Search Results

This chapter discusses the variety of mechanisms available to propose changes to state constitutions. Amendments or revisions of state constitutions can be accomplished through legislative proposal, constitutional convention proposal, constitutional commission proposal, and the initiative in states that permit it. In all states other than Delaware, the electors must approve changes to the state constitution. The chapter reviews the use of limited state constitutional conventions, and constitutional commissions. Constitutional revision processes in a variety of states during the 20th century are discussed, together with general lessons that can be derived from those experiences. The chapter describes difficulties faced in modern times with state constitutional amendment and revision, including popular distrust of constitutional conventions and other constitution-making processes. Several proposed improvements to the initiative process for state constitutional change also discussed.

This chapter examines the campaigns for constitutional rights to environmental protection. In the 1960s and 1970s, when Congress was passing landmark environmental regulations and an entire executive agency had been developed to address the subject, environmental activists continued to lobby for the insertion of positive rights to environmental protection into their state constitutions. As a result, state constitutions came to include broad rights to environmental health and protection. The chapter first provides an overview of environmental activism during the 1960s and 1970s before explaining why environmental activists targeted state constitutions despite so much environmental action at the national level. It argues that environmentalists did not choose to pursue constitutional rights to environmental protection only at the federal level. Instead, states' constitutional conventions, environmental organizations, and even legislatures continued to alter state constitutions by adding mandates for protective and interventionist government.

Veto players and win sets in a pluralitarian democracy, compared to those in a proportional regime; and in a unitary compared to a federal regime. Duverger's Law. Constitutional moments in the United States. The unconstitutionality of the great constitutional changes there.

This chapter discusses the development of the Fourth Amendment. Between 1787 and 1791, the interaction of political expediency and a centuries-old legacy against unreasonable search and seizure deposited not only a federal right but a right of unprecedented compass. The Fourth Amendment and its predecessors in the state constitutions shared many words and phrases, but the amendment incorporated the richer conception of unreasonable search and seizure that had evolved since 1782.

The previous chapter introduced the idea of constitutional conventions, discussing their nature and place within the constitution. It left at least one important feature of conventions unexplored: their relationship with law. The task of identifying the differences between laws and constitutional conventions has caused British constitutional theorists a great deal of trouble. Two possible distinctions are frequently canvassed. First, that laws are enforced by courts, with legal sanctions following their breach, whilst conventions are enforced only by political pressure. Second, that laws are systematic, a set of rules bound together by other rules, whereas each constitutional convention stands alone. This chapter argues that neither distinction can be sustained. The difference between law and convention is one of degree: laws and conventions can be placed upon a spectrum of types of social rules, a spectrum gradated in terms of the formalization of rules. Laws lie at the most formalized end of this spectrum, but there is no single, definable, point at which rules shift from being conventions into being laws. Alongside this argument, it is contended that conventions can become laws through judicial intervention, and that conventions can ‘crystallize’ into laws over time by becoming increasingly formalized.

Most of the American states adopted constitutions in the decade prior to the federal constitutional convention. There were two major “waves” of state constitution-making. The first wave was hasty, generally not based on elected constitutional conventions, and the constitutions had little in the way of checks and balances. The chapter uses the Pennsylvania constitution to illustrate this wave. The second wave was more deliberate, often utilized elected constitutional conventions, and developed constitutions with more in the way of checks and balances. The Massachusetts constitution is used to illustrate this wave. Early constitution-making in each of the states is briefly reviewed, in light of these differing philosophies. Finally, the chapter reviews the influences of this “founding decade” of state constitution-making on the development of the federal Constitution, concluding that the Pennsylvania example was rejected and in Massachusetts example was adopted.

The concept of conventions emerged from British scholars who wrote on the relationships between law and politics. Among these British scholars is Sir Ivor Jennings who distinguished conventions from non-obligatory usages or practices. To him, conventions are supported by constitutional reasons and principles and are a homogenous group of rules. This chapter examines the emergence of constitutional conventions in HKSAR. It refers to the case of Hong Kong to illuminate the evolution of conventions from the British regime to the Chinese governance, with special focus and emphasis on the resignations of principal officials of HKSAR.

This chapter addresses the Revolutionary and Founding eras. It proceeds in three parts, first introducing colonial debates over legislative sovereignty, slavery, and frontier and suffrage law. Second, the chapter shows how in 1776 the Continental Congress deferred the divisive legislative sovereignty question to the state legislatures and constitutional conventions, which were smaller, more united, and better able to address the issue. Through the 1780s, state framers checked their new state legislatures through bicameralism and gubernatorial and judicial restraints, while tailoring franchise and slave law to local demands. Delegates to the 1787 federal convention, many of them former state framers, imitated this state legislative design in drafting the national Constitution while deferring to state slave and franchise law. In these years, state framers narrowed and quieted national debates over legislative sovereignty and design, slavery, and the franchise, aiding the drafting and ratification of the federal Constitution and stabilizing national constitutionalism.

A lawyerly account of convention, explaining the nature and role of constitutional conventions, must be an interpretation of political practice. It cannot be merely a neutral description of politicians' conduct or beliefs: it must be an appraisal of that conduct, justifying the pertinent rules by reference to basic moral and political values. It is a matter of critical rather than positive morality. From that perspective, Dicey's well-known distinction between law and convention looks questionable. Convention is enforced as law whenever a court draws on settled understandings in forming its conclusions about the demands of legal and political principle. Rigid boundary lines between law and convention reflect a legal positivist orientation; they are also related to a distrust or disparagement of judicial review. A broader approach to justiciability is intrinsic to the common law constitution, connecting judgements of legality and legitimacy.

Constitutional rights and freedoms, limiting the exercise of legislative and executive power, are unlikely to be of much practical value unless they can be judicially enforced. Although the interpretation of such rights must be duly sensitive to the legitimate demands of the collective welfare, and reasonable governmental determination of the public interest, their requirements should normally be ascertained by independent judges, appropriately detached both from immediate administrative pressures and prevailing public opinion on any particular issue. It is sometimes alleged, however, that certain matters are inherently unsuited to adjudication, either because judicial determination would usurp the proper democratic process, or because judicial qualifications or adversarial legal procedures are inadequate or inappropriate to the task. This chapter discusses political questions and the limits of justiciability, constitutional convention and political principle, and adversarial adjudication and the merits of ‘judicial restraint’.

This chapter discusses the processes for amending state constitutions, the origin and evolution of these processes, and the varying use of these processes across the 50 states. All states provide for legislature-generated amendments, whereby legislators can propose amendments, which in all but one case have to be ratified by voters. Every state also allows for constitutional conventions to be called to propose amendments or wholesale revision of state constitutions. Eighteen states permit citizen-initiated amendments, where citizens can place amendments on the ballot and then vote to approve them. In some states, constitutional revision commissions can also generate amendments. The chapter also shows that the 50 states vary in how often they make use of these processes, in that some state constitutions are amended once every few years, whereas in other states several amendments are adopted each year. These differences in amendment rates are attributable to various factors, including differences in the rules for amending constitutions and the prevailing state constitutional cultures.

This chapter focuses on the momentous task put upon the shoulders of the delegates to Arkansas's constitutional convention who met in Little Rock in January 1868. They were to design a new state constitution establishing for the first time in Arkansas a democracy without regard to race and thereby incorporating former slaves into the political community as equal citizens. This would be Arkansas's first postemancipation constitution, and it had to meet the requirements of the federal Reconstruction Acts. Above all, it had to establish universal male suffrage and thus extend previously denied voting rights to African American men. On the eighteenth day of the gathering, however, John Bradley, a white southern delegate representing white-majority Bradley County, took the floor and argued that the revolutionary potential of Reconstruction—which he intended to resist—lay elsewhere.

After the first appearance of an advisory opinion provision in 1780, nothing much happened until the Massachusetts constitutional convention of 1820, where Joseph Story was the first person in American history to attack advisory opinions as a threat to an independent judiciary. This chapter offers that narrative, and attributes Story’s position to his vision of a legal science as a protection against the ever-present threat of the politicization of the judiciary. He saw advisory opinions as a menace to this vision. After, the spreading attacks on advisory opinions were reinforced by the striking rise in stature of the judiciary in America. This chapter discusses the history and nature of the attacks on advisory opinions, especially attacks based on separation of powers and due process. It considers the states that have rejected advisory opinions on these grounds, and argues that there has arisen a jurisprudence of rejection by which nonadvisory opinion jurisdictions reject cases that are seen as advisory opinion requests in disguise—for example, as declaratory judgment actions.

This chapter discusses sources for information about the United States and state constitutions; constitutional conventions, especially the Constitutional Convention of 1787; the ratification of the U.S. Constitution; and the ratification of the Bill of Rights and other amendments. Although the Constitution of the United States is extremely important to American law and legal history, researchers should keep in mind that it is not the only constitution in play, nor was it the first. Even before the Declaration of Independence was promulgated on July 4, 1776, states had begun to work on their own constitutions. Meanwhile, sources of information about the Constitutional Convention of 1787 include materials about the Continental Congress. While comparatively little material is available from the actual constitutional convention, a great deal of information from the process of the Constitution's ratification exists.

The royal prerogative remains an important legal source of governmental power in the modem constitution. In legal theory, ministers and judges are appointed under the prerogative. As inherent powers of the executive government, originating in those of the medieval kings, their definition remains unsettled. There are residual powers to act in defence of the realm against both external aggression and internal strife. The existence of the royal prerogative seemed to contradict Dicey's conception of the rule of law. He attempted to overcome the contradiction by resort to an account of ‘constitutional morality’. Meanwhile, the Canadian Supreme Court accepted that the main purpose of constitutional conventions is to ensure that the legal framework of the Constitution would be operated in accordance with the prevailing constitutional values or principles of the period.

Chapter 3 reinterprets the eighteenth-century founding by focusing attention on the complex and dynamic interaction of elite and civic voices that shaped the drafting, ratification, and amendment of the National Constitution. The first section considers how the backdrop of revolutionary era public sentiment and two new waves of popular constitutionalism—that of antislavery societies and rebellious “Shaysites”—shaped and constrained framers’ debates and decisions at the Philadelphia Convention. The second section focuses on the constitutional arguments and activities of citizens and groups that participated in the “great national debate” over ratification as well as famous antifederalist criticisms. Popular involvement in ratification politics contributed to widespread beliefs that the proposed constitution was at once necessary and imperfect. The deep conflicts over competing constitutional ideals that shaped drafting and ratification rendered the Constitution a central site of ongoing public disagreement and aspiration.

This chapter asks how the constitutional debates over the admission of new states affected the balance of power among the states in general and the election of the presidency in particular. It frames what it calls “The Problem of New States,” and explores how early texts on U.S. western policy of the 1780s framed questions of territory and statehood. It then explores in detail the debates surrounding new state admissions and the Northwest Ordinance in the Constitutional Convention, showing how contingent the final outcome of the Electoral College was, and how questions like the equal footing of states, which have often been taken as settled constitutional issues, were in fact matters of contentious debate. It concludes by tracing paths forward for future research.

This chapter discusses the ratification of the new Constitution of the United States and the role several people played during the process including the first President of the United States, George Washington. The Continental Congress did its last business on October 10th, 1788, and went out of existence forever. The change was not “revolutionary” in any obvious sense; it had occurred without upheaval. The initial call for a constitutional convention had been represented as being merely “for the sole and express purpose of revising the Articles of Confederation,” not of doing away with them. When the Convention did meet, its sessions were conducted in utter secrecy, by delegates from twelve of the thirteen states. The procedure for ratifying the new Constitution was cleverly devised and quite outside legal boundaries, as the law then stood. However, there was a formidable anti-federalist opposition.

This chapter talks about the document which in retrospect became known as the Constitutional Convention. In January 1786, the Virginia assembly issued an invitation to a conference in Annapolis, Maryland, to take into consideration the trade of the states and consider the possibility of giving Congress the power to regulate commerce. With his skeptical, if often irreverent, appraisal of human nature, Morris clearly relished the rhetorical clashes provoked by the attempt to establish a successful republican government. He quickly found that his opponents could respond in kind with their own brand of scepticism. Among Morris's other ventures in France was the prospect of organizing private investors to purchase the American debt of some thirty-four million dollars from the strapped French government at fifty cents on the dollar.