America's Unwritten Constitution: State Experiments and Reform

This article explores the concept of America's "unwritten constitution" by examining the differences and similarities between state and federal constitutional practices. It proposes that states serve as laboratories for constitutional experimentation, influencing potential federal reforms. The discussion highlights ten fundamental areas where US constitutional systems (federal and state) are similar to each other but differ from major foreign constitutional democracies. Within these similarities, there are also notable divergences between state and federal practices, prompting questions about whether one should emulate the other or if the current balance is optimal.

Written Constitutions and Amendment Processes

All 51 US constitutions (federal and state) are written and originate from an expression of popular sovereignty, unlike systems in countries like England or Israel. However, state constitutions are generally much longer and easier to amend than the federal Constitution. This raises the question of whether the federal Constitution should be easier to amend, or state constitutions harder, or if the current "Goldilocks" balance is appropriate.

Historically, the federal Constitution's difficulty in amendment has been seen as both a strength and a weakness. While it prevents many "bad" proposals (like criminalizing flag burning or defining marriage) from passing, it also makes beneficial changes challenging. Federal amendments have largely enhanced liberty and equality, demonstrating a steady improvement. In contrast, state constitutions, being easier to amend, have seen a mix of good and bad amendments, leading to less stability.

The current system might be optimal: a difficult-to-amend federal Constitution provides a stable framework and a safety net, ensuring states adhere to basic standards of republican government and privileges. Above this, states can experiment more freely, generating reform ideas that other states or the federal government might eventually adopt.

Bills of Rights and Affirmative Rights

State bills of rights largely overlap with the federal Bill of Rights, covering fundamental freedoms like speech, press, and religion. However, state constitutions sometimes include more affirmative rights, such as the right to education or other positive social rights. This prompts a discussion: have these state experiments with affirmative rights been successful enough for the federal Constitution to emulate, either through reinterpretation or formal amendment?

Term Limits

Many states have term limits for legislators, while the federal Constitution does not. The effectiveness of term limits is a subject of debate, and comparing states with and without them could offer insights. The question arises whether the federal government should adopt term limits or if states should abandon them.

Initiative, Referendum, and Recall

Some states utilize initiative, referendum, and recall mechanisms, which are absent at the federal level. The success of these direct democracy tools at the state level could inform whether they are suitable for federal emulation.

Legislative Apportionment

A significant difference lies in legislative apportionment. While states have bicameral legislatures, their upper houses are typically proportionate to population. No state has an upper house where unequally populous counties have the same number of seats. This contrasts sharply with the US Senate, where states like Wyoming and California have equal representation regardless of population. The Supreme Court's "one person, one vote" ruling in Reynolds v. Sims imposed proportionality on state legislatures. The challenge for federal emulation is how to achieve such a change, as states like Wyoming would likely resist an amendment that diminishes their proportional power in the Senate.

Executive Elections

State governors, who often resemble "mini-presidents" with four-year terms and veto powers, are directly elected by popular vote. This contrasts with the US presidential election, which uses the Electoral College. The direct election of a chief executive is an "American idea," practiced by every state, making Electoral College reform a plausible consideration. Similarly, the fact that governors don't need to be natural-born citizens suggests a potential federal reform to allow naturalized citizens to run for president.

Lieutenant Governors and Vice Presidents

While lieutenant governors often mirror vice presidents, many states allow separate voting for governor and lieutenant governor, unlike the federal system where presidential and vice-presidential candidates run on a single ticket. This raises the question of whether separate voting for the executive and deputy executive could be a beneficial reform.

Judicial Review and Advisory Opinions

Both state and federal systems feature judicial review, with state courts enforcing state constitutions similarly to how federal courts enforce the US Constitution. However, some state courts can issue advisory opinions, hearing lawsuits before a law takes effect (e.g., Massachusetts). This leads to the question of whether the US Supreme Court should adopt an advisory opinion system, and if so, whether this should be achieved through a formal amendment or reinterpretation of Article III.

Judicial Tenure

Rhode Island is the only state that mirrors the federal system of life tenure for judges. Most states have different systems, often involving elections or mandatory retirement ages. This disparity prompts a debate: should states adopt the federal model of life tenure, or should the federal model move towards state practices? The political nature of judicial selection in many states, with partisan elections and significant spending, raises concerns about judicial independence. A hybrid model, such as 18-year terms for Supreme Court justices, is suggested as a potential reform.

Overturning Judicial Precedent

State supreme court interpretations of state constitutions are generally easier to overturn by the people than US Supreme Court interpretations of the federal Constitution. This suggests that the US Supreme Court should be particularly open to rethinking erroneous precedents, given the difficulty for the public to overturn them.

Jury Systems and Grand Juries

Both state and federal systems utilize juries. However, some states do not require unanimous jury verdicts, or do not require grand juries for serious criminal offenses. This raises questions about whether federal criminal trials should adopt non-unanimous juries or if the federal grand jury system should be re-evaluated if it's not universally adopted by states.

The Challenge of Reform: "Sunrise Amendments"

Many proposed reforms, even if beneficial, might be contrary to the interests of current powerful institutions or actors who could block amendments. For example, members of Congress might resist term limits or recall elections that make their positions less secure. Similarly, states with disproportionate power in the Senate (like Wyoming) would likely oppose amendments that alter their equal representation.

To overcome such obstacles, the concept of "sunrise amendments" is introduced. Unlike "sunset legislation" that expires after a set period, a sunrise amendment would be passed today but only go into effect several years or even decades in the future. This allows current decision-makers to consider what is just and fair for future generations, rather than their immediate self-interest.

The example of the 1808 provision regarding the international slave trade in the original Constitution illustrates this concept. The framers, while compromising with the existing evil of slavery, allowed for the possibility of ending the international slave trade in the future. This "sunrise provision" allowed them to address a moral issue without immediately disrupting the economic and social structures of the time.

The idea is to encourage current generations to act as "framers of the future," considering what constitutes fair ground rules for posterity, even if those changes don't affect them directly. By adopting a "veil of ignorance" regarding the future circumstances of their descendants, lawmakers could focus on justice and fairness rather than immediate political gain.

Conclusion

The article concludes by emphasizing a "two-fold constitutional responsibility": looking backward to claim constitutional inheritance and looking forward to make a constitutional donation. This forward-looking responsibility, though not explicitly written, is an integral part of America's unwritten constitution. The ongoing struggle for equality, exemplified by movements like the Equal Rights Amendment, highlights the continuous intergenerational project of shaping the American Constitution.