State Constitutions Versus the U.S. Constitution, Side by Side

You can read the United States Constitution over a long lunch, and some people have done exactly that to win a bet. You could read the Texas Constitution of 1876 over a long lunch too, if the lunch were a week at a very slow buffet. One document is a brisk blueprint. The other reads like a legislature that was never told when to stop.

Most Americans carry a decent picture of the federal Constitution in their heads: three branches, a Bill of Rights, a handful of famous clauses. Almost nobody has read the one that governs the state they live in, which is the document that decides how much they pay in property tax, who picks their judges and whether their legislature can borrow a dime. If you want conservative reforms that outlast the next election, you need to know the difference. Let me lay the two systems side by side.

The table

Look at that last row, because it is the quiet part. When a state supreme court says what the state constitution means, there is usually no appeal to Washington. The state text is the state's own business.

Let me walk through the rows that matter most.

Length: the thing everyone notices

The federal Constitution was drafted in a hot Philadelphia summer in 1787, ratified in 1788 and took effect in 1789. It was meant to set up a framework and leave the details to ordinary law. Its power comes in part from its brevity: because it says so little, it leaves room for a country to change without changing the text.

State constitutions took a different path. The earliest ones were short too, but over the nineteenth century, as legislatures were caught in scandals over railroad grants, canal subsidies and special favors, the public lost patience. The cure that voters reached for was to write more rules into the constitution and take discretion away from the legislature. Limits on borrowing. Limits on special laws. Required procedures for passing a bill. The result was a document that reads in places like a statute book.

The conservative takeaway is mixed, and I'd say so out loud. A detailed constitution is a restraint on government, which we generally like. It is also a blunt tool: once you write something into the constitution, a legislature that needs to adjust cannot do it without going to the voters.

Power: enumerated versus plenary

This is the row most worth memorizing. The federal government is a government of enumerated powers. Congress has the powers the Constitution lists, and the Tenth Amendment says that those not delegated to the United States nor prohibited to the states are reserved to the states or to the people. See Congress Can Only Do What the Constitution Lists and Madison Said So for why that matters in practice.

A state is the mirror image. It does not need a clause to act. A state legislature holds what is called the police power, a general authority to legislate for the health, safety, welfare and morals of its people. If the state constitution does not forbid something, the legislature may do it. So in Washington the question is "where does the Constitution give us the power?" and in a statehouse the question is "does the constitution forbid it?"

That difference sits behind much of what conservatives argue about. When a Republican says a power belongs to the states, he means the answer to "may the government do this?" should come from a legislature that is closer to the voters, with the constitution there to forbid the abuses. For a tour of how those two levels interact in daily life, see Three Towns, Three Rule Books and the Case for Letting States Differ.

Amendment: hard at the top, easy at the bottom

The federal process is deliberately severe. An amendment needs two-thirds of the House and Senate (or a convention called on the application of two-thirds of the states), and then ratification by three-fourths of the states. Thousands of amendments have been proposed in Congress over the centuries, and twenty-seven have survived. Hard to amend means the text is stable, which is a gift to anyone who likes the text, and a curse to anyone who wants to change it.

State amendment routes are, in most states, far easier. The usual route is a vote by the legislature, followed by a vote of the people. Many states also let citizens collect signatures and put an amendment directly on the ballot, a process I describe in How a Citizen Initiative Gets on the Ballot, Signature by Signature. Delaware is the notable exception that allows its legislature to amend the constitution without a popular vote. The practical result is that state constitutions change much more often. A single election can add a handful of amendments on the ballot in a state with an active legislature.

Is easy amendment a feature or a bug? That depends on whose ox is gored. Easy amendment means the voters can fix a mistake, and also that a determined interest group with a petition drive can lock its favorite policy beyond the reach of the legislature.

Judges: appointment versus election

Federal judges are nominated by the President and confirmed by the Senate, and they hold their offices during good behavior, which in practice means for life. For the full process, see Every Step in Confirming a Federal Judge, from Vacancy to Oath.

States chose a variety of methods. Some states elect their judges in partisan elections, with party labels on the ballot. Others elect in nonpartisan contests. Others use a merit selection system, often called the Missouri Plan after the state that adopted it in 1940, in which a commission screens candidates, the governor picks from a short list, and the judge later faces a retention vote. And some states let the governor or the legislature select judges directly.

The conservative should care about this row more than most. Because state supreme courts have the last word on state constitutions, who sits on that bench decides what the state text means. A reform that voters adopt can be reinterpreted by a bench that disagrees with it. The way a state picks its judges is not a technical point. It is the lock on the vault.

Rights: the floor and the ceiling

The Bill of Rights sets a federal floor. A state cannot go below it, but a state constitution can go above it, and some do. The Supreme Court recognized that principle in a 1980 case about speech in a shopping center, PruneYard Shopping Center v. Robins, where it allowed California to read its own constitution to give broader speech protection than the federal one required. Justice William Brennan made the case for this "new judicial federalism" in a famous 1977 law review article.

That cuts both ways. Liberals have used state constitutions to find rights that federal courts will not recognize, and conservatives have done the same to protect property, religious liberty or gun rights. A wise conservative will remember that the same tool a friendly court uses to protect a freedom can be used by an unfriendly one to invent a new obligation.

Two famous examples: Texas 1876 and Alabama 1901

Two state constitutions show the extremes.

The Texas Constitution of 1876 was written in the aftermath of Reconstruction, by delegates who had come to distrust a strong government after the administration of Governor Edmund J. Davis. They responded by tying the hands of the government. The governor was weakened. The legislature was limited in its power, its time in session and its pay. The result was the constitution under which Texas still operates, amended many hundreds of times. Texas lawmakers meeting only every other year is a direct inheritance of that distrust, which I describe in Why Texas Lawmakers Meet Only Every Other Year and Like It That Way.

It also shows how a constitution can lock in a policy. In 2019, Texas voters approved a constitutional amendment prohibiting a personal income tax. Think about what that does. A legislature that wanted an income tax would have to persuade the voters to repeal the amendment first, not just pass a bill. That is durability, and it is exactly why conservatives who want a rule to last put it into the state's founding document.

The Alabama Constitution of 1901 is a different lesson. Its drafters were open about their main purpose: to establish white supremacy by disenfranchising Black voters and many poor white voters. It is a hard fact about a document that still governs the state, and I'll not soften it. The document is also notable for its length and its refusal to give local governments much independent authority, which means that the legislature has had to pass constitutional amendments to deal with matters of purely local interest. The result is a swollen text, with hundreds of amendments. If you want a warning about the cost of stuffing everything into a constitution, Alabama is it.

What this means for conservatives who want reforms to last

Now the practical part. If you want a reform to survive the next governor, the next legislature and the next court, here is how the structure helps and hurts.

1. A constitutional amendment is durable. A statute can be repealed by the next legislature. An amendment requires the voters. That is why Colorado's voters put a limit on government growth into their constitution (see How Colorado Voters Put a Leash on Their Own Legislature), and why California's Proposition 13 of 1978 changed that state's constitution and not merely its statutes. The tax revolt story is in Proposition 13 and the Tax Revolt That Rattled Every Statehouse.
2. But a constitution also locks in mistakes. A rule that makes sense in one decade can hamstring a legislature in the next. Ask the Alabama legislature.
3. The courts decide what it means. A reform in the text still needs a bench that will read it as written. Judicial selection is part of any serious plan.
4. The police-power presumption helps the legislature. In a state, the default is that the legislature may act. That makes it easier to pass a new law, and easier for the next majority to undo it. If you want something to last, the statute is a candle and the amendment is a lighthouse.
5. The state floor is not the federal ceiling. A state constitution can protect more than the U.S. Constitution requires. Conservatives who care about property rights, school choice or the right to bear arms should know whether their own state text already offers protection.

Notice the common thread. In Washington, power is granted by a short list and amended with great difficulty. In the states, power is presumed and amended with far less trouble. The first fact makes Washington slow. The second makes the states both the best laboratories and the best places to build something permanent.

The bottom line

• The U.S. Constitution lists the federal government's powers, and the states hold a general police power limited only by their own constitutions and the federal floor. That is why so many fights belong at the statehouse.
• State constitutions are long, detailed and amended often, which makes them the right place to lock in a reform like a tax limit and the wrong place to dump every passing idea.
• If you want a reform to last, ask three questions before you pick a vehicle: can it be repealed by a statute, does it need a constitutional amendment, and who decides what the words mean?
• Read your own state's constitution. It is on your legislature's or secretary of state's website, and it is more important to your daily life than most of what you will watch on cable news tonight.
• Pay attention to how your state chooses its judges. The bench that interprets the text decides whether a hard-won amendment means what voters thought it meant.