Scholarship Roundup: Lessons for Evaluating State Constitutional History

As part of our ongoing project on state constitutions, the Brennan Center will regularly feature new scholarship that may be of interest to judges, advocates, and scholars. To share a piece of scholarship with us, please email statecourtreport [at] brennan [dot] law [dot] nyu [dot] edu (statecourtreport[at]brennan[dot]law[dot]nyu[dot]edu).

In a host of high-profile arenas, state courts are playing a significant role in state constitutional development. And from decisions about partisan gerrymandering to abortion to the rights of defendants in criminal cases, state high courts have in many instances looked to the history of their constitutions to inform their analysis.

Three recent academic articles unpack state constitutional history and innovation, highlighting meaningful differences between state and federal constitutions in terms of historical context and access to historical information. In doing so, these articles raise important questions advocates and courts will need to grapple with, including how the unique characteristics of state constitutions’ histories should influence how they are used by courts and what to do when faced with history that is lost or simply unreliable.

Constitutional Innovation and Imitation in the American States by Erik J. Engstrom, Matthew T. Pietryka, and John T. Scott, Political Research Quarterly

Every state constitution borrows language from at least one other state, according to a new study examining “constitutional innovation and imitation” in the states. The study’s authors used quantitative textual analysis to measure how much of each state’s constitutional language was borrowed from other states and how different factors influence when such borrowing occurs.

On average, “20 percent of a state’s constitutional language was borrowed directly from another state constitution,” and factors such as geography, time, and partisanship may make it more or less likely that a state’s drafters borrowed language. Researchers found, for example, that textual similarities between states decrease as the distance between states increases and that “[s]tates tend to borrow most heavily from recent constitutions from states with legislatures with the same partisan composition.”

Some constitutions have been more influential than others. The authors found that the five most influential constitutions in terms of the amount of text borrowed by other states were Pennsylvania (1790 and 1873), Kentucky (1799), Mississippi (1817), and Illinois (1870). These documents may have been so persuasive because they were the first to propose innovative solutions related to executive and legislative authority, amendment processes, and rights provisions that were later adopted by many other states. By contrast, states borrowed comparatively little text from the U.S. Constitution, the analysis found.

Use of Convention History in State Constitutional Law by Maureen E. Brady, Wisconsin Law Review

Professor Molly Brady explores the published deliberations from state constitutional conventions to assess their reliability and interrogate their use in state courtrooms. Brady’s focus on the practical challenges historians face in maintaining a historical record reinforces the fact that whatever convention records are available, they are, to varying degrees, as biased, incomplete, and strategically edited as any other historical source.

Significantly, Brady finds that the paper trails of state constitutions vary significantly and are full of omissions and after-the-fact revisions. For example, she notes that delegates opposed the publication of the 1901 Alabama Constitutional Convention because they feared their speeches espousing white supremacy would be used against them in the media or federal court. The records of Nebraska’s 1875 convention, meanwhile, were lost forever, having last been seen “in a cracker box in the arms of two state-house janitors sometime in the 1880s . . . , leaving reconstruction of the debates to ‘the journal, the memories of members, newspaper accounts and letters.’”

Despite her findings, Brady notes, “Apart from the rare case where judges disagree about the provenance of convention records, they tend to be used — and used increasingly — with abandon.” In light of that, Brady’s article is also a call to academics to broaden and deepen state constitutional study. She poses key questions scholars must answer about the use — or misuse — of convention records, and historical records more broadly, in state court decisions.

Explaining the Prevalence of State Constitutional Conventions in the Nineteenth and Twentieth Centuries by John Dinan, Journal of Policy History

Three states held votes on whether to have a convention to revise their constitutions, and in line with recent trends, they were all widely rejected. The last true state constitutional convention was in Rhode Island in 1986. Political scientist John Dinan notes that this avoidance was not always the case, as at least 250 state constitutional conventions have been held since the nation’s founding. In his new study, Dinan seeks to explain why so many conventions occurred in states’ histories, particularly given the timeless concern of politicians and citizens that a constitutional convention could open an unwieldy and unpredictable Pandora’s box of changes to the existing law.

Focusing on the 82 state constitutional conventions that state legislators called for “discretionary purposes” (not to draft the state’s initial constitution or in response to Civil War–era secession or reconstruction), Dinan identifies several issues that were urgent enough to lead legislators to call for a constitutional convention. These include the apportionment of legislative districts and redistricting, taxation, and the structure and power of the judiciary. Rural voters in several states, for example, were successfully able to force legislators to call a constitutional convention to modify legislative maps that favored urban areas.

Dinan also identifies political conditions — such as gubernatorial support for conventions, public pressure campaigns, and shifts in partisan political power — that may help explain the frequency of conventions in the 19th and 20th centuries. In one instance, Dinan notes that legislators in the Progressive Era called no fewer than six constitutional conventions due to governors’ efforts.

While Dinan concludes that unique conditions are necessary to overcome legislators’ perennial reluctance to constitutional conventions, his study also shows how those conditions were met many times during the 19th and 20th centuries.

Douglas Keith is a counsel at the Brennan Center for Justice.

Chris Leaverton is a research and program associate at the Brennan Center for Justice.