State Constitutional Interpretation

Abstract

The interpretation of state constitutions, like the interpretation of the federal Constitution, should be rooted in the text and original understanding of the document. This similarity in approach does not mean that interpretations of a state constitution should mirror those of the federal Constitution. Fidelity to a text requires an understanding of the nature of the text being interpreted. One approaches a poem differently than a statute, and state constitutions are not simply miniature versions of the United States Constitution. Rather, they differ from their federal counterpart in crucial respects that affect how a jurist, public official, or citizen should interpret them. This article details some of the important differences between state constitutions and their federal counterpart. It also highlights some of the implications of these differences, especially as applied to state constitutional interpretation with regard to text and original understanding. The article ends with a few illustrative examples. State constitutions are distinctive in their origins. The United States Constitution is a product of the late eighteenth century and is infused with the political thought of that era. The majority of current state constitutions, in contrast, were adopted in the late nineteenth century, and nine were adopted after I960.1 State constitutions thus have very different sets of founders, and those founders confronted different sets of problems when drafting their respective constitutions. Moreover, the prevailing understanding of political life and the problems of republican government were different in the late nineteenth century than in the late eighteenth century and different again in the mid -twentieth century. In interpreting state constitutions, it is a mistake to assume that state constitutions reflect the same political theory found in the federal Constitution. State constitutions are likewise distinctive in their legal premises. The federal Constitution is understood as a grant of power, and the government it creates is limited to those powers granted to it.2 In contrast, state governments have historically been understood as possessing plenary legislative power.3 In view of this, state constitutions operate primarily as documents of limitation, placing limits on state governments rather than granting powers to them. Because state legislative power exists in the absence of constitutional limitations and because state courts have characteristically interpreted such limitations narrowly, many state constitution -makers have found it necessary to elaborate in considerable detail the restrictions that they sought to impose on state legislatures.4 This in turn helps to explain why many state constitutions are very lengthy documents with at least nine state constitutions containing more than 45,000 words.5 Thus, state constitutions offer textualists a lot of text to interpret. Another distinctive aspect of state constitutional design deserves mention. The federal Constitution grants powers and imposes limitations on power. In contrast, state constitutions impose duties on state governments. Education is an example of these constitutional duties. The Michigan Constitution instructs the state government that "[rjeligion, morality and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged."6 Other state constitutions are more straightforward. The New Jersey Constitution mandates that "[t]he Legislature shall provide for the support of a thorough and efficient system of free public schools."7 The Texas Constitution states that "it shall be the duty of the legislature of the state to establish and make suitable provision for the support and maintenance of an efficient system of public free schools."8 The duties assigned to state governments are not limited to education. For example, the government of Illinois is required to "provide and maintain a healthful environment for the benefit of this and future generations";9 the government of Alaska to "provide for the promotion and protection of public health";10 and the government of Idaho "to pass all necessary laws to provide for the protection of livestock against the introduction or spread of various diseases. …