What Are the Roles and Functions of State Constitutions?

Just as the United States is governed by the US Constitution at the federal level, so too are states organized, in process and procedure, by their own individual state constitutions. Every state in the United States utilizes a written constitution.^[1] Though their length and detail vary greatly, these documents serve as the foundational text for the system of laws in the state.^[2] They not only provide the basis for the law and organization of government but also reflect the values and unique culture that are distinctive in each state.^[3]

A constitution in the broad sense is a legal document that outlines powers and prescribes policies for the government and the people.^[4] It provides several key functions that are necessary for state governance, establishing the “rules of the game” through which laws and policies are made and communities are governed. State constitutions create an organization of government including the balance of powers and roles of the three branches of government, outline processes and procedures, organize the division between state government and local governments, and reaffirm the rights of citizens.^[5]

The organization of government is outlined in the state constitutions, denoting the branches of government and distributing powers among them. All state constitutions divide power among the executive branch, legislative branch, and judicial branch, just as the US Constitution does.^[6] The individual offices included, requirements to run, powers and authority given, and limitations of tenure (and process for removal) are different in comparison to the federal constitution and also can vary from state to state. The role of the secretary of state at the state level is quite different compared to the position of the same name at the federal level, and not every state has this office or prescribes to it all the same powers. Generally, the requirements to run for office are less restrictive at the state level, but these can also vary depending on the office itself; while a candidate for attorney general likely needs to have a law degree, a candidate seeking a seat in the state legislature may simply need to be of voting age and have proof of residency. The balance of power between the branches of government is outlined in the state constitutions as well, a topic we will describe in greater detail in “What Are the Essential Components of State Constitutions?” Finally, the limitations of tenure—length of term in office, the presence of term limits, and self-succession—are all noted in the constitutions. This includes forcible removal from office and impeachment proceedings.

State constitutions provide an overview of the processes for lawmaking and procedures for government, essentially serving as a “rule book” for how things are done at the state level.^[7] These include things like whether elements of direct democracy (like initiatives, referendums, and recalls) are available to citizens and how often and when the state legislature meets. While this element of constitutions can feel banal, it is essential to prescribe rules for process and procedure so lawmaking occurs with conflict only in the elements of the laws themselves and not in disputes about the sequence of authority or process. The constitution divides power and details the steps for creating new laws as well as changing the constitution itself, oftentimes providing multiple options or pathways, all with clear detail to avoid confusion or ambiguity.

Because state governments control the creation of local governments (local governments were intentionally omitted from the US Constitution as a recognition that their existence is a reserved power left to the states), the state constitutions also include definitions and procedures of rule for local governments.^[8] Most states have county governments, which are typically all prescribed the same powers and act as the administrative arm of state governments, providing the same functions as the state government but at a closer level to citizens (offering birth/death certificates, marriage licenses, and driver’s licenses, for example).^[9] States also control the designation of cities through the administration of charters (discussed in greater detail in Chapter 12). What constitutes a city, in terms of both population qualifications of the city and subsequent funding benefits from the state, is determined by the states and outlined in constitutions. As noted later in this chapter in “What Are the Essential Components of State Constitutions?” these can vary widely across states.

Finally, state constitutions serve as limitations of powers of governments and affirmations of power to the people. They outline and detail the power that the state government has as a way to restrict it, so there is no blank check or assumption through ambiguity that the government has latitude to expand authority. The government’s autonomy and reach are checked by the limits written into the state constitutions. Thus, state constitutions are an affirmation and recognition of the power to the people from their government. The essence of constitutionalism is a restriction of government to provide and secure the power of the people, and by outlining what government can and cannot do in the constitution, we recognize all that is left is the power given to the citizens, a power they have over and separate from their state government.^[10]

What Are the Essential Components of State Constitutions?

State constitutions embody many elements similar to the US Constitution. They open with a preamble, some with language nearly identical to that of the US Constitution’s preamble. They include a separation of powers, components of checks and balances, and a bill of rights. But they also differ in adding components on local government, debt limitation, and taxation and revenue structure. State constitutions are more impervious to change compared to the federal constitution, meaning they are often longer in length and detail because they include policies that are widely excluded from the US Constitution.

Preambles

The preamble opens the state constitution with a sense of purpose and an explanation of the role of the document. It serves in a way as a “thesis statement” for the constitution, addressing why the constitution was created and the role it plays in establishing the system of state government.^[11] Many state preambles allude to unalienable rights in recognizing God, divine providence, or higher authority. The Indiana State Constitution of 1851 denotes, “We, the people of the state of Indiana, grateful to Almighty God for the free exercise of the right to choose our own form of government, do ordain this Constitution.”^[12] Michigan’s Constitution of 1963 adopted similar language, stating, “We, the people of the State of Michigan, grateful to Almighty God for the blessings of freedom, and earnestly desiring to secure these blessings undiminished to ourselves and our posterity, do ordain and establish this constitution.”^[13] The Hawaii State Constitution of 1978 opens with “We, the people of Hawaii, grateful for Divine Guidance, and mindful of our Hawaiian heritage and uniqueness as an island State, dedicate our efforts to fulfill the philosophy decreed by the Hawaii State motto, ‘Ua mau ke ea o ka aina i ka pono.’”^[14] The difference in an explicit reference to God in the Indiana and Michigan preambles compared to Hawaii’s more broadly construed “divine guidance” can be traced to their unique state cultures and the type of religion that is most influential in the states themselves.

Separation of Powers

All state governments include executive, legislative, and judicial branches, each outlined and described in their state constitutions. The powers of lawmaking are defined for each, following a similar structure to the responsibilities of the federal branches of government. However, the power is not always as equitably distributed as we see in the American national government, with the president, Congress, and the Supreme Court holding roughly the same amount of authority in checks and balances.^[15]

In state governments, many constitutions intentionally set up a system to create a slightly more powerful state legislature with a slightly less powerful executive branch.^[16] Historically, this was a concern of the colonists, who remembered with fear a powerful governor system (led by governors appointed by the British government) and restricted rights of state legislatures (selected by the colonists).^[17] The imbalance of power between one individual in the executive branch (governor) and a larger body of many individuals in the legislative branch (the state legislature) exacerbated the concern of ceding too much authority to the governor. One easy way to prevent the governor from having too much power was to create other executive offices; the more other positions that existed and the more power they had, the less power was given to the governor by default.^[18] Making these positions selected by popular election further diluted the power of the governor. If they were appointed by the governor, the governor could place preferred candidates, likely from the same party and aligning with the governor’s own ideological and policy preferences. If these positions were elected, it was up to the people to decide, and the state executive branch could resemble a divided government with public officials from both major political parties.^[19]

There are some limitations to this distribution. For example, though governors are generally given less authority on one hand, a majority of state legislatures are considered moderately or less professionalized, meaning that they are not in session for long periods of time and thus are actively present and making laws for just a few months out of each year.^[20] That does curb their power, particularly when the state legislature is out of session and can only be called back to a special session by the governor. Who can run for office in these positions, how long they can serve, and what power the offices have are all denoted in the constitution.

The judicial branch remains the law of the land, and the state supreme court is the court of last resort. State constitutions do denote the organization of the justice system, including the names and types of courts, the process for bringing forth a case and appealing a case, and the requirements to serve and powers given to those on the bench.^[21]

The separation of powers also includes components of checks and balances similar to those detailed in the US Constitution. The governor can veto legislation (depending on the state, several types of vetoes can be utilized), the state legislature can override vetoes, and the state supreme court interprets and determines the constitutionality of both laws and executive decisions.^[22] There can be additional restrictions of power (not necessarily checks) among offices within the branches. As the executive branch includes not only the governor but often several key elected officials—such as the lieutenant governor, secretary of state, attorney general, treasurer, and auditor—the definitions of power and limits for each are included in the state constitution as well.

Bill of Rights

All fifty state constitutions include a bill of rights within the document. At the federal level, this inclusion illustrated the resolution of a disagreement between Federalists (who wanted a strong federal government) and Anti-Federalists (who favored strong state governments). The Bill of Rights incorporates the first ten amendments to the US Constitution added in order to appease the Anti-Federalists and endear them to ratification. They believed there was too much power allocated to the federal government and not enough given to the states. For state governments, the concern about rights is centered more on the people and used as an assurance of constitutionalism—namely, that the government has clearly limited authority.

Some states adopted their state constitutions before the US Constitution and included these measures as precautionary checks on government involvement to ensure the rights of the people. But even in state constitutions drafted well after the ratification of the US Constitution, the inclusion of a bill of rights served as an important guarantee that these individual rights were promised and protected not just by the federal government but by the state governments as well.^[23] Before the Civil War, the rights given to the people in state constitutions were seen as separate guarantees of rights, different from those protected in the federal constitution. For instance, the protection of freedom of speech, notably defined in the First Amendment of the US Constitution, is often replicated, even verbatim, in state constitutions, but the protection was added so an individual was guaranteed freedom of speech from both the federal and the state governments. After the Civil War, the Bill of Rights became broadly applied to state governments too through a concept called selective incorporation.

Still, many state constitutions provide far more protections for the people relative to the ten amendments in the US Constitution. Some state constitutions included the prohibition of slavery long before it was outlawed by the federal government. Others still had slavery enshrined in their state constitution, though the supremacy of the federal government and the passage of the Thirteenth Amendment to the US Constitution means the state’s constitution is rendered moot on that issue (up until 2022, Oregon, Alabama, Vermont, and Tennessee permitted slavery; as of 2023, Louisiana still includes it in its state constitution).^[24] Some include provisions for eminent domain (Alaska and New Hampshire), equal rights (Texas), morality and piety (New Hampshire), the right to hunt or fish (Utah), and suspension of laws (Texas).^[25] Salient political issues like abortion have increasingly been litigated through the states. State constitutions approach privacy rights differently, and thus some states have enshrined the right to an abortion within their state constitution, whereas others have prohibited it. While many are duplicates of the federal constitution, there are several passages in the bill of rights at the state level that extend what is protected at the federal level, such as the writ of habeas corpus, the freedom of speech, the right to bear arms, and the right to a trial by jury.

Local Government

The inclusion of local government is one of the unique features in state constitutions that is not found in the US Constitution. Federalism outlined in the US Constitution describes the relationship of separate and shared powers between the federal and state governments without referencing local government. The creation of local governments is one of the reserved powers given to states, and thus they are denoted in state constitutions.

While there are several different types of local governments, the most essential and common include county governments and city governments. Both of these are outlined in the state constitution. County governments provide state functions at a more localized or decentralized level, serving as the administrative arm of the state, while city governments are created by a charter proposed by its residents and generated by the state government.^[26] Cities operate differently, under a charter given to them by the state and with differences across cities or other forms of local governments as decided by the state. Definitions of what constitutes a “city” compared to a “town” or a “village” depend on the state constitution and usually consider population qualifications and involve funding benefits.

Unlike the balance of power in federalism, where both states and federal governments exercise power and neither can unilaterally dissolve or change the other’s power, city governments are solely responsible to the state and can be created, destroyed, or changed only through the states (with an important exception to autonomy provided to the city but, worth noting, deriving from the state). Dillon’s Rule enables local government to have power given explicitly by the state, necessarily and fairly implied, and essential to local government.^[27] Home rule allows city governments to have much more authority and jurisdiction; this concept is included in state constitutions but notably varies, as some states restrict home rule and give cities very little autonomy, while others use it widely and apply it broadly.^[28]

Debt Limitation

There is famously no passage for restricting debt or requiring a balanced budget in the US Constitution. Yet many state constitutions do include some measure of restriction. A balanced operating budget means that the credits brought into the state (largely through taxes) are equal to or exceed the debts incurred by the states (meaning the costs). Many states receive funding from the federal government; less-affluent states may use this as a greater proportion of their overall state budgets. Several states have adopted some form of a balanced budget, utilized to prevent credits from extending beyond budgets.

Budgeting at the state level, particularly when restrictions on debt are in place, can be challenging and complicated. Most budgets are based on previous fiscal years, with an expectation that the credits and funding from the previous year will be similar to the upcoming one. This assumption is not always correct, though, and in times of mass migration, the population base can fluctuate widely. People left New Orleans in droves after Hurricane Katrina, sending the population plummeting and decimating the tax base at a time when the local government desperately needed funding to repair damaged infrastructure and rehome individuals. Before the housing crisis in 2008/2009, people swarmed to communities in the Sunbelt, like Las Vegas, which provided an increase in taxed income but also meant a sudden stressed demand for more infrastructure and services that were not needed just years before.

Taxation and Finance

States rely heavily on taxes to fund programs and services they provide, but how states tax differs. Some states use individual income tax, which exemplifies a progressive tax in which individuals pay a different percentage of their income based on predetermined brackets. Those who make more will pay a higher percentage, while those who make less pay either smaller portions or potentially even none at all. The principle of equality illustrated in this approach is that individuals give what they are able to as determined by the state constitution and that those who are able to give more do while those who are not able to do not.

Sales tax is another way for states to capture funding, using a broad tax across the board on sales purchases. This is a type of regressive tax structure, because everyone pays the same percentage or proportion on their purchase regardless of their own income or means. The tax can differ based on items or goods purchased, so sometimes a luxury tax (on diamonds or jewelry, for example) may be higher than a clothing purchase. Property tax is also critical to funding state and local governments, notably public schools. Some states have property tax caps or restrictions, making this source of revenue vital in funding the increasing expenses associated with education.

A few states tax groceries, a controversial approach because of its impact on the severely impoverished (everyone has to eat and thus buy groceries, but the impact on a less-affluent household would be proportionately significantly higher and more burdensome compared to a more affluent household). States may also tax gasoline and then earmark such funding for the improvement of roads; this is also done with lotteries in which proceeds are dedicated to funding public education.

States have control over the organization of their own tax structure. Some states may choose to emphasize progressive taxation, while others prioritize regressive taxation. Neither is necessarily better or worse but rather reflects an ideological preference for what is fair and equal. Proponents of a progressive tax believe it is fair and equal because it requires those who make or have more to give more. Those who support a regressive tax believe it is fair and equal because it is a flat amount paid by all across the board. These preferences are reflected in policies, as some states have a progressive, graduated income tax, while a few states choose not to tax income at all. In states that do not have an income tax, other methods of taxation and financial acquisition are utilized to support the state budget for public services.

Not all of these taxes are constitutionalized, but the ways in which a state funds its work are essential to the laws and included in the state constitution.

How Is the US Constitution Supreme, and What Is Its Relationship to States?

The Constitution of the United States of America is the formative legal document governing the nation. It features many of the same components we see in state constitutions and highlights federalism as our system of government. Through this system, the federal government is given some powers through the US Constitution, and the state governments are given some powers. Some additional powers are shared. Federalism enables both levels of government to share power by having some autonomy on certain issues while also overlapping and concurrently sharing power on others. Importantly, neither level of government can unilaterally change the power and authority of the other level of government without its consent. The federal government cannot strip power away from the states unless they choose to give it; likewise, the states cannot usurp federal powers unless it is agreed upon.

The powers given to the federal government are known as delegated or enumerated powers. These were essential to the founding fathers of the US Constitution, particularly after the tumultuous experiment with a confederation-style government under the Articles of Confederation immediately after the Revolutionary War. The confederation system gave a tremendous amount of power and authority to states while allowing a very weak and dependent federal government. The delegated powers are those that belong to the federal government with the expressed intention that only it may act on those particular issues. These include declaring war, establishing formal relationships with foreign nations, coining currency, and creating peace. Found in Article I, Section 8 of the US Constitution, these formally outline the federal government’s powers.

The US Constitution keeps power specifically for the states too, aptly titled reserved powers. These allow states to do several things, including the creation of their own state constitutions to organize their own governments. The powers are noted broadly in the Tenth Amendment, the final amendment in the Bill of Rights, which was added to appease the Anti-Federalists and enable the ratification of the US Constitution. While the confederation government was a failure for the colonies, the Anti-Federalists remembered clearly the tyrannical rule of England under colonial rule and were wary of a distant government imposing its will on the people. The reserved powers are not explicitly noted in the Tenth Amendment but rather referred to as follows: “Any powers that are not specifically given to the federal government, nor withheld from the states, are reserved to those respective states, or to the people at large.” These typically include the establishment of schools, the organization and management of local governments, marriage laws, and professional licensing.

Though these powers come from the US Constitution, they are integral to the establishment and legitimacy of state governments and their constitutions. The state constitutions allow for differences in state culture, values, ideology, and priorities.^[29] Even so, through the supremacy clause in Article V, McCulloch v. Maryland (1819), and even the US Civil War, the preeminence of the federal government and its authority when in conflict with the states has been confirmed.^[30] The state constitutions remain the law of the land for the state, but the states themselves are limited in their reserved powers given to them through the US Constitution.^[31]

The dynamics of federalism are ever changing and have evolved historically with various court decisions, laws, and critical events that change our understanding and emphasis on the relationship between the federal and state governments. These changes are described in greater detail in Chapter 2. The power given to states and their constitutions via federalism, however, ensures that states have legal authority and the right to govern themselves (in ways that do not conflict with the federal domain).

How Do Constitutions Change?

Just as the US Constitution has undergone periodic changes, so too are state constitutions eligible for updates, edits, and additions. In fact, while the Constitution at the federal level has been changed just twenty-seven times (if including the Bill of Rights as a change to appease the Anti-Federalists), state constitutions generally undergo far more frequent changes. Notoriously impervious to calls for reform, the Alabama State Constitution of 1901 was so wrought with issues that the document incurred over one thousand amendments before it was ultimately scrapped by voters in 2022 in favor of a new constitution.

Before selective incorporation, state constitutions included many duplicate provisions to ensure the liberty of citizens from the state governments as well as the federal government.^[32] These were discussed earlier in the chapter in the “Bill of Rights” section. But state constitutions also tend to be longer because they incur far more changes than the US Constitution and are widely considered to be easier to change.^[33]

Policies are more prevalent in state constitutions for several reasons. Whereas the founding fathers were cautious about including policies directly within the Constitution, leaving the document to be broadly applicable but also notably ambiguous, the voters and legislators who can change state constitutions want to see certain policy preferences constitutionalized. To have a policy enshrined in the state constitution makes it more fundamental than the other legislation and statutes. Laws are even easier to change than state constitutions, so for policies deemed critical to state governance, there is a vested interest in constitutionalizing them.

Interest groups recognize the value of this approach as well and are active in not just proposing and drafting model legislation but offering similar services to suggest constitutional changes. Though interest groups have to work with legislators and voters and through the political system, the appeal for an interest group to constitutionalize their policy can far outweigh the challenges it poses. Just as states serve as laboratories for democracy, cultivating policy innovation and experimentation, they provide an opportunity for interest groups to work at a lower level of government, gain traction, build roots, and expand from state to state or even up to the federal level. Not all policies pushed by interest groups will work in all states, as more conservative states will be more interested in pursuing policies that align and vice versa. But interest groups can find success in influencing state government more easily and effectively than at the federal level, and being able to cement one’s policy preference in the state constitution is a great example of such success. One study published by USA Today in 2019 found that some organized interest groups even draft model legislation and peddle it to lawmakers for their approval and adoption.^[34] Ten thousand bills over eight years were found to be near exact duplicates of such model legislation. Though this does not directly violate any laws, the concern with plagiarized policies is that they may not be written or tailored to the particular needs and challenges of a community; rather, they may just be pursuing an interest group’s agenda that does not serve the larger good.

Finally, state constitutions tend to be longer because there are more methods for changing a state constitution relative to the US Constitution, thus making it easier to do. The methods of change vary in terms of size and scope of change. Procedurally, state constitutions also vary in the role groups play in initiating the change.^[35] Not all states employ all methods, but all state constitutions utilize at least one way in which the document can be amended.^[36] The four types of constitutional change include legislative proposals, popular initiatives, constitutional conventions, and constitutional commissions:

1. The legislative proposal is a mechanism for changing state constitutions that follows the state legislature proposing changes, and then voters either confirm or reject that proposal in a referendum. This approach is best for small changes, like individual amendments, and may be used when the state legislature believes the issue at hand needs to be addressed through the state constitution rather than the state statutes. The proposal that comes from the legislature still must go to voters for their approval before it is effective. Forty-nine out of fifty states employ this as an option for constitutional change.^[37] Delaware is the sole exception, as their method for legislative proposal does not require voter approval.^[38]
2. The popular initiative is a tool that incorporates the influence of direct democracy with constitutional change. The recommended change comes from the people, with a substantial percentage of voters (as determined by the state) signing off to signify their support for the proposal.^[39] Once the initiative has enough signatures and has been verified, it is placed on the ballot for voters to either approve or reject through a referendum. In this method, both initiatives and referendums are used. This approach is best for smaller changes, similar to the legislative proposal, because it is focused on one particular issue in the initiative. Seventeen states presently provide this option for constitutional change.^[40]
3. The constitutional convention involves a more significant overhaul of the state constitution, either a complete rewrite or enough changes to warrant a larger convening beyond what could reasonably be accomplished through the popular initiative or the legislative proposal. The constitutional convention is called by the legislature and then brought to voters for support. If they approve, the state legislature then acts as the constitutional authority in crafting a new guiding document or making major changes to the current document. All the changes must go through the voters in a referendum before they can take effect. Forty-four of fifty states offer this tool as a way to change the state constitution.^[41]
4. The constitutional commission operates similarly to a convention in tackling substantial issues that would be tedious to address through either the legislative proposal or the popular initiative options. It differs, though, in the composition of stakeholders. Whereas the convention utilizes members of the state legislature to draft the new constitution, the constitutional commission includes leaders outside the state legislature to review, edit, and make recommendations. These changes must be approved by the voters before taking effect. Florida and New Mexico both exercise this option for changing their state constitutions.^[42]

Though there is more than one way a state constitution can be changed, the effect and success of each method are not equal. State constitutional changes that are proposed through popular initiative are the least likely to be successful in front of voters.^[43] This is largely because the matter placed in a referendum to the voters requires an “approve” or “reject” response with no opportunity for small changes or minor edits. Voters are presumably writing the initiatives and may lack the legal understanding or respect/view of authority from other voters. Likewise, the legislative proposal has a higher likelihood of success because it involves a recommendation coming from the state legislature in which, at least in theory, it has been deeply debated and robustly tested before making its way to the referendum ballot for voters’ judgment.

Video 3.1 – “It’s a Thick Book”
Source: Lehe, Lewis J. “”It’s a Thick Book.” YouTube, 2020. https://www.youtube.com/watch?v=1n8dLdAlL3Q. Embedded with the Standard YouTube License.

Conclusion

State constitutions are an essential part of governance at the state level. They provide structure and organization, process and procedure, and frame the general rights and responsibilities given to involved entities. They embody the concept of constitutionalism, providing a limited outline for government to restrict its powers while ensuring the liberty of individuals. While they intentionally duplicate some of the rights found in the US Constitution, state constitutions additionally include many other rights not incorporated at the federal level. This allows them to guarantee the protection of individual liberties and also employ protections that are specific to the state’s culture or values.

All the primary components of a state constitution look like the US Constitution, with the exception of addressing local government, debt limitation, and taxation and finance. State constitutions allow for wide variation among themselves too, though they generally follow the same organizational structure and may include several comparable or even identical elements. Because the US Constitution delegated some powers to the federal government in Article I, Section V but reserved other powers to states through the Tenth Amendment, there is often tension between the rights and responsibilities of the two levels in various policy matters.

State constitutions are prone to interest group influence and more policy than the federal constitution. It is easier to change and edit state constitutions because there are four different ways they can be amended. These documents are critical in the operation of state government but go even further in reinforcing constitutionalism and establishing and reaffirming individuals’ rights over the government’s.