Guest Essayist: James D. Best

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“Governments are instituted among Men, deriving their just powers from the consent of the governed.” —Declaration of Independence

In 1776, the world was ruled by royalty. Then some upstart colonialists penned the most revolutionary document in the history of man. The Declaration of Independence flipped the world upside down. The Divine Right of Kings became the consent of the governed. The individual was now “endowed by their Creator with certain unalienable Rights.” This was a world-shattering concept.

The people were now in charge. Our national heritage is a written constitution that sets the rules for governance between the people and their elected representatives. When Pilgrims landed at Plymouth, they almost immediately sat down and wrote a constitution called the Mayflower Compact. When our forefathers wanted independence, they felt a need to express their grievances and philosophy of government in a written Declaration of Independence.  At the time of the Constitutional Convention, all thirteen states had written constitutions.

Prior to the United States Constitution, monarchies wielded general power, and since the Founders had just escaped a monarchy, they would give their national government only defined powers. If a specific power was not expressly listed in the Constitution, then that power remained with the people who could further delegate powers to the state through a state constitution.

Nebraska Constitution

Nebraska was admitted to the union after the Civil War, on March 1, 1867, based on the organic law of 1866. Nebraska adopted their constitution on June 12, 1875, eight years after becoming a state.

The preamble reads, “We, the people, grateful to Almighty God for our freedom, do ordain and establish the following declaration of rights and frame of government, as the Constitution of the State of Nebraska.”

The Nebraska preamble diverts from the United States Constitution preface by calling out “Almighty God” and putting rights ahead of the “frame of government.” Nebraskans gave priority to rights, both in the preamble and organization of the document. The United States Constitution did not initially include a bill of rights and never directly referenced God. (Ratification, however, depended on a promise to immediately amend the Constitution with a list of rights.)

After amendments, the Nebraska State Constitution has the following characteristics:

  • Nebraska legislature is unicameral and nonpartisan. (Unique in the United Sates)
  • Limited to 49 seats. (Smallest legislature in United States.)
  • The legislature is part-time and pays $12,000 per year. Some contend that this make it difficult to find good candidates. Many must drive long distances in bad weather or find temporary lodging in Lincoln. As a result, legislators tend to be wealthy or retired.
  • Nebraska allows a split in the state’s allocation of electoral votes in presidential elections. (Maine is the only other state.) Since 1991, two of Nebraska’s five votes are awarded to the winner of the statewide popular vote and three go to the candidate with the highest vote in each congressional district.
  • The Nebraska Legislature can override the governor’s veto with a three-fifths majority. (36 states require a two-thirds vote)
  • Nebraska has amended their Constitution to provide for an initiative and referendum process. Nebraska’s initiative and referendum process can add or change law or amend the state constitution. Twenty-six states allow for initiatives or referendums and only sixteen states allow for constitutional initiates.

The Nebraska Constitution has been amended 228 times. On November 6, 1934, an amendment converted the legislature to unicameral. Georgia, Pennsylvania, and Vermont were originally unicameral, but all three switched to bicameral in the early nineteenth century. There were no unicameral legislatures in the United States until Nebraska switched. The amendment also reduced the number of legislators from 133 to 43 (since increased to 49).

What are the ramifications?

According to Patrick J. O’Donnell, long-time clerk of the Unicameral Legislature, the nonpartisan nature of the state’s legislative body remains apparent in several meaningful ways.

Legislative officers and committee chairs are elected by members themselves instead of appointed by partisan caucus leaders, and minority party members still do get elected to serve as committee chairs.

O’Donnell says that policy debates frequently tend to be less partisan in tone because of the unique nature of the Nebraska Unicameral and that final decisions are usually made on the merits of an issue rather than on the basis of political considerations alone.

Seventy-four years after its inception, the Nebraska Unicameral remains one-of-a-kind among U.S. state legislatures. O’Donnell says that other states have frequently visited Nebraska over the years to study the workings of the Unicameral, but so far at least, no other state has followed Nebraska’s lead. *

The Nebraska legislature generally has more power than other state legislatures. The unicameral nature removes an internal legislative check and the small size gives each member more authority than their counterparts in other states. Additionally, to override a governor veto requires only 60% of the legislature, rather than the 67% required for a two thirds majority.

The Nebraska Constitution is not controversial and state residents seem content with it. The only current issue deals with the wording of Section I-1, which reads, “There shall be neither slavery nor involuntary servitude in this state, otherwise than for punishment of crime, whereof the party shall have been duly convicted.” A 2020 ballot measure will eliminate the potential of slavery as punishment for crime. Nebraska does not use chain-gangs, so the change will have no practical effect.

The United States Constitution 10th Amendment reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Many believe that powers not defined in the Constitution are reserved to the states. They forget the last two words of the amendment. State power, like national power, is delegated by the people to the respective governments within our federal system.

Politicians may need occasional reminders that all governmental power resides with the people.

*       Council of State Governments, A legislative branch like no other

James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, Principled Action, Lessons From the Origins of the American Republic, and the Steve Dancy Tales.

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