A Constitutional Convention for Rhode Island? How the State Constitution is Not Just a Mini-Federal Constitution

This past Saturday, the Hassenfeld Institute for Public Leadership at Bryant University, the Roger Williams University School of Law, Common Cause Rhode Island, and the League of Women Voters of Rhode Island co-sponsored a forum on the upcoming general election ballot question of whether or not to hold a state constitutional convention in RI, and on the convention itself that might follow.

Before we get to issues specific to 2014 Rhode Island, I will begin by excerpting a few of the remarks from two of Saturday’s speakers, visiting from out-of-state, who discussed how state constitutions in general are very different kinds of governing charters than the Federal Constitution of the United States.  This panel was an excellent introduction to the topic of what any state constitutional convention under the American system of self-government fundamentally concerns.

Excerpts from the presentation of Robert Williams, associate director of the Center for State Constitutional Studies at Rutgers University:

“Many people think the state constitution is just a little miniature version of the United States Constitution, and that’s a big mistake”.

“The paradox is that people in this country actually know a fair amount about the United States Constitution, but they have no opportunity to influence it in any way…state constitutions are low visibility or obscure, but we as citizens do have an ability to access state constitutions and have some influence over their content. Exhibit A: What you’re talking about here in Rhode Island. It’s an odd situation. Everyone knows about the Federal Constitution, but can’t do anything about it. Very few people know anything about their state constitution, but they could do something about that”.

“The people vote on the adoption of state constitutions or the revision of state constitutions or amendments to state constitutions….None of us ever voted on the United States Constitution…it was submitted to ratifying conventions that made the decision. Even now, amendments, as rare as they are, are submitted to the state legislatures, not to us as voters. So it turns out that state constitutions are much more democratic than the United States Constitution”.

“State constitutions reflect and have the fingerprints of alternative voices”.

“State constitutions are much more flexible, obviously. They’re malleable; they have permitted the states to operate their government, their rights, and the matters that they’ve constitutionalized in a trial-and-error process that’s just simply not available at the Federal level…The states have been able to keep up with changing ideas about governmental institutions, about rights, and about matters that should be entrenched in the constitution rather than left to ordinary lawmaking”.

“The legal and political function of state constitutions is actually quite different from the legal and political function of the United States Constitution. Again, they’re both called constitutions, so most people in our country think there’s a big one, and then there are all these 50 little ones…”

“…The United States Government operates under an enumeration or a grant of fairly specific powers….Everything else about how government operates is left to the states. When you think in Rhode Island; should we pass a landlord tenant act, should we pass a land registration statute, should we pass a criminal code, you don’t have to look to your constitution to see if that’s possible, where do we get the authority to do that? All of this power was left to the states. We call it residual plenary power, so the main legal and political function of the state constitutions is to limit that power”.

“The form of what the Constitutions look like is quite different. The revered Federal Constitution is brief, it’s endured for all these years with very few amendments; gosh, isn’t this what a constitution should look like? Well, maybe a constitution that grants or enumerates specific powers should look like that….State constitutions, by contrast, are much longer….more is constitutionalized in the states than in the United States Constitution and to some extent that makes sense, because there’s more government authority in the states than in the US government”.

“Many policy matters have been entrenched in state constitutions over the years…Why? Because [the people] don’t trust the legislature….They operate to limit the legislature”.

“As well, we see positive rights, social and welfare rights that are quite different from the U.S. Constitution’s negative rights….Studies have shown that about 40% of what’s in state constitutions are policy matters “.

“Some people think that the state constitutions are too easy to change, and therefore aren’t really constitutional. Some people think that state constitutions are too long, they’re too detailed….What these people are doing are comparing state constitutions to the model that all of us know, which is the United States Constitution. I want to suggest that that’s a big mistake, and as you go forward and try to determine whether to have a convention to look at your state constitution, and if you do have a convention, look at what functions and qualities a state constitution has in contrast to the US Constitution….They’re different from the United States Constitution, and they ought to be different”.

Excerpts from the presentation of Alan Tarr, director of the Center for State Constitutional Studies at Rutgers University:

“Let me begin by noting what we’re doing here today. We’re sitting here discussing whether to call a convention to amend or replace the Rhode Island Constitution. Most of us could never imagine ourselves at a similar conference deciding whether to amend or jettison the Federal Constitution”.

“Most of us revere the US Constitution….Most of us feel we couldn’t do a very good job improving on [the Founders’] handiwork. But somehow, we don’t feel the same reverence, the same attachment to our state constitutions”.

“This requirement [in Rhode Island] of a periodic vote seems to me a very wise decision, because it doesn’t create an obligation as much as it creates an opportunity….The requirement has the effect of encouraging the citizens of the state to think seriously about their government, what’s right, what’s wrong, and what can be done to improve it.”

“What we really have are two different constitutional traditions. At the national level, we value stability and continuity. At the state level, we value change and experimentation. The reflects a conflict of views, if you will, at the very point of the founding. James Madison emphasized the importance of Constitutional stability and the dangers of frequent change….In the states, however, we look not to Madison, but we look to Thomas Jefferson. Jefferson thought it was important to get people involved, participating in resolving constitutional disputes, both to insure that constitutional principles were adhered to, [i.e.] the people would guard the constitutional principles, and also to allow growth in response to changes in circumstance and with regard to changes in attitude. Jefferson said why would I want to wear the coat as an adult that I wore as a young boy. It won’t fit, the situation has changed, and we must adapt accordingly'”.

“In fact, this idea of having a periodic vote on whether to have a convention is something which Jefferson himself had originated”.

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