Category: Volume 60 No. 1

In the American system of federalism, states have almost complete freedom to adopt institutions and practices of internal self-governance that they find best-suited to the needs and preferences of their citizens. Nevertheless, states have not availed themselves of these opportunities: the structural provisions of state constitutions tend to converge strongly with one another and with the U.S. Constitution. This paper examines two important periods of such convergence: the period from 1776 through the first few decades of the nineteenth century, when states were inventing institutions of democratic governance and representation; and the period following the Supreme Court’s one person, one vote decisions in the early 1960s, when the Court’s destruction of the existing constitutional model created an important opportunity for states to experiment with alternative forms of legislative representation. In the first period, initial innovation and diversity were followed quickly by convergence and isomorphism; and in the second period, no burst of innovation occurred at all. After reviewing studies of institutional isomorphism and policy diffusion from other fields, the paper concludes that the facts best fit explanations based on the resort by constitutional drafters to well-known patterns of non-rational decision-making such as “availability” and “anchoring” heuristics. American state constitutions thus likely display little diversity in their structural provisions not because prevailing models have proven superior to the alternatives, but because imitating the choices of seemingly similar entities is a common way to dispatch cognitively challenging tasks. Read More …

The U.S. Constitution mandates that each state have “a republican form of government” and empowers the federal government to enforce this requirement. It also asserts its supremacy and that of other federal law, including statutes and treaties, over state constitutions, as well as over other state laws. Yet these requirements and restrictions are not particularly burdensome, and if one compares the “constitutional space” available to state constitution-makers in the United States with that available to their counterparts in other federations, there are far greater opportunities for constitutional innovation and experimentation in the United States than in most other federations. Read More …

The evolution of American state constitutions has been, in part, the product of “waves” of state constitutional adoption and revision. These waves have reflected national or regional political developments that have had causes and impacts beyond a single state. There were two waves of state constitution-making during the “founding decade” of 1776 to 1787. The first of these waves was a radically egalitarian form of state constitution-making (such as Pennsylvania) that stimulated a second-wave reaction, resulting in more moderate, or balanced, state constitutions (such as Massachusetts). Read More …