State Constitutions? Why Would Each State Need Its Own Constitution? Part 1 – Guest Essayist: Marc Clauson

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State Constitutions? – Why would each state need a constitution when we have the United States Constitution? What would it mean for the states to be run by their citizens rather than royal rule?

The first question poses an issue of federalism and the rule of law.  The United States Constitution was drafted to establish a particular form of government at the national level.  Its provisions were not intended mainly to address states as states but individuals who lived in those states.  Federalism as an institutional form allocated certain powers to the national government and more or less left any remaining powers to the states.  If the citizens of any given state were to enjoy the benefits and protections of limited government, some sort of constitutional rules would be required.  Otherwise the state governments would have unlimited authority.  By definition a constitution is an enforceable set of rules, alterable by the people and unalterable by the government.  A state constitution provides such a framework.

This also is one reason why state constitutions are so long, compared to the Federal Constitution.  The state governments possess reserved powers, that is, all power not granted to the national government.  Since this is a very large potential body of power, it is necessary to address any particular power that might be invoked by the state.  In turn, that requires a much more detailed set of provisions, since whatever is not addressed is by definition granted to the state government.

The second question is one of self-governance.  John Locke had argued that all legitimate government was established by a social contract founded on the “consent of the people.”[1]  For Locke this was the only effective way to limit the power of government to its ordained functions—the protection and promotion of the natural rights of life, liberty and property.  Royal rule implied a centralized and removed form of government in which the citizens had only those rights that government chose to grant to them.  In the Colonial period, constitutionalism did not exist in effect, though many spoke of an “Ancient Constitution” that, among other things guaranteed “the rights of Englishmen.”  This was however an unenforceable hodgepodge of laws and customs, not a coherent, written document.

As a result, governance from England was exercised through the king and his colonial governors.  If the states were governed by their citizens they would be able to choose their own type of institutional structure and likely (as they did) directly participate in choosing many of the public officials.  The government would in a real sense be closer to the people.  Local conditions would be better known, as opposed to attempts to make policy from the mother country.

Marc A. Clauson is Professor of History, Law and Political Economy and Professor in Honors at Cedarville University. Marc holds a PhD from the University of the Orange Free State, SA, Intellectual History and Polity); JD (West Virginia University College of Law, Jurisprudence); MA, ThM (Liberty University, New Testament Studies and Church History); MA (Marshall University, Political Science); BS (Marshall University, Physics); and PhD work (West Virginia University, Economic Theory).

[1]   See Second Treatise of Government (1690).

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