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.

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