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Rediscovering State Constitutions

State constitutional conventions present an opportunity to protect the diverse character of our country. 

State constitutions provide residents in all 50 states “with a fully independent source of protection of fundamental rights and liberties,” according to former New Jersey Supreme Court Justice Morris Pashman. But that protection has been rendered moot in many states. Thankfully, residents of three will soon have the chance to remind us all of the value of state constitutions. 

Like a forgotten Corvette sitting in the garage, state constitutions have a lot of utility, but only when they’re properly maintained. Sadly, our mechanics have neglected to do basic upkeep. In fact, some state supreme courts have effectively slashed the tires of their respective constitutions by insisting on interpreting them in “lockstep” with how the U.S. Supreme Court interprets the corresponding clause in the federal Constitution. 

Covered in moss, tires deflated, mirrors broken—we’ve got fifty Corvettes sitting idle. The residents of Alaska, Missouri, and New Hampshire can remind the rest of us of the importance of our state constitutions by voting to host constitutional conventions on the November 2022 ballot. Each of those three states have recurring automatic ballot referrals for constitutional conventions, and eleven other states have similar provisions. These three states could kick off a new New Federalism movement, and, boy, do we need it. 

It’s unlikely that the next generation of lawyers will restore state constitutions to their rightful place as a source of “fundamental rights and liberties.” Most law schools don’t teach their students about state constitutions. Just a handful offer state constitution law courses. 

Many lawyers neglect to pursue their clients’ claims under the relevant state constitution. This neglect is understandable given that scholar James Gardner characterized state constitutional law as a “vast wasteland of confusing, conflict, and essentially unintelligible pronouncements.” Former Oregon Supreme Court Justice Hans Linde concluded that “a generation of lawyers seems literally speechless when faced with questions of state constitutional law.” And judges in state courts have not helped. They too have failed to “offer…a coherent discourse of state constitutional law,” Gardner said.

New Federalism, a movement championed by U.S. Supreme Court Justice William Brennan, acknowledges states’ critical role in our system of dual sovereignty. Brennan and others attempted to revive a common sentiment from our nation’s founding—that the federal government and state government are each independent sovereigns with specific spheres of action. Our Founding Fathers, fiercely loyal and devoted to their states, theorized in Federalist No. 45 that the states—not the federal government—would lead the way in ensuring the “the lives, liberties, and properties of the people.” Sure, the federal government would lead in exceptional times marked by “war and danger,” but the operations of state governments were to dominate in “times of peace and security.”

New Federalists, like Gardner, believe that a state must be a “self-governing political society of individuals who comprise a subset of all American citizens.” Of course, state constitutions play a critical role in that self-governance, because they are meant to reflect, as Gardner put it, “the fundamental values, and ultimately the character, of the people of the state that adopted it.”

That aspiration never materialized in many states. My home state of Oregon, for instance, all but copied and pasted parts of Indiana’s constitution, and borrowed heavily from the constitutions of Wisconsin, New York, Ohio, Michigan, and Maine, in drafting its own. So, rather than Oregonians living under a constitution that reflects their fundamental character, they adhere to a Frankenstein constitution that has become even more confusing, contradictory, and cureless with the hundreds of amendments that followed its adoption. 

Oregonians and residents of many other states live under state constitutions that fail to fulfill the role envisioned by our Founders. That’s what makes the potential for constitutional conventions in Alaska, Missouri, and New Hampshire newsworthy. A modern state constitutional convention would have at its disposal tools unimagined by the Founding Fathers to ensure that the resulting document reflects the character, priorities, and interests of state residents. Like Iceland, state constitutional conventions could use YouTube, Facebook, and Twitter to share drafts of their constitution and solicit feedback. Like Ireland, these conventions could use randomly selected residents (similar to how we select jurors) to assist with draft-writing. Like Chile, these conventions could guarantee the participation of certain cultural groups left out of the first round of state constitutional drafting. 

Most importantly, these three states could spark the imaginations of Americans. As more coastal dwellers move and bring their politics and money to new states, it’s imperative that existing residents have recourse to protect the character of their state. Some folks may contest the validity of such efforts—after all, isn’t it the idea that people are supposed to “vote with their feet” and move to states that reflect their values? 

That certainly hasn’t been the case in practice. For one, some folks don’t have the finances to pick up and move to a new state. And the folks who are moving aren’t shy about bringing their politics with them, rather than accepting the unique political environment of their new home. In other words, folks are vetoing with their feet. Just ask the residents of Kalispell, Montana, who are dealing with an influx of Californians who have a very different perspective on life but were so enthralled by the show Yellowstone that they had to uproot and claim Montana as home. These new residents are unafraid to assert their views rather than acclimate to the character of their new neighbors. 

National attention on three state constitutional conventions could be the key to Americans in all 50 states dusting off their state constitutions and taking their metaphorical Corvette for a spin. Doing so would align with the Founders’ visions of states as independent sovereigns, guarantors of unique rights and protections, and political bodies with their own characters and beliefs. 

Kevin Frazier is the editor of the Oregon Way, a nonpartisan online publicationHe is pursuing a J.D. at the UC Berkeley School of Law and a MPP at the Harvard Kennedy School.

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