America's Unwritten Constitution: The Precedents and Principles We Live By (76 page)

Notably, the framers’ biggest blunder—their fateful mistake to give slave states a large bonus in all future House and presidential elections, via the three-fifths clause—occurred precisely because this was an issue where no guidance could be drawn from the state experience. None of the states with large slave populations had yet devised a general formula for apportioning slaves in legislative (or executive) elections. Lacking any helpful state
templates or good data from actual state practice, the Philadelphia delegates in effect plucked the number three-fifths from the nearest hat they could find. Alas, this hat had been tailored to fit a very different problem—how much each state under the Confederation should pay into continental coffers, an issue utterly irrelevant to the question of how many seats each state under the new Constitution should properly claim in a proportionate House or in a newfangled electoral college.

WITHIN THE BASIC AMERICAN MODEL DESCRIBED ABOVE
—indeed, amazingly enough, within
each
of the ten observed similarities across American constitutions—there are also important variances between the federal Constitution, on the one hand, and certain widespread state practices, on the other.

Let us, then, revisit our ten basic elements, note the interesting variances between state and federal constitutionalism, and use these differences to generate a checklist of basic questions for further academic research and political discourse—the kinds of questions that serious scholars and statesmen should ask themselves as they ponder possible state or federal constitutional amendment. In general, whenever a variance exists between state and federal constitutional practice, Americans should ask whether states should change to fit the federal model more closely; whether the federal Constitution should instead be amended to fit the contrary state practice; or whether, if we are already living in the best of all possible constitutional worlds, there might well be reasons why the two levels of American constitutions should differ.

First
, written state constitutions are typically much longer and more clearly amendable by direct majoritarian popular action (via initiative or referendum) than their federal counterpart. Most state constitutions interweave amendatory textual additions and deletions directly into the prior constitutional text, rather than appending amendments as sequential postscripts in federal fashion. Also, many states have periodically promulgated entirely new constitutions wholly superseding their predecessor documents.
⁶

These differences raise interesting questions for possible legal reform: Are state constitutions too easy to amend by direct popular action? Or is the federal Constitution too hard to amend? Or perhaps the system of
majoritarian state amendment and supermajoritarian federal amendment is just right as is: Precisely because the federal Constitution sets the basic ground rules that states cannot violate, state amendments are already constrained by a stable framework of fundamental freedom, and frequent state amendment is thus not as great a threat to liberty—especially given that it is easier for state dissenters to move to a sister state than for national dissenters to move to a foreign country. The lower thresholds for state constitutional amendments also enable states to function as effective laboratories of constitutional experimentation, with successful experiments offering useful guidance to sister states and, eventually, would-be reformers of the federal Constitution.

Even if the general difficulty level of federal constitutional amendment is about right, Article V of the federal Constitution gives unequally sized states equal weight both in the Senate (which effectively operates as a veto-gate alongside the House in proposing amendments) and in the ratification process. States, by contrast, generally do not feature gross malapportionment in their amendment process. Should Article V itself be changed by revising the structure of the Senate and by weighting states by population in the ratification process? Or perhaps by providing for a national popular ratification referendum with a supermajority requirement for adoption, thereby bringing Article V into closer alignment with state amendment procedures? (But even if such an amendment of the federal amendment rules were widely conceded to be fairer than the current Article V system, wouldn’t small states always be able to block an amendment amendment out of pure self-interest?)

Second
, compared to the federal Constitution, state constitutions are conventionally viewed as having more explicit “positive” and “social” rights, such as the right to education. Given this fact, should the federal Constitution be construed to protect more “positive” rights? Or has the state experience shown that courts (and other governmental enforcers) do a rather bad job of protecting such rights?
⁷

Third
, many states have term limits for legislators and also allow voters to “recall” individual lawmakers (making state legislators’ terms slightly less fixed, formally). Some states also have direct-democracy processes of
initiative and referendum that enable voters to supplant or supplement the legislature in the enactment of certain kinds of statutes.
⁸

Has the state experience with recalls and with statutory initiatives and referenda been a happy one worthy of federal emulation, or a mistake that states should repudiate? (Note that emulation might well require considerable federal oversight of direct-lawmaking elections to ensure uniformity of suffrage rules and voting procedures across the various states.) Should states abandon term limits for state legislators? Or should the federal Constitution be amended to provide for term limits? (If so, how could members of Congress ever be induced to support such a Congress-limiting amendment under Article V?)

The current asymmetry between long-serving federal lawmakers and rotating state legislators might give Congress “repeat-player” advantages in the federal-state tug of war, and also a stronger position vis-à-vis a powerful president. On one view, because the president is so much stronger than state governors, we need a more experienced group of federal legislators to counterbalance him than is needed at the state level. Thus, one argument for the status quo might be that it leads to a strong federal government that is not overly tilted toward the president.

Fourth
, under the Supreme Court’s landmark ruling in
Reynolds v. Sims
, no state is allowed to malapportion either branch of its legislature on the model of the U.S. Senate. Thus, no state can have an upper house in which each county has an equal number of seats, regardless of population. If the deep principle of
Reynolds v. Sims
is right—if states should not be allowed to malapportion their senates by giving unequally populated counties equal seats—then is the basic apportionment principle of the U.S. Senate a vicious one? Or is federalism the answer to the seeming discrepancy? Some would say yes: Federalism is the answer, and counties are not the same as states in an inherently federal system. Others would counter that giving Wyoming and California equal representation may benefit some political interest groups (at the expense of other groups), but does little to protect states qua states. On this view, the federal Constitution should be changed to reduce Senate malapportionment—say, by giving each state at least one senator and capping even the largest state at eight senators. Such a scheme
would keep the Senate at roughly its present size and would respect the existence of states qua states while dramatically reducing the current degree of malapportionment. (But could small states ever be induced to agree to such a federal amendment?)
⁹

Fifth
, each state chief executive is elected by direct popular vote rather than by something akin to the federal electoral college. Some state governors are subject to popular recall. State governors have no strong foreign affairs powers. Most important, virtually no state has a strongly “unitary” executive. Almost every state, for example, has an attorney general elected separately from the governor rather than appointed by him. Many states feature a wide variety of cabinet-like positions elected by the people rather than handpicked (and removable) by the governor. In these respects, state governors seem much weaker than presidents, but in one other respect, governors are stronger: Almost all of them now enjoy a line-item veto when presented with spending bills.
¹⁰

These differences should prompt reformers to ask a range of questions: If the federal electoral college is so good, why does no state (or foreign country, for that matter) closely follow it? Here, examination of state constitutions helps us see with distinctive clarity a good candidate for federal constitutional reform. Might a popular recall system be a useful additional check on presidential power? Also, can state experience with line-item vetoes inform the federal debate over the proper allocation of power between Congress and the president? Finally, even if (for reasons explained in
Chapter 9
) the 1978 federal independent-counsel statute was plainly unconstitutional, should we formally amend the federal Constitution to permit such a device, which has worked well at the state level? If we do so, should we adopt special rules about investigations that affect foreign policy? Or, instead, should we try to develop informal traditions of independence within the Justice Department?
¹¹

In connection with the proposed Hatch Amendment, it is also worth mentioning that naturalized citizens are virtually everywhere eligible to serve as governors—as dramatized by Arnold Schwarzenegger and Jennifer Granholm. Although skeptics of the Hatch Amendment correctly note that governors are not directly involved in foreign affairs, surely senators
and cabinet secretaries are involved in these matters, and, as noted earlier, naturalized Americans have served in these posts ever since the days of George Washington.

Sixth
, many states allow voters to vote separately for governor and lieutenant governor, but at the federal level, voters have generally been denied the option to split their ticket by voting for Party A for president and Party B for vice president. Also, in many states, when the governor leaves the jurisdiction, her powers automatically devolve upon the lieutenant until she returns.

A few obvious law-reform questions: Is the current federal practice of selecting a vice president as a mere adjunct to the president—without allowing ticket-splitting—a sensible way of conferring legitimacy on the person who, if tragedy strikes, may need to be the national leader? Conversely, should state rules automatically conferring power on the lieutenant governor whenever the governor leaves the state be abandoned? The lack of a federal counterpart (combined with the fact that many state constitutions omit this categorical rule) might suggest that this rule is of doubtful utility.
¹²

Seventh
, unlike the U.S. Supreme Court, several state supreme courts can issue “advisory” opinions directly to the legislature before a law is passed or a private lawsuit crystallizes. Doesn’t the state experience show that these opinions are sometimes useful and rarely harmful? In light of this experience, should federal courts be allowed to render anticipatory opinions before a proposed law has been adopted by Congress (or, indeed, by a state legislature)? Would the federal Constitution need to be amended here, or just reinterpreted?
¹³

Eighth
, state judges typically lack life tenure, and many must come directly before the general electorate at the time of initial appointment or in a later retention context—sometimes in contested elections featuring full-blown media campaigns and explicit party endorsements.
¹⁴

These large differences between state and federal practice should prompt us to wonder whether federal judges enjoy too much independence, or whether state judges enjoy too little. Perhaps both are true, and the best
model would give judges more independence than they get in various states but less than they get under the federal Constitution. Imagine, for example, a system in which judges are appointed for fixed eighteen-year nonrenewable terms.

Ninth
, state court precedents misconstruing state constitutions are easier to overturn by state constitutional amendments. With this fact in view, we see all the more clearly why the U.S. Supreme Court must remain open to reconsider its own previous constitutional rulings that are alleged to be in error, given the special difficulty of using the federal amendment process to correct the Court’s misrulings.

Tenth
, many states have done away with grand juries, and a few have moved away from a unanimity requirement in criminal cases. But why shouldn’t states be required to use grand juries, just as they are required to honor virtually all the other guarantees of the Bill of Rights via the Fourteenth Amendment? If the argument is that the grand jury has truly outlived its usefulness, then should the federal Constitution be amended to relieve the federal government of this “nuisance”? Also, a good case can be made that state experiments with nonunanimous criminal juries should be emulated by the federal government, and that this reform may properly occur (as was argued in the preceding chapter) by federal statute, with no need for a formal constitutional amendment.
¹⁵

SEVERAL OF THE IMAGINABLE FEDERAL
constitutional amendments suggested by the pattern of America’s current state constitutions would reduce the power of individuals and institutions who today have the ability to block constitutional amendments, should they so choose. As a matter of realpolitik, why would these veto-wielders ever allow these amendments to pass, even if these individuals and institutions were convinced of the genuine justice and wisdom of such amendments in principle?