The 2004 institute will build on our very successful 2002 NEH summer institute on state constitutions (see Appendix 14 for evaluations). Together with the director, eight visiting scholars, and a master social-studies teacher, the participants will study, discuss, and develop lesson plans and teaching strategies for:
(1) the history of America’s state constitutions from 1776 to 2004
(2) traditions of state constitutional design
(3) theories of democracy, rights, popular government, political liberty, and representation in the state constitutions
(4) state constitutional successes and failures
(5) the impacts of state constitutions on public and private life.
Given the customary emphasis on the U.S. Constitution in most teaching, plus the need to understand the federal and state constitutions in relation to each other, the institute also will contrast the two constitutional experiences, highlighting:
(1) America’s dual federal-state constitutionalism
(2) similarities and differences between the federal and state constitutions
(3) the federal and state constitutions being twin pillars of America’s “complete constitution.”
Brief attention will be given, as well, to Native American constitutionalism as a precursor and resurgent tradition emerging as the third pillar of America’s “complete constitution.” By working with the institute’s faculty, exchanging ideas with each other, conducting a mock state-constitutional convention, and, then, contributing to a website and other communications designed to foster follow-up and dissemination, the participants will form a teaching and sharing community focused on the entire constitutional framework and history of the United States and of their own states.
Need
Constitutional illiteracy is a serious problem. A 1991 national survey by the U.S. Advisory Commission on Intergovernmental Relations found that 48 percent of adult Americans did not know that their state has its own constitution. Most Americans are aware of the U.S. Constitution, but their knowledge of it is limited. Establishment of the National Constitution Center in Philadelphia reflects a recognition that the constitutional literacy of Americans needs remedial attention. Furthermore, many states (e.g., New York) now mandate the teaching of their state constitution, although good teaching materials for this purpose are still scarce.
That knowledge of the United States Constitution is crucial for understanding American government and history requires no argument. The U.S. Constitution establishes the federal government, delegates powers to it, allocates powers among its three branches, places limits on the federal government and on the states, provides for interstate relations, identifies fundamental rights, and reserves all other powers to the states or to the people. The U.S. Constitution is fundamental to our federal democracy and to the ways Americans think about government. Furthermore, virtually all significant political conflicts in the United States have triggered constitutional debates.
Usually less obvious is the importance of America’s 50 state constitutions. Yet, these constitutions have been the people’s primary governing documents for most of American history, often having more impact on citizens than the federal Constitution. Eighteen state constitutions preceded the U.S. Constitution, and the Massachusetts Constitution of 1780 is the world’s oldest written constitution still in effect. Even today, the state constitutions govern more aspects of daily life than the federal Constitution. Certainly for public school teachers, such matters as curriculum requirements, licensing, personnel policies, school financing, and administrative mandates, are rooted almost entirely in the basic rules set forth in their state constitution.
Furthermore, because the federal Constitution is one of limited, delegated powers, the state constitutions independently and coordinately complete the constitutional structure of the United States. Compared to other national constitutions, the U.S. Constitution is, as Alexis de Tocqueville noted in the 1830s, “incomplete.” It is silent about many things, such as education and local government, because such matters are left to the people to establish through their state constitutions. The U.S. Constitution and its government cannot function, moreover, without the coordinate action of the state constitutions and their governments. This is one reason why the states are referred to 50 times in 42 separate sections of the U.S. Constitution.
It is the state constitution, not the federal Constitution, that establishes the state and its local governments, limits the scope of state power beyond the few limits set forth in the federal document, allocates powers among the branches of state government and between the state and its local governments, and mandates certain state duties (e.g., education). The state constitution structures political conflict in the state and provides mechanisms for its resolution. The state constitution provides for rights protections, too, which are not merely redundant of those found in the U.S. Bill of Rights but are also different and sometimes more expansive. The Equal Rights Amendment, for example, was not ratified for the U.S. Constitution, but ERAs were incorporated into 18 state constitutions. Express privacy provisions are embedded in ten state constitutions. The U.S. Supreme Court has left it to the states to decide the question of physician-assisted suicide, with Oregon being the first state to constitutionalize such a right. Most state constitutions address water and natural-resources rights–and so on.
Because state constitutions and their amendments are, unlike the federal Constitution, ratified by the people (and even initiated by the people in 17 states), they reflect the aims and aspirations of each state’s citizenry. They also express different understandings of popular government and conceptions of justice (as between states that permit and prohibit capital punishment). Because of the nation’s diversity, the state constitutions reflect various design principles. In turn, because state constitutions are amended by the people more frequently than the U.S. Constitution, these documents reflect the history of social, cultural, economic, and political change across the country more vividly than the federal document.
Thus, state constitutions are as significant for what they reveal as for what they prescribe. They are a crucial pedagogical resource because social change and political controversies in the states have often had constitutional repercussions, and the texts of state constitutions often record those conflicts and ratify their resolution. As historian Lawrence Friedman argues: “An observer with nothing in front of him but the texts of these constitutions could learn a great deal about state politics, state laws, and social life in America.” Successive versions and amendments of a state’s constitution mirror political, social, cultural, and economic changes that occur in a state. Comparing state constitutions across time and states reveals diverse popular responses to, and initiations of, political development. As James Bryce put it a century ago, state constitutions are “a mine of instruction for the natural history of democratic communities.”
The proposed institute will address constitutional illiteracy in three basic ways. First, it will foster a deeper and broader understanding of the principles, practices, and problems of American constitutionalism than is available from studying the U.S Constitution alone. Second, the institute will offer and develop techniques useful for analyzing primary sources and making American state constitutionalism more accessible and interesting to students. Third, it will introduce teachers to the abundance of both paper and internet resources on state constitutions.
Week 1 will introduce America’s “complete constitution”–federal, state, and tribal. America’s federal democracy is governed by a matrix of interdependent, co-sovereign constitutions in which
(1) the U.S. Constitution forms the general framework for the nation
(2) the state constitutions form the nation’s constituent republics
(3) the tribal constitutions, as well as certain treaties, form the governments of the 500-some “domestic dependent nations” of indigenous peoples, which are independent of the 50 states though subordinate to the United States. The institute will focus primarily on the state constitutions.
The development of state constitutions from colonial covenants and charters will be examined as well, along with the role of the states as inventors of modern written constitutions; Whig republican, federalist, and liberal-managerial approaches to constitutionalism; similarities and differences among the early state constitutions, especially with regard to rights; the U.S. Constitution and formation of the union; and the Great Binding Law of the Iroquois as an older and contrasting constitutional tradition. Participants will then examine patterns of constitutional development from the Jacksonian era through the Civil War and Reconstruction to the early twentieth century. There was a state constitutional trend during the Jacksonian era to eliminate or reduce property qualifications for voting, multiply elected offices, limit state borrowing, and root institutions in more popular democracy. A good example is the New York Constitution of 1846, which is widely regarded as the nineteenth century’s most innovative and influential state constitution. Participants will also examine state constitutional struggles over inclusion and exclusion then (e.g., women’s suffrage, Chinese exclusion, Roman Catholics, and Mormons) and now (e.g., native Hawai’ians and benefits for undocumented aliens), plus the rise of state constitutional regulation of railroads, mining, and business corporations. The week will end with a visit to Independence Hall and the new National Constitution Museum in Philadelphia.
Week 2 will focus on twentieth-century developments, particularly(1) modernization (e.g., the National Municipal League’s “Model State Constitution”) and (2) state constitutional resurgence reflected most notably in “the new judicial federalism” whereby state high courts grant broader rights protections under their state constitution than the U.S. Supreme Court recognizes under the U.S. Bill of Rights. For example, the U.S. Supreme Court recently ruled that police do not need a warrant to search trash placed outside one’s home for collection. Shortly thereafter, however, the New Jersey Supreme Court ruled that under its state constitution’s “search and seizure” provision, police do need a warrant to search such trash in the Garden State. Approximately 800 such state constitutional rights-expanding decisions have been made by state high courts since the mid-1970s. State legislatures also enact rights that exceed federal minimums, and state constitutions are amended to provide for rights not recognized by the U.S. Constitution or federal law. Participants will look at defendants’ and victims’ rights, freedom of speech, gender rights, privacy and sexual-autonomy rights, racial equality and positive rights, and voting rights. The latter will focus on historical expansion of the franchise and on rights for persons with emotional and cognitive disabilities who are still excluded from voting by the “insane and idiot” clauses of many state constitutions.
The participants will then examine and debate the separation of powers and the legislative, executive, and judicial branches by reconvening for the remainder of the institute as a mock state-constitutional convention elected to draft a constitution for a new state. This learning technique was extraordinarily effective and popular with the participants in our 2002 institute. The institute quickly took on the character of a real convention marked by heated debates, bargaining, negotiating, and caucusing. The focus, thus, will not be on dry mechanics but on principles and theories of popular government, democracy, representation, and rights embedded in the institutional arrangements (e.g., structuring fair and equitable representation and procedures in a democratic legislature).
Unlike the U.S. Constitution, where the people delegate powers, the people limit powers in their state constitution. There are also different traditions of state constitutional design, which Daniel J. Elazar identified as: commonwealth, commercial republic, southern contractual, civil code, frame of government, and managerial. (The 2002 participants divided mostly between the commonwealth and managerial models.) Additionally, state constitutions reflect changing ideas of democracy–such as the Progressives’ advocacy of initiative, referendum, and recall in the 1890s and the term-limits and tax-and-expenditure limits movements of the 1990s.
Here, as elsewhere during the institute, we will contrast the state and federal constitutions. One notices differences in the structure of state constitutions, their greater range of topics and detail, and their numerous amendments–all suggesting that the United States has not just a system of dual federal-state constitutionalism but also of dual constitutional traditions. For example, voters in most states still insist on (1) clinging to a plural executive system despite the powerful federal model of the singular executive and (2) requiring most judges to face the voters in direct or retention elections despite the federal model of good-behavior appointment. (The week will include a seminar with the President Judge of Northampton County on the role of the state constitution and on the pros and cons of Pennsylvania’s partisan judicial elections.) In turn, unlike in the U.S. Congress, most state constitutions require bills to be devoted to a single subject and to have a plain title, and the legislature must pass bills by a majority vote of the entire elected membership of each house (or Nebraska’s one house). These and other comparisons will help teachers–and ultimately students–to appreciate the alternative views of democratic government present in the United States, the changing understandings of the fundamental problems that have confronted their governments, and the various constitutional solutions put forth to solve those problems.
Week 3 will focus, via the mock convention, on constitutional rules for taxing, borrowing, budgeting, and spending; corporations, labor unions, and economic regulation (e.g., state roles in consumer rights and tort liability); environmental protection; education governance and state-court and legislative actions on fiscal equalization; and local self-government and state-local relations. Designing a tax system for their new state, for instance, will require participants to translate abstract ideas of fairness, equity, and efficiency into concrete and democratically acceptable constitutional rules. The participants also will be introduced to sovereignty disclaimer clauses in western state constitutions with respect to Indian lands and rights and to tribal constitutionalism and approaches to teaching about tribal governments.
Week 4 will focus on state constitutional amendment and revision; the populist revolt that followed the 1978 passage of California’s property-tax limitation measure (Proposition 13); the future of state constitutionalism; participant teaching presentations; and institute evaluation.
The proposed institute will cooperate with NEH’s evaluation procedures. Evaluation will also involve (1) regular feedback from the participants, master teacher, and visiting scholars throughout the institute; (2) faculty and master-teacher evaluations of the curriculum plans and teaching approaches developed by the participants; (3) a written evaluation with close-ended and open-ended questions completed by the participants at the end of the institute (they will receive a work-copy of the form at the start of the institute so they can enter notes on it during the four weeks); and (4) post-institute feedback about the institute’s impacts on the participants’ teaching, students, schools, and school districts. Opportunities for interactive evaluations between the participants and the faculty during and after the institute are key elements of evaluation.
The institute faculty will consist of a full-time director, a full-time master teacher, and eight part-time teaching scholars. Overseeing the program, the director will teach, work pedagogically and administratively with the participants, and collaborate with the master teacher and the visiting scholars in further planning the institute, selecting materials, refining the curriculum, and coordinating seminars and workshops for coherence and continuity. The master teacher will be involved in every facet of the program and will have principal responsibility for working with the participants and their workshop teams on using institute ideas and materials in new curriculum plans and teaching approaches. The visiting teaching scholars, who have been selected for their expertise in particular areas, will add depth and diversity of views to the institute. They will also advise participants on resources and teaching ideas.
John Kincaid, institute director, is the Robert B. and Helen S. Meyner Professor of Government and Public Service in the Department of Government and Law and Director of the Meyner Center for the Study of State and Local Government at Lafayette College. He served as Executive Director of the bipartisan U.S. Advisory Commission on Intergovernmental Relations in Washington, D.C., from 1987 to 1994. He is the editor of Publius: The Journal of Federalism, an elected fellow of the National Academy of Public Administration, editor of a 50-book series on the “Governments and Politics of the American States,” member of the editorial board of The State Constitutional Law Bulletin published by the National Association of Attorneys General, president of the International Association of Centers for Federal Studies, and author of works pertinent to the proposed institute. He has taught at four NEH summer institutes for teachers and directed the Center’s 2002 NEH institute on state constitutions.
David Cech, our Master Teacher, taught AP and IB economics and history at North Canyon High School in Phoenix, Arizona, for nine years and worked with the Arizona Department of Education in developing the state’s testing standards (AIMS) in economics. He participated in several summer seminars including the Stratford Hall-Monticello Leadership Program in 2001 and the NEH Institute on State Constitutions in 2002. Before teaching he received a Masters Degree in International Management and worked in international trade in London and Moscow. He is currently pursuing a Ph.D. in American History at George Mason University in Fairfax, Virginia.
Arlene L. Gardner is Director of the New Jersey Center for Civic and Law-Related Education at Rutgers University, Piscataway, New Jersey. She will demonstrate interactive teaching strategies and a classroom game using materials from various state constitutions.
Michael E. Libonati is Laura H. Carnell University Professor and Professor of Law at Temple University, Philadelphia, and coauthor of a leading text Local Government Law and a casebook Legislative Law and Process: Cases and Materials. He will lead sessions on local self-government (e.g., municipal home-rule) and on state-local relations in state constitutions.
Donald S. Lutz is Professor of Political Science at the University of Houston. He has been a teaching scholar in seven NEH institutes for secondary-school teachers and in eight Fulbright summer institutes for international scholars. The recipient of 13 teaching awards, he will lead sessions on the colonial and founding-period background of state constitutionalism, as well as a session based on his recent article “The Iroquois Confederation Constitution.”
Stephen L. Schechter is Professor of Political Science and Public Administration and Director of the Council for Citizenship Education at Russell Sage College, Troy, New York, as well as former Executive Director of the New York State Commission on the Bicentennial of the U.S. Constitution. He will conduct a session on teaching state constitutions and sessions on early state constitutionalism.
G. Alan Tarr is Professor of Political Science and founder and Director of the Center for State Constitutional Studies at Rutgers University, Camden, where he received the Provost’s Award for Teaching Excellence in 1996. He is the author of Understanding State Constitutions, one of the principal texts for the proposed institute, coeditor of American Constitutional Law (6th ed.), and author of many other works on state constitutions and judiciaries. He directed constitutional seminars for secondary-school teachers in 1987 and 1989 under the auspices of the New Jersey Department of Higher Education and in 1990 with funding from the New Jersey Council for the Humanities. Twice an NEH fellowship recipient, he was the primary academic consultant to “A Promise of Permanency,” a Bicentennial exhibit sponsored by the National Independence Park, and he is a member of the Advisory Board for the National Constitution Center. Tarr will conduct sessions on various aspects of state constitutional history and theory.
David E. Wilkins, a Lumbee, is Associate Professor of American Indian Studies, Political Science, and Law at the University of Minnesota, Minneapolis. He will address tribal constitutions and governments and disclaimer clauses in western state constitutions.
Robert F. Williams is Distinguished Professor of Law and Associate Director of the Center for State Constitutional Studies at Rutgers University, Camden. He is the author of State Constitutional Law: Cases and Materials, one of the primary texts for this institute. He will conduct sessions on the rights of defendants and victims and on freedom of speech.