The Unrecognized Vitality of State Constitutionalism

The Rodney Dangerfield of American constitutional law, state constitutions don’t get no respect. They never have. Over 230 years ago, in Federalist 17, Alexander Hamilton argued the policy topics of state power were so boring relative to the subjects of national power that, even conceding an inordinate “love for power” dwells within the human breast, he still was “at a loss to discover what temptation the persons entrusted with the administration of the general government could ever feel to divest the states” of their residual power. The “allurements to ambition,” of state-level policy questions, he added, were simply too “slender.”

Federal Judge Jeffrey Sutton disagrees. Sutton seeks to rejigger the scales away from what he terms the American “obsession” with national power and underscore the importance of state constitutions and power in his new book, Who Decides: States as Laboratories of Constitutional Experimentation.

The “myth of statelessness” in pre-20th-century America—that Americans experienced minimal government at all levels of government in the 19th century and earlier—is a common refrain on both the left and the right. The refrain, however, requires ignoring the vigorous legislative and regulatory activity at the state level before the 20th century. Similarly, left- and right-wing postliberal claims of deregulatory excesses in America’s ostensibly “neoliberal” post-1970s political order not only ignore more systematic evidence of national-level regulatory trends, but also ignore the huge regulatory apparatus at the state level that continues unabated after this time.

National Growth Has Not Crowded Out State Power

Conventional wisdom holds that the massive expansion of the U.S. national government during the 20th century overshadowed and marginalized the impact of state governments on the everyday lives of Americans.

The displacement theory—that the growth in the U.S. national government in the 20th century displaced state and local government activity—implicitly draws on a zero- or constant-sum view of American government. National-level growth, the thought goes, must perforce shrink state-level government activity.

Contrasting with the displacement hypothesis is what might be called the overlay theory. That is, that growth in the U.S. national government in the 20th century did not displace growth in state governments, but merely overlaid a continuing growth of state governments. The overlay hypothesis allows that both national and state governments grew significantly during the 20th Century.

Consider government spending. In 1900 the federal government spent 41.1 percent of the total of all government spending (national, local, and state) in the U.S. In 2022, estimates are the federal government will spend 56.7 percent of the total of all government spending in the U.S. By this measure, the state share (which includes local governments because local governments are wholly creatures of the states), has shrunk by over 15 percent.

But the ostensible shrinkage in state government expenditures is a figment of the proportional measure. In fact, state government spending as a share of the economy increased almost 400 percent between 1900 and 2022. States government spending grew from 4.72 percent of GDP in 1900 to 18.41 percent of GDP in 2022. (And keep in mind that real per capita GDP increased in the U.S. by around nine times or so during that period.) To be sure, spending by the U.S. national government increased over seven times during this same period. Yet state government expenditures started from a larger base, and the huge growth of federal spending occurred in tandem with significant absolute growth of state government expenditures.

Other indices of government activity show that state government activity continues to dominate national government activity.

Consider, for example, that the vast majority of civil and criminal trials occur under state law in state courts. Civil trials reflect common law regulation of contracts, property, and torts. Over 95 percent of all civil trials occur in state courts under state laws. Even more, over 99 percent of criminal filings occur in state courts under state laws.

Even then, it is important to keep in mind that trials and filings represent only a small observable tip of the impact of state versus federal laws. The vast majority of civil disputes are settled before trial, as are a huge majority of criminal cases. And even then, the influence of law goes even beyond cases and filings. The vast majority of people craft their behavior in the shadow of the law to begin with. People behave so that civil disputes or criminal filings don’t arise in the first place. As a result of this avoidance behavior, much of the influence on our lives of state laws and regulations remains invisible to us.

On yet another dimension, compare the number of government employees at the state versus the federal level. According to a recent Census Bureau count, over 87 percent of all government employees in the United States work for state and local governments. To be sure, the number of public-school employees represent a hefty total for state and local governments. But military employees overwhelmingly favor the federal government.

Still, let’s drop public schools and the military from the count, and compare two subsets of government employment. According to the Census Bureau, limiting focus to “judicial and legal” employment still results in state and local employment accounting for over 87 percent of the total of government employees. And employment in “police protection” still overwhelmingly favors states and localities, at over 83 percent of total government employment.

None of this is intended to deny or minimize the huge expansion of the U.S. national government during the last century. What the data do belie, however, is the common belief that the national government expansion during the 20th century came at the expense of state and local activity, and now the national government is really the only government that counts in the U.S.

While the national government does direct more state government activity than in the past, the U.S. national government is constitutionally prohibited from “commandeering” state government officials (as in Printz v. United States). Even when using the soft power of the Spending Clause, incentives to induce state government responses cannot be “unduly coercive” without running afoul of the Constitution. (The Supreme Court struck down federal incentives for states to expand Medicaid as unduly coercive in NFIB v. Sebelius.)

The truth is that a vast amount of government activity still takes place at the state and local level. Sutton observes,

Take a few minutes to think about it. How do we get water, electricity, and natural gas into our homes? How do we get rid of our waste? Where do we go for food? Where are our children educated? What streets do we use to commute to work? Where are our parks and other communal spaces? Where do we worship? Whom do we call if someone breaks into our house or threatens our security? Where do we own property? Where indeed do we live? Local at every turn.

Conservatives sometimes romanticize state-level governance. The evidence that the life of state governments continues to be vigorous, even after a century of unparalleled growth of the U.S. national government, is not to suggest that this state-level growth is unalloyed. There is no reason to think that there is any less rent-seeking and waste in state-level policies than at the federal level. At the same time, as I discuss below, there are advantages to continuing state-level governance in policy domains not delegated to the national government.

Separation of Powers in the State and National Constitutions

A 1988 poll by the Advisory Commission on Intergovernmental Relations reported that 52 percent of the people surveyed were not even aware that their state had a state constitution. While a dated survey, I doubt the numbers differ much today.

Sutton’s earlier book on state constitutional law, 51 Imperfect Solutions: States and the Making of American Constitutional Law, focused on rights and liberties in state constitutions. In Who Decides, Sutton focuses his analysis on state judiciaries, executives, and legislatures, as well as on local governments and the amendment processes. Sutton frames his analysis as a continuing conversation between the framers of the U.S. Constitution and the various framers of state constitutions. The surprise is how often state constitutional framers disagree with conclusions made by the framers of the national Constitution.

One notable example is the predominance of judicial elections at the state level relative to the national judicial appointment process. Fully 90 percent of all state-level judges face elections to hold or retain their offices. Political scientists and legal scholars obsess over judicial countermajoritarianism. That is, the conditions which justify unelected judges setting aside laws enacted by democratically-elected legislatures and executives. This issue holds a central role in the development of two-tiered judicial review after the demise of Lochner-era substantive due process. This problem is, or at least should be, a non-issue for elected judges. The irony, as Sutton points out, is that state legal doctrines often unreflexively, and without justification, mirror federal legal doctrine.

So, too, the vast majority of state constitutions provide for some form of a “plural executive” relative to the national government’s “unitary executive.” That is, a large majority of states elect two or more executive offices in separate ballots. The governor is elected, but so are secretaries of state, treasurers, attorney generals, state auditors, and many more.

Despite a century or more of national homogenization in the United States, there continues to be substantial variation—perhaps even a surprising level of variation—in the political preferences of state citizens across the different states.

Sutton speculates that some of these differences result from the set of issues delegated to the national government relative to the states—the need for a singular voice in foreign affairs at the national level, for example, augurs for a national-level unitary executive. At the same time, differences in the ease with which state constitutions can be amended might account for important differences as well. The difference in transaction costs of amending the respective national and state constitutions might account for why populist periods in American history saw the adoption of plural executives at the state level without corresponding changes at the national level.

Sutton also discusses some of the provisions that provide additional constitutional oversight to state legislative processes relative to the national level. Requirements that restrict non-budget legislation to a single subject, or require the title of proposed legislation to “clearly” state the bill’s subject. Or state constitutional requirements that state funds be spent only for “public purposes.”

These and other provisions—limitations on special and local laws, uniform tax requirements, limitations on extending the credit of a state, and more—all attempt to restrict and control the influence of faction at the state level.

At the national level, Publius rejects the significance of measures such as these as ineffective “parchment barriers.” Yet state constitutional framers apparently disagree on their effectiveness, and so inserted them in most state constitutions. At the same time, there is an open question as to the practical effect of these provisions, with state judiciaries often interpreting provisions so deferentially that their “bite” extends little beyond suggesting recommendations to the legislature.

State Constitutions are Sprawling Things

State constitutions are sprawling things. The average state constitution contains around 39,000 words, this is over five times the length of the U.S. Constitution. It is nigh impossible to provide a comprehensive account of heterogeneous state constitutions in a single book. Yet I do think there are several omissions that, if included, would have strengthened Sutton’s analysis.

The first is a focused discussion on the broad legislative authority states enjoy, known as state police powers. It is a power that the U.S. national government does not hold. The state legislative power, identified in a thousand different cases, is the authority “to legislate in the interest of the public health, the public safety, and the public morals.”

Undergraduates and graduate students alike, let alone citizens outside the academy, are typically surprised, even shocked, at the extent of state police powers. It can be useful explicitly to lay out the powers that state legislatures actually exercise before turning to a consideration of limitations on those powers.

A second weakness is that, for all his love of state constitutions and their heterogeneity, Sutton offers only a limp justification for that heterogeneity. We see this from the very start, in the book’s subtitle, States as Laboratories of Constitutional Experimentation. Sutton subsequently doubles down in the text drawing on a standard informational rationale for state heterogeneity. He uses Covid as his motivating example:

What leader, what government had answers to all of these questions [regarding Covid] and resources for all of these problems at the outset? . . . Better, as it turned out, to allow different governors to try different approaches and to watch the results in real time-and to allow the president and Congress to provide support and to learn from the give and take along the way before nationalizing some of these remedies over others.

It’s true that it was the same virus affecting all Americans. And it’s true that uniform answers to uniform problems often work best. But that’s only when the answer is known. That wasn’t the situation at the outset.

To be sure, the U.S. Constitutional framers did delegate power to the national government in order to solve coordination and cooperation failures between the states, failures that resulted from overly-decentralized governance under the Articles of Confederation. Well-known examples include the need for uniform interstate commercial regulations, the need for uniform interpretation of national laws and treaties from a national judiciary, and more. But residual sovereignty was left to the states in areas in which pathological incentive structures did not exist. This residual sovereignty was not left to the states simply out of a concession to state power, let alone because of some vague belief that state heterogeneity might generate answers to policy problems that a unitary national government would not otherwise stumble across.

Rather, in the policy areas that did not result from coordination and cooperation failures, or did not threaten the commitment of the states and nation as a whole to fundamental values such as republicanism and equal citizenship (such as the existence of slavery did), it was, and is, optimal to allow states to adopt policies that reflect their unique circumstances and their citizens’ unique preferences.

Take Covid, for example. Rates of increase and decrease have varied significantly across states over time. Even today, rates are increasing in much of the northeast of the U.S., while rates continue to decline in much of the rest of the nation. In response to this, the city of Philadelphia recently announced the re-imposition of an indoor masking mandate. Because most of the nation does not yet share Philadelphia’s circumstances, it would make no sense to impose this particular mandate uniformly across the country. On the other hand, it also would make no sense to make Philadelphia wait to respond to a local increase in cases until the trend is nationwide. Different circumstances invite different policies.

More than differences in circumstances, however, what justifies federalism—that is, what justifies state governments holding a substantial residuum of sovereignty—is that even with uniform circumstances across the states, citizens of different states may hold different political preferences regarding the policies they want their state to adopt. Despite a century or more of national homogenization in the United States, there continues to be substantial variation—perhaps even a surprising level of variation—in the political preferences of state citizens across the different states. There are numerous accounts for these differences. Different histories, different political cultures, different demographic factors, and differences in political socialization.

As a result of this variation in the policy preferences of the citizens of different states, even if outward circumstances in Massachusetts and Texas were identical, the median Massachusetts voter very likely prefers a different policy response from Massachusetts state government than the policy response the median Texas voter prefers from Texas state government.

The thing is, different policy preferences across voters in different states are not a problem that needs somehow to be solved. For a range of policies that do not involve state-level coordination and cooperation failures that were subsequently addressed in the U.S. Constitution, that different states implement different policies is optimal for Americans. There’s no reason to expect that we all like the same policies.

Even for Covid and other pandemics, as long as states do not discriminate against residents of other states, states continue to have ample authority to require testing of people coming into a state, and to exclude infected or exposed individuals. (See, for example, Morgan’s Steamship Co. v. Louisiana Board of Health (1886), Compagnie Francaise de Navigation a Vapeur v. Louisiana State Board of Health (1902), and Smith v. St. Louis & Southwestern Railway Co. (1901). And, of course, Congress may step in and directly regulate interstate intercourse during a pandemic if it wishes, although it still could not dictate intrastate policies except to the extent necessary to effectuate interstate regulation.

Irrespective of these lapses, Sutter’s book is an eminently readable and useful treatment of how state constitutional separation-of-power systems differ significantly from the national Constitution’s separation-of-power system, and how state systems differ from one another.