The "Supreme Law" of the land

Constitutions are the supreme law of the state – statutes (laws) have to “fit” or “follow” the Constitution.   This is true at the national level as well, of course, but there's a bit of a difference between the two.  Because the federal Constitution is so short (and pretty vague), the national government (Congress, and the President) have had quite a bit of latitude in determining what policies to pursue (and how).  Because most State Constitutions are longer, and much more detailed, the State Legislatures and Governors find their hands tied quite a bit more when it comes to deciding what laws to pass, or policies to pursue.

If you think about the federal Constitution (if you've never read it, I'd recommend doing a Google search, and spend a few minutes with it; it doesn't take long), it's pretty sparse.  It lays out some pretty generic rules for the each branch of government (the makeup of each branch, and their general powers), and then has some broad guidelines on the relationship between the state and federal governments, and the amendment process (we talked about a lot of this in the last unit, on Federalism).  And then, in the later part (the Amendments, of which there are ONLY 27), most of the attention is on individual rights that the people have against government action.  But, other than a few odd provisions (the banning of alcohol, which was later repealed, and the ban on export taxes, which is there because of a colonial-era dispute with the British Crown), most of it is really about the general framework of government, and the rights of the people.  When we look at State Constitutions, however, we're going to notice that they're much different in tone.

Vermont’s Constitution is the shortest (a little over 8000 words – just slightly longer than the US Federal Constitution); Alabama’s is the longest (over 300,000 words).  There's a chart linked in this unit (from the Council of State Government [CSG]) which shows how long each state Constitution is (and how often they've been amended).  The average is 27,000 words, which means that the average state Constitution is FOUR TIMES longer than the US Federal Constitution.  Why?

Amending the State Constitutions

Well, primarily, it’s because state constitutions are easier to amend to begin with.  Amending the US Constitution requires ratification of ¾ of the states, and those votes only happen if 2/3 of both the House and Senate agree to propose that amendment.  For state Constitutions, the amendment process is also a two-step process, but as the chart (on amendments through the Legislatures) that I uploaded demonstrates, you only need a majority of the Legislature in about half the states to propose an amendment.  Ratification (a fancy word meaning “approval”) of most state constitutions usually requires only one vote of the people of the state, and in most cases, it only requires a 50% plus 1 vote majority for ratification.  The other major reason is that in many cases, people who favor a certain policy outcome have found it easier to go straight to the people with a constitutional amendment proposal, rather than going through the Legislature (I'll talk about "initiatives" below, in a later section of these notes).   Also, some Legislatures have found it easier to just propose a constitutional amendment, thus putting the issue out of the purview of judicial review by the state courts.  Thus, we get things like the “pig in a pen” amendment in Florida (2002), which bars transport of animals in cages smaller than a certain pre-set size (so, that’s actually in the State Constitution of Florida).  

 

The two best examples locally (of this tendency to put policy questions into the Constitution) are the Minnesota state highway system and the North Dakota college system.  In the 1920s, the people of Minnesota passed a constitutional amendment which established the actual routes of state highways 2 through 70: it specifies which towns those roads must go through.  So, if the state DOT wanted to abandon a little-used piece of one of those roads, and turn it over to the county, a lawsuit would almost certainly be filed in state court, and the courts would no doubt find that the state had a constitutional responsibility to maintain the road.  In North Dakota, most of the state colleges’ missions and locations are in the state constitution (along with other institutions like the insane asylum [now called the State Hospital] at Jamestown, the developmental center at Grafton, the School for the Deaf in Devils Lake, and the Penitentiary at Bismarck).  Thus, if a future Legislature wanted to close Mayville State, citing the fact that it’s only 30 miles from UND in Grand Forks and 40 miles from NDSU in Fargo, they couldn’t do so without getting the people to approve a constitutional amendment.  The only case of this happening in the history of the state was the Normal School (a teacher’s college) at Ellendale.  A fire in the early 1970s gutted four of the five buildings on the campus, right about the same time that the Legislature was debating the issue of closing some of the smaller campuses.  Because of the cost of rebuilding, the people easily passed an amendment to close the Ellendale school: the last remaining building was sold to a church group, and that building became the cornerstone of Trinity Bible College, a private religious school.  Several other attempts to take the names and locations of the colleges out of the Constitution have been tried (the last was in the late 1990s), but the Chambers of Commerce of those small towns and alumni groups from those schools have always been successful in defeating the amendment at the polls.

 

In Minnesota, as you'll find out in the first outside reading, the 1857 convention actually produced two Constitutions, and when we talk about the Minnesota State Constitution, we’re actually referring to both documents (there’s very little difference between the two documents – mostly it’s stylistic).  The only big issue which did divide the 1857 convention was the amendment process: the Republicans wanted to make it easier to amend the future Constitution, primarily for two reasons: (1) they wanted to give freed slaves the right to vote (remember, this was 1857, prior to the Civil War – even freed blacks in the Northern states were generally thought to be less than full citizens, for the most part); and (2) they wanted to eventually try and ban the sale of alcoholic beverages (this was something that a lot of midwestern, western, and southern states experimented with in the late 19th and early 20th centuries: there are still “dry counties” in many parts of the South).  However, the Republican-dominated convention didn’t push the issue, so their amendment process ended up looking almost identical to the Democratic convention’s version.

Initiative and Referral

What the Republicans at the Minnesota Constitutional Convention were trying to do was put in a process of what we call “initiative” (if you’re from North Dakota, you might know what these are).  An initiative is a process by which a group of citizens circulates a petition (actually, a lot of petitions) and tries to get people to sign them.  If enough voters sign it (usually, the minimum is a percentage of the number of people who voted for Governor in the last general election – usually something in the neighborhood of 5-10%), then the proposal goes on the ballot in the next election.  In some states, BOTH constitutional amendments and statutes (laws) can be proposed this way; in others, only laws can be proposed by this method (that chart that I uploaded shows you which states use which methods for Constitutional Amendments).  Be aware that in some states, the initiative can ONLY be used for Constitutional amendments.  In a few others, it can ONLY be used for laws.  In some (like North Dakota), it can be for both.  In others (like Minnesota), it's not available at all (the only way that the Minnesota Constitution can be amended is if the Legislature proposes it, or a new Constitutional Convention is held).

In either case, what this does is bypass (go around) the Legislature in the law-making or constitution-making process.  The same-sex marriage amendment that North Dakota voters put in the Constitution in November 2004 is an example of this process (as is “Marsy’s Law”, protecting the rights of crime victims, which was adopted by the voters in November 2016 – that’s now in the North Dakota State Constitution). At the same election (2016), voters in North Dakota also approved an initiative to legalize medical marijuana – that was a statute[law], not a Constitutional amendment (again, North Dakota is one of those states were the initiative can be used in BOTH ways).   In most states, ONLY the Legislature can put a constitutional amendment on the ballot (Minnesota’s 2012 vote on a same-sex marriage amendment was proposed by the Legislature, since Minnesota is NOT an initiative state); in constitutional amendment initiative states, anybody can do it if they can get enough signatures.  Even in those states where only the Legislature can put an amendment on the ballot, you usually need a vote of all of the people to ratify the amendment.   Delaware remains the exception to this rule – there, the Legislature alone has the ability to amend the Constitution – no public vote is required. 

 

A process that is related to the initiative (but it’s different, so pay attention!) is the “referendum”, commonly called the “referral” as well (again, North Dakota students will recognize this).  Referral is when the Legislature passes a law, and the Governor signs it, but then a group of citizens circulate petitions to overturn it.  The famous “tax revolt” of 1989 in North Dakota was an example of this: the Legislature passed a series of tax increases, and a citizens group successfully circulated enough petitions to put those new tax laws on the ballot.  The overturning of the “corporate farming law” in June 2016 would have been another example of this.  In both cases, the citizens circulating petitions needed a minimum number of signatures (again, usually based upon the percentage of voters in the last Governor’s election – in most states, you need fewer signatures for a referral than you do for an initiative, and in most cases, you need fewer signatures for a statute change than you do for a constitutional amendment).  Once they got the signatures, the issue went on the ballot, and the people (by a 50% plus 1 vote) could decide whether to let the new law(s) stand, or overturn them and go back to the old law.  Referral is always used to overturn statutes; since constitutional amendments generally require a vote of the people anyway to pass, a second referral election wouldn’t make a lot of sense (and many states prohibit a second public vote on the same issue until a certain number of years have passed).

Constitutional Conventions

 

Most states also allow for a process called “Constitutional Convention”.  In these, the Legislature (or, in some states, a vote of the people) calls a convention (a meeting) to write a whole new Constitution, or at least make major changes to the old one.  These have a tendency to end in failure: since the people have to vote to ratify on a strict “up or down” vote, opponents of one or two particular pieces of the new proposal tend to oppose the whole thing.  Both North Dakota and Minnesota held Conventions in the 1970s: the North Dakota proposal failed the April 1972 ratification vote (107,000-65,000).  The Minnesota Convention of 1974 was designed only to put the 1857 Constitution into modern language, and to clarify some of the minor differences in language between the two versions.  However, as far as the state courts are concerned, the 1974 version is only a “clarifying” document – the 1857-58 Constitutions are still both considered the law of the land.  The last successful full-scale overhaul coming out of a Constitutional Convention was Georgia’s new Constitution, which was adopted in 1983 (that’s almost 40 years ago, so you can see that they’re pretty infrequent!).   In fact, just a few years ago (2017), there was a proposal on the ballot in New York just to call a Constitutional Convention (this didn’t even include any actual changes to the State Constitution; all it would have done is allowed a meeting to discuss possible changes), and it failed by a 3-to-1 margin.  Many interest groups (especially public employee unions and local government officials) came out against even considering a Convention, since they were afraid that the funding formula for schools and the guarantee of public pensions (both of which are contained within the language of the New York State Constitution) could get changed. 

Why use the Constitution for policy?

As hinted at above, State Courts generally cannot rule provisions in state Constitutions to be “unconstitutional”, but they can (and often) do so with laws (this is another reason why legislators, and citizen-activists in initiative states, like to use the Constitution to enact policy language: the Courts can't declare it "unconstitutional" [because it's actually, you know, IN the Constitution]).  However, FEDERAL Courts can find that state Constitutional amendments violate the Federal Constitution.  We saw an example of that in the last unit, where the Supreme Court's (in 2015) found that there's a 14th Amendment "equal protection" right to same-sex marriage.  Lots of states had provisions in their State Constitutions that didn't allow for that; after that 2015 decision, those provisions are all invalid.