250 Years of State Constitutions

When Thomas Jefferson sat down to write the Declaration of Independence, he relied in no small part on a May 1776 draft of Virginia’s Declaration of Rights. Authored by George Mason and adopted in final form in June 1776 as part of the state’s first constitution, Virginia’s Declaration asserts that “all men are by nature equally free and independent,” have “certain inherent rights,” and cannot be denied “the enjoyment of life and liberty” and “pursuing and obtaining happiness and safety.” 

Jefferson’s changes made the language soar. But Virginia’s Declaration is one of many examples of how state constitutions have helped shape the American story.

Revolutionary-era state constitutions like Virginia’s are part of what the late historian Gordon Wood described as “the most creative period of constitutionalism in American history and one of the most creative in modern Western history.” These state charters are essential to understanding the American founding. But perhaps even more importantly, state constitutions also offer an account of American progress, backlash, and contention that continues through today. 

New Hampshire adopted the first American constitution on January 5, 1776. Many early state constitutions, including those in Massachusetts, New York, Pennsylvania, and Virginia, played an influential role in shaping the U.S. Constitution. Prominent Revolutionary era figures like Mason, James Madison, John Jay, and John Adams had key roles in drafting their state’s constitutions. And antifederalists pointed to states’ Declarations of Rights when they demanded the adoption of a Bill of Rights as a condition of ratifying the U.S. Constitution.

State constitutions also help tell the story of the institution of slavery and continued battles for civil rights. North Carolina’s original Declaration of Rights contained several provisions that only applied to “freemen” and omitted an inalienable rights clause out of concern that it could undermine slavery. Even today, North Carolina’s constitution imposes an (unenforced) literacy test for voting. Professor Marcus Gadson of the University of North Carolina–Chapel Hill School of Law argues that the state’s current constitution, ratified in 1970, reflects the influence of two “irreconcilable” constitutional visions: the state’s proslavery 1776 constitution and its Reconstruction era charter that embraced equality. “In that way,” he explains, “North Carolina’s constitution testifies to America’s racial history in a way remarkably few other documents do.”

As new states joined the Union, their constitutions reflected their own unique histories, along with the movements and concerns prevalent at the time of their adoption. Arizona’s 1912 constitution shows the influence of the then-ascendant progressive movement, for example, with strong workers’ rights protections and a citizens’ initiative and referendum process. A 1946 right-to-work amendment reflected growing skepticism toward labor rights in the state. 

Over time, most states have gone back to the drawing board and embraced new charters. Montana, for example, adopted a new constitution in 1972, with strong protections for the environment as well as for property and privacy rights.

One of the most striking differences between state constitutions and the U.S. Constitution is the relative ease with which state constitutions can be amended and even rewritten. For this reason, they have often been a battleground for establishing rights — and contesting them. For example, while we’re still waiting for a federal Equal Rights Amendment, a majority of state constitutions now have gender equality protections. And one of the biggest state constitutional stories in recent years has been states’ responses to the Supreme Court’s 2022 ruling in Dobbs v. Jackson Women’s Health Organization overturning the federal right to abortion. Since Dobbs, 10 states have passed amendments protecting abortion rights. 

Yet state amendments have also been sources of rights retrenchment. After the Massachusetts Supreme Judicial Court recognized a right to marriage for same-sex couples under its state constitution — and before the U.S. Supreme Court recognized a federal right in Obergefell v. Hodges — more than half of all states passed amendments banning marriage equality. A handful of states have repealed those amendments in recent years, reflecting concerns that the Court could revisit its marriage equality precedents.

The history of state constitutions is a powerful reminder that the American story is diverse, contested, and continues to be written.

Alicia Bannon is editor in chief for State Court Report. She is also director of the Judiciary Program at the Brennan Center for Justice.