tradition of separation of powers, but most state constitutions emphasize legislative over executive power. Weak Governors: executive branches are weakened and divided by state constitutions.

28. State Governors • Executive power is divided between the governor and many separately elected executive officers (Lt. Governor, Attorney General, Sec of State, Treasurer, etc.) • Also, there are numerous boards and commissions that take on executive roles and share executive powers. • E.g. Huckabee & Parole decisions

29. State Legislatures Only Nebraska has a unicameral legislature. However: Note that apportionments for the upper and lower houses of state governments are subject to Baker v. Carr. In the U.S. Congress, only the House is so limited.

30. Federalism • Special case of the separation of powers: division of power between state and national governments • Neither can terminate the other (both have a constitutional right to existence) • Developed from the writings of Montesquieu and David Hume • Provided the security of Hobbes’s Leviathan state with the democratic prospects of the Athenian city-state • Also a practical necessity following Revolution

31. Federal Supremacy • One nation rather than 13 colonies • Adopted as a resolution to the collective action problems inherent to the institution of government under the Articles of Confederation • adopted March 1781 • no president, no Supreme Court • in unicameral legislature, each state had one vote • even small matters required 9/13 vote (almost 70%) • large matters required unanimity • most important --- national government could not directly touch people • relied on states for taxes, army, navy, etc.

32. Fed Supremacy (con’t) • Collective action and other problems inherent to the system became intractable • Who owned the land west of the of the Allegheny Mountains? VA or PA? • Tariffs created barriers to economic progress between the states • How would troops be fed? Clothed? • States facing internal revolt • Shay’s Rebellion – no standing army to respond • Constitution gave national government authority over people and states

33. Judicial Review • What institution is final arbiter of the meaning of the Constitution? • Constitution implies Court has this power: • Article III, section 2: "The judicial power shall extend to all Cases, in Law and Equity, arising under this Constitution....“ • Federalist Papers Explicit: • whenever a particular [law] contravenes the Constitution, it will be the duty of the [courts] to adhere to the latter and disregard the former.“ (N.B. A.H. speaking) • Derives from the notion of the social contract, which like other contracts needs to be interpreted by courts

34. Ratification Struggle • Constitution had to be ratified by 9 out of the 13 colonies in order to pass • Ratification of the Constitution was by no means certain. • A divide of interests existed between Federalists and Anti-Federalists • Federalists: large costal stages, commercial interests • Anti-Federalists: smaller rural states, agricultural interests

35. Ratification Debate • Debate centered on 2 questions • Is the government structure strong enough to work? • Is it so strong that it will be repressive? • Ratification wins largely because of • Collective action problems of the AofC • Lack of a credible alternative • Arguments of the Federalist Papers

36. Constitution: A Success! • The success of the Constitution hinged on several important factors • Attitude of compromise in text • Willingness to defer tough questions for later (i.e. slavery) • George Washington • Hamilton’s Fiscal Policies

37. U.S. vs. State Constitutions • Length • State Constitution: today: 40,000 words • Average of 5,000 words in the beginning • 1967 average: 27,000 words • Missouri - 42,000 words • Louisiana - 253,000 words • Georgia - over 500,000 words • U.S. Constitution - 7,826 words

38. Implications • Frequency of Amendments • US: Rare • STATE: Frequent • Focus • US: broad & general principles • STATE: narrow & specific provisions • Length means confusion • What is fundamental law? • What can be decided by the legislature? • Reserve Clause means more duties • States have broader responsibilities • Abortion • sexual orientation rights • Meaning of Long Constitutions • Less inter-party competition

39. Problems • Long ballot • Too many races to vote for • Executive offices at state level • Minor races at local level • Too many empowered boards and commissions • Education in MO divided between legislative authority and DESE/CBHE • Lack of policy coordination • Lots of local governments • Tens of thousands of local governments and sub-governments • Limited local government authority

40. Basic Needs of a Constitution Bill of Rights An implied clause for the state Election requirements and criteria Legislative branch with reapportionment (and a unicameral legislature) Executive branch with centralized control under the governor Judiciary with modern court procedures and unified rules system

41. More Needs • Finance and taxation provisions • Taxation, debt allowance, expenditures • Determination of local authority • Home rule can be allowed • Public education provision • Merit-based civil service • Intergovernmental relations • Provisions for constitutional amendment and revision

42. Constitutional Change • The Methods for changing state constitutions: • Legislative Proposal • Popular Initiative • Constitutional Convention • Constitutional commission

43. Legislative Proposals Most popular form of constitutional change Usually requires a 2/3rds vote from both houses to pass before submission to the voters (some states require 3/5ths). Arkansas requires only a majority vote in both houses to submit a constitutional amendment to the voters via legislative proposal

44. Arkansas Constitutional Amendments Either branch of the General Assembly, at a regular session thereof, may propose amendments to this Constitution; and if the same be agreed to by a majority of all members elected to each house, such proposed amendments shall be entered on the journals with the yeas and nays, and published in at least one newspaper in each county, where a newspaper is published, for six months immediately preceding the next general election for Senators and Representatives, at which time the same shall be submitted to the electors of the State, for approval or rejection; and if a majority of the electors voting at such election adopt such amendments, the same shall become a part of this Constitution. But no more than three amendments shall be proposed or submitted at the same time. They shall be so submitted as to enable the electors to vote on each amendment separately.

45. Other Forms of Change • Popular initiatives: introduced during the Progressive Era: a petition method were some percentage of the voters must sign in order for proposal to be included on the ballot (5-15%). • Constitutional Conventions: there have been over 230 state constitutional conventions (most recent for Arkansas: 1874). • Conventions can be limited (by legislature to a purpose) or unlimited (can replace the entire constitution) • Conventions are becoming more rare (none in the 1990’s) • This trend is likely due to resistance to large changes, uncertainty in the outcome, and distrust in government.

46. Other Forms of Change Constitutional Revision Commissions study and recommend constitutional changes. Usually the legislature gets to pass off on these recommendations b/f they go to the voters (exception: Florida). These commissions have also been declining in recent years

47. US vs. AR • Authority • US: Supreme Law of Land • STATE: Subordinate to US Constitution • Caveat: Though states cannot restrict rights under Constitution, can expand

48. Assignment • Look up an amendment in the Arkansas Constitution (a link to it is found on the S&L class page). • What does the amendment do? • Is there an analog for this amendment in the U.S. Constitution?