State constitutional failure

University of Illinois Law Review

Volumn 2011, Issue 4, 2011, Pages 1243-1284

  Rodriguez, Daniel B ^a  

^a UNIVERSITY OF TEXAS SCHOOL OF LAW   (United States)

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[No Author keywords available]

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EID: 80053589580     PISSN: 02769948     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (338)

1. "Academic" in the sense that the extraordinary difficulties faced in changing the document, to say nothing of comprehensive changes, make the prospects of addressing large-scale constitutional difficulties unlikely, and perhaps even ill-advised.
2. But see SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT) (2006) (arguing vigorously that the U.S. Constitution has failed in important respects and should be systematically improved through large-scale reform)
3. LARRY J. SABATO, A MORE PERFECT CONSTITUTION: 23 PROPOSALS TO REVITALIZE OUR CONSTITUTION AND MAKE AMERICA A FAIRER COUNTRY (2007) (same)
4. Sanford Levinson, How the United States Constitution Contributes to the Democratic Deficit in America, 55 DRAKE L. REV. 859 (2007) (same)
5. See, e.g., Bob Herbert, Op-Ed., Invitation to Disaster, N.Y. TIMES, Jan. 9, 2010, at A19
6. Bob Herbert, Op-Ed., A Ruinous Meltdown, N.Y. TIMES, Mar. 20,2010, at A17. The National Conference on State Legislatures (NCSL) collects data on the status of current budget battles in state legislatures.
7. See, e.g., State Measures to Balance FY 2010 Budgets, NAT'L CONF. ST. LEGISLATURES, http://www.ncsl.org/IssuesResearch/BudgetTax/ StateMeasurestoBalanceFY2010Budgets/tabid/17255/ Default.aspx (last updated May 3, 2010).
8. On its current website, NCLS describes the state fiscal situa-tion as "rapidly deteriorating and the figures for fiscal years FY 2009 through FY 2011 have moved from sobering to distressing." Issues and Research, NAT'L CONF. ST. LEGISLATURES, http://www.ncsl. org/Default.aspx?TabID=756&tabs= 951,61,161#951 (last visited June 8,2011).
9. See, e.g., Gretchen Morgenson, Exotic Deals Put Denver Schools Deeper in Debt, N.Y. TIMES, Aug. 6,2010, at Al. To take just one example, nearly half the states have either implemented or are seriously considering implementing a four-day school week.
10. See Four-Day School Weeks, NAT'L CONF. ST. LEGISLATURES, http://www.ncsl.org/IssuesResearch/Education/SchoolCalendarEx tendedDayYearFourDaySchoo/tabid/12934/Default.aspx (last visited June 8,2011).
11. See, e.g., David Streitfeld, Housing Market Plunged in July, Fueling Anxiety, N.Y. TIMES, Aug. 25, 2010, at Al
12. Editorial, Fighting Back on Foreclosures, L.A. TIMES, Aug. 17, 2010, at A12
13. Ti-mothy R. Homan, Housing Starts in U.S. Increased Less Than Forecast in July, BLOOMBERG, (Aug. 17, 2010), http://www.bloomberg.com/news/2010-08-17/ housing-starts-in-u-s-increased-less-than-economis ts-forecast-last-month.html.
14. See, e.g., Paul Krugman, Op-Ed., Fifty Herbert Hoovers, N.Y. TIMES, Dec. 29,2008, at A25.
15. See Brian Galle & Jonathan Klick, Recessions and the Social Safety Net: The Alternative Minimum Tax As a Countercyclical Fiscal Stabilizer, 63 STAN. L. REV. 187, 191-92 (2010) (describing the impact of state fiscal crises on national economic conditions).
16. See, e.g., U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-lO-358, STATE AND LOCAL GOVERNMENTS' FISCAL OUTLOOK: MARCH 2010 UPDATE (2010), http://www.gao.gov/new. items/ dl0358.pdf ("In the long-term, we project that the fiscal position [of state and local governments] will steadily decline through 2060 absent any policy changes"). Though not a new insight, the attention to these structural considerations gained traction in the mid-1990s.
17. See, e.g., THE FISCAL CRISIS OF THE STATES: LESSONS FOR THE FUTURE (Steven D. Gold ed., 1995)
18. James M. Poterba, State Responses to Fiscal Crises: The Effects of Budgetary Institutions and Politics, 102 J. POL. ECON. 799 (1994). The most alarming set of conditions noted by scholars over the past decade and a half were expansions in education costs (connected primarily to increases in enrollment), the growing pension crises, expansion of federal mandates, and notably, the rapid growth in Medicaid payments. On health care, in particular
19. see U.S. GovT ACCOUNTABILITY OFFICE, GAO-09-210T, STATE AND LOCAL FISCAL CHALLENGES: RISING HEALTH CARE COSTS DRIVE LONG-TERM AND IMMEDIATE PRESSURES (2008), http://www.gao.gov/new.items/d09210t.pdf
20. Letter from Stanley J. Czerwinski, Dir., Strategic Issues, U.S. Gov't Accountability Office, and Thomas J. McCool, Dir., Ctr. for Econ., U.S. Gov't Accounta-bility Office, to Max Baucus, Chairman, Comm. on Fin., U.S. Senate, and Charles E. Grassley, Ranking Member, Comm. on Fin., U.S. Senate (Jan. 26, 2009), http://www.gao.gov/new.items/d09320r.pdf.
21. See also Robert B. Ward & Lucy Dadayan, State and Local Finance: Increasing Focus on Fiscal Sustainability, 39 PUBUUS: J. FEDERALISM 455 (2009). The dire predictions made in the mid to late 1990s about these and other considerations have thus far gone largely unheaded. The depictions of the situation now has, if anything, become even more dire, with the principal focus on "fiscal sustainability," that is, the question whether state and local governments will be able to navigate their worsening fiscal predicaments even if the economy rights itself. To take just one horror story from what is an astonishingly horrific literature
22. see Howard Bornstein et al., Going for Broke: Reforming California's Public Employee Pension Systems, STAN. INST. ECON. POLY RES. (Apr. 2, 2010), available at http://siepr.stanford.edu/publicationsprofile/2123, which describes the funding shortfall in the California pension system as just under half a trillion dollars.
23. See G. Alan Tarr, Introduction, in 1 STATE CONSTITUTIONS FOR THE TWENTY-FIRST CENTURY: THE POLITICS OF STATE CONSTITUTIONAL REFORM 10 (G. Alan Tarr & Robert F. Williams eds., 2006) ("Like Alabama, New York has experienced major problems attributable, at least in part, to constitutional deficiencies.")
24. H. Bailey Thomson, Constitutional Reform in Alabama, in STATE CONSTITUTIONS FOR THE TWENTY-FIRST CENTURY, supra, at 113 ("[T]he 1901 Constitution's restrictions and antiquated provisions hinder efforts to reform government and improve the economy.")
25. Jennifer Steinhauer, In California, Democracy Doesn't Pay the Bills, N.Y. TIMES, May 21, 2009, at A1 ("[T]he state may finally consider another way by overhauling its Constitution for the first time in 130 years.").
26. See, e.g., Dennis Byrne, Editorial, Had Enough Yet? Vote for Change, CHI. TRIB., Oct. 28, 2008, § 1, at 31 ("Folks who are sincerely interested in 'real change' should vote ⋯ for an Illinois constitutional convention.")
27. Walt Carlington, Letter to the Editor, State Needs Big Changes, NEWS-STAR (Monroe, La.), Oct. 11, 2007, at 7B ("What is needed⋯ is structural change in our government it-self ")
28. Carla Rivera, Site Aims to Explain State Government, L.A. TIMES, June 8, 2010, at AA5 ("California could end up as a 'failed state' ")
29. Op-Ed., Emmett Has Big Lesson for Michigan, TIMES HERALD (Port Huron, Mich.), June 10,2010, at 7A ("[T]he Michigan Constitution makes it all but impossible to merge services, consolidate communities or streamline government in even modest ways.")
30. Jason Hancock, Iowa One of Four States Considering Constitutional Convention, IOWA INDEP. (May 3, 2010, 10:30 AM), http://iowaindependent.com/ 33328/iowa-one-of-four-states-con sidering-constitutional-convention
31. Rochelle Riley, Michigan Needs Constitutional Convention, DETROIT FREE PRESS (Aug. 13, 2010, 1:41 AM), http://www.freep.eom/article/2OlOO8i3/COLlO/ 8130374/Michigan-needs-constitutional-convention ("Michigan needs dramatic reform.")
32. Daniel C. Vock, Three States Weigh Calls for New Charters, STATELINE (Sept. 25, 2008), http://www.stateline. org/live/details/story?contentId=343522.
33. California: The Ungovernable State, ECONOMIST, May 16, 2009, at 33
34. see also Sandy Levinson, Our Defective State Constitutions? (or Does This Crisis Portend the End of What Remains of Robust Federalism?), BALKINIZATION BLOG (Dec. 29, 2008, 5:54 PM), http://balkin.blogspot.com/2008/12/our-defective- state-constitutions-or.html.
35. See generally G. ALAN TARR, UNDERSTANDING STATE CONSTITUTIONS 94-135 (1998) (describing processes of constitution making in the nineteenth century)
36. ROBERT F. WILLIAMS, THE LAW OF AMERICAN STATE CONSTITUTIONS 364-79 (2009) (describing various efforts at omnibus state constitutional reform in the twentieth century). Most of these efforts at wide reform were built on claims that existing state constitutions were fundamentally defective. For a century-old article canvassing various claims made about the defective California Constitution of 1848, the context of which was the call for a constitutional convention in 1878
37. see Noel Sargent, The California Constitutional Convention of 1878-9,6 CALIF. L. REV. 1, 3-4 (1917) (describing "agitation" growing out of the manifest defects in the document)
38. see also THE PENNSYLVANIA CONSTITUTION: A TREATISE ON RIGHTS AND LIBERTIES 52-55 (Ken Gormley et al. eds., 2004) (describing fierce calls for constitutional reform in the period between 1776, the date of the first Pennsylvania Constitution, and 1790 when the new constitution was enacted).
39. In the modern literature on constitutional design and performance, questions of constitutional success are front and center. See, e.g., CONSTITUTIONAL DESIGN FOR DIVIDED SOCIETIES: INTEGRATION OR ACCOMMODATION? (Sujit Choudhry ed., 2008)
40. ZACHARY ELKINS ET AL., THE ENDURANCE OF NATIONAL CONSTITUTIONS (2009)
41. EDWARD SCHNEIER, CRAFTING CONSTITUTIONAL DEMOCRACIES: THE POLITICS OF INSTITUTIONAL DESIGN (2006).
42. In their recent book on constitutional endurance, Elkins et al., caution that constitutions frequently fail; the lifespan of a normal constitution is less than two decades, far shorter than old U.S. Constitution-and, indeed, far shorter than nearly every existing state constitution in the United States. ELKINS ET AL., supra, at 129-34.
43. Kim Lane Scheppele, A Constitution Between Past and Future, 49 WM. & MARY L. REV. 1377,1406 (2008).
44. I here use "polity" as a placeholder for the relevant group (framers? citizenry? the current configuration of political officials?) whose objectives are relevant to the basic inquiry.
45. THE FEDERALIST NO. 48, at 308 (James Madison) (Henry Cabot Lodge ed., 1888).
46. See, e.g., Norman Schofield, Evolution of the Constitution, 32 BRIT. J. POL. SCI. 1, 1 (2002) ("Much more important than the [constitutional] rules themselves is the conceptual basis for the acceptance of these rules [T]he beliefs that underpin the constitution must themselves generally be in equilibrium.").
47. The following analysis is distilled from a wide range of overlapping political economists, political scientists, and legal scholars working with what we can broadly call the new political economy tradition. See, e.g., DENNIS C. MUELLER, CONSTITUTIONAL DEMOCRACY (1996)
48. DOUGLASS C. NORTH, UNDERSTANDING THE PROCESS OF ECONOMIC CHANGE (2005)
49. DOUGLASS C. NORTH ET AL., VIOLENCE AND SOCIAL ORDERS: A CONCEPTUAL FRAMEWORK FOR INTERPRETING RECORDED HUMAN HISTORY (2009)
50. Russell Hardin, Constitutionalism, in THE OXFORD HANDBOOK OF POLITICAL ECON. 289 (Barry R. Weingast & Donald A. Wittman eds., 2006) [hereinafter Hardin, Constitutionalism]
51. Russell Hardin, Why a Constitution?, in THE FEDERALIST PAPERS AND THE NEW INSTITUTIONALISM 100 (Bernard Grofman & Donald Wittman eds., 1989)
52. Daryl J. Levinson, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 HARV. L. REV. 657 (2011)
53. Douglass C. North & Barry R. Weingast, Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in Seventeenth-Century England, 49 J. ECON. HIST. 803 (1989)
54. Peter C. Ordeshook, Constitutional Stability, 3 CONST. POL. ECON. 137 (1992)
55. Barry R. Weingast, The Political Foundations of Democracy and the Rule of Law, 91 AM. POL. SCI. REV. 245 (1997)
56. Sonia Mittal & Barry R. Weingast, Self-Enforcing Constitutions: With an Application to Democratic Stability in America's First Century (July 2010) (unpublished manuscript) (on file with the Stanford University Department of Political Science), http://politicalscience.stanford.edu/faculty/weingast/ MITTALsec FINAL100724submission4.pdf.
57. On the connection between constitutional government and economic progress, see, for example, DARON ACEMOGLU & JAMES A. ROBINSON, ECONOMIC ORIGINS OF DICTATORSHIP AND DEMOCRACY (2006).
58. See MUELLER, supra note 17, at 61.
59. In the rational choice framework within which this ample literature on the political economy of constitutionalism proceeds, these incentives are largely the product of strategic choice and self-interested calculation. There are other perspectives on this dilemma which largely avoid this strong assumption, emphasizing the notion of human weakness and fallibility. Madison's famous statement in Federalist No. 51 that "[i]f men were angels, no government would be necessary" tracks this theme. THE FEDERALIST NO. 51, at 323 (James Madison) (Henry Cabot Lodge ed., 1888)
60. see also Donald S. Lutz, Patterns in the Amending of American State Constitutions, in CONSTITUTIONAL POLITICS IN THE STATES: CONTEMPORARY CONTROVERSIES AND HISTORICAL PATTERNS 24, 26 (G. Alan Tar ed., 1996) ("Since fallibility was part of human nature, provision had to be made for altering institutions after experience revealed their flaws and unintended consequences. Originally, therefore, the amendment process was predicated not only on the need to adapt to changing circumstances but also on the need to compensate for the limits of human understanding and virtue. In a sense, the entire idea of a constitution rests on an assumption of human fallibility, since, if humans were angels, there would be no need to erect, direct, and limit government through a constitution." (emphasis added)).
61. See Hardin, Constitutionalism, supra note 17, at 302 ("In a constitutional government we cannot simply decide at every turn what would be the best thing to do, even the mutually advanta-geously best thing to do, and then do it. We must do what can be accomplished within and by the constitutionally established institutions.")
62. Levinson, supra note 17, at 669 (describing the selfenforcing character of the U.S. Constitution as consistent with "Madison's hope").
63. See Levinson, supra note 17, at 662 ("[Madison] hoped and hypothesized that the Constitution could be made politically selfenforcing by selectively empowering political decisionmakers whose interests and incentives would remain in alignment with constitutional values.")
64. Mittal & Weingast, supra note 17, at 2-4.
65. See Rui J.P., Jr. & Barry R. Weingast, Selfenforcing Federalism, 21 J.L. ECON. & ORG. 103 (2005).
66. Mittal & Weingast, supra note 17, at 2.
67. See NORTH ET AL., supra note 17, at 55-100. On the distinction between intra- and extra-constitutional mechanisms of change
68. see ELKINS ET AL., supra note 12, at 74-76.
69. Mittal & Weingast, supra note 17, at 3
70. see also Weingast, supra note 17, at 247-48.
71. THOMAS HOBBES, LEVIATHAN 184 (Richard Tuck ed., Cambridge Univ. Press, rev. student ed. 1996) (1651).
72. On the coordination problem in political behavior more generally, see Randall L. Calvert, Rational Actors, Equilibrium, and Social Institutions, in EXPLAINING SOCIAL INSTITUTIONS 57 (Jack Knight & Itai Sened eds., 1995). The implications of this problem for constitutional formation and maintenance in the U.S. context have been the subject of a wide literature.
73. See, e.g., Schofield, supra note 16, at 4-5
74. see also infra note 36 and sources cited therein.
75. Mittal & Weingast, supra note 17, at 4. This condition manages shocks to the system which might otherwise "threaten cooperative activity." Id. at 15. The device of separation of powers and, correiatively, checks and balances, is an example of this adaptive efficiency. Such a device incentivizes competition among governmental institutions, thereby improving the prospects for "mutual monitor-ing" and "forc[ing] lawmaking institutions to invest in skills and knowledge to survive " Id. at 15-16
76. see also NORTH, supra note 17.
77. However, as Adam Przeworski notes, constitutional stability may not be necessary (or sufficient) for democracy to survive. See Adam Przeworski, Selfenforcing Democracy, in THE OXFORD HANDBOOK OF POLITICAL ECONOMY, supra note 17, at 312,320-21.
78. On the notion of constitutional order described in terms broadly congruent with the discussion above, see MARK TUSHNET, THE NEW CONSTITUTIONAL ORDER 1 (2003)
79. see also Levinson, supra note 17.
80. Mittal & Weingast, supra note 17, at 2.
81. see also NORTH ET AL., supra note 17, at 194-202.
82. See Mittal & Weingast, supra note 17, at 2-3.
83. see also ADAM PRZEWORSKI, DEMOCRACY AND THE MARKET: POLITICAL AND ECONOMIC REFORMS IN EASTERN EUROPE AND LATIN AMERICA 51-99 (1991).
84. Mittal & Weingast, supra note 17, at 2.
85. THE FEDERALIST NOS. 10, 39 (James Madison)
86. see also JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 161-202 (1996) (on federalism)
87. GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776-1787, at 197-255, 257-305 (1969) (on "mixed government" and on the "checking and balancing of power," respectively).
88. See Sonia Mittal et al., The Constitutional Choices of 1787 and Their Consequences, in FOUNDING CHOICES: AMERICAN ECONOMIC POLICY IN THE 1790S, at 25 (Douglas A. Irwin & Richard Sylla eds., 2011)
89. Jack N. Rakove et al., Ideas, Interests, and Credible Commitments in the American Revolution (Feb. 2000) (unpublished manuscript) (on file with author).
90. See generally WILLIAM H. RIKER, THE DEVELOPMENT OF AMERICAN FEDERALISM 1-41 (1987).
91. See RAKOVE, supra note 35, at 288-338.
92. See THE FEDERALIST NO. 10 (James Madison)
93. see also DAVID F. EPSTEIN, THE POLITICAL THEORY OFTHE FEDERALIST 61-66 (1984) (discussing factions and the problems they present).
94. "Uncertainty" here refers both to uncertainty about future states of the world and also un-certainty about the extent to which individuals' preferences will change over time and in ways that create regret about their decision to commit to rules and bargains in the first instance. Cf. ELKINS ET AL., supra note 12, at 69-74 (describing the related problem of "hidden information" in the context of a theory of constitutional renegotiation).
95. Levinson, supra note 17, at 675.
96. This theme is prominent in the large literature on constitutionalism, democracy, and economic performance. See, e.g., AVNER GREIF, INSTITUTIONS AND THE PATH TO THE MODERN ECONOMY; LESSONS FROM MEDIEVAL TRADE 153-57 (2006)
97. INSTITUTIONS AND ECONOMIC PERFORMANCE (Elhanan Helpman ed., 2008).
98. See also Hardin, Constitutionalism, supra note 17, at 291.
99. See DONALD S. LUTZ, PRINCIPLES OF CONSTITUTIONAL DESIGN 220 (2006) ("The System of Institutions Should Be Grounded in a Coherent Theory That Should Be Apparent from the Behavioral Implications of the Institutional Design.")
100. Levinson, supra note 17, at 670, 677 ("[P]olitical communities can successfully commit by pointing the incentives of influential constituencies in the right directions or by imposing structural barriers to change.")
101. Mittal & Weingast, supra note 17, at 12-16.
102. Bicameralism and the requirement of presentment, for instance, have these characteristics. See, e.g., William N. Eskridge, Jr. & John Ferejohn, The Article J, Section 7 Game, 80 GEO. L.J. 523 (1992). So too do rules and practices of subconstitutional dimensions, ranging from internal legislative rules
103. see Barry R. Weingast & William J. Marshall, The Industrial Organization of Congress; or, Why Legislatures, Like Firms, Are Not Organized As Markets, 96 J. POL. ECON. 132 (1988), to administrative procedures in the regulatory context of subconstitutional dimensions
104. see Mathew D. McCubbins et al., Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431 (1989).
105. See generally JENNA BEDNAR, THE ROBUST FEDERATION: PRINCIPLES OF DESIGN 95-131 (2009).
106. See generally Richard Briffault, Localism in State Constitutional Law, 496 ANNALS AM. ACAD. POL. & Soc. Sci. 117 (1988).
107. See generally Tom Ginsburg et al., Does the Process of Constitution-Making Matter?, 5 ANN. REV. L. & Soc. Sci. 201,203-210 (2009)
108. Richard Simeon, Constitutional Design and Change in Federal Systems: Issues and Questions, 39 PUBLIUS: J. FEDERALISM 1 (2009).
109. See NORTH ET AL., supra note 17, at 18-21.
110. See Levinson, supra note 17, at 23-29.
111. see also supra Part I.A.
112. "Constitutional design should also take into account the probable consequences of the design itself for future factional alignments." LUTZ, supra note 42, at 206.
113. See Calvert, supra note 28. In a recent article, Daryl Levinson extends this argument in am-bitious, provocative directions, depicting, first, the logic of interinstitutional strategic behavior and, second, the mechanisms which entrench both arrangements and policies.
114. See Levinson, supra note 17, at 681-91. The basic analysis is by and large impeccable; however, significant questions remain. For one thing, decisions to persist in the entrenchment of these institutions (note that, within the basic rational choice framework which Levinson operates, these decisions are purposive and carried out with full information) will take account of the tradeoff between short-term and long-term agendas. Political resistance will be overcome, this logic suggests, "by a higher-order willingness to support the institutional decision making process that generates the same set of outcomes." Id. at 696. But here Levinson moves rather seamlessly from the nature of constitutional commitment to the apparatus of certain distinct institutions crafted in the shadow of this commitment. Id. at 681-91. Institutional constructions are the product of infra-marginal decisions; the logic of structure-induced equilibrium sup-poses that the institutions which become entrenched do so because they are (1) in the strategic interest of political officials to create, and (2) not in the strategic interest of officials to dissolve or recreate. It is precisely the circumstances for deciding when institutions must be replaced, according to these rational actors, by new institutions that call for more nuanced analysis. Levinson makes the essential point that officials and citizens will decide these matters in accordance with the logic of constitutional commitment and the "r" trio (reciprocity, repeat-play, and reputation), see id. at 684; but which particular institutions are more or less likely to realize the agendas of ensuring this fundamental commitment? That is the meaty question teed up by Levinson's comprehensive analysis of constitutional commitment. We need more, however, by way of answer than the claim "that political arrangements⋯ can become psychologically and sociologically embedded in such a way that they are no longer experienced by actors as constraints or even as matters of choice." Id. at 691.
115. See Saul Levmore, Bicameralism: When Are Two Decisions Better Than One?, 12 INT'L REV. L. & ECON. 145, 155-59 (1992)
116. see also WILLIAM H. RLKER, LIBERALISM AGAINST POPULISM: A CONFRONTATION BETWEEN THE THEORY OF DEMOCRACY AND THE THEORY OF SOCIAL CHOICE 67-81 (1982).
117. ELKINS ET AL., supra note 12, at 20.
118. See generally ADRIAN VERMEULE, MECHANISMS OF DEMOCRACY: INSTITUTIONAL DESIGN WRIT SMALL (2007).
119. See supra Part I.A.
120. A point made cogently, albeit outside the rational choice paradigm, by Akhil Reed Amar. AKHIL REED AMAR, AMERICA'S CONSTITUTION: A BIOGRAPHY 313-47 (2005).
121. The story is an elaborate one, of course, assembled in critical politicolegal "chapters," beginning with the founding period, continuing through the periodic admission of new states into the Union, and shifting as a result of key ruptures in U.S. governance, perhaps most notably during the Reconstruction period, where the fundamental structure of national citizenship was solidified and where the Confederate states were readmitted to the Union.
122. See generally WOOD, supra note 35. And it is a story that comes in different shades and colors. Compare SAMUEL H. BEER, To MAKE A NATION: THE REDISCOVERY OF AMERICAN FEDERALISM 1-25 (1993) (describing the national idea in U.S. politics)
123. DANIEL J. ELAZAR, THE AMERICAN CONSTITUTIONAL TRADITION 169 (1988) (describing the federal constitution and government as "incomplete and needfing] the states to be com-plete").
124. See TARR, supra note 11, at 6-28 (exploring the distinctiveness of state constitutionalism).
125. WILLIAMS, supra note 11, at 15-36 (describing the form and functions of the other U.S. constitutions).
126. John Kincaid, State Constitutions in the Federal System, 496 ANNALS AM. ACAD. POL. & Soc. SCI. 12, 14 (1988) (describing state constitutional law as "a beehive of activity").
127. Donald S. Lutz, The United States Constitution As an Incomplete Text, 496 ANNALS AM. ACAD. POL. & Soc. SCI. 23 (1988)
128. See also WOOD, supra note 35.
129. Lutz, supra note 58, at 32.
130. While this point would take more reflection to unpack with any sophistication, the invitation by Michael Dorf and Charles Sabel to consider modalities of what they call "democratic experimentalism" fits well into this conception of state constitutions as completing the U.S. Constitution's larger constitutional ambitions.
131. See Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 COLUM. L. REV. 267 (1998). Federalism is concerned, after all, with the demarca-tion of power-and thus the separation of spheres of sovereignty-between the federal and state governments. Democratic experimentalism, as Dorf and Sabel explain, better incorporates the potentialities of local knowledge to further aims constructed by democratically authorized decision makers at a more central level. Just as this knowledge contributes to the completion of the general goals mapped out by the polity through whatever configuration of public deliberative processes are appropriate, state constitutions can function to fill in larger sociopolitical goals while also innovating the mechan-isms of policy implementation and governmental performance. Professor Heather Gerken has something similar in mind, albeit framed in the language of constitutional federalism, as she writes of the virtues of federalism "all the way down," that is, the consideration of subnational governance schemes as superior mechanisms for realizing salutary aims.
132. See generally Heather K. Gerken, Foreword: Fed-eralism All the Way Down, 124 HARV. L. REV. 4 (2010).
133. James A. Gardner, The Failed Discourse of State Constitutionalism, 90 MICH. L. REV. 761, 763 (1992).
134. Kermit L. Hall, Mostly Anchor and Little Sail: The Evolution of American State constitutions, in TOWARD A USABLE PAST: LIBERTY UNDER STATE CONSTITUTIONS 388,411 (Paul Finkelman & Stephen E. Gottlieb eds., 1991).
135. For a famous, early statement reflecting this view, see ALEXIS DE TOCQUEVILLE, 1 DEMOCRACY IN AMERICA 148-52 (Henry Reeve trans., 1839) (1835) (giving reasons for his view "that the Federal Constitution is superior to all the Constitutions of the States").
136. See generally TARR, supra note 11, at 19-20
137. Michael E. Libonati, Intergovernmental Rela-tions in State Constitutional Law: A Historical Overview, 496 ANNALS AM. ACAD. POL. & Soc. SCI. 107 (1988).
138. See generally WILLIAMS, supra note 11, at 247-81
139. W.F. Dodd, The Function of a State Constitution, 30 POL. SCI. Q. 201 (1915).
140. See also infra notes 69-72 and accompanying text.
141. See generally JOHN J. DINAN, THE AMERICAN STATE CONSTITUTIONAL TRADITION 97-136 (2006)
142. WILLIAMS, supra note 11, at 235-45 (describing the state constitutional distribution of powers).
143. See JAMES A. GARDNER, INTERPRETING STATE CONSTITUTIONS: A JURISPRUDENCE OF FUNCTION IN A FEDERAL SYSTEM 25-26 (2005) (noting that every state constitution "enumerates and protects a set of common, basic liberties")
144. TARR, supra note 11, at 11-13.
145. See William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 HARV. L. REV. 489 (1977).
146. As G. Alan Tarr describes it: "No longer are the states merely called on to address their tra-ditional responsibilities. The federal government has devolved new responsibilities for policy devel-opment and implementation to the states The states are therefore being expected to address new problems and to generate novel solutions for long-standing, intractable ones." Tarr, supra note 8, at 4
147. see also FRANK P. GRAD & ROBERT F. WILLIAMS, 2 STATE CONSTITUTIONS FOR THE TWENTY-FIRST CENTURY: DRAFTING STATE CONSTITUTIONS, REVISIONS, AND AMENDMENTS 8-14 (2006). We can broaden this point to include the values attendant to federalism more generally, of which state consti-tutionalism is a key element.
148. See generally ROBERT A. SCHAPIRO, POLYPHONIC FEDERALISM: TOWARD THE PROTECTION OF FUNDAMENTAL RIGHTS (2009).
149. See generally WILLIAMS, supra note 11, at 3 ("A state constitution serves as a charter of law and government for the state-the supreme law of the state-and prescribes in more or less detail the structure and functions of state and, sometimes, local government.").
150. See ELKINS ET AL., supra note 12, at 38-39.
151. By contrast to the national Constitution, the regulatory powers created by state constitutions are plenary; that is what we mean when we say that the state governments have the "police power," which is the delegated power to regulate the health, safety, and welfare of citizens without the need for a specific constitutional grant. State constitutions, as the saying goes, are documents of limit, not grant.
152. See, e.g., DANIEL J. HULSEBOSCH, CONSTITUTING EMPIRE: NEW YORK AND THE TRANSFORMATION OF CONSTITUTIONALISM IN THE ATLANTIC WORLD, 1664-1830 (2005) (describing the multilayered function of police power in constitutionalism).
153. For earlier statements, see THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION 572-97 (1868)
154. ERNST FREUND, THE POLICE POWER: PUBLIC POLICY AND CONSTITUTIONAL RIGHTS (1904).
155. See, e.g., William B. Munro, An Ideal State Constitution, 181 ANNALS AM. ACAD. POL. & Soc. SCI. 1, 3 (1935) ("The idea that state governments shall confine themselves to a minimum of ac-tivity has long since passed into the discard. It has given place to the doctrine that these governments should busy themselves with all sorts of regulatory functions in the interests of the collective citizen-ship ")
156. Albert L. Sturm, The Development of American State Constitutions, 12 PUBLIUS: J. FEDERALISM 57,64-66 (1982).
157. See Daniel J. Elazar, Forward: The Moral Compass of State Constitutionalism, 30 RUTGERS L.J. 849,862 (1999) (describing purposes of state constitutions as including "building a certain kind of citizenry").
158. See GARDNER, supra note 66, at 154-59 ("Every single state constitution, without exception, grants power to each branch of state government in one immense, undifferentiated, and unlimited block State legislatures may, quite simply, take up any subject at all, without limit.")
159. TARR, supra note 11, at 7 ("[S]tate governments have historically been understood to possess plenary legislative powers-that is, those residual legislative powers not ceded to the national government or prohibited to them by the federal Constitution.").
160. The classic statement of this view is in COOLEY, supra note 72. In speaking specifically of state legislative power, Justice Cooley observes that "[t]he legislative de-partment is not made a special agency, for the exercise of specifically defined legislative powers, but is entrusted with the general authority to make laws at [its] discretion."
161. See generally Dodd, supra note 64.
162. I explore some of these themes in Daniel B. Rodriguez, William J. Brennan Lecture: Are State Constitutions Fundamentally Progressive Documents (And Why Should We Care?), 36 OKLA. CITY U. L. REV. (forthcoming Fall 2011).
163. See GRAD & WILLIAMS, supra note 68, at 12 ("Since effective state constitutional change requires a detailed substantive examination of how the state's business of government may best be structured in the light of the functions it must fulfill and the needs it must serve, the state constitution-maker must first determine the precise nature of such needs and functions.").
164. Likewise, Frank Grad and Robert Williams describe state constitutions as "tools or instru-ments of government, the 'suitability and adaptability' of which 'can only be gauged in the relationship to its set task.'"
165. WILLIAMS, supra note 11, at 360 (quoting GRAD & WILLIAMS, supra note 68, at 8).
166. LUTZ, supra note 42, at 17.
167. See, e.g., Donald S. Lutz, The Purposes of American State Constitutions, 12 PUBLIUS: J. FEDERALISM 27,31 (1982) ("A written constitution is a political technology.").
168. See WILLIAMS, supra note 11, at 362 ("State constitutions⋯ serve primarily to limit the ple-nary authority retained by states at the time of formation of the Union.").
169. See id. ("State constitutions structure a subnational government-a government functioning within a government ").
170. See generally LYNN A. BAKER & CLAYTON P. GILLETTE, LOCAL GOVERNMENT LAW: CASES AND MATERIALS 46-51 (4th ed. 2010) (presenting comprehensive data on the "forms and structures of local government" in the United States). There is a separate normative literature, growing steadily, emphasizing the imperative of local government power in the U.S. constitutional scheme.
171. See, e.g., GERALD E. FRUG & DAVID J. BARRON, CITY BOUND: HOW STATES STIFLE URBAN INNOVATION (2008)
172. David J. Barron, The Promise of Cooley's City: Traces of Local Constitutionalism, 147 U. PA. L. REV. 487 (1999)
173. Richard Briffault, Our Localism: Part I- The Structure of Local Government Law, 90 COLUM. L. REV. 1 (1990)
174. Richard Briffault, Our Localism: Part II-Localism and Legal Theory, 90 COLUM. L. REV. 346 (1990).
175. See Hunter v. City of Pittsburgh, 207 U.S. 161 (1907)
176. accord Williams v. Mayor & City Council of Bait., 289 U.S. 36 (1933)
177. Trenton v. New Jersey, 262 U.S. 182 (1923).
178. For a classic, early statement of this position, see Howard Lee McBain, The Doctrine of An Inherent Right of Local Self-Government, 16 COLUM. L. REV. 190 (1916).
179. That is to say that state constitutions, which create the general architecture within which lo-cal governments exercise power, are seldom explicit about what specific roles and responsibilities these institutions of government have in the regulatory scheme of the state. But see infra text accom-panying notes 123-136 (describing tax and expenditure limitations and their impact on local control). In addition, local governments frequently exercise power under home-rule provisions of state constitutions.
180. See generally DALE KRANE ET AL., HOME RULE IN AMERICA: A FIFTY-STATE HANDBOOK (2001). Depending upon the type of home rule at issue, this may fracture, to some degree, the respon-sibility of governing and may further distance local policy making from discrete constitutional com-mands. See infra text accompanying notes 137-141 (discussing home rule in the context of state consti-tutional performance).
181. There are over 37,000 such governments in the United States, according to the 2000 census data.
182. See BAKER & GILLETTE, supra note 84, at 50-51
183. see also KATHRYN A. FOSTER, THE POLITICAL ECONOMY OF SPECIAL-PURPOSE GOVERNMENT (1997).
184. See generally RICHARD BRIFFAULT & LAURIE REYNOLDS, CASES AND MATERIALS ON STATE AND LOCAL GOVERNMENT LAW (7th ed. 2009) (describing reasons for the creation of special-purpose governments).
185. Robert C. Post, The Challenge of Stale Constitutions, in CONSTITUTIONAL REFORM IN CALIFORNIA: MAKING STATE GOVERNMENT MORE EFFECTIVE AND RESPONSIVE 45, 46 (Bruce E. Cain & Roger G. Noll eds., 1995).
186. See Elazar, supra note 74.
187. On the role of constitutions in constituting the polity, see ELKINS ET AL., supra note 12, at 20-21.
188. Compare MALCOLM M. FEELEY & EDWARD RUBIN, FEDERALISM: POLITICAL IDENTITY AND TRAGIC COMPROMISE 7-12 (2008) (describing the nationalization of culture and policy)
189. SCHAPIRO, supra note 68, at 25-26
190. BILL BISHOP, THE BIG SORT: WHY THE CLUSTERING OF LIKE-MINDED AMERICA IS TEARING Us APART (2008) (noting salience of regional differences)
191. ANDREW GELMAN ET AL., RED STATE, BLUE STATE, RICH STATE, POOR STATE: WHY AMERICANS VOTE THE WAY THEY DO (2008)
192. See, e.g., Gardner, supra note 61
193. Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. REV. 903 (1994)
194. Robert A. Schapiro, Identity and Interpre-tation in State Constitutional Law, 84 VA. L. REV. 389 (1998).
195. I use residency and citizenship interchangeably here. See generally Jonathan D. Varat, State "Citizenship" and Interstate Equality, 48 U. CHI. L. REV. 487 (1981).
196. For a handy guide to residency requirements for in-state tuition at state colleges, see In-State Tuition and State Residency Requirements, FINAID, http://www.finaid.org/otheraid/stateresidency. phtml (last visited June 8,2011).
197. See, e.g., Snowden v. Hughes, 321 U.S. 1, 6-7 (1944) ("The protection extended to citizens of the United States by the privileges and immunities clause includes those rights and privileges which, under the laws and Constitution of the United States, are incident to citizenship of the United States, but does not include rights pertaining to state citizenship and derived solely from the relationship of the citizen and his state established by state law. The right to become a candidate for state office, like the right to vote for the election of state officers, is a right or privilege of state citizenship, not of national citizenship " (emphasis added) (citations omitted)).
198. To be sure, the U.S. Constitution imposes important limits on states' ability to discriminate in the service of these communities of interest (or for any other purpose).
199. See generally Roderick M. Hills, Jr., Poverty, Residency, and Federalism: States' Duty of Impartiality Toward Newcomers, 1999 SUP. Cr. REV. 277.
200. "[Constitutional design requires careful attention to the structure of interests and therefore the nature of factions." LUTZ, supra note 42, at 206.
201. See generally Richard Briffault, The Local Government Boundary Problem in Metropolitan Areas, 48 STAN. L. REV. 1115 (1996) (describing this phenomenon in the context of municipal bound-ary law).
202. On tax exporting, see Robert P. Inman & Dan L. Rubinfeld, Designing Tax Policy in Fed-eralist Economies: An Overview, 60 J. PUB. ECON. 307,322-25 (1996).
203. See supra text accompanying note 50.
204. State constitutions are famously verbose when considered in comparison to the national Constitution. For information on the word length of U.S. state constitutions, see 40 COUNCIL OF STATE GOV'TS, THE BOOK OF STATES 10 tbl.1.1 (2008) (providing data on the word length of each state constitution).
205. Some may reflect what Mitchell Berman labels "constitutional operative propositions," to describe "the judiciary's understanding of the proper meaning of a constitutional power, right, duty, or other sort of provision " Mitchell N. Berman, Constitutional Decision Rules, 90 VA. L. REV. 1, 9 (2004).
206. This does not necessarily exhaust the category of such principles, however. For example, prin-ciples crafted and implemented by nonjudicial government officials may credibly be viewed as consti-tutional rules. In some instances, they may reflect the interpretation given by these officials to express rules (an analogue to Berman's label); in other instances, however, they may emerge as a rule from the immanent principles of the constitutional document more generally, as with, for example, the principle under which the governor exercises certain managerial control over executive officials within his sphere or the principle of separation of powers. For my purposes, it is sufficient to say that constitu-tional rules emerge from a myriad of sources-a view that is in conflict only with a rigid textualist ac-count which views constitutional rules as exhausted by the express words of the document.
207. Influential recent accounts of this observation in the context of the U.S. Constitution include WILLIAM N. ESKRIDGE, JR. & JOHN FEREJOHN, A REPUBLIC OF STATUTES: THE NEW AMERICAN CONSTITUTION (2010)
208. Ernest A. Young, The Constitution Outside the Constitution, 117 YALE L.J. 408 (2007).
209. In the non-U.S. context, see Matthew S.R. Palmer, Using Constitutional Realism to Identi-fy the Complete Constitution: Lessons from an Unwritten Constitution, 54 AM. J. COMP. L. 587 (2006).
210. Which is not to say, however, that we ought not to think about state constitutionalism from a "trans-state" vantage point.
211. See Daniel B. Rodriguez, State Constitutional Theory and Its Prospects, 28 N.M. L. REV. 271 (1998)
212. see also James A. Gardner, The Positivist Revolution That Wasn't: Constitu-tional Vniversalism in the States, 4 ROGER WILLIAMS U. L. REV. 109, 126-27 (1998) (associating the emphasis on constitutional universalism with Thomas Cooley)
213. Paul W. Kahn, Commentary, Interpre-tation and Authority in State Constitutionalism, 106 HARV. L. REV. 1147 (1993).
214. For a table listing these states and detailing the requirements for budget enactments, see Su-permajority Vote Requirements to Pass the Budget, NAT'L CONF. ST. LEGISLATURES, http://www.ncsl.org/default.aspx?tabid=12654 (last updated Oct. 2008).
215. See Legislative Supermajority to Raise Taxes-2008, NAT'L CONF. ST. LEGISLATURES, http://www.ncsl.org/?TabID=17421 (last visited June 8,2011).
216. Some state courts have taken matters into their own hands, reading the supermajority re-quirement for budget agreement out of their constitution in order to realize other goals.
217. See, e.g., Guinn v. Legislature of Nev., 71 P.3d 1269 (Nev. 2003). This simply trades off one problem (incorrigi-bility) for another (fidelity). This is not to say with confidence that the tradeoff is not warranted, all things considered, but simply to say that the conundrum which gives rise to this consideration illus-trates failures in the state constitutional structure.
218. See generally John O. McGinnis & Michael B. Rappaport, Our Supermajoritarian Constitu-tion, 80 TEX. L. REV. 703,720-22 (2002) (describing James Madison as "Father of the Constitution and Mr. Supermajority").
219. See, e.g., Mathew D. McCubbins, Party Governance and U.S. Budget Deficits: Divided Gov-ernment and Fiscal Stalemate, in POLITICS AND ECONOMICS IN THE EIGHTIES 83 (Alberto Alesina & Geoffrey Carliner eds., 1991)
220. see also Meagan M. Jordan & Kim U. Hoffman, The Revenue Impact of State Legislative Supermajority Voting Requirements, 10 MLDSOUTH POL. SCI. REV. 1 (2009)
221. Brian G. Knight, Supermajority Voting Requirements for Tax Increases: Evidence from the States, 76 J. PUB. ECON. 41 (2000).
222. See John W. Ellwood & Mary Sprague, Options for Reforming the California State Budget Process, in CONSTITUTIONAL REFORM IN CALIFORNIA, supra note 89, at 329,348.
223. See, e.g., Mathew D. McCubbins, Putting the State Back into State Government: The Constitu-tion and the Budget, in CONSTITUTIONAL REFORM IN CALIFORNIA, supra note 89, at 353,364-66.
224. In this respect, supermajority requirements are distinct from, say, the filibuster rule in the U.S. Senate.
225. See, e.g., GEORGE F. WILL, RESTORATION: CONGRESS, TERM LIMITS AND THE RECOVERY OF DELIBERATIVE DEMOCRACY (1992).
226. The principal contemporary studies include BRUCE E. CAIN & THAD KOUSSER, ADAPTING TO TERM LIMITS: RECENT EXPERIENCES AND NEW DIRECTIONS (2004)
227. THAD KOUSSER, TERM LIMITS AND THE DISMANTLING OF STATE LEGISLATIVE PROFESSIONALISM (2005)
228. THE TEST OF TIME: COPING WITH LEGISLATIVE TERM LIMITS (Rick Farmer et al. eds., 2003)
229. INSTITUTIONAL CHANGE IN AMERICAN POLITICS: THE CASE OF TERM LIMITS (Karl T. Kurtz et al. eds., 2007).
230. Another key collection of studies, although somewhat dated in light of growing data about the actual impact of term limits in U.S. states, is LEGISLATIVE TERM LIMITS: PUBLIC CHOICE PERSPECTIVES (Bernard Grofman ed., 1996).
231. See JOHN M. CAREY, TERM LIMITS AND LEGISLATIVE REPRESENTATION (1996)
232. Elizabeth A. Capell, The Impact of Term Limits on the California Legislature: An Interest Croup Perspective, in LEGISLATIVE TERM LIMITS, supra note 117, at 67
233. Linda R. Cohen & Matthew L. Spitzer, Term Limits and Representation, in LEGISLATIVE TERM LIMITS, supra note 117, at 47.
234. But see Kangoh Lee, An Analysis of Welfare Effects of Legislative Term Limits, 110 PUB. CHOICE 245 (2002) (showing that the welfare effects of term limits depend on the shape of the voters' utility function). The argument is that term limits have fragmented representative democracy by limiting one form of accountability between lawmakers and the citizenry. Elkins, Ginsburg, and Melton analogize legislative term limits to formal requirements of constitutional sunsetting. ELKINS ET AL., supra note 12, at 13-17. Indeed, as they write, "term limits for officeholders may provide an even more extreme institutional limitation on choice than those proposed by Jefferson for laws."
235. See, e.g., KOUSSER, supra note 117, at 151-76 (concluding that "enjvery state with term limits shows a substantial decline over the past decade in how much legislatures are able to alter the gover-nor's requests ")
236. John M. Carey et al., The Effects of Term Limits on State Legislatures, 23 LEGIS. STUD. Q. 271 (1998) (concluding that term limits redistribute power away from majority party leaders and toward governors)
237. Richard J. Powell, Executive-Legislative Relations, in INSTITUTIONAL CHANGE IN AMERICAN POLITICS, supra note 117, at 134,135-43 (describing the "changing balance of power").
238. See CAIN & KOUSSER, supra note 117, at 61-70.
239. They identify three ways that term limits increase aggregate levels of partisan polarization: first, "buy expelling members just as they become more centrist, term limits ensure that a house will be composed only of newer, more partisan legisla-tors;" second, "short terms of service in the Legislature have been attractive mostly to ideologues;" and, finally, "new members today behave just like new members in previous decades did but that react to the way term limits dramatically cut their time horizons."
240. (quoting a for-mer Senate committee chair who declares: "The single biggest effect of term limits is increased parti-sanship. You don't know your colleagues well, and you don't treat them as part of your future.").
241. The impact on policy innovation presents its own problem, although, admittedly, whether this is a serious problem is somewhat in the eye of the beholder. What, after all, are the precise values of innovation? Lastly, the polarization of the legislature impacts the constitutional ideal of workable governance by making it hard to achieve policies which reflect the agenda and objectives of a wide, diverse range of public preferences-what Rousseau called the "general will."
242. See JEAN-JACQUES ROUSSEAU, THE SOCIAL CONTRACT (Maurice Cranston trans., Penguin Books 1968) (1762).
243. As one Senate committee consultant colorfully put it: "Long-term issues get ignored, and legislation is smaller and crappier." CAIN & KOUSSER, supra note 117, at 44. A key measure used in this investigation is the complexity of enacted laws, the supposition being that more prolix bills make the implementation of public policy considerably more problematic. After all, these particularistic bills fracture the connection between legislators and agencies. "Term-limited legislators," write Cain and Kousser, "who know that they will not be around long enough to oversee the bureaucracy's im-plementation of their legislation may attempt to lock in their intentions by crafting very specific bills."
244. see also Thad Kousser & John Straayer, Budgets and the Policy Process, in INSTITUTIONAL CHANGE IN AMERICAN POLITICS, supra note 117, at 148,148-49
245. David R. Berman, Effects of Legisla-tive Term Limits in Arizona, NAT'L CONF. ST. LEGISLATURES (2004), http://www.ncsl.0rg/P0rtals/l/ documents/jptl/casestudies/Arizonav2.pdf.
246. See generally Jon Coupai, The California Tax Revolt, in THE CALIFORNIA REPUBLIC: INSTITUTIONS, STATESMANSHIP, AND POLICIES 187 (Brian P. Janiskee & Ken Masugi eds., 2004).
247. CAL. CONST, art. XIII.A.
248. See generally ARTHUR O'SULLIVAN ET AL., PROPERTY TAXES AND TAX REVOLTS: THE LEGACY OF PROPOSITION 13 (1995).
249. See Kirk J. Stark, The Right to Vote on Taxes, 96 Nw. U. L. REV. 191,192 (2001) ("Prop 13 marked a watershed moment in the evolution of American attitudes toward government and taxa-tion.").
250. See Ellwood & Sprague, supra note 112, at 335-36 (describing Proposition 98 and its effects).
251. One significant set-aside was enacted in 2004 when California voters passed Proposition 71: the Stem Cell Initiative.
252. See Proposition 71: Stem Cell Research. Funding. Bonds., CAL. LEGIS. ANALYST'S OFF., http://www.lao.ca.gov/ballot/2004/71-ll-2004.htm (last visited June 8, 2011).
253. COLO. CONST, art. X, § 20
254. BELL POLICY CTR., TEN YEARS OF TABOR: A STUDY OF COLORADO'S TAXPAYER BILL OF RIGHTS (2003), http://beUpolicy.org/sites/default/files/PUBS/annual/ 2003/T ABORlO.pdf.
255. See BELL POLICY CTR., supra note 129, at 6-7.
256. See Thad Kousser et al., For Whom the TEL Tolls: Can State Tax and Expenditure Limits Effectively Reduce Spending?, 8 ST. POL. & POL'Y Q. 331,352-54 (2008).
257. This broad and enduring support for TABOR is reflected in the title of a recent Denver Post article: Barry W. Poulson, Op-Ed., TABOR Amendment Has Saved Colorado, DENVER POST, Oct. 9, 2009, at Bll. This is not to say that TABOR lacks vigorous critics.
258. IRIS J. LAV & ERICA WILLIAMS, CTR. ON BUDGET & POL'Y PRIORITIES, A FORMULA FOR DECLINE: LESSONS FROM COLORADO FOR STATES CONSIDERING TABOR (2010), http://www.cbpp.org/files/10-l9-05sfp.pdf (last updated Mar. 15,2010).
259. Kousser et al., supra note 131, at 345-52, 354 (analyzing data for twenty states with TELS and finding that only in Colorado did TELs have a significant effect).
260. LUTZ, supra note 42, at 213.
261. See, e.g., Revan Tranter, Cities, Counties, and the State-From Prop. 13 to 218, in GOVERNING CALIFORNIA: POLITICS, GOVERNMENT, AND PUBLIC POLICY IN THE GOLDEN STATE 63, 68-82 (Gerald C Lubenow & Bruce E. Cain eds., 1997) (describing the aftermath of Proposition 13 and tensions between spending and taxing decision making).
262. See Ellwood & Sprague, supra note 112
263. McCubbins, supra note 113.
264. See generally Lynn A. Baker & Daniel B. Rodriguez, Constitutional Home Rule and Judicial Scrutiny, 86 DENV. U. L. REV. 1337,1339, 1374-1424 (2009) (describing home-rule provisions in the fifty state constitutions).
265. See KRANE ET AL., supra note 86, at 11-12
266. Gerald E. Frug, The City As a Legal Concept, 93 HARV. L. REV. 1057,1080-1119 (1980)
267. Joan C. Williams, The Invention of the Municipal Corporation: A Case Study in Legal Change, 34 AM. U. L. REV. 369,392-331 (1985).
268. These considerable costs help explain, of course, why such a large number of states have eschewed this "imperium in imperio" model.
269. See generally FRUG & BARRON, supra note 84
270. Barron, supra note 84
271. Briffault, Our Localism, Part I- The Structure of Local Government Law, supra note 84
272. Briffault, Our Localism, Part II-Localism and Legal Theory, supra note 84.
273. See KRANE ET AL., supra note 86, at 12-18.
274. See Baker & Rodriguez, supra note 137, at 1363-64.
275. See supra text accompanying notes 131-134.
276. Compare David J. Barron, Reclaiming Home Rule, 116 HARV. L. REV. 2255, 2259-60 (2003) (promoting local sovereignty)
277. Briffault, Our Localism, Part I-The Structure of Local Govern-ment Law, supra note 84, at 85-86 (sketching a more skeptical view of local prerogatives).
278. See LEVINSON, supra note 1.
279. In writing about the national Constitution, Sanford Levinson has this general notion in mind when focusing on the discrepancies between the democratic ideals of the U.S. Constitution and the instruments embodied in the Constitution to implement these ideals. Although the ideals I have sketched in the state constitutional context are different-or, to equivocate somewhat-they supple-ment in key ways the objective of democratic decision making. I am interested in the same basic ques-tion as he: whether and to what extent there is a serious mismatch between institutional arrangements and constitutional goals. Dysfunctional rules, structures, and arrangements are significant evidence of this mismatch.
280. U.S. CONST, art. II, § 1.
281. See generally Thad Beyle, The Executive Branch, in 3 STATE CONSTITUTIONS FOR THE TWENTY-FIRST CENTURY: THE AGENDA OF STATE CONSTITUTIONAL REFORM 67 (G. Alan Tarr & Robert F. Williams eds., 2006).
282. See Christopher R. Berry & Jacob E. Gersen, The Unbundled Executive, 75 U. CHI. L. REV. 1385 (2008).
283. To be fair, Berry and Gersen describe their analysis as an extended thought experiment. They do not purport to offer a comprehensive defense of the structure of plural executives under U.S. state constitutions. In any event, I share entirely their intuition that scholars and constitutional refor-mers have been disserved by focusing reflexively on the federal model of executive power thereby neglecting to carefully consider some of the distinct features of state constitutional governance.
284. The basic difficulty in managing a multi-institutional criminal justice system has been de-scribed ably in the federal context by leading criminal procedure scholars.
285. See, e.g., Rachel E. Bar-kow, Institutional Design and the Policing of Prosecutors: Lessons from Administrative Law, 61 STAN. L. REV. 869 (2009)
286. Dan M. Kahan, Reallocating Interpretive Criminal-Lawmaking Power Within the Executive Branch, L. & CONTEMP. PROBS., Winter/Spring 1998, at 47
287. Daniel C. Richman, Federal Criminal Law, Congressional Delegation, and Enforcement Discretion, 46 UCLA L. REV. 757 (1999)
288. Daniel Richman, Political Control of Federal Prosecutions: Looking Back and Looking Forward, 58 DUKE L.J. 2087 (2009)
289. see also Stephen J. Schulhofer, Criminal Justice Discretion As a Regulatory System, 17 J. LEGAL STUD. 43 (1988).
290. See generally William P. Marshall, Break Up the Presidency? Governors, State Attorneys General, and Lessons from the Divided Executive, 115 YALE L.J. 2446 (2006).
291. On the other hand, directly elected executive officers can flex their muscles as well, as Gov-ernor Schwarzenegger of California learned painfully when he found himself cross ways with Control-ler John Chiang.
292. See Vikram David Amar, Lessons from California's Recent Experience with its Non-Unitary (Divided) Executive: Of Mayors, Governors, Controllers, and Attorneys General, 59 EMORY L.J. 469,477-78 (2009).
293. For general overviews, see THOMAS E. CRONIN, DIRECT DEMOCRACY: THE POLITICS OF INITIATIVE, REFERENDUM, AND RECALL (1989)
294. RICHARD J. ELLIS, DEMOCRATIC DELUSIONS: THE INITIATIVE PROCESS IN AMERICA (2002).
295. See, e.g., JON C. TEAFORD, THE RISE OF THE STATES: EVOLUTION OF AMERICAN STATE GOVERNMENT 87 (2002) ("Direct legislation⋯ [is] a legal expression of the people's lack of faith in their chosen representatives. This skepticism about the state legislature was, in fact, a continuing fea-ture of the twentieth century ")
296. see also Thomas Goebel, "A Case of Democratic Contagion": Direct Democracy in the American West, 1890-1920,66 PAC. HLST. REV. 213 (1997).
297. For an interesting analysis of which states have adopted one version of direct democracy or another, see Daniel A. Smith & Dustin Fridkin, Delegating Direct Democracy: Interparty Legislative Competition and the Adoption of the Initiative in the American States, 102 AM. POL. SCI. REV. 333 (2008).
298. See, e.g., DANGEROUS DEMOCRACY?: THE BATTLE OVER BALLOT INITIATIVES IN AMERICA (Larry J. Sabato et al. eds., 2001)
299. Lynn A. Baker, Constitutional Change and Direct Democracy, 66 U. COLO. L. REV. 143 (1995)
300. Elizabeth Garrett, The Promise and Perils of Hybrid Democracy, 59 OKLA. L. REV. 227 (2006)
301. Cynthia L. Fountaine, Note, Lousy Lawmaking: Questioning the Desirability and Constitutionality of Legislating by Initiative, 61 S. CAL. L. REV. 733 (1988).
302. The leading study is ELISABETH R. GERBER, THE POPULIST PARADOX: INTEREST GROUP INFLUENCE AND THE PROMISE OF DIRECT LEGISLATION (1999).
303. In addition to the studies cited in the previous notes, see JOHN G. MATSUSAKA, FOR THE MANY OR THE FEW: THE INITIATIVE, PUBLIC POLICY, AND AMERICAN DEMOCRACY (2004)
304. DANIEL A. SMITH & CAROLINE J. TOLBERT, EDUCATED BY INITIATIVE: THE EFFECTS OF DIRECT DEMOCRACY ON CITIZENS AND POLITICAL ORGANIZATIONS IN THE AMERICAN STATES (2004).
305. On legislative responses to initiatives, see Elisabeth R. Gerber, Legislative Response to the Threat of Popular Initiatives, 40 AM. J. POL. SCI. 99 (1996).
306. See, e.g., PHILIP L. DUBOIS & FLOYD FEENEY, LAWMAKING BY INITIATIVE: ISSUES, OPTIONS, AND COMPARISONS (1998).
307. See, e.g., Daniel B. Rodriguez, Localism and Lawmaking, 32 RUTGERS L.J. 627, 646-81 (2001) (discussing the distinctions between strategic processes in legislative and initiative lawmaking).
308. By "enforceable," I simply mean that legislators will be held accountable, in whatever fashion their colleagues deem appropriate, for their votes on certain legislative proposals.
309. See, e.g., Mathew D. McCubbins & Daniel B. Rodriguez, Canonical Construction and Statu-tory Revisionism: The Strange Case of the Appropriations Canon, 14 J. CONTEMP. LEGAL ISSUES 669, 703-05 (2005) (discussing the appropriations process and its comparative advantages in facilitating tradeoffs).
310. See, e.g., ELISABETH R. GERBER ET AL., STEALING THE INITIATIVE: HOW STATE GOVERNMENT RESPONDS TO DIRECT DEMOCRACY (2001).
311. See, e.g., Shaun Bowler et al., Ballot Propositions and Information Costs: Direct Democracy and the Fatigued Voter, 45 W. POL. Q. 559 (1992)
312. Elizabeth Garrett, Commentary, Crypto-Initiatives in Hybrid Democracy, 78 S. CAL. L. REV. 985 (2005).
313. In an extended riff on David Hume and rational choice perspectives on constitutional design, Adrian Vermeule urges us, usefully, to look to the idea of "second-best constitutionalism," that is, the notion that a constitutional structure can produce, in its departures from the governance optimum, "compensating adjustments that ensure constitutional equilibrium." Adrian Vermeule, Hume's Second-Best Constitutionalism, 70 U. CHI. L. REV. 421, 421 (2003).
314. There are two distinct senses in which this second-best constitutionalism can illuminate the question at hand. First, we could imagine, plausibly, that state constitutions embed and entrench institutions which provide purposively for "compensating adjustments;" a workable system of checks and balances is perhaps the most obvious example of such a schema. To some extent, this idea does resonate with the architecture of state con-stitutions. Three of the four problems described above, however-incorrigibility, incommensurability, and dysfunctionality-belie the notion that state constitutional structure accomplishes even a second-best constitutionalism. The second, and more fruitful sense, in which second-best constitutionalism may help shape our sense of constitutional failure and its consequences is the careful strategy of courts in constitutional adjudication to deploy these "adjustments" in order to compensate for governance pathologies. This is an intriguing line of inquiry and one which jibes with the tradition of process-improving theories of constitutional adjudication. As my task is the more limited one of illuminating the general question of state constitutional failure, I will leave to another day the implications of this perspective on second-best constitutionalism. But I just highlight the optimism built into the insight; perhaps courts can deal with some of the performance pathologies revealed above.
315. See WILLIAMS, supra note 11, at 359.
316. ELKINS ET AL., supra note 12, at 12.
317. Compare with Elkins et al., who argue that "[gjiven the possibility of a suboptimal starting point and the existence of powerful inertial forces, one can make a case in favor of forcing the polity to re-engage with fundamental principles." Id. at 15 (emphasis in original). This strikes me as a context-dependent matter. It may be that these same forces interfere with this process of re-engagement, thus debilitating efforts to fix the basic processes of governance. On the other hand, we should credit the more basic point that it is always fruitful to consider anew the value of the fundamental principles in light of new circumstances, information, and exigencies.
318. Stan J. Liebowitz & Stephen E. Margolis, Path Dependence, in 1 ENCYCLOPEDIA OF LAW & ECONOMICS 981, 981 (Boudewijn Bouckaert & Gerrit De Geest eds. 2000)
319. see also Oona A. Hatha-way, Essay, Path Dependence in the Law: The Course and Pattern of Legal Change in a Common Law System, 86 IOWA L. REV. 601 (2001)
320. Scott E. Page, Path Dependence, 1 Q.J. POL. SCI. 87 (2006).
321. See supra notes 17-20 and accompanying text.
322. PAUL PIERSON, POLITICS IN TIME: HISTORY, INSTITUTIONS, AND SOCIAL ANALYSIS (2004).
323. Id. at 130 (discussing the "limits of institutional design").
324. Alternative methodological traditions, some sociological and others broadly histori-cal, will assist reformers-and those of us whose scholarship is essentially reformist in orientation-in tracking some of the complex elements of constitutional system building and experimentation.
325. See, e.g., JAMES G. MARCH & JOHAN P. OLSEN, REDISCOVERING INSTITUTIONS: THE ORGANIZATIONAL BASIS OF POLITICS (1989)
326. THE NEW INSTITUTIONALISM IN ORGANIZATIONAL ANALYSIS (Walter W. Powell & Paul J. DiMaggio eds., 1991)
327. Donald L. Horowitz, Constitutional Design: Proposals Versus Processes, in THE ARCHITECTURE OF DEMOCRACY: CONSTITUTIONAL DESIGN, CONFLICT MANAGEMENT, AND DEMOCRACY 15 (Andrew Reynolds ed., 2002).
328. On the value of comparative constitutional analysis more generally, see MARK TUSHNET, WEAK COURTS, STRONG RIGHTS: JUDICIAL REVIEW AND SOCIAL WELFARE RIGHTS IN COMPARATIVE CONSTITUTIONAL LAW 3-17 (2008)
329. Mark Tushnet, Transnational/Domestic Constitutional Law, 37 LOY. L.A. L. REV. 239 (2003).
330. See ELK1NS ET AL., supra note 12, at 150-202
331. see also Ran Hirschl, The "Design Sciences" and Constitutional "Success," 87 TEX. L. REV. 1339,1358-63 (2009) (describing various design defects in non-U.S. constitutional contexts)
332. Feisal Amin Rasoul al-lstrabadi, A Constitution Without Constitu-tionalism: Reflections on Iraq's Failed Constitutional Process, 87 TEX. L. REV. 1627 (2009).
333. See generally WILLIAMS, supra note 11, at 364-79 (describing pattern of twentieth century constitutional reform efforts)
334. see also TARR, supra note 11, at 150-61.
335. Mittal & Weingast, supra note 17, at 4.
336. Donald Lutz reminds us that experimentation is not valuable for its own sake. He writes: 'Beneficial innovation' is not to be confused with a notion of progress where more is always better. Nor is it to be confused with innovation per se. What is beneficial can only be determined by a freely interacting citizenry reflecting on the nature of the citizens' own personal and human needs and hopes.
337. LUTZ, supra note 42, at 24.
338. See supra notes 2-6 and accompanying text.