GOVT Ch 2: State Constitutions

How have state constitutions developed throughout U.S. history?

State constitutions began as adaptations of colonial charters or newly written documents. (New Hampshire adopted the first in 1776, while Massachusetts’s 1780 constitution is the oldest still in effect.)

What were the four major periods of state constitution-making, and what caused each one?

• 1820s–1850s: market revolution and andrew jackson, expanded voting and popular elections

• 1860s–1870s: secession, Civil War readmission, and the end of Reconstruction

• 1890s–1920s: Progressive Era reforms

• 1960s: Supreme Court reapportionment rulings requiring “one person, one vote”

(Progressive reforms included direct democracy, labor laws, and regulation of railroad companies.)

How much do state constitutions vary in their age, length, and number?

States have collectively adopted 145 constitutions and passed more than 7,500 amendments. Their constitutions also vary greatly in age and length. (Louisiana has had 11 constitutions, Texas has had five since statehood, and Texas’s current constitution is about 20 times longer than the U.S. Constitution.)

Why are state constitutions usually longer and easier to change than the U.S. Constitution?

Most state amendments require approval from only a majority of state voters, while a U.S. constitutional amendment requires approval from three-fourths of the states. This allows states to respond more quickly, but it also causes routine policy matters to be placed in their constitutions.

• referendum isn’t the only way though. only 24 states allow voter initiatives, so that’s not the only way

Why might someone put a policy in a state constitution instead of an ordinary statute?

Although state constitutions are easier to amend than the U.S. Constitution, they are harder to amend than ordinary statutes. Placing a policy in the constitution makes it more durable, but also makes it harder to adjust when public opinion changes. (might put policy about a local agency in state constitution)

What are the three ways state constitutions can be amended or replaced?Are these votes only held during election periods?
What does Texas allow?

There are three possible methods, although not every state allows all three:

1. Legislative proposal: The state legislature writes and approves a proposed amendment. It is then placed on the ballot during an officially scheduled election, where citizens vote for or against it. This is the most common method.

2. Citizen ballot initiative: In states that allow it, citizens write a proposed amendment and collect a required number of signatures. If they qualify, the amendment is placed on an election ballot without needing the legislature’s approval first.

3. Constitutional convention: A state calls a special meeting where elected delegates recommend amendments or write a new constitution. Their proposals do not automatically become law—they are placed on an election ballot for voters to ratify.

Are these votes only held during election periods?
Yes. Proposed amendments are voted on during an officially scheduled election. This may be a regular general election or a separate constitutional-amendment/special election. (For example, Texas constitutional amendments have appeared in both May and November elections.)

What does Texas allow?
Texas allows the legislative proposal method. A proposed amendment must receive a two-thirds vote in both the Texas House and Senate and then a majority vote from Texas voters. Texas does not allow citizens to directly place statewide constitutional amendments on the ballot, and it is one of nine states whose constitution does not provide a regular method for calling a constitutional convention

What elements do state constitutions generally share, and how can they differ?

Most state constitutions include a preamble, protection of basic rights, separation of power among the legislative, executive, and judicial branches, a governor as the chief executive, a bicameral legislature, and a court system usually headed by a supreme court and chief justice.

However, states differ in whether citizens can propose laws or constitutional amendments directly through ballot initiatives and in how officials are selected. (In Texas, voters elect judges and the lieutenant governor separately, while the governor appoints the secretary of state. In Massachusetts, judges are appointed, the secretary of state is elected, and the governor and lieutenant governor run together as a ticket.)

Why do states have their own bills of rights if the U.S. Constitution already has one?

The federal Bill of Rights originally restricted only the federal government, so states created their own protections for rights

• selective incorporation in the states under the 14th amenment

How can rights protected by a state constitution differ from federal constitutional rights?

Federal rights establish a minimum floor of protection, but states may provide broader or additional rights. States can recognize rights in their constitutions, establish them through ordinary statutes, or not recognize them at all. (Examples may include privacy, environmental protection, welfare, or women’s property rights.)

What happens when a state constitutional provision conflicts with the U.S. Constitution?

The federal Constitution takes priority, so the conflicting state provision cannot be enforced. However, states sometimes leave these provisions in their constitutions, meaning they could become enforceable again if federal constitutional law changed. (For example, some state constitutions still define marriage as only between a man and a woman, but those provisions cannot currently be enforced.)

Policy vs Statute

A policy is any rule, plan, or course of action the government follows.

A statute is a specific type of policy: a written law formally passed by the legislature. Some statutes rise to the constitution, which is very hard to change

So, all statutes are policies, but not all policies are statutes.

For example, protecting the environment is a broad policy goal. A law passed by the Texas Legislature limiting factory pollution would be a statute.

How have states recognized rights before or beyond the federal government?

States can act as leaders in expanding rights because they may provide greater protection than the federal minimum. A state may recognize a right before it becomes federally protected or define it more explicitly than the federal Constitution does. (Examples: territories allowed women to vote beginning in 1869; some states lowered the voting age before the 26th Amendment; some recognized same-sex marriage earlier; and Texas explicitly protected an individual right to bear arms before District of Columbia v. Heller did so federally in 2008.)

How do state and federal protections for gender equality differ?

some states include descriptive terminology mirroring the proposed Equal Rights Amendment, others have broader “no discrimination” policies

How have crime victims’ rights developed?

Before the 1980s, crime victims often lacked rights to receive information, attend proceedings, speak during the process, or learn about an offender’s release. Today, all states protect victims through statutes, while the federal Crime Victims’ Rights Act of 2004 provides federal protections. Nearly two-thirds of states have strengthened these protections by placing victims’ rights in their constitutions. (In Texas, victims may request notice of proceedings, attend most public proceedings, confer with prosecutors, receive restitution, and obtain information about the offender’s conviction, sentence, imprisonment, and release.)

How do federal and state constitutions differ in describing the government’s role?

The federal Bill of Rights is mainly written in negative terms, identifying actions the government cannot take against individuals. State constitutions may also create positive duties, requiring the government to provide services or pursue goals that benefit residents. These duties can effectively create rights to government services. (Examples: every state constitution addresses public schools, producing systems of free public education through 12th grade; several state constitutions require protection of natural resources for present and future generations.)

Why do unconstitutional provisions sometimes remain in state constitutions?

Some provisions are never formally removed even after federal constitutional law makes them invalid. Because federal constitutional law is supreme, states cannot enforce conflicting provisions. They remain dormant or unenforceable, but could potentially become enforceable if the relevant federal protection changed. (Examples: state provisions banning same-sex or interracial marriage and requiring religious tests for public office.)

How did Dobbs v. Jackson Women’s Health Organization change abortion policy?

In 2022, Dobbs overturned the previously recognized federal constitutional right to abortion. It did not prohibit states from allowing abortion; instead, it gave states greater authority to regulate it. State legislatures, constitutions, courts, and voters now play major roles, although future federal legislation could also affect state policies. (Examples: some state constitutions allow broad restrictions, others protect abortion access, and some contain privacy rights that state courts may interpret as protecting abortion.)

How much freedom do states have in designing their governments?

The U.S. Constitution requires every state to have a republican form of government, but it does not precisely define that term. The Supreme Court considers its meaning a nonjusticiable question, meaning courts lack a legal standard for deciding disputes about it; Congress and the president must address them. States therefore have considerable freedom to design institutions as long as their governments rely on elections rather than hereditary or military rule. (Example: A state could theoretically adopt a parliamentary system, although none has.)

How do state constitutions divide power horizontally?

All 50 states use separation of powers, dividing government into legislative, executive, and judicial branches. Each branch receives distinct responsibilities, and members of one branch generally cannot exercise another branch’s powers unless the constitution specifically allows it. This prevents power from being concentrated within a single institution. (Example: Article II of the Texas Constitution explicitly creates three separate departments.)

Why is the legislative branch generally dominant in state government?

State constitutions usually grant specific powers to the executive and judicial branches while leaving the legislature with the remaining implied powers. Therefore, unless a power is specifically assigned elsewhere or prohibited, it generally belongs to the legislature. Legislative dominance also reflects historical distrust of strong executives and traditionally limited judicial review of executive actions. Efforts to limit legislatures include direct-democracy procedures and term limits. (Examples: recalls and referendums allow voters to bypass or challenge legislators.)

Why do most states have bicameral legislatures, and why might they not need them?

A bicameral legislature has two independently elected chambers that must generally agree before legislation passes. Bicameralism can create an additional check within the legislative process, particularly when different parties control the chambers. However, both state chambers represent residents according to one person, one vote, so states do not require separate chambers to represent different political units in the way Congress does. (Example: Nebraska is the only state with a unicameral—or one-chamber—legislature.)

What legislative procedures do state constitutions establish?

State constitutions describe how legislation is enacted and how the legislature conducts its business. They may establish the quorum (members needed in an assembly for the meeting to be valid) needed to conduct business, voting majorities required for different actions, methods for selecting officers, and legislative privileges and immunities. They may also authorize each chamber to discipline members for misconduct. The exact procedures vary by state and by type of legislative action.

How are governors and lieutenant governors selected, like from political parties, and how long do they serve?

The governor heads the executive branch in every state and is usually popularly elected to a four-year term. New Hampshire and Vermont use two-year terms. Most states also elect a lieutenant governor, either jointly with the governor or separately. Separate elections can produce a governor and lieutenant governor from different parties. Constitutions establish eligibility, election procedures, terms, succession, and any term limits. (Example: Texas does not limit the number of terms a governor may serve.)

How does a plural executive divide executive power?

In most states, executive power is divided among several independently elected officials, creating a plural executive. The governor must share authority and cooperate with officials such as the attorney general and secretary of state, who may belong to another political party. This limits the governor’s control and may complicate implementation of the governor’s agenda. A few states instead place executive authority almost entirely in the governor. (Examples: Alaska, Hawaii, New Hampshire, New Jersey, and Tennessee centralize executive power in the governor.

What are the governor’s main responsibilities? Lieutenant govorner’s?

Governor: Administers the executive branch, makes authorized appointments, delivers the State of the State address, and executes the state budget.

Lieutenant governor: Presides over the state senate in many states and temporarily acts as governor or permanently succeeds the governor when necessary (such as when the governor is absent, incapacitated, resigns, is removed, or dies).

How do state judicial-selection and tenure systems differ from the federal system?

Federal judges receive lifetime appointments, but state judges usually serve fixed terms and commonly face some form of public participation or retention process. State judges may be elected or appointed by the governor with legislative or voter approval. They may also face mandatory retirement, commonly around age 70. These systems make state judges more directly accountable to state officials or voters than federal judges. (Examples: legislatures elect judges in South Carolina and Virginia; Massachusetts most closely resembles the federal appointment system.)

What is a state supreme court, and what does it do?

A state supreme court is normally the state’s court of last resort, although it may be called the court of appeals. It primarily hears appeals from lower courts, issues necessary writs, supervises the state bar, and gives the final interpretation of the state constitution and state statutes. State courts of last resort contain five, seven, or nine justices to reduce the likelihood of ties. Judges may be disciplined through impeachment, judicial commissions, or court proceedings.

What is direct democracy, and how do state and federal constitutions differ in using it?

Direct democracy allows citizens to vote directly on proposed laws or constitutional amendments. The U.S. Constitution does not provide any form of direct democracy, while nearly every state constitution includes at least one form. The specific methods and requirements vary by state.

What is a legislative referendum, and how does it affect state constitutions?

state legislature places a proposed law, bond issue, or constitutional amendment directly on the ballot for voters to approve or reject

What process does Texas use to amend its constitution?

An amendment must receive a two-thirds vote in both the Texas House and Texas Senate before going to voters. Texas usually holds the election in November of an odd-numbered year, and a simple majority of participating voters can ratify it. Turnout is often so low that less than 5% of the voting-age population can approve an amendment, although voters have rejected over one-quarter of proposals since 1876.

What is the difference between a ballot initiative and a popular referendum?

A ballot initiative allows voters to petition to place a proposal on the ballot that the legislature has not adopted. A popular referendum, or popular veto, allows voters to petition against a law already passed by the legislature and vote on whether to approve or reject it. In short, initiatives propose new policy, while popular referenda challenge existing laws.

What are the three major criticisms of ballot initiatives?

First, wealthy special interests can use money and political networks to gather signatures and dominate advertising. Second, initiatives prevent deliberation and compromise because the wording cannot change after petitioning begins. Third, they may create a tyranny of the majority, in which a small majority imposes major changes on everyone. Reasonable restrictions and supermajority requirements may reduce these risks.

How can state constitutions be both populist and anti-majoritarian?

They are populist because voters elect numerous state officials and directly approve amendments. However, they can become anti-majoritarian when routine policies are placed in the constitution and “locked in.” Future majorities cannot change those policies through ordinary legislation and must satisfy the demanding amendment process again. (Texas’s constitution specifically authorizes charitable raffles at qualifying rodeos.)