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УДК 342.4(73) А.П. АЛЕКСАНДРОВА
кандидат филологических наук, доцент, и.о. зав. кафедрой английской филологии Орловского государственного университета E-mail: [email protected]
UDC 342.4(73)
A.P. ALEXANDROVA
Candidate of Philology, associate professor, Acting Head of the Department of English Philology, Orel State University
E-mail: [email protected]
КОНСТИТУЦИЯ СОЕДИНЕННЫХ ШТАТОВ АМЕРИКИ И КОНСТИТУЦИИ ШТАТОВ: ПРОБЛЕМЫ THE U.S. CONSTITUTION AND STATE CONSTITUTIONS: PROBLEMS WITH STATE CONSTITUTIONS
В статье рассматриваются некоторые аспекты конституции штатов Соединенных Штатов Америки: история конституций штатов, роль конституций штатов и судей при разрешении социальных конфликтов. Предлагается краткий обзор проблем, связанных с конституциями штатов.
Ключевые слова: федеральная конституция, конституция штата, Верховный суд США, суд штата, конституциализм.
This paper considers the U.S. Constitution and state constitutions. It throws some light on the history of state constitutions, the proper role of state constitutions and judges in resolving social conflicts, and provides a brief survey of problems with state constitutions.
Keywords: federal constitution, state constitution, the United States Supreme Court, state court, constitutionalism.
For more than 200 years, the Constitution of the United States has served as the foundation for U.S. government. Only the British and Swiss governments rival its long life. The U.S. Constitution establishes and defines the basic outlines of a national government that joins the states in an effective political union. It "is a written document executed by representatives of the people of the United States as the absolute rule of action and decision for all branches and officers of the government, and with which all subsequent laws and ordinances must be in accordance unless it has been changed by a constitutional amendment by the authority that created it". [Gale 2010:122]
The U.S. Constitution has been and remains one of the most enduring political agreements in the history of the world. Throughout its existence, it has served as an inspiring example of the potential of constitutional government, causing many other countries and peoples to emulate its provisions. According to Article VI of the Constitution, the U.S. Constitution is "the supreme Law of the Land." All other laws and judicial decisions are subject to its mandates. The Constitution therefore has higher authority than all other laws in the nation, including statutes and laws passed by Congress and state legislatures. Unlike those other laws, the Constitution may be changed, or amended, only in special ways that reflect its character as a demonstration of the people's will. State constitutions are more easily amended and address a broader range of issues than the U.S. Constitution and, as a consequence, have often played an important role in American political development. On many occasions, the relative flexibility of state constitutions has permitted political reforms to be more easily adopted by states, and only implemented later, if at all, at the federal level. At times also, the greater range of issues addressed
in state constitutions, which is due in part to the nature of the federal system and in part to conscious choices made by state constitution makers, means that many political issues have been regulated primarily or even exclusively by state constitutions. This importance of state constitutions can be seen throughout the course of the American regime but is particularly evident in the founding era, Jacksonian era, Progressive Era, and after the reapportionment revolution of the 1960s. [The Princeton Encyclopedia 2010:205-206]
American constitutionalism is more than the United States Constitution as interpreted by the United States Supreme Court. Each of the fifty states has its own constitution, which is the chief charter of government and of limitations on government in that state. State constitutions offer contrasts to common assumptions, based only on the United States Constitution, concerning both government and constitutional law.
State constitutions preceded the Constitution of the United States. State governments had to be formed when colonial governments were displaced in the move to American independence.
The Continental Congress called upon each colony to establish its own government, but the Congress decided not to propose a single model for all. The generation that drafted the United States Constitution and the Bill of Rights first applied many of its political theories to forming the state constitutions. One tradition dating from the early state constitutions is to place the declaration of rights at the beginning of the document. The rights so declared differed among the states, but together they covered virtually all of the guarantees later added to the United States Constitution.
By 1800 most of the original state constitutions had been replaced by revised documents. Nineteenth-century
© А.П. Александрова © A.P. Alexandrova
constitutions reflected the changing political concerns of old and new states as the nation expanded westward.
New governmental programs such as public education and regulation of banks, railroads, and public utilities were added to state constitutions. State constitutions address such social problems as alcoholic beverages, gambling, and lotteries. The movement toward populist government reached its climax at the beginning of the twentieth century when many states provided for referenda on legislation and constitutional amendments upon petition by the requisite numbers of voters. Eventually many states had constitutions resembling haphazard legal codes. After World War II a number of states adopted substantially new or modernized constitutions (Missouri (1945), New Jersey (1947), Hawaii and Alaska (1959), Michigan (1960), Connecticut (1965), Florida and Pennsylvania (1968), Illinois and Virginia (1970), Montana (1972), Louisiana (1974), California (1976), and Georgia (1982). Altogether the fifty states have had a total of nearly 150 constitutions, with corresponding diversity among the states. Although guarantees of individual rights dominate judicial and public attention, the primary function of constitutions is the organization and allocation of governmental authority.
The authority of states as such is not derived from their constitutions; unless limited, state authority is as plenary as that of the British Parliament. State constitutions therefore have no need for lists of legislative ''powers'' like those granted Congress in the United States Constitution. The great residue of the Common Law concerning private transactions and property is state law. Although elected officials of local governments exercise lawmaking, taxing, and executive powers, their relation to the state is the reverse of that between the state and the federal government insofar as local governments have only the powers defined in state law. The ''home rule'' provisions found in many state constitutions, however, introduce one complexity comparable to the constitutional problems of Federalism.
For many reasons constitutional law has long been equated with the decisions of the Supreme Court of the United States. The Court as an institution is the subject of extensive and continuing writings by social scientists and journalists as well as by legal scholars. Only its decisions apply throughout the nation. The Court's nationalization of individual rights in mid-twentieth century, coinciding with the development of dominant national news media and with the emphasis of professional education on national materials, obscures the fact that the federal system makes the states responsible for large and important areas of law over which the Supreme Court has no jurisdiction unless a state administers this responsibility in a manner contrary to the United States Constitution or laws.
The late-twentieth-century revival of state constitutions has served to remind the general public as well as legal professionals of the essentials of the federal system. Its importance is not measured by the instances in which state courts have enforced individual rights beyond decisions of the United States Supreme Court. Many important functions, problems, and innovations of state constitutions do not concern individual rights. Moreover, citizens
sometimes were quick to repeal constitutional guarantees of rights when these were enforced by their courts. State constitutions provide no security for dispensing with the national guarantees of the Fourteenth Amendment. Even debates over repealing guaranteed rights, however, brought citizen responsibility for these rights close to home as no United States Supreme Court decision could do. Although citizens in some states amended their constitutions to revive capital punishment and relinquish protections against police abuses, similar proposals were defeated in other states.
Experience in the states, in the conduct of state government as well as in state court decisions of constitutional issues, continues to offer alternative models and concepts by which to test, and sometimes to gain, ideas for the nation. After two centuries, independent constitutional thought and action in the states remains an essential strength of federalism as well as a guarantee of individual freedom.
In the two centuries since the founding era, the federal Constitution has only occasionally been amended (sixteen times since 1791). Most of what the Framers of 1787 wrote endures. State constitutions, by contrast, have seen frequent amendment and, in many states, periodic overhaul. The evolution of the states' constitutions has mirrored the great movements and controversies of American history.
One key to understanding the independent role that state constitutions play in shaping American constitutional law is to recognize that the state and federal documents are separate documents, each to be enforced in its own right, independently of the other. A state judge is of course obliged to enforce the United States Constitution, just as is a federal judge. But, while a state court cannot do less than the federal Constitution requires, the court is free to look to the state constitution for imperatives quite beyond anything found in federal constitutional law. If a state court decides that a state law or other action violates the state constitution, the ruling in itself raises no federal question and the Supreme Court will decline review of the case. The Supreme Court has explicitly recognized the terrain thus left to state courts. [Levy 2000:2502]
State courts have sometimes used constitutions where the United States Constitution has little or nothing to say about the issue at hand. In other instances, a state court will use the state charter in areas in which federal doctrine exists but there is room for additional state interpretation. Examples include economic regulation1, environment2, education3, criminal justice4.
State court interpretations of state constitutions raise questions about judicial role. The familiar debate over the legitimate bounds of judicial review by the federal courts applies in somewhat altered form to the state courts' displacement of judgments made by state legislatures or by other political forums. State judges, no less than their federal counterparts, should be aware of the way that judicial review, state and federal, triggers a tension between two principles. One is the principle that in a democracy decisions are made by agents ultimately accountable to the people. The other principle, embodied in judicial review, is that the commands of the Constitution should be enforced,
even in the face of a legislative or popular majority.
Thus, "a constitution establishes the structure of government and prescribes the fundamental rules of the game of politics" and as it outlines government structures and the basic rules of the political game, it is the fundamental law of a state and takes precedence over the statutory laws, that is, the laws passed by the legislature [Harrigan 1998:18]. Under the higher law tradition of constitutionalism the constitution is supposed to be a brief charter that sets the framework of government and prescribes the basic civil liberties of the citizens. Because the constitution is seen as higher law, it is deliberately made difficult to amend, and, as the Supreme Court stated in one of its most famous decisions, is "endure for ages to come" [McCulloch v. Maryland 4 L.Ed. 579 (1819)]. Senator David Durenburger gave a classic higher law argument: "The Constitution is a document for the ages, not a tool for dealing with the politics of the moment. ... We should not tinker with the Constitution - even for such a critical reason as this - when we have evidence that statutory changes will do the job." [Carrol, English 1991:103]
In contrast to this higher law tradition, most state constitutions historically followed a different tradition, a positive law tradition of constitutionalism. Under the positive law tradition, it is considered quite proper for the constitution to contain policy details that the higher law tradition would provide for by statute rather than by constitutional amendment. The state constitutions have been heavily criticized for five weaknesses:
- they are too long and too detailed;
- they place too many restrictions on state legislatures;
- they create ineffective, fragmented executive branches;
- they create outmoded, ineffective court systems;
- they hamstring local governments. [Harrigan 1998:31]
Let us have a brief look at these points.
1. Too Long and Too Detailed.
Although the U.S. Constitution has only about 8,700 words, the average state Constitution has 30,000. The longest state constitution is Alabama's, with about 174,000 words. Such excessive length makes the document very difficult to understand. Accompanying this excessive length is excessive detail, or 'super legislation'. Super legislation refers to provisions in a constitution that most reformers think should be left to statutory law. For example, California's constitution regulates the length of wrestling matches, while New York's determines the location of certain ski trails, and the constitutions in Arkansas and Kansas contain so-called right-to-work provisions that inhibit labor unions from building their memberships. Because these provisions are written into the constitution itself, they become super legislation that is more difficult to adapt to changing times and changing popular majorities than is statutory legislation.
Because of these considerations, reformers advocate shorter constitutions that deal only with the fundamental structures of government. David C. Nice and Lewis A. Froman emphasize that states with the weakest political
parties tend to be the states with the longest constitutions.
When political parties are weak, it is easier for specific interests to get favorable provisions written into constitutions.
2. Legislative Restrictions
Many constitutions put such rigid restrictions on the state legislatures that those bodies find it difficult to establish state policies. The most significant restrictions are the ones on finance and taxation powers of the legislatures. Most constitutions limit the amount of debt the state may incur. All constitutions restrict the classification of property taxes. They typically exempt some property (such as church-owned property) from taxation and place other property in special categories that the legislatures cannot change.
Not only do most constitutions limit the state's debt and restrict the legislature's ability to raise taxes, they also earmark certain revenues (those raised from specific taxes) to be spent only in specific dedicated funds (funds set aside for specific activities). One of the most important earmarked revenues is the state gasoline tax, most of which goes directly into a highway users' fund. This fund can be spent only for highway maintenance or construction. The revenues from fishing and hunting licenses are often earmarked for conservation and natural resources.
Why earmark funds? Its advocates say that legislatures cannot be trusted to keep their commitments. Legislators serve at the will of the people and can easily turn their back on important programs if public opinion shifts in another direction5. For example, the Maryland's legislature increased university funding, but two years later the interest for higher education decreased. The trouble, however, say critics, is that earmarking is little more than a shell game. Earmarking revenues for Maryland's higher education program would not guarantee higher funding in future years. Knowing that the earmarked revenues were guaranteed, future legislatures could easily shift some of the nonearmarked revenues out of higher education to some other purpose. In fact, this has been a common practice with lottery revenues6.
Earmarked revenues also weaken the normal procedures of democratic accountability. Earmarked revenues and dedicated funds restrict the legislature's ability to oversee the services delivered by the departments that receive the earmarked funds. They also inhibit the legislature's ability to alter policy priorities. Since the earmarked revenues roll in to the dedicated fund perpetually, the legislature cannot do its job of providing a forum for debate on whether the program ought to be reduced in scope or altered significantly7.
Too much earmarked revenue and too many dedicated funds can prevent the legislature from carrying out its major role of establishing the state's policy priorities. Although there has been a general decline in reliance on earmarking over the past few decades, the average legislature still lacks control over a fifth f budget because of earmarked funds.
3. Fragmented Executive Branches
Most state constitutions provide numerous independent administrative agencies (departments that are not directly accountable to the governor or to the legislature. The typical state constitution also provides for several independently elected state officials. Consequently, the executive power
is fragmented into many different offices, making it harder for the governor to provide strong leadership. Political reformers prefer that the state executive branch be modeled after the business corporation. In the corporation, all administrative units are ultimately accountable to a chief executive, who in turn, answers to a policy-making board of directors. By analogy the governmental reformers view the governor as the corporate chief executive and the legislature as the policy-making board of rectors. Reformers want state executive power to be integrated and accountable to a limited number of policymakers.
4. Inefficient Court Systems
The typical court system is not integrated. Rather, it comprises dozens of courts that are independent of each other. No one body ensures the enforcement of high judicial standards. The procedures by which cases are given to one court rather than another are unclear and confusing. In civil cases when one person sues another, conflict or confusion over which court has jurisdiction can delay the case. In criminal cases when a person is tried for breaking the law, the fragmented court systems are not tied into the correctional system; law enforcement, adjudication, and corrections are not integrated. This compounds the already difficult task of creating a corrections system that actually corrects the antisocial behavior of criminals.
5. Hamstrung Local Governments
Most constitutions restrict how much debt local governments can incur, and this often limits their ability to provide public services efficiently. Many state constitutions prescribe the type of governments for localities, making it impossible for residents to choose the type of government they want. In sum, local governments are legally creatures of the state and possess only those powers that the state constitutions and legislatures permit them to have. Reformers advocate giving local governments more financial flexibility, giving local officials enough authority to meet their responsibilities, and giving local residents a form of home rule that would allow them to choose the type
of local government they want.
State constitutions exert a powerful influence on the American people's life. American state constitutions are deeply enmeshed in the nation's various social conflicts8. Throughout most of the twentieth century, state constitutional law took a back seat to federal constitutional law in dealing with dramatic social change. Nowhere was this more true than in the example of the civil rights movement of the 1950s and 1960s, which successfully broke the system of racial segregation in the South. Civil rights advocates had no success challenging segregation under state law because the constitutions of the southern states permitted segregation. Consequently, civil rights advocates used the federal courts to charge that segregation practices violated several provisions of the U.S. Constitution, especially the equal-protection clause, the due process clause, and the commerce clause. In this way, they were fully in keeping with the higher law tradition of constitutionalism. As a result of this history, Americans grew accustomed to thinking of the federal constitution and the federal courts as more progressive than state constitutions and state courts when dealing with issues of social change.
No function of a constitution, state or federal, is more important than its use in defining a people's aspirations and fundamental values. The federal Constitution is, however, more concerned on its face with structure and process than with substantive outcomes. State constitutions, in the American tradition, tell us more of a people's values. It is in their state constitutions that the people of a state have recorded their definitions of justice, their moral values, and their hopes for the common good. A state constitution, in short, defines a way of life. In so doing, these state charters derive from the tradition given in George Mason's precept (in Virginia's Declaration of Rights) that "no free government, nor blessings of liberty, can be preserved to any people'' but by a "frequent recurrence to fundamental principles.'' [Levy 2000:2503]
Comments
1 Since the so-called constitutional revolution of 1937, the Supreme Court has abdicated the earlier practice of using the Fourteenth Amendment due process clause to second-guess state social or economic legislation. State courts, however, often use state constitutions to review economic measures. For example, a state court might invalidate a law restricting entry into a given trade (such as hairdressing) where it is evident that the purpose of the law is not to protect the public interest but to give special advantages to a favored group.
2 The federal courts have refused to recognize a federal constitutional right to a decent environment. State constitutions, however, often have provisions protecting the environment. State courts may, for example, give force to a "public trust'' in state resources such as rivers and wetlands.
3 The Supreme Court has refused to use the Fourteenth Amendment to require that states equalize expenditures for wealthy and poor school districts.
Education is, however, dealt with at length in state constitutions. Courts in some states have used various state constitutional grounds to require more-
equal funding of schools throughout the state.
4 Through the Incorporation Doctrine, the Supreme Court has applied most of the provisions of the Bill of Rights to the states. Thus, federal constitutional standards regarding police practices (such as Police Interrogation and Confessions and Search and Seizure) and criminal trials (such as the Right to Counsel) bind the states, as they do the federal government. Even in this highly federalized area of constitutional law, state constitutions play a role. For example, courts in some states have read the state constitutional ban on Unreasonable Search and seizure as forbidding police actions that might be upheld under the Supreme Court's Fourth Amendment decisions.
5 In 1989, for example, the Maryland legislature committed itself to a significant expansion in university funding and dramatically increased appropriations for that purpose. Two years later, however, this enthusiasm for higher education waned, and appropriations dropped back to what they had been two years earlier. If university funding had been earmarked in the constitution, it would not have been as easy for the state to back away from its commitment. It can be very difficult for a public body to keep a sustained, decades-long commitment to a project if it has to rely on annual appropriations. It is unlikely, for example, that the Interstate Highway System, which took forty years to build and was built almost solely on earmarked state and federal gasoline taxes, would be as extensive as it is today if it had had to rely upon annual appropriations.
6 Several states in the 1980s persuaded their residents to pass constitutional amendments adopting lotteries, on the promise that the lottery revenues would be earmarked for public education. Illinois, for example, earmarked 100 percent of its lottery revenue to public education. In 1988, this amounted to $524 million. But an analysis of the Illinois finance system found that as lottery revenues began flowing into the education system, funding from other sources immediately began to drop off.
7 This, of course, was exactly the case with the Interstate Highway System. Started in 1956, the bulk of the system was completed by 1970, with
the uncompleted remainder being predominantly the central-city portions. Finishing off those portions led to enormous social conflict. Inner city, often minority, neighborhoods had to be torn out to make way for the freeways, public transit systems deteriorated in virtually every city in the country, and a perception was growing that the new freeways were speeding up the decline of the central cities themselves. Furthermore, by 1970 the Interstate Highway System had become the single largest public works project in human history, and it was doing more than any other single phenomenon to shape the sprawling pattern of today's typical metropolitan areas. Despite these major issues, it was impossible for most state legislatures to debate whether or not it might be good public policy to v original 1956 Interstate Highway plans in order to create a transportation system less heavily dependent on freeways and automobiles.
This debate was impossible because 90 percent of the money came from the ked federal gasoline tax and only 10 percent from state funds; this was a deal good for most legislators to pass up. If you had been a suburban legislator 1970, it is conceivable that you might have been able to talk your constituents into scaling back freeway construction if they were going to have to e the funds for it themselves and if you had a proposal for a better and less costly method of easing their traffic congestion problems. But it would have been impossible to convince them of that when 90 percent of the costs were going to be paid by motorists in the rest of the country and when your constituents themselves would lose this gift from the rest of the country if the funds were not on new freeway construction.
8 In 1996, California voters faced a proposed constitutional amendment that would, if passed, threaten the legality of many affirmative action provisions already in California law.
Several state courts ruled that their state constitutions required a redistribution of school funding, thus forcing upon legislatures and governors the difficult task of accomplishing this goal.
References
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