Guest Essayist: James C. Clinger

On May 14, 1804, President Thomas Jefferson’s private secretary, Meriwether Lewis, and an army captain, William Clark, began an expedition exploring the territory stretching from the Mississippi River, along the Missouri River, all the way to the Pacific Ocean. But the origins of the expedition began long before this, even before Jefferson became president of the United States and well before the Louisiana Purchase took place. Only a few years after the Revolutionary War, shortly after sea captain Robert Gray had discovered the estuary of the Columbia River in present-day Oregon, Jefferson instructed Andre Michaux to “explore the country a[long] the Missouri, & thence Westwardly to the Pacific ocean.” [1] The enterprise was sponsored by the American Philosophical Society and included the support of subscribers such as George Washington and Benjamin Franklin. The expedition was quickly ended before the entourage reached the Missouri River after it was discovered that Michaux was acting as an agent of the French government. Other expeditions, led by explorers such as Zebulon Montgomery Pike, Thomas Freeman, William Dunbar, and Peter Custis, were also enlisted by Jefferson during his presidency to explore various sections of the American West, but none of these luminaries have gained the popular recognition that the Lewis and Clark Expedition retains today.

Meriwether Lewis, like Jefferson, was born into a family of Virginia planters. Lewis served for a time in the army during the Whiskey Rebellion, but saw no combat. For a period of about six months, Lewis served under the command of William Clark, who was the younger brother of the Revolutionary War commander, George Rogers Clark.     Lewis left the army as a captain to become the private secretary to President Jefferson, whom he advised on the capabilities and political loyalties of high-ranking officers in the military. Lewis availed himself of Jefferson’s personal library, which was considered one of the finest in the world. After his appointment as the commander of the expedition to the west (also known as the “Corps of Discovery”) Lewis received instruction in astronomy, botany, and medicine by some of the leading scientists in the country to prepare him for his mission. Lewis later asked William Clark to join in the command with the rank of captain, although the initial budget for the expedition included pay for only one captain.   Clark was eventually commissioned as a lieutenant, although this was not known to the crew.[2]

President Jefferson first proposed the Lewis and Clark expedition in a secret message to Congress on January 18, 1803, months before the Louisiana Purchase took place. The message stressed the need for the government to develop the fur trade along the Missouri River in what was then Spanish territory. Jefferson wished to provide new lands to compensate private fur traders who would be forced out as the federal government purchased Indian titles to land along the Mississippi River.   Jefferson hoped to induce Native-American tribes to take up agriculture and abandon their reliance upon hunting and fur-trading.[3] Although the primary purpose of the expedition was commercial in nature,  it should be understood that with that commercial development, significant expansion in government authority would necessarily take place. In addition to its implications for commerce and government, the expedition had other purposes and objectives. Jefferson’s specific marching orders to Lewis indicated that “the object of your mission is to explore the Missouri river, & such principal stream of it, as, by its course and communication with the waters of the Pacific ocean, whether the Columbia, Oregan, Colorado or any other river may offer the most direct & practicable water communication across this continent for the purposes of commerce. . . . Beginning at the mouth of the Missouri, you will take [careful] observations of latitude & longitude, at all remarkeable points on the river, & especially at the mouths of rivers, at rapids, at islands, & other places & objects distinguished by such natural marks & characters of a durable kind, as that they may with certainty be recognised hereafter….The interesting points of the portage between the heads of the Missouri, & of the water offering the best communication with the Pacific ocean, should also be fixed by observation, & the course of that water to the ocean, in the same manner as that of the Missouri.”[4]

Jefferson clearly had interest in the geographic and scientific discoveries that the expedition could make, and was particularly interested in learning if a water route from the Missouri to the Pacific could be found.  Jefferson also hoped to learn something about the life of the Native American tribes the expedition would encounter along the way.[5]

The original plan was for Lewis to lead a party of only a dozen or so men. A larger party was thought to be perceived as a military threat to the Native Americans encountered along the way. Lewis and Clark, however, decided to add some additional members for the expedition, while still keeping the numbers down to a sufficiently small size to convince the Indians of their peaceful intentions. The expedition departed from the northern bank of the Missouri River, just north of St. Charles, Missouri, on May 21, 1804. Traveling in a heavily laden keelboat and two pirogues, the expedition only traveled three-and-a-half miles before stopping to camp for the night. Twenty-eight months later, the expedition returned to St. Louis. A total of forty-five men began the expedition. Others were added for a while on the journey but left before the expedition was completed. Thirty-three returned. One member died along the way of a “bilious colic,” which may have been appendicitis.   The party included William Clark’s African-American slave, York, and a French-Canadian fur trader Toussaint Charbonneau, and his Shoshone wife, Sacagawea, who was pregnant when she joined the expedition.   Sacagawea was a talented interpreter of Indian languages, and also skilled in finding edible plants on the westward journey. Her very presence in the party was beneficial in that Native American tribes did not believe a war party would contain a woman in its midst. This provided convincing evidence that the Corps of Discovery had peaceful intentions. Throughout the entire expedition, the party had only one lethal encounter with Native Americans. A band of Piegan Blackfeet Indians attacked the camp in an attempt to steal horses and weapons.   Two of the Blackfeet were killed in the battle.

The Corps of Discovery made slow progress up the Missouri River and into the Rocky Mountains. The expedition had to proceed on foot and on horseback for much of the way after learning that there was no water route through the mountains to the ocean. The expedition made its way to the Pacific coast by the December of 1805, when it voted to spend the winter at Fort Clatsop. The entire party participated in the decision, including York and Sacagawea,  perhaps marking the first time that an African-American slave and a Native American woman had participated formally in a decision of a federal governmental body.[6]

Lewis and Clark made their return in the spring of 1806. In July, Lewis took part of the company with him while Clark took the remainder to explore different paths within the territory of present-day Montana. The two groups re-joined one another in August in present-day North Dakota. The expedition proceeded back to St. Louis, where the party arrived on September 22. As Lewis scrambled out of his canoe, the first question that he had for a local resident was “When does the post leave?” Lewis was desperate to report to the president.[7]

Lewis had been directed by Jefferson to keep a journal of his discoveries. Clark also kept a journal, which he filled with descriptions of his observations, as well as fine illustrations of flora and fauna above, beneath, and beside his handwritten text on the pages of the journal.    Lewis traveled to Washington, D.C., to report directly to the president.   What was said at that meeting is unknown, but it is clear that Lewis pledged to write and publish a book that would report his findings.   Unfortunately, the book was never written. Jefferson offered Lewis an appointment as the governor of the territory of Louisiana. Jefferson no doubt expected that the position would provide income and security for Lewis as he authored his book. However, the sedentary position did not suit Lewis, who seemed unable to master administrative duties once the expedition was completed. He suffered from serious drinking problems, indebtedness, and acute melancholy. He died from gunshot wounds, probably by his own hand, while staying at an inn on a trip to Washington.[8]

Because of Lewis’s death and failure to complete his narrative about the expedition, much of the scientific, ethnographic, and geographic findings of the enterprise were not fully appreciated. Many of the discoveries of plants and animals that the Corps made were, for a time, lost. Those species were later re-discovered many years later. Sergeant Patrick Gass, a member of the expedition, did compose a book length narrative about the venture, but that volume did not contain much of the kind of discoveries that were of original interest to President Jefferson.    Francis Biddle, later the president of the Second Bank of the United States, conducted an “audit” of the enterprise and then was the primary, but uncredited author of the official history of the expedition, which appeared in two volumes. The second of the two volumes was devoted to the botanical and zoological discoveries of Lewis and Clark, but Biddle was neither an expert scientist nor a first-hand observer of the phenomena that he was to describe. Biddle was one of the great intellectuals of his age, but he was not scientifically trained and he could have benefited greatly from the elaboration that Lewis could have offered him had he lived. For these reasons, the significance of the expedition was not recognized in the first century after the return of the Corps of Discovery as it could have been and, in fact, as it has been in more recent years as more and more scholars have slowly uncovered more evidence of the events that took place.[9] Today, we can see that the Corps of Discovery accomplished much in the way of learning of the terrain, climate, and physical environment of the trans-Mississippi West.   The expedition learned much of the Native Americans who lived in that territory. This knowledge aided in the settlement and development of a massive land area on the North American continent. Obviously, those developments have had diverse implications for all involved, most notably for the Native Americans who lived there. Nevertheless, the Lewis and Clark expedition paved the way for the future transformation of much of what is now the United States.

James C. Clinger is a professor in the Department of  Political Science and Sociology at Murray State University. He is the co-author of Institutional Constraint and Policy Choice: An Exploration of Local Governance and co-editor of Kentucky Government, Politics, and Policy. Dr. Clinger is the chair of the Murray-Calloway County Transit Authority Board, a past president of the Kentucky Political Science Association, and a former firefighter for the Falmouth Volunteer Fire Department.

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[1] https://www.monticello.org/thomas-jefferson/louisiana-lewis-clark/origins-of-the-expedition/jefferson-s-instructions-to-michaux/

[2] Ambrose, Stephen E.  1996. Undaunted Courage: Meriwether Lewis, Thomas Jefferson, and the Opening of the American West.   New York: Simon & Schuster. Pages 133-136.

[3] Guinness, Ralph B. 1933. “Purpose of the Lewis and Clark Expedition.” Mississippi Valley Historical Review 20 (January): 90–100.

[4] https://www.smithsonianmag.com/history/meriwether-lewis-gets-his-marching-orders-96463431/

[5] Ronda, James P.  1991.  ‘A Knowledge of Distant Parts’: The Shaping of the Lewis and Clark Expedition.   Montana: The Magazine of Western History, Vol. 41, No. 4 (Autumn): 4-19.

[6] Ambrose, Stephen E.  1996. Undaunted Courage: Meriwether Lewis, Thomas Jefferson, and the Opening of the American West.   New York: Simon & Schuster. Pages 313-316.

[7] Ambrose, op cit.  Chapter 32.

[8]Ambrose, op cit.  Chapter 39

[9] Snow, Spencer. 2013. “Maps and Myths: Consuming Lewis and Clark in the Early Republic.” Early American Literature 48 (3): 671–708.

Guest Essayists: James C. Clinger and Michael W. Hail

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Constitutions can be thought of as institutional arrangements that shape the way that individual preferences will be expressed and collective decisions made within a government. The provisions of a constitution also reflect preferences, but the provisions of a constitution may have long-run impacts upon the way that individual preferences are translated into legally binding collective decisions well into the future. Some of these decisions will have implications that are unforeseen and unintended, even if the specific provisions of a constitution were intended by its framers to have different results. In particular, the constitutional framework of a state or nation shapes the path dependent development of that political community. Once the highest law of a polity has been designed, political, legal, and economic decisions are made with that framework in mind. Decisions involving sunk costs are made premised on a particular legal order. Once those decisions are made, it may be difficult to reverse them. The political and economic trajectory of a polity may be set in place, and the momentum built up over history may be hard to swerve in a different direction. Such can be seen in Kentucky’s experience with its state constitutions.

Constitutions can also be understood as covenants.[1] The role of political theory is particularly useful in understanding constitutions and the jurisprudence interpreting them. While classical understandings of Plato and Aristotle were central to the American Founders’ constitutionalism, they were even more influenced by modern political theory from Thomas Hobbes and John Locke. “The treatment of covenant …in [Thomas Hobbes] Leviathan is thoroughly Puritan, and in general should be regarded as a secularized version of the English Puritans’ theory of a commonwealth.”[2] Ultimately, the way the founders understand a constitution is the most important foundation for constitutional interpretation and this is often referred to as original intent. The meaning of provisions in any constitution will require time for judicial processes and political governance to fully articulate, and under the English common law legal system, the original understanding of those who found constitutions is central to the subsequent constitutional interpretation.

The Commonwealth of Kentucky has crafted four different constitutions.[3] Each can be seen to reflect the ideas and interests of its proponents. Each was a response to particular events and circumstances.   Each has been interpreted over time, not only by the courts but by agencies authorized to implement state law.

The first constitution was drafted in 1792 as a condition of Kentucky’s admission to the United States.[4] There were “four successive enabling acts passed by the legislatures of Virginia, that Kentucky was allowed to enter the Federal Union as an Independent State, on an equality with those which had established themselves as a nation.”[5] Kentucky had similar influences as the other states and scholars have generally concluded the resulting constitutions follow the model of the federal constitution of 1787.[6] The federal constitution was an example of American exceptionalism. “The Constitutional Convention was a signal event in the history of federalism for it was there that the American style of federalism originated.”[7] The Compact With Virginia, as the fourth enabling act has come to be known as, provided the constitutional and legal road map to statehood for Kentucky. Nine pre-constitutional conventions were held as part of the process leading to the Compact With Virginia. The tenth was the actual founding constitutional convention.

Although many Kentuckians were from Virginia, and some of the easternmost counties in Kentucky were formerly counties within Virginia, much of the first constitutional structure was drawn from the 1790 state constitution of Pennsylvania. George Nicholas, often considered the primary architect of the document at the state constitutional convention, deliberately drew from the Pennsylvania charter, which was considered among the more radical of its day. The politics of admission to the union was influential in looking to Pennsylvania also, as Kentucky was competing with Vermont in the Federalist-controlled Congress for admission as the next state after the original thirteen. The political balance of power in Congress was a cloud over the admission process that affected these considerations. Kentucky endured numerous pre-constitutional conventions and the Compact With Virginia ultimately governed Kentucky’s transition to statehood. Kentucky retained the constitutional offices, state and local administrative structures, local government forms of Virginia despite some influence from Pennsylvania. The Bill of Rights that the constitution included at the end of the document reappeared in virtually unchanged form in each of the following three Kentucky constitutions, although those provisions have been moved near the beginning of the document. Isaac Shelby was a central leader in the Kentucky constitutional conventions and the admission to statehood process.  Shelby was elected as the first Governor of Kentucky and remains to this day the only Governor elected unanimously. Isaac Shelby would return to election as Kentucky Governor a second time as Kentucky and the nation prepared for the War of 1812.

The 1792 constitution provided for a fairly broad elective franchise, a secret ballot, and provision for a referenda for constitutional conventions but provided for  no amendment process. The legislature was granted the power to regulate the slave trade. The bicameral legislature was made up of eleven members in the senate and no fewer than forty and no more than one hundred members of a house of representatives. An electoral college would select both the governor and the members of the senate.

The second constitution was drafted in large part in response to a controversy over gubernatorial succession. The document responded to demands for more restriction on government powers, including limits on the authority of the legislature to regulate slavery. The electoral college was eliminated, providing for direct election of all constitutional offices.   The secret ballot was eliminated and viva voce voting put in its place. The constitution specified that the senate would have at least twenty-four members, with no fewer than fifty-eight in the house, nor more than one hundred. 

The third constitutional convention met in 1849 and the resulting document was ratified by public vote in 1850. The issue of slavery hung heavily over the constitutional deliberations. The influence of Jacksonian democracy could be seen in the document, with more offices up for election, with a long ballot being the result. The document specified that the senate would have thirty-eight members with one hundred in the house. For the first time, public education was covered at length, with the document establishing a Common School Fund to help finance schools. Slavery and education were the only policy issues to receive extensive attention.

The fourth and current constitution was ratified after a convention in 1891. The document was drafted in a time of progressive reform in much of the country. In Kentucky, there was a great deal of resentment felt toward corporations and specifically, railroads. It was widely believed that the legislature had been badly corrupted by corporate interests. As a result, the new constitution put many restrictions on local and special legislation that was believed to favor special interests. The preamble was changed to identify Kentucky as a “commonwealth” and to assert that all power is “inherent in the people.” The bill of rights was moved to the beginning of the document. The secret ballot which been absent in the last two constitutions was returned. For the first time, the constitution provided for an amendment process so the constitution could be changed in a piecemeal basis. The document was filled with policy-specific details including special provisions regarding corporations, local government, debt, and taxes. The constitution limited the governor and other constitutional officers to one four-year term, a restriction that was not removed until the 1990s. The General Assembly was to meet only every other year, although the legislature was authorized to meet in annual sessions by constitutional amendment in 2001. Judges were to be elected in non-partisan races.

Kentucky’s fourth and, thus far, last constitution placed substantial curbs on state and local governments much like other states, particularly southern state constitutions, have done. However, while Kentucky has long been a socially conservative state, the constitution–and its interpretation–have not pushed the Commonwealth as far to the right as some other southern states have gone, particularly on fiscal and regulatory matters. What is notable is that the basic political trajectory of the Commonwealth’s policies and politics can be understood in light of  the Kentucky courts’ decisions which have added to and sometimes subtracted from the actual constitutional text.

Section 14 of the Constitution guaranteed that “All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” The court structure was completely revamped in the 1970s, but the “open courts” provisions have remained untouched. This has prevented efforts to institute tort reform or other limitations upon liability that are common in other states. Legislation that would have had medical malpractice claims pass through a medical review process before heading to court were struck down as unconstitutional.[8]

The constitution explicitly listed permissible tax sources for both state and local government. An income tax for local governments was not authorized, but license taxes were. In the early twentieth century, the city of Louisville imposed occupational license taxes in which the liability of each taxpayer was defined as a percentage of their earned income. This levy was quickly challenged as an unconstitutional tax. The state’s highest court ruled in the City of Louisville v. Sebree case that the occupational license tax—which was a flat income tax under another name—was a permissible tax under the constitution.[9]

Section 246 of the Constitution also limited the compensation given to state officials, with the highest sum permitted set at $12,000. Though unamended since 1949, the  constitution was construed in 1962 to permit the Commonwealth to pay officers and employees an amount equal in buying power to that of the standard set in 1949.[10] This application of the “rubber dollar doctrine” has probably permitted the state to recruit and retain employees who would not be willing to work for the constitutionally specified salary. Nevertheless, it is not clear that this practice is what the framers intended.

One of the most important constitutional rulings which has expanded the scope and size of government in the Commonwealth dealt with public education. Kentucky, like most states, has long had a substantial share of the financing of public education provided by local tax sources, primarily the property tax. Since tax bases are limited, and tax levies legally limited by the state, public schools had difficulty raising money and some school districts were much more limited in their revenues than others. General language in Section 183 of the Constitution stipulating that “The General Assembly shall, by appropriate legislation, provide for an efficient system of common schools throughout the State” was used by the state supreme court to invalidate the existing financing system.[11]    Since that decision, Kentucky has risen from one of the lowest spending states on public education to one that is in the middle ranks of the states.[12]

Kentucky has periodically had discussion of constitutional reform but despite commissions and studies, Kentucky continues to operate under the fourth Constitution of 1891.[13] Amending the Kentucky Constitution requires passage in both the House and Senate by three-fifths majority in each chamber and amendments can originate in either chamber. An amendment approved by the session of the General Assembly is placed on the general election ballot for consideration by the Kentucky electorate and a simple majority is required for ratification of an amendment. There can be no more than four amendments considered by the voters in a general election. The Governor has no authority in the amendment process, other than the duty to make a proclamation regarding the amended constitution if approved by the voters in the general election.

James C. Clinger is a professor in the Department of  Political Science and Sociology at Murray State University.  He is the co-author of Institutional Constraint and Policy Choice: An Exploration of Local Governance and co-editor of Kentucky Government, Politics, and Policy. Dr. Clinger is the chair of the Murray-Calloway County Transit Authority Board, a past president of the Kentucky Political Science Association, and a former firefighter for the Falmouth Volunteer Fire Department.

Michael W. Hail is Professor of Government and Director of the Statesmanship at Morehead State University in Kentucky, and serves as Government Program Coordinator and Director of the Intelligence Center for Academic Excellence (ICCAE). He is co-editor of Kentucky Government, Politics, and Policy. Dr. Hail focuses his research on federalism and intergovernmental management. His research interests include economic development policy, state and local government, American political thought, and Western political philosophy. Dr. Hail teaches courses on Public Administration, Federalism and Constitutional Law, Public Management, State and Local Government, Economic Development, Western Political Philosophy, Intelligence Studies, and American Political Thought. 

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[1] Elazar, Daniel.  Covenant and Constitutionalism: The Covenant Tradition in Politics.  New York: Routledge, 2018.

[2] Schneider, Herbert W., ed.  Thomas Hobbes Leviathan – Parts One and Two. New York: Macmillan Publishing Company, 1958, p.x.

[3] Clinger, James C., and Michael W. Hail. Kentucky Government, Politics, and Public Policy. Lexington, KY: The University Press of Kentucky, 2013.

[4] Ireland, Robert M.  “The Kentucky Constitution.”  Clinger, James C., and Michael W. Hail.  Kentucky Government, Politics, and Public Policy. Lexington, KY: The University Press of Kentucky, 2013.

[5] Thorpe, Francis Newton. The Federal and State Constitutions: Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America. Washington Government Printing Office, 1909.

[6] Taulbee, Ashley.  The Kentucky Constitutional Conventions and the Federalism of the Founding Fathers.  Master Thesis.  Morehead State University, 2017.  Taulbee states, “There are several aspects of influence and interconnectedness between national constitutionalism and state constitutionalism reflected in the Kentucky case. The political theory influences, as well as the structure of the institutions in the U.S. Constitution of 1787, and certainly the political thought expressed at the convention in Philadelphia, all are major influences on how state constitutional conventions are modeled. Core constitutional provisions such as separation of powers, checks and balances, and bicameral legislative bodies are among the constitutional features of the U.S. constitution that are consistently incorporated in state constitutions. The politics in Congress as well as in the territory itself play a significant role in framing the terms under which statehood and state constitutional conventions can operate.”(pp.3-4)

[7] Smith, Troy.  “Constitutional Convention of 1787.”  Federalism In America.  Westport, CT: Greenwood Press, 2006, p.116.

[8] Commonwealth v. Claycomb, 2017-SC-000614.

[9] City of Louisville v. Sebree, 214 S.W.2d 248

[10]Matthews v. Allen,  360 S.W.2d 135 (1962

[11] Rose v. Council for Better Education, 790 S.W.2d 186

[12] Digest of Education Statistics,  Department of Education, National Center for Educations Statistics.  https://nces.ed.gov/programs/digest/2017menu_tables.asp

[13] Clinger, James C., and Michael W. Hail. Kentucky Government, Politics, and Public Policy. Lexington, KY: The University Press of Kentucky, 2013.

Guest Essayists: James C. Clinger and J. Drew Seib

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State legislatures normally have had only very few, basic constitutional procedural requirements regarding the passage of legislation. Most state constitutions stipulate that laws can be enacted only after bicameral passage of identical measures, followed by presentment to the chief executive. There may also be requirements that bills receive “readings” on three or more legislative days before passage. Practically speaking, most legislative procedure is determined by internal rules of each chamber. These rules refer to bill referral to committees, methods of bringing bills to the chamber floor, procedures for disciplining members, etc.

Many of the early state constitutions did not provide a means by which the governor could block legislation through a veto. This reflected an anti-executive power bias that carried over from the opposition to the king in colonial times. Gradually, however, the powers of governors increased, and among the most important powers of the governor was the power to veto. In the 1990s, North Carolina’s governor was the last to gain the veto power. The veto power varies dramatically among the states, particularly regarding which measures are subject to veto and the ease with which the legislatures can override the veto. Many states now permit an item veto for appropriation bills, but not for other legislation. Proposed constitutional amendments approved as joint resolutions by the legislature cannot be vetoed by the governor, but instead in most states today go to the electorate for approval. In several states vetoes can be overridden by margins much smaller than the two-thirds requirement necessary for overriding presidential vetoes. In some states, only a simple majority of those elected to serve in each chamber is needed to override the governor’s veto.[1]

In the early 20th century, many states began to adopt direct democracy mechanisms, such as the initiative, that permitted citizens and interest groups to propose new statutory laws or new constitutional amendments without going through the legislature. This has led to the adoption of new laws that would have not gained legislative approval and new institutional changes that dramatically changed legislative careers.[2]

One of the notable changes associated with the initiative process is the adoption of legislative term limits placed within state constitutions. The limits prevent elected officials, often legislators, from serving beyond a specified number of terms in office. Gubernatorial term limits have been more common for years, but only more recently have term limits on state legislators become common. These limits have generally been opposed by state legislators whose careers would be altered by the constraints. Opponents of term limits have also said that the restrictions reduce the professionalism of their elected office and shift the balance of power from legislators to the governor and legislative staff.[3]

For much of American history, state legislatures could be characterized as “amateur” public institutions. Legislators were not well-paid, had few resources for legislative research, constituency service, or administrative agency oversight. They worked as part-time volunteers who did not expect to remain in office for an extended period of time. During the 1960s and 70s in particular, most but not all state legislatures increased legislative salaries (or legislator per diem payments), adopted longer legislative sessions, increased legislative staffing, and created legislative research bureaus to help with bill drafting and analysis of proposed bills or policy problems. This seems to have led to more member stability and longer legislative tenure. It may have also motivated activists in the term limits movement, who distrusted professional, career politicians. Scholarly research on this topic has found that professionalization of state legislatures has led to more African-Americans and fewer women entering the chambers.[4] It may have also increased the size of the Democratic Party share of the legislature, at least outside the South,[5] though the effects of professionalization appear to vary by party.[6] The imposition of term limits does not have appeared to have ended political careerism, since many term limited state legislators pursue other offices, including congressional seats.[7] Legislative professionalism as well as one party dominance has also been found to particularistic, such as local legislation and special bills, which are apparently aimed at boosting chances for re-election.[8]

Finally, it should be noted that the role of state legislatures has changed because of actions of the federal government. Under the national supremacy clause, discussed above, federal law prevails when it is in conflict with state law. This practice, known as preemption, has been used throughout much of American history.[9] More recently, however, state laws have been invalidated through preemption not only when laws enacted by Congress conflict with laws enacted by state legislatures but also when federal agency interpretations of how or whether to enforce laws may conflict with laws enacted by state legislatures.[10] Intergovernmental grant programs may also lead to a “work around” the state legislatures. For example, the Patient Protection and Affordable Care Act provided that state chief executives, not legislatures, would  approve the creation of state health insurance exchanges.[11]

While very influential in national politics early on in U.S. history, the addition of particularly the 17th Amendment, but also the 16th, 19th and 26th Amendments have weakened the role of state legislatures in national politics. What is more, federal preemption by not only laws enacted but also federal agency interpretation of laws has weakened the role of state legislatures in national politics.

Since their inception, the state legislatures have served as the proverbial “lab of democracy” both across states and for the federal government. The variation in design, rules, and procedures has served as an opportunity to study institutional arrangements and their effects.  Many of the features in the U.S. Congress were taken from practices in state legislature and states often adopt successful reforms from other states.[12]  Their variation in designs is an opportunity to learn and strengthen political institutions in the United States.

James C. Clinger is a professor in the Department of  Political Science and Sociology at Murray State University.  He is the co-author of Institutional Constraint and Policy Choice: An Exploration of Local Governance and co-editor of Kentucky Government, Politics, and Policy. Dr. Clinger is the chair of the Murray-Calloway County Transit Authority Board, a past president of the Kentucky Political Science Association, and a former firefighter for the Falmouth Volunteer Fire Department.

Dr. J. Drew Seib joined the faculty at Murray State University in the Fall of 2012. He teaches courses in American politics and research methods. Dr. Seib is the advisor for the Murray State Chapter of Pi Sigma Alpha, the National Political Science Honor Society. Dr. Seib received his Ph.D. and M.A. from Southern Illinois University with an emphasis in American political behavior. His dissertation, Frantic Voters: How Context Affects Information Searches, was awarded a prestigious National Science Foundation Dissertation Improvement Grant. Dr. Seib received his B.A. from Westminster College in Fulton, MO, triple majoring in political science, Spanish, and international studies, and minoring in European studies.

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[1] https://ballotpedia.org/Veto_overrides_in_state_legislatures

[2] See Gerber, Elisabeth R., Lupia, Arthur, McCubbins, Mathew D., and Kiewiet, D. Roderick. Stealing the Initiative: How State Government Responds to Direct Democracy. Upper Saddle River, NJ: Prentice Hall. 2001.

[3] Carey, John M., Richard G. Niemi, and Lynda W. Powell.  1998. “The Effects of Term Limits on State Legislatures.”  Legislative Studies Quarterly, 23(2): 271-300.

[4] Squire, Peverill.  “Legislative Professionalization and Membership Diversity in State Legislatures.” Legislative Studies Quarterly.  Vol. 17, No. 1. (1992): 69-79 .

[5] Meinke, Scott R., and Edward B. Hasecke. “Term Limits, Professionalization, and Partisan Control in U.S. State Legislatures.” The Journal of Politics 65, no. 3 (2003): 898-908.

[6] Sanbonmatsu, Kira.  2002. “Political Parties and the Recruitment of Women to State Legislatures.”  The Journal of Politics, 64(3):791-809.

[7] Carey, John M., Niemi, Richard G., and Powell, Lynda.  Term Limits in the State Legislatures.  Ann Arbor: University of Michigan Press. (2000).

[8] Gamm, Gerald, and Kousser, Thad. “Broad Bills or Particularistic Policy? Historical Patterns in American State Legislatures.” The American Political Science Review 104, no. 1 (2010): 151-70.

[9] For an early example, see Gibbons v. Ogden).  22 U.S. 1. (1824).

[10] See, for example, Arizona v. United States, 567 U.S. 387 (2012)

[11] Fahey, Bridget A.. “Consent Procedures and American Federalism.” Harvard Law Review Vol. 128,(2014): 1564-1629.

[12] see Berry, Frances Stokes, and William D. Berry. 1990. “State Lottery Adoptions as Policy Innovations: An Event History Analysis.” American Political Science Review 84(2): 395–415.

 

Guest Essayists: James C. Clinger and J. Drew Seib

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The legislatures in American state governments developed alongside and even prior to the more famous and well-studied Congress of the federal government. Their origins can be found in the colonial assemblies that existed before the American Revolution. Those institutions developed structures, procedures, and qualifications for office-holding that influenced the development of the national legislature. This essay will briefly describe the development of the state legislatures and their relationship to the federal government.

Legislatures in the American colonies developed very quickly, largely at the request of local interests, not at the behest of the British government. These assemblies varied greatly from one another, although most, but not all, were bicameral, with different qualifications for office-holding and for voting for different chambers.[1] These assemblies were not modeled after the British parliament, which in its modern form did not exist. In fact, the first legislatures in the American colonies were created long before the Glorious Revolution of 1688, which established the principle of parliamentary supremacy over the monarch.

During the American Revolution, royal governors often dismissed or at least attempted to suspend the colonial assemblies. Most of the newly declared states established legislatures that have come to be known as provincial congresses, which lasted until the end of hostilities. At that time, formally recognized state legislatures were created, and were allowed great authority under the Articles of Confederation. Once the new federal constitution was drafted, the state legislatures exercised new roles within the newly created union as well as within their respective states. Under the new constitution, the electorate choosing the members of the United States House of Representatives were to have the same qualifications “requisite for the Electors of the most numerous Branch of the State Legislature.”[2] At that time, states frequently had more stringent voter qualifications to vote for the upper chamber of the legislature (i.e., the senate) than they had for the more numerous, lower chamber (e.g., the house of representatives, although many states use a variety of names for their lower chambers). By setting higher voter qualifications (usually regarding age, sex, property ownership, “freemen” status) for their own legislatures, the state could affect the electorate choosing its delegation to the United States House of Representatives.

Originally, the state legislatures directly selected the United States senators from each state, although that practice was ended by the ratification of the 17th Amendment, which established direct election of U.S. senators.[3] In the early years of the constitutional republic, the state legislatures regularly sent instructions to their senate delegations, describing how they should vote on issues in Congress. Earlier, under the Articles of Confederation, the state legislatures not only chose their state’s delegates to congress but also had the authority to recall them from office if the legislatures were displeased with their performance.[4]

The federal constitution also assigned a role for the state legislatures in determining the “Times, Places, and Manner” of federal house members and senators, subject to the proviso that “the Congress may at any time by Law make or alter such Regulations, except as to the Place of Chusing Senators.”[5] Years later, the discretion of state legislatures was constrained further by the ratification of the 15th, 19th, and 26th amendments (creating a right to vote for people of all races, for women, and for eighteen year olds), and by the passage of the Voting Rights Act and other pieces of legislation.

The Constitution also provided a role for state legislatures in amending the federal charter, by either proposing a convention for proposing amendments (by a vote of two-thirds of the states) and by ratifying constitutional amendment proposals (by a vote of three-fourths of the states).[6] All successful constitutional amendment proposals have been proposed, not by a convention called by the state legislatures, but by two-thirds votes of each chamber in Congress. All but one successful amendment—the exception being the 21st, which repealed prohibition–were ratified by the state legislatures. The repeal of prohibition was ratified by special conventions in the states.

The Constitution also stipulated that certain powers were forbidden for the states. Although state legislatures were not explicitly mentioned, legislatures would have been the body enacting such prohibited laws (e.g., regarding titles of nobility, currency, interstate taxation).[7]  The constitution also stipulates that federal laws, including the constitution, laws, and treaties, constitute the “supreme Law of the Land,” and state officers, including members of the state legislatures, must be bound by oath or affirmation to uphold the constitution.[8] The national supremacy clause was included in the constitution only after the defeat of a proposal by James Madison to authorize Congress to negate any state law that it opposed.[9]

The early state legislatures varied in structure but had some common structural elements.   Most, but not all (i.e., Georgia and Pennsylvania had only one legislative chamber and today Nebraska is the only unicameral legislature in the U.S.), were bicameral. A small number chose their senators through an electoral college, as was sometimes done for governors and as is still done for the federal president. That practice was not common and was ended completely well before the civil war. Most state legislatures developed standing committees early in their histories, often well before the federal Congress had established that practice. State legislators generally controlled the internal rules of their chambers and selected their own leadership. Once political parties were well-established, the organization of each chamber (leadership selection, committee assignment, and committee chair selection) became largely a matter for the party organizations to decide. Today, even Nebraska’s non-partisan legislature organizes along partisan lines.[10] Most legislatures met in annual sessions and most legislators served terms of office of one year, although some members of the upper chamber served two or three years.   Later in the nineteenth century, biennial sessions became standard practice, but in the late 20th century annual sessions became the norm again.[11] The size of each chamber differed widely among the states. Originally, South Carolina’s lower chamber had 199 members, while its upper chamber had only 13. Delaware, on the other hand, had only 21 in its lower chamber and nine in its upper.[12] Most legislators represented single member districts. The number of legislators was and still is significant because as the size of the legislative chamber increases, the average size of each district or constituency diminishes. Usually the demographic diversity of the constituency diminishes as the size of the district goes down. This changes the task of representation of constituency interests dramatically.[13] The number of seats in the lower chamber compared to the number in the upper chamber affects the difficulty that an ambitious, career-minded legislator may have to move from the lower to upper chamber.[14]

James C. Clinger is a professor in the Department of  Political Science and Sociology at Murray State University.  He is the co-author of Institutional Constraint and Policy Choice: An Exploration of Local Governance and co-editor of Kentucky Government, Politics, and Policy. Dr. Clinger is the chair of the Murray-Calloway County Transit Authority Board, a past president of the Kentucky Political Science Association, and a former firefighter for the Falmouth Volunteer Fire Department.

Dr. J. Drew Seib joined the faculty at Murray State University in the Fall of 2012. He teaches courses in American politics and research methods. In addition to his teaching duties, Dr. Seib is the advisor for the Murray State Chapter of Pi Sigma Alpha, the National Political Science Honor Society, and Racers for Bernie. His research focuses on how voters make decisions. He is especially interested in how voters acquire information during campaigns under a variety of contexts and conditions. Dr. Seib also privately consults on web-based surveys. Dr. Seib received his Ph.D. and M.A. from Southern Illinois University with an emphasis in American political behavior. His dissertation, Frantic Voters: How Context Affects Information Searches, was awarded a prestigious National Science Foundation Dissertation Improvement Grant. Dr. Seib received his B.A. from Westminster College in Fulton, MO, triple majoring in political science, Spanish, and international studies, and minoring in European studies.

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[1] Squire, Peverill.  The Evolution of American Legislatures: Colonies, Territories, and States, 1619-2009.  Ann Arbor: University of Michigan Press, 2012.

[2] United States Constitution, Article 1, Section 2, Clause 1.

[3] United States Constitution, Article 1, Section 3, Clause 1, and United States Constitution, 17th Amendment, Section 1.

[4] United States Articles of Confederation, Article 5.

[5] United States Constitution, Article 1, Section 4, Clause 1.

[6] United States Constitution, Article 5.

[7] United States Constitution, Article 1, Section 10.

[8] United States Constitution, Article 6, Sections 2-3.

[9] Hobson, Charles F. “The Negative on State Laws: James Madison, the Constitution, and the Crisis of Republican Government.” The William and Mary Quarterly 36, no. 2 (1979): 215-35.

[10] Wright, Gerald C. and Brian F. Shaffner. 2002. “The Influence of Party: Evidence from the State Legislatures.”  American Political Science Review 96(2): 367-379.

[11] Squire, Peverill. “American State Legislatures in Historical Perspective.” PS: Political Science & Politics 52, no. 3 (2019): 417–21.

[12] Squire, Peverill.  The Evolution of American Legislatures: Colonies, Territories, and States, 1619-2009.  Ann Arbor: University of Michigan Press, 2012, 84.

[13] Denzau, Arthur T., and Michael C. Munger. “Legislators and Interest Groups: How Unorganized Interests Get Represented.” The American Political Science Review 80, no. 1 (1986): 89-106.

[14] Squire, Peverill. “Member Career Opportunities and the Internal Organization of Legislatures.” Journal of Politics, Vol. 50, No. 3 (1988): 716-44.