Who Decides?

The earlier book, 51 Imperfect Solutions, told stories about specific state and federal individual constitutional rights, and explained two benefits of American federalism: how two sources of constitutional protection for liberty and property rights could be valuable to individual freedom and how the state courts could be useful laboratories of innovation when it comes to the development of national constitutional rights. This book tells the other half of the story. Instead of focusing on state constitutional individual rights, it focuses on state constitutional structure. Everything in law and politics, including individual rights, eventually comes back to divisions of power and the evergreen question: Who decides? The goal of this book is to tell the structure side of the story and to identify the shifting balances of power revealed when one accounts for American constitutional law as opposed to just federal constitutional law. Who Decides? contains three main parts—one each on the judicial, executive, and legislative branches—as well as stand-alone chapters on home-rule issues raised by local governments and the benefits and burdens raised by the ease of amending state constitutions. A theme in the book is the increasingly stark divide between the ever-more-democratic nature of state governments and the ever-less-democratic nature of the federal government over time.

Judicial Review

The conventional account of judicial review starts with a US Supreme Court case, Marbury v. Madison. But judicial review in truth starts with the state courts and the state constitutions, not the US Supreme Court and the US Constitution. Before the US Constitution existed, the state courts established American judicial review and were the first courts to wrestle with the complexities of exercising it. Judicial review also is foremost a structural story, not an individual-rights story. The delegation of power to the judiciary to decide the meaning of our constitutions laid the groundwork for the growth in power of American courts—especially the federal courts, which have become the go-to answer for so many who-decides questions in American government over the last seventy-five years. This chapter begins a search for insights in resolving the dilemma of judicial review by looking at how the state courts innovated the concept and the ways they initially practiced it. It shows that the early state courts were deferential to the democratic branches of government. They rarely invalidated state laws and did so only when these laws violated a clear constitutional rule. That approach offers lessons for federal and state courts alike.

One Chief Executive or Many?

This chapter compares the unitary executive at the federal level with the plural executive at the state level. The fifty state constitutions and the United States Constitution share a “surface similarity” in describing the authority of their chief executives: They both vest executive power in a governor or president. But in practice, there are many differences. At the national level, the US Constitution places all executive authority in one president who controls the executive-branch officers through the singular authority to choose all cabinet members. What’s called a unitary executive largely is one, given the president’s authority to hire and fire these executive branch officers. Contrast the state side. In response to the states’ colonial experiences with a monarch, many of the first state constitutions created weak executive branches. All but one of the original state constitutions also mandated that the governor work alongside an executive council. In many states, constitutional executive offices—secretary, treasurer, auditor—are often chosen by the legislature. The rise of the state attorneys general as a source of local and national power offers one illustration of the salience of the plural executive.

State Legislatures and Distrust

This chapter explains the myriad restrictions that state constitutions place on state legislatures—such as single-subject rules, clear-title, and public-purpose clauses—and the kinds of problems that prompted them. The clear-title rule requires the subject of each bill to be expressed plainly in its title. The single-subject requirement ensures that each bill enacted by the legislature contains just one subject. The original-purpose requirement requires a final bill to line up with the stated purpose of the original bill. These limitations grew naturally out of a preoccupation of the Jacksonian era, curbing special interests. The US Constitution does not place comparable restrictions on Congress.

The Crisis of the 1780s

This chapter describes the crisis that led to the calling of the convention that created the federal Constitution in 1787. Although the Articles of Confederation that united the thirteen states lacked the powers to tax and regulate trade, the country was not doing too badly economically or demographically. But the state legislatures were abusing the great power that had been granted to them in the revolutionary state constitutions and tending to ran amuck. The multiplicity, mutability, and injustice of state legislation, especially with the printing of paper money, led reformers to use the weakness of the Confederation as a cover to scrap the Articles and to create an entirely new and powerful central government.

SUCCESSIVE ELECTION OF REGIONAL HEADS: A COMPARISON STUDY OF THE STATE CONSTITUTIONS OF MAJAPAHIT, INDONESIA, AND THE UNITED STATES

A constitution is a written regulation and a state convention (state administration) that determines the composition and position of state bodies, regulates relations between the bodies, and regulates the relationships between these bodies and the citizens. The enactment of a constitution as a binding fundamental law is based on the highest power or the principle of sovereignty adopted by a certain country. If the country adheres to the notion of popular sovereignty, then the source of the legitimacy of the constitution is the people. If monarchical sovereignty is applied, then the monarch will determine whether or not a constitution may be enforced. A constitution also contains regulations for the election of regional heads. Regional head elections are one of the characteristics of a state that applies democratic principles. This study aims to analyze the election of regional heads by comparing the constitutions of Majapahit, Indonesia, and the United States of America. The method used in this research is normative juridical, namely by reviewing the norms of Constitution, laws and other sources of legal material, including journals. The results of this research are that regional heads in Majapahit were directly elected by the Prabu (King). It was a District/majority representative system since the regional heads were directly elected by the king, an Organic and Non-Democratic electoral system. Whereas in Indonesia, regional heads (Governors, Regents and Mayors) are democratically elected, elected directly by the people or by the Provincial, Regential and Municipal House of Representatives (district representation system based on the majority and balance). However, in the reform era, the legislators interpreted the democratic system as direct election by the people. The electoral system is mechanical, organic and democratic. In the United States, the Head of State is directly elected by the people but at the discretion of the legislature, hence the representative system is a balanced representation system. The electoral system is organic and semi-democratic. <p> </p><p><strong> Article visualizations:</strong></p><p><img src="/-counters-/edu_01/0754/a.php" alt="Hit counter" /></p>

Constitutionalizing Access

State constitutions receive relatively little academic attention, yet they are the source of significant substantive rights—and, when compared to the U.S. Constitution, they are relatively easily amended to comport with contemporary needs and values. Unlike the constitutions of dozens of other nations, the U.S. Constitution contains no explicit recognition of a right to information from the government, and the Supreme Court has declined to infer that such a right exists, apart from narrow exceptions. Conversely, seven states expressly memorialize the public’s right of access to government meetings and records in their constitutions. In this paper, the authors examine case law applying the constitutional right of access, concluding that the right is somewhat underutilized and rarely seems to produce an outcome clearly different from what a litigant could expect relying on state statutory rights alone.