USA - International Encyclopaedia of Laws

United States of AmericaSub-national Constitutional LawDr. G. Alan TarrProfessor of Political Science, Rutgers University, Camden, New JerseyandProf. Dr. Robert F. WilliamsProfessor of Law, Rutgers University, Camden, New JerseyThis text is up-to-date to September 19981999Kluwer Law InternationalThe Hague • London • BostonConstitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 1

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The AuthorsG. Alan Tarr is Distinguished Professor of PoliticalScience and Director of the Center for State ConstitutionalStudies at Rutgers University in Camden, NewJersey. He received his B.A. from the College of theHoly Cross and his Ph.D. from the University ofChicago. He serves as editor of State Constitutionsof the United States, a fifty-two volume reference seriespublished by Greenwood Press. He is also the author orco-author of nine books and numerous articles on stateand federal constitutional law, including UnderstandingState Constitutions (1998). He has served as aconsultant on constitution-making and federalism inRussia, South Africa, and Cyprus. He has twice beenawarded Fellowships by the National Endowment for the Humanities. He currentlyserves as a member of the Advisory Board of the National Constitution Center.Robert F. Williams is Distinguished Professor of Lawand Associate Director of the Center for State ConstitutionalStudies at Rutgers University in Camden, NewJersey. He received his B.A. from Florida StateUniversity in 1967 and his J.D. from the University ofFlorida College of Law in 1969. Prior to attending lawschool, he served as a legislative assistant in the FloridaLegislature during the 1967 Constitutional RevisionSession. He practised law with Legal Services in Floridaand represented clients before the 1978 FloridaConstitution Revision Commission. Professor Williamsreceived an LL.M. from New York University Schoolof Law in 1971, and an LL.M. from Columbia LawSchool in 1980. He teaches Civil Procedure, State Constitutional Law, andLegislation at Rutgers Law School. He is the author of several books and numerousjournal articles about state constitutional law and legislation, including StateConstitutional Law (3rd ed., 1999). He has been awarded a Fellowship by theAmerican Council of Learned Societies and has lectured extensively on stateconstitutionalism within the United States and in Europe, Africa, and South America.Constitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 3

The Authors4 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

Table of ContentsThe Authors 3General Introduction 9§ 1. The Sub-national Units – Names and Territory 9§ 2. Types of Sub-national Units of Constitutional Dimension 11§ 3. Method of Formation of Sub-national Units 11§ 4. State Constitutional History 11§ 5. Profile of the Political Structure of Sub-national Governments 13§ 6. The Purposes and Functions of Sub-national Constitutions,Especially in Contrast to the National Constitution 14§ 7. The Form of Sub-national Constitutions 16§ 8. Financial Position and Relation Between Federal andSub-national Components 19Selected Bibliography 21§ 1. System-wide Materials 21§ 2. Materials Concerning Individual Sub-national Components 22§ 3. Information on Obtaining Sub-national Constitutional Textsand Primary Sources 22Part I. Sources of Sub-national Constitutional Law 25CHAPTER 1. CONSTITUTIONAL FORMATION AND DESIGN 25§ 1. Requirements in the National Constitution Mandating CertainProvisions or Matters to be Considered or Included in theSub-national Constitutions 25§ 2. Requirements in Other National Legal Enactments MandatingCertain Provisions or Matters to be Considered or Includedin Sub-national Constitutions 26§ 3. National Non-Mandatory Guidelines for Content of StateConstitutions 28§ 4. Sub-national Constitutions as Models for the NationalConstitution 30A. Positive Models 30Constitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 5

Table of ContentsB. Negative Models 31§ 5. The National Constitution as Model for Sub-nationalConstitutions 31§ 6. Similarities and Differences among Sub-national Constitutions 32§ 7. Sub-national Constitutions as Models for Other Sub-nationalConstitutions 33§ 8. Processes for Original Adoption, Including Provisions forNational Approval 34§ 9. Processes for Amendment (Alteration) and Revision(Replacement) 35§ 10. Description of Source Materials Reflecting Debates andIntent Concerning such Adoption, Amendment, and Revision 36§ 11. Range of Topics Addressed and Level of Detail Contained inSub-national Constitutions 37CHAPTER 2. EVOLUTION OF SUB-NATIONAL CONSTITUTIONS 39§ 1. Processes of Evolution of Sub-national Constitutions 39§ 2. National Approval as a Component of Sub-nationalConstitution-Making 42CHAPTER 3. SUB-NATIONAL CONSTITUTIONAL LEGISLATION 43CHAPTER 4. JURISPRUDENCE 44§ 1. Governmental Institutions Providing AuthoritativeInterpretation of Sub-national Constitutions 44§ 2. Other Non-Authoritative but Important Sources forInterpretation of Sub-national Constitutions 44§ 3. Sub-national Judiciaries and Judicial Review of TheirConstitutions 45§ 4. Relation Between National and Sub-national Judiciaries inJudicial Review of Sub-national Constitutions 46CHAPTER 5. SUB-NATIONAL CONSTITUTIONAL POLITICS 48§ 1. The Place of Sub-national Constitutional Amendment andRevision Within the Politics of Sub-national Units 48§ 2. Sub-national Constitutional Politics as Compared to ‘Normal’Sub-national Politics 50Part II. Forms of Sub-national Governments 53CHAPTER 1. GENERAL 53§ 1. Introduction 536 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

Table of Contents§ 2. Political Parties 54§ 3. Miscellaneous Characteristics 54CHAPTER 2. HEAD OF THE SUB-NATIONAL GOVERNMENTAL UNIT 56CHAPTER 3. THE LEGISLATURE 57§ 1. The Organ of State 57§ 2. Legal Status 57§ 3. Competence 57§ 4. Limitations 59A. Negative Implication 60B. Procedural Limitations on the Enactment of Statutes 60C. Direct Legislation 62§ 5. Elections and Qualifications 62CHAPTER 4. THE EXECUTIVE 63§ 1. The Organ of State 63§ 2. Legal Status 63§ 3. Competence 63A. Constitutional Duties and Agencies 63B. The Veto Power 64C. Executive Orders 64§ 4. The Administration and Bureaucracy 65CHAPTER 5. THE JUDICIARY 66§ 1. Judicial Organization 66§ 2. Mode of Selection of Judiciary 67§ 3. Judicial Tenure and Removal 68§ 4. Judicial Review 69Part III. Citizenship and the Administration of Justice 71CHAPTER 1.RULES REGARDING SUB-NATIONAL CITIZENSHIP ANDITS RELEVANCE 71CHAPTER 2. FUNDAMENTAL RIGHTS AND LIBERTIES 73CHAPTER 3. CONSTITUTIONAL PROTECTIONS OF MINORITIES 77CHAPTER 4. JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 78§ 1. Preventive Legal Protection 78§ 2. Curative Legal Protection 78Constitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 7

Table of Contents§ 3. Miscellaneous 78CHAPTER 5. LEGAL POSITION OF ALIENS 79Part IV. Local Government and Sub-nationalConstitutions 81CHAPTER 1.CHAPTER 2.CONSTITUTIONAL STATUS OF LOCAL GOVERNMENTUNDER NATIONAL CONSTITUTIONS 81CONSTITUTIONAL STATUS OF LOCAL GOVERNMENTUNDER SUB-NATIONAL CONSTITUTIONS 82§ 1. Types of Local Governments 82§ 2. Creation of Local Governments 82§ 3. Home Rule or Local Autonomy 82CHAPTER 3.EVOLUTION OF CONSTITUTIONAL STATUS OF LOCALGOVERNMENT UNDER SUB-NATIONAL CONSTITUTIONS 83Part V.Representative Texts of Sub-nationalConstitutions 84CONSTITUTION OF THE STATE OF ILLINOIS 84NEW JERSEY STATE CONSTITUTION 1947 115CONSTITUTION OF OREGON 152Index 2318 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

General Introduction1§1. THE SUB-NATIONAL UNITS –NAMES AND TERRITORY1. The United States of America is made up of sub-national units calledstates. These states, which were the colonies that declared independence fromEngland, predated the formation of the United States. It was through theirnegotiations and compromises that the Union was formed, with the adoption ofthe United States Constitution in 1789. Thus American federalism is integrative,reflecting the coming together of previously sovereign entities. This is bycontrast to devolutionary federal systems, where a formerly unitary statedevolves power on component units. New American states have been admitted,after the original thirteen, on equal footing with the original states. The chartbelow includes the date of entry into the Union, and other information.American State ConstitutionsState Year of admission Total number ofconstitutionsDate of currentconstitutionAlabama 1819 6 1901Alaska 1959 1 1956Arizona 1912 1 1911Arkansas 1836 5 1874California 1850 2 1879Colorado 1876 1 1876Connecticut 1776 4 1965Delaware 1776 4 1897Florida 1845 6 1968Georgia 1776 10 1982Hawaii 1959 1 1959Idaho 1890 1 1889Illinois 1818 4 1970Indiana 1816 2 1851Iowa 1846 2 1857Kansas 1861 1 1859Kentucky 1792 4 1891Constitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 9

1 General IntroductionState Year of admission Total number ofconstitutionsDate of currentconstitutionLouisiana 1812 11 1974Maine 1820 1 1819Maryland 1776 4 1867Massachusetts 1776 1 1780Michigan 1837 4 1963Minnesota 1858 1 1857Mississippi 1817 4 1890Missouri 1821 4 1945Montana 1889 2 1972Nebraska 1867 2 1875Nevada 1864 1 1864New Hampshire 1776 2 1784New Jersey 1776 3 1947New Mexico 1912 1 1911New York 1776 4 1894North Carolina 1776 3 1970North Dakota 1889 1 1889Ohio 1803 2 1851Oklahoma 1907 1 1907Oregon 1859 1 1857Pennsylvania 1776 4 1873Rhode Island 1776 2 1842South Carolina 1776 7 1895South Dakota 1889 1 1889Tennessee 1796 3 1870Texas 1845 5 1876Utah 1896 1 1895Vermont 1791 3 1793Virginia 1776 6 1970Washington 1889 1 1889West Virginia 1863 2 1872Wisconsin 1848 1 1848Wyoming 1890 1 188910 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

General Introduction 2–6§2. TYPES OF SUB-NATIONAL UNITS OF CONSTITUTIONAL DIMENSION2. The fifty states that comprise the United States each have their ownconstitutions. Some other sub-national units (territories and commonwealths)also have constitutions – for example, American Samoa, the Northern MarianaIslands, and Puerto Rico; others, such as the seat of the national government(the District of Columbia), do not. However, only the American states haveindependent constitution-making authority, and therefore this monograph focusessolely on the constitutions of the fifty states.§3. METHOD OF FORMATION OF SUB-NATIONAL UNITS3. The thirteen original states that comprised the United States existed asBritish colonies and became states following the American Declaration ofIndependence in 1776. Article IV, section 3 of the U.S. Constitution providesfor the admission of new states by Congress, with the proviso that ‘no new stateshall be formed or erected within the jurisdiction of any other state; nor anystate be formed by the junction of two or more states, or parts of states, withoutthe consent of the legislatures of the states concerned as well as of the Congress.’4. Most non-original states were formed from territory governed by theUnited States, with Congress controlling the admission of states and thedelineation of their boundaries. Texas was an independent republic before itsannexation by the United States. Five states were carved out of territory of olderstates – Vermont, Kentucky, Tennessee, Maine, and West Virginia. In the firstfour cases, the legislature of the older state gave its consent. However, WestVirginia was originally part of Virginia but separated from it during the CivilWar, remaining loyal while Virginia seceded, and consent was given by alegislature convened especially for this purpose. West Virginia was thenadmitted as a state by Congress in 1863, while the Civil War was still beingfought.5. The most recent additions to the Union were Alaska and Hawaii, bothof which were admitted as states in 1959.§4. STATE CONSTITUTIONAL HISTORY6. The most striking feature of American state constitutional history is thefrequency of formal constitutional change. Altogether, the fifty American stateshave adopted 145 constitutions. During the eighteenth century, the thirteenoriginal states plus the three states admitted prior to 1800 adopted twenty-fourconstitutions. The nineteenth century was the era of greatest activity, withconstitutional revision and the admission of new states resulting in ninety-fournew constitutions. During the twentieth century, the pace of constitution-makingConstitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 11

7–10 General Introductionhas slackened, as only eighteen states have adopted new constitutions. However,the pace of constitutional amendment has increased. Current state constitutionsaverage over 120 amendments, with most amendments adopted since 1940.7. Three key issues have dominated the history of state constitutionaldevelopment. 1 The first of these issues is the distribution of political poweramong groups and regions within the individual states. As various groups gainedpolitical strength, they pressed for constitutional recognition of their numbersand their interests. In some instances, they sought a change in the system ofrepresentation in the state legislature; in others, the enfranchisement of previouslyexcluded groups. Conflicts over the apportionment of state legislatures andover qualifications for voting have been common in the states.1. For more detailed discussion of state constitutional history, see G. Alan Tarr, UnderstandingState Constitutions (Princeton, N.J.: Princeton University Press, 1998), chapters 3–5.8. Turning first to disputes about apportionment, during the early nineteenthcentury, these conflicts typically pitted the coastal regions of the original statesagainst regions in the interior of those states. The interior regions had experiencedsubstantial population growth, and they wanted that growth reflected instate government. The coastal regions only reluctantly ceded political power,and thus conflicts in states such as Virginia and North Carolina continued forover half a century. Later in the nineteenth century and through much of thetwentieth century, the conflict typically involved rural regions, which were overrepresentedin state legislatures, and urban areas. Ultimately, their continuingdispute over apportionment was resolved by the United States Supreme Court,which in 1964 mandated equi-populous districts for both houses of statelegislatures.9. Conflict over qualifications for voting were likewise intense. During thelate eighteenth century, most states required that voters be male adult propertyholders.From 1820–1860, restrictions on white male suffrage came under fierceattack and were largely eliminated, although states imposed new restrictions onblack suffrage. The adoption of the Fifteenth Amendment to the United StatesConstitution in 1870 guaranteed voting rights for blacks, but Southern states inthe late nineteenth century and the first half of the twentieth century ignoredthis requirement, adopting literacy tests, poll taxes, and other state constitutionalbarriers to black suffrage. Many of these barriers, which were unequally appliedin order to disenfranchise blacks, were not eliminated until Congress enactedthe Voting Rights Act of 1965.During the late nineteenth and early twentieth centuries, Wyoming and severalother states pioneered in granting the franchise to women. Eventually the federalgovernment followed their lead, enshrining women’s suffrage in the NineteenthAmendment to the U.S. Constitution.10. A second recurring constitutional issue has involved the scope of stategovernment. The initial state constitutions imposed few restrictions on statelegislatures, trusting in popular election to prevent abuses of power. However,12 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

14–19 General Introductionofficials who owe their position to the populace, rather than to the governor,exercise considerable political independence and may in fact be political rivalsof the governor.§6. THE PURPOSES AND FUNCTIONS OF SUB-NATIONAL CONSTITUTIONS,ESPECIALLY IN CONTRAST TO THE NATIONAL CONSTITUTION14. American state constitutions occupy a unique place in the legal andpolitical scheme of American constitutional federalism. They are unique in theirorigin and function as well as in their hierarchical place in the legal system.15. State constitutions are generally longer and more detailed than theirfederal counterpart. They directly regulate or restrict a broad range of state andlocal government activities. State courts interpreting state constitutions aretherefore thrust more deeply, and more often, into the affairs of the coordinatebranches of government than when they are interpreting the federal constitution.Put simply, at the state level there is just more constitution there to give riseto interpretation opportunities!16. State constitutional law has therefore emerged as a unique source oflaw in the American federal system. It is constitutional law, but it is not simplya ‘miniature’ version, or clone, of federal constitutional law. State constitutionallaw occupies a position different from federal constitutional law in the Americanconstitutional system. State constitutions also perform different functions, andtherefore have different forms from the federal Constitution.17. American state constitutions may seem curious when compared withthe more familiar United States Constitution. But they were not meant to becompared so much with the federal Constitution. Since 1787, when the federalConstitution was framed while taking into account the state constitutionalexperiments of 1776–1787, state constitutions have evolved on paths distinctfrom federal constitutional law. This evolution reflects a use of constitutionmakingto attend to detail at a level unknown to federal constitutional law.18. Both the federal and state documents have the same title (‘constitution’)and seem to do the same technical job of structuring governmental institutions,setting forth their relationships, and providing rights protections for thepopulace. Americans know more about the federal constitution. So far they seemcomparable. They function, however, as the governing documents for verydifferent sovereign polities. In America, the federal government (national polity)and the states (the constituent polities) are very different political and legalentities. Therefore, state constitutions are different from the federal constitutionin their function, content and form.19. The primary characteristics upon which state constitutions are differentiatedfrom the federal constitution are their length, which results from inclusion14 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

General Introduction 20–23of many matters that could be treated by legislation, and their relative ease ofamendment and revision. These are, in fact, the characteristics that do distinguishstate constitutions from the federal charter, but these differences do notmake them less constitutional. Rather, these differences reflect a different kindof constitution, or constitutions that are unique in the American federal system.There are two differing kinds of constitutions, reflecting two distinct constitutionaltraditions.20. State constitutions are usually contrasted with their federal counterpartby characterizing the former as limits on governmental power rather than grantsof power. When the Union was formed, the states retained almost plenarygovernmental power exercised primarily by their legislatures. This power waslimited only to the extent that the states granted such powers to the federalgovernment, agreed to restrictions on state power in the federal Constitution,or imposed limitations on themselves in their own constitutions. According tothe Supreme Court of Kansas: ‘It is fundamental that our state constitution limitsrather than confers powers. Where the constitutionality of a statute is involved,the question presented is, therefore, not whether the act is authorized by theconstitution, but whether it is prohibited thereby.’ 11. State ex rel. Schneider v. Kennedy, 587 P.2d 844, 850 (Kan. 1978).21. The focus on the extent of legislative powers one encounters in federalconstitutional law is not as prevalent in state constitutional law, which tends tofocus on limits on legislative power. Accordingly, the most important productsof judicial interpretation of the federal Constitution are implied powers, whileat the state level implied limitations are most important.22. The general characterization of state constitutions as documents oflimitation is correct but oversimplified. Many provisions in modern stateconstitutions were adopted to overcome earlier judicial interpretations of theconstitution which prohibited the exercise of power in question. For example,the New York Constitution authorizes the Legislature to create a system ofworkers’ compensation to take the place of the tort liability system forworkplace injuries. This was adopted after a court decision concluding such asystem was in violation of the state constitution. Such provisions are grants ofpower, or at least the removal of limitations. States also may insert grants ofpower in their constitutions to remove constitutional doubt or to ratifypreexisting practices.23. The texts of state constitutions are much more changeable than theirfederal counterpart because they are subject to change from a number ofdifferent sources, including legislative proposals, initiative amendments, andproposals submitted to the voters by constitutional conventions. Tracing theevolution of the text under scrutiny may reveal a number of changes over timein the language of the provision. Analyzing the changes leading up to thecurrent text may support a specific interpretation. Such changes in the underly-Constitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 15

24–28 General Introductioning text rarely are present in federal constitutional law because the federalconstitution has been so rarely amended.24. The function of state constitutions, not surprisingly, dictates their form.Generally speaking, because of the necessity to enunciate specific limitationson otherwise virtually unlimited governmental power, state constitutions containa high level of detail with respect to the structure and operations of government.For example, most state constitutions contain long articles on taxation andfinance, two of the most important functions of any government. Theseprovisions restrict state government taxing and spending in a range of ways thatis unfamiliar in the federal government.25. Further, because state constitutions are easier to amend than the federalConstitution, they have accumulated many layers of limiting details reflectingthe concerns of citizens during the various eras of American history. Forexample, evidence of the periods of distrust of the legislature, the IndustrialRevolution, the Progressive Movement, Jacksonian democracy, the settling ofthe West, bankruptcy in public finance, concern for efficient management, andmany other matters can be seen clearly in any modern state constitution.26. Finally, the state constitutions include numerous mechanisms for directpopular involvement in governmental decisions that have no analog in thefederal Constitution. Amendments or revisions of state constitutions themselvesmust be ratified by the voters before they can take effect. Beyond this fundamentalpoint, however, direct citizen involvement in such governmentaldecisions as borrowing public funds, levying certain taxes, and even, in somestates, approving gambling operations, is often required by state constitutions.States with initiative and referendum provisions in their constitutions obviouslypermit direct popular participation in the lawmaking process itself. Recallprovisions under which elected officials may be removed from office prior toexpiration of their terms of office supplement the more familiar electionmechanisms. Also, many states permit citizen litigation over governmentalmatters by authorizing a wide range of taxpayer lawsuits. None of theseexamples of popular participation in governmental decisions are present in theU.S. Constitution.§7. THE FORM OF SUB-NATIONAL CONSTITUTIONS27. An American state constitution is a single document. Despite thediversity among state constitutions, each state’s constitution shares certainstructural features with the constitutions in other states. Typically, an Americanstate constitution includes the following elements:28. Preamble: The preamble is a short statement of the purposes of thepolitical society. Since the early nineteenth century, state preambles have16 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

General Introduction 29–35typically included an acknowledgment of God’s existence and beneficence.These preambles have no legal force.29. Declaration of Rights/Bill of Rights: These provisions protect certainfundamental rights against state, local, and (sometimes) private abridgement.Typical provisions include guarantees of freedom of speech and of the press,the free exercise of religion, the right to a jury trial, and various rights ofdefendants in criminal prosecutions, such as restrictions on unreasonablesearches and seizures, bans on compelled self-incrimination, and the right tocounsel. In addition, state declarations of rights often include rights notexpressly recognized by the federal Constitution, such as the right to a legalremedy and a recognition of gender equality.30. Separation of powers: This provision, found in about two-thirds of stateconstitutions, expressly requires a separation of governmental powers, forbiddingdual office-holding and confining each branch of government to the exerciseof its own powers.31. Suffrage: This article elaborates the qualifications for voting in stateelections.32. Legislative Article: This article describes the structure of the statelegislature and defines the qualifications and mode of selection of its members.Because the state legislative power is considered to be plenary, the legislativearticle does not grant power to the legislature. Rather, it imposes variouslimitations on the legislative power. Some of these limitations relate to theprocess of legislation (e.g., requirements as to the form of bills, the range ofsubjects a single bill can encompass, and the procedures by which a bill is tobe considered and adopted). Other limitations relate to the substance oflegislation.33. Executive Article: The executive article creates the various constitutionaloffices and indicates how they are to be filled. It also prescribes thesphere of authority of each officer and the division of responsibility amongthem, indicating the extent to which the governor or other officials can exerciseauthority over their fellow executive officers. One effect of the ‘constitutionalization’of executive offices and agencies is to limit the legislature’s opportunitiesto reorganize the state’s executive branch.34. Judicial Article: The judicial article creates the state’s courts, definestheir jurisdictions, and explains how judges are to be selected. It also typicallygrants to the chief justice of the supreme court supervisory power over thesystem of courts and to the supreme court various non-adjudicatory powers, suchas the power to regulate the legal profession.35. Local government: The local government article provides for thecreation of units of local government and specifies their structure and powers.Constitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 17

36–39 General IntroductionOlder local-government articles tended to be highly detailed, resemblingmunicipal codes. In contrast, modern provisions typically contain broad, generalgrants of power to local government.36. Public finance: This article defines and limits the taxing, borrowing,and spending powers of state and local governments. Typical provisions includethe requirement of a balanced operating budget for the state, the requirementof uniformity in taxation across the state, and restrictions on lending the creditof the state to private entities.37. Policy areas: Most state constitutions contain provisions dealing withcertain policy areas that are of particular concern to the states. Thus, most stateconstitutions contain separate articles on corporations and on education. Otherarticles vary from state to state. Some deal with the economy of the state – forexample, the Idaho Constitution has articles on water rights and livestock. 1Others, like New Mexico’s article dealing with bilingual education, reflect thesocial composition of the state. 2 Still others are a product of the era in whichthe constitution was drafted: the Illinois Constitution of 1970, for example, hasan article on the environment. 31. Idaho Constitution, Articles 15–16.2. New Mexico Constitution, Article 12, section 8.3. Illinois Constitution, Article 11.38. The articles dealing with policy matters may contain direct prohibitionson legislative action, such as bans on the use of public funds to support religiousinstitutions such as schools. In addition, these articles may contain policydirectives, either directly enacting policy or establishing policy guidelines forlegislative enactments. An example of the latter is the Illinois Constitution’slisting of types of property that the legislature may exempt from property taxes,thus reducing the legislators’ policy choice to determining whether or not togrant the exemptions. 1 Finally, these articles may commit the state to achievingcertain goals. For instance, New Jersey is required to ensure a ‘thorough andefficient system of free public schools’ for all children in the state; Illinois must‘provide and maintain a healthful environment for the benefit of this and futuregenerations,’ and Idaho is obliged to ‘pass all necessary laws to provide for theprotection of livestock against the introduction or spread’ of various diseases. 21. Illinois Constitution, Article 9, section 6.2. New Jersey Constitution, Article 8, section 4, paragraph 1; Illinois Constitution, Article 11,section 1; and Idaho Constitution, Article 16, section 1.39. Constitutional change: All state constitutions include mechanisms forconstitutional revision and constitutional amendment. Some permit the statelegislature to propose constitutional amendments, while others rely on constitutionalconventions, but all states except Delaware require that these proposalsbe ratified by popular vote. Seventeen states have gone further, providingthrough the constitutional initiative for popular development, as well asratification, of constitutional amendments.18 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

General Introduction 40–41§8. FINANCIAL POSITION AND RELATION BETWEEN FEDERAL AND SUB-NATIONAL COMPONENTS40. The U.S. Constitution grants the national government the power to tax,but this power is concurrent with that of the states. The grant of federal powerdoes not limit state competence. The federal government exercises the powerof taxation, the most important feature of which is the federal Income Tax.States each have their own system of taxation, with the major taxes consistingof sales, property, and income taxes. State income taxes are much lower thanthe federal income tax, and are usually deductible against the amount of taxowed to the federal government. Thirty-nine states currently impose their ownincome tax. State constitutions have detailed provisions concerning, and usuallyrestricting, the state’s general power of taxation. These restrictions operate aslimits on the legislative branch. Many state constitutions also contain specificrequirements for exemption from taxation.41. The federal government, pursuant to congressional laws, provides asubstantial proportion of the revenue for state and local governments. Duringthe 1990s, for example, state and local governments derived approximately 20percent of their revenues from transfer payments from the national government.These funds are provided pursuant to the federal government’s constitutionalpower to ‘spend for the general welfare.’ Often these funds are provided to thestates with significant requirements attached, which are binding on the statesif they want to receive the funds. 1 The states are not permitted to imposetaxation schemes that discriminate against out-of-state residents.1. See Pennhurst State School & Hospital v. Halderman, 451 U.S. 1 (1981).Constitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 19

General Introduction20 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

Selected Bibliography42§1. SYSTEM-WIDE MATERIALS42. Although the literature on state constitutions and state constitutionalismis vast and increasing, listed below are some basic sources:Abrahamson, Shirley, ‘Criminal Law and State Constitutions: The Emergenceof State Constitutional Law,’ 63 Texas Law Review 1141 (1985).W. Adams, The First American Constitutions: Republican Ideology and theMakers of State Constitutions in the Revolutionary Era (1980).William J. Brennan, Jr., ‘State Constitutions and the Protection of IndividualRights,’ 90 Harvard Law Review 489 (1977).Elmer E. Cornwell, Jr., Jay S. Goodman and Wayne R. Swanson, StateConstitutional Conventions: The Politics of the Revision Process in SevenStates (1975).Christian G. Fritz, ‘The American Constitutional Tradition Revisited: PreliminaryObservations on State Constitution-making in the 19th-Century West,’25 Rutgers Law Journal 945 (1994).Ken Gormley and Rhonda G. Hartman, ‘Privacy and the States,’ 65 Temple LawReview 1279 (1992).Joseph Grodin, In Pursuit of Justice: Reflections of a State Supreme CourtJustice (1989).Joseph Grodin, ‘Some Reflections on State Constitutions,’ 15 Hastings ConstitutionalLaw Quarterly 391 (1988).David Alan Johnson, Founding the Far West: California, Oregon, and Nevada,1840–1890 (1992).John Kincaid, ‘State Constitutions in the Federal System,’ 496 Annals 12(1988).Hans Linde, ‘E. Pluribus – Constitutional Theory and State Courts,’ 18 GeorgiaLaw Review 165 (1984).Hans Linde, ‘First Things First: Rediscovering the States’ Bills of Rights,’ 9University of Baltimore Law Review 379 (1980).Donald Lutz, Popular Consent and Popular Control: Whig Political Theory inthe Early State Constitutions (1980).Robert L. Maddex, State Constitutions of the United States (1998).Symposium, ‘Developments in the Law – the Interpretation of State ConstitutionalRights,’ 95 Harvard Law Review 1324 (1982).G. Alan Tarr, ‘Church and State in the States,’ 64 Washington Law Review 73(1989).G. Alan Tarr, Understanding State Constitutions (1998).Constitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 21

43–47 Selected BibliographyRobert F. Williams, ‘Equality Guarantees in State Constitutional Law,’ 63 TexasLaw Review 1195 (1985).Robert F. Williams, ‘In the Glare of the Supreme Court: Continuing Methodologyand Legitimacy Problems in Independent State Constitutional RightsAdjudication,’ 72 Notre Dame Law Review 1015 (1997).Robert F. Williams, ‘State Constitutional Law Processes,’ 24 William & MaryLaw Review 169 (1983).§2. MATERIALS CONCERNING INDIVIDUAL SUB-NATIONAL COMPONENTS43. The range of issues that can arise under any American state’s constitution,as illustrated by the materials in this monograph, is treated in Robert F.Williams, ‘State Constitutional Law Processes,’ 24 William & Mary Law Review169 (1983); and Robert F. Williams, State Constitutional Law: Cases andMaterials (Michie, 3d ed. 1999). The most recent single-volume source is G.Alan Tarr, Understanding State Constitutions (1998).44. Research sources in state constitutional law include an ‘Annual Issueon State Constitutional Law,’ published in the Rutgers Law Journal each yearsince 1989. The issue includes commentary on all the important state constitutionalinterpretations during the previous year. See especially Earl M. Maltz,Robert F. Williams & Michael Araten, ‘Selected Bibliography on StateConstitutional Law,’ 1980–1989, 20 Rutgers Law Journal 1093 (1989). See alsoBernard D. Reams, Jr. & Stuart D. Yoak, eds., The Constitutions of the UnitedStates: A State-by-State Guide and Bibliography to Current Scholarly Research(1988); Tim J. Watts, State Constitutional Law Development: A Bibliography(1991).45. Greenwood Press is publishing a 50-volume reference work on eachstate’s constitution, at least twenty-five of which are now available. They areby different authors, but are each entitled ‘The [name of state] State Constitution:A Reference Guide.’ Each volume contains a bibliography of sourcespertinent to the constitutional law of that state. An excellent treatment of stateconstitutional rights cases is contained in Jennifer Friesen, State ConstitutionalLaw: Litigating Individual Rights, Claims and Defenses (1992). See also BarryLatzer, State Constitutional Criminal Law (Clark, Boardman, Callaghan, 1995).§3. INFORMATION ON OBTAINING SUB-NATIONAL CONSTITUTIONAL TEXTSAND PRIMARY SOURCES46. A current version of each state’s constitution is available online.47. Invaluable sources of information concerning each state’s constitutioncan be found in William F. Swindler’s 11-volume Sources and Documents ofU.S. Constitutions (1973–1979); and the Legislative Drafting Research Fund,22 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

Selected Bibliography 48Columbia University, Constitutions of the United States: National and State(various dates), 7 vols.48. Records of constitutional convention deliberations and legislativedebates on proposed constitutional amendments can shed light on the purposeand intent of state constitutional provisions. For good sources, see generally C.Browne, State Constitutional Conventions, 1776–1959: A Bibliography (1973);B. Canning, State Constitutional Conventions, Revisions and Amendments,1959–1976: A Bibliography (1977); B. Halvey, A Selective Bibliography onState Constitutional Revision (National Municipal League, 2d ed. 1967); S.Yarger, State Constitutional Conventions, 1959–1975: A Bibliography (1976).Many of the materials reflected in these bibliographies are available onmicrofiche. Also, relevant material is listed in the bibliographies in the GreenwoodPress series described in § 2 above.Constitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 23

Selected Bibliography24 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

Part I. Sources of Sub-nationalConstitutional Law49–51Chapter 1. Constitutional Formation and Design§1. REQUIREMENTS IN THE NATIONAL CONSTITUTION MANDATING CERTAINPROVISIONS OR MATTERS TO BE CONSIDERED OR INCLUDED IN THE SUB-NATIONAL CONSTITUTIONS49. At the outset of the American Revolution, in 1776, the ContinentalCongress declined to recommend a single, uniform sub-national constitutionalformat for the colonies to adopt. In fact, it did not even require states to haveconstitutions, though all chose to have them. As sovereign entities, each stateembarked on the first experiment in drafting constitutions well before theadoption of the federal Constitution. The early state constitutions provided aforum, and a process of trial and error and experimentation, for translatingAmerican notions of governmental structure into positive law. Those attemptsat constitution-writing form the basis for modern American constitutional law.50. The federal Constitution does not mandate that state constitutionscontain specific provisions or address certain matters. Nonetheless, federalconstitutional provisions affect the structure and operation of state governmentsby restricting the range of choice for state constitution-makers or inducing statesto alter their constitutions to bring them into conformity with federal requirements.Article IV, section 4 of the federal Constitution from the outset directedthe federal government to ‘guarantee to every State in this Union a RepublicanForm of Government,’ and Article VI, section 2 upheld the supremacy of federallaw within its sphere over ‘any Thing in the Constitution or Laws of any State.’Article I, section 10 imposes various restrictions on state power – for example,states cannot enter into treaties, impair the obligations of contracts, or coinmoney. Most of these specific restrictions on state power were direct responsesto perceived abuses perpetrated by state legislatures during the decade beforethe adoption of the federal Constitution. Subsequent amendments have addedto the federal constitutional restrictions on the states by imposing requirementsrelating to voting and to the apportionment of state legislatures, requiring thatlegislative district boundaries be drawn to ensure that districts be equal inpopulation.51. The supremacy clause of the federal Constitution confirms that withinits sphere federal law is superior to state law, that federal enactments – be theyconstitutional provisions, statutes, federal common law, or administrativeConstitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 25

52–53 Part I, Ch. 1, Constitutional Formation and Designregulations – take precedence over state constitutional provisions in cases ofconflict. (The ‘in its sphere’ proviso is important: federal statutes that overridestate constitutions must be valid as made ‘in pursuance of’ the federal Constitution.)During the nation’s first century, collisions between federal law and stateconstitutions were rare – not until 1856, when the Supreme Court in Dodge v.Woolsey overturned a state bank tax, was a state constitutional provisioninvalidated as inconsistent with the federal Constitution. 1 During the twentiethcentury, federal policy initiatives increased the opportunities for conflict betweenfederal policies and state policies, including policies enshrined in state constitutions.Even more important have been the adoption of the Fourteenth Amendment,the incorporation under it of most provisions of the federal Bill of Rights(that is, making those provisions, which had only been applicable against thefederal government, applicable against state governments as well), and the moreaggressive review of state constitutions by the federal judiciary. Thus, the U.S.Supreme Court has struck down a Colorado constitutional amendment infringingon the rights of homosexuals as a denial of equal protection of the laws, theMaryland Constitution’s religious test for state officials as a violation of theFirst Amendment, and an Arkansas constitutional amendment limiting theconsecutive terms that a member of Congress from Arkansas could serve underthe qualifications clause of Article I. 2 Often the effects of such rulings on stateconstitutions have extended beyond the provisions that have been invalidated.They have also rendered unenforceable analogous provisions in other stateconstitutions and encouraged states to amend their constitutions to eliminateprovisions inconsistent with federal constitutional law.1. Dodge v. Woolsey, 59 U.S. 331 (1856).2. Romer v. Evans, 517 U.S. 620 (1996); Torasco v. Watkins, 367 U.S. 488 (1961); and U.S.Term Limits, Inc. v. Thornton 514 U.S. 779 (1995).§2. REQUIREMENTS IN OTHER NATIONAL LEGAL ENACTMENTS MANDATINGCERTAIN PROVISIONS OR MATTERS TO BE CONSIDERED OR INCLUDED INSUB-NATIONAL CONSTITUTIONS52. For the most part, national government does not have a direct influenceon the contents of state constitutions. This is because the national governmentlacks the power to enlist state governments in its endeavors by requiring themto enact laws. The United States Supreme Court emphasized this point in Printzv. United States (1997), a case that dealt with Congress’s attempt to mandatethat state legislatures enact certain laws. 1 However, the point applies to thedrafting of state constitutional provisions as well.1. Printz v. United States, 117 S.Ct. 2365 (1997).53. The only exception to this involves the admission of states to theUnion. Article IV, section 3 of the U.S. Constitution, in empowering Congressto admit new states to the Union, in effect gives it the power to establish theconditions under which they will be admitted. In the enabling acts by which it26 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

Constitutional Formation and Design, Part I, Ch. 1 54–55authorizes prospective states to devise constitutions and apply for statehood,Congress can impose conditions as to the substance of state constitutions, andstate constitution-makers must meet those conditions in order to secure afavorable vote on admission. Moreover, if a proposed constitution containsprovisions of which Congress or the President disapproves, either can refuse toapprove legislation admitting the state until the offending provisions are alteredor removed. Finally, recognition of this congressional and executive power,together with the states’ eagerness to attain statehood, may deter constitutionmakersfrom including anything in their charters that is likely to excite oppositionin Congress.54. Most of the conditions for admission that Congress has imposed onprospective states have been general and non-controversial. Enabling acts of thelate nineteenth century, for example, required that state governments be‘republican in form’ and ‘not be repugnant to the Constitution of the UnitedStates or the principles of the Declaration of Independence.’ Other requirements,likewise standard in enabling acts of the late nineteenth century, involved moresubstantive matters. Thus, constitutional conventions were instructed to securea ‘perfect toleration of religious sentiment’ and to provide for ‘the establishmentand maintenance of systems of public schools ... free from sectarian control.’This latter requirement, a product of conflicts between Protestants and Catholicsover public education, ensured that most state constitutions incorporated morestringent and specific checks on governmental support for religion than werefound in the federal Constitution. Finally, some states have been obliged toadopt or eliminate particular provisions as the price for statehood. As acondition for admission, Congress in 1906 required Oklahoma to locate itscapital in Guthrie until 1913. And after Arizona proposed a constitution thatincluded the recall of judges, President Taft vetoed the statehood bill, forcingArizona to delete the provision.55. The impact of these congressional mandates has been limited. Manyof the congressional requirements were probably superfluous: presumably noprospective state would have adopted a non-republican constitution, or oneblatantly inconsistent with the federal Constitution, even in the absence ofcongressional directives. Even some more specific congressional requirementsmay have been unnecessary. For example, even without congressional urging,the constitutions of most existing states in the late nineteenth century providedfor a system of public schools and banned sectarian influences in those schools.Moreover, as the United States Supreme Court’s decision in Coyle v. Smith(1911) indicated, states – once admitted – possessed ‘all of the powers ofsovereignty and jurisdiction which pertain to the original States.’ 1 They weretherefore free to repudiate any inconvenient restrictions placed on them underCongress’s power to admit states to the Union. Thus, Oklahoma moved itscapital three years prior to the date specified by Congress, and Arizonareinstituted the recall of judges immediately upon admission to the Union.1. Coyle v. Smith, 221 U.S. 559, 573 (1911).Constitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 27

56–57 Part I, Ch. 1, Constitutional Formation and Design§3. NATIONAL NON-MANDATORY GUIDELINES FOR CONTENT OF STATECONSTITUTIONS56. National non-mandatory guidelines have had their greatest influenceon state constitutions via constitutional interpretation. As a matter of law, statesupreme courts are the authoritative interpreters of state constitutions. Nevertheless,state constitutional interpretation has long been influenced by federalinterpretation, particularly in the realm of civil liberties. This has occurred evenwhen the texts of the state and federal guarantees have been quite dissimilar.Prior to the 1970s, attorneys and state judges oftentimes assumed that state andfederal rights guarantees should be interpreted as affording equivalentprotections. Even though the interest of state courts in state constitutions hasincreased in recent decades (a phenomenon known as the ‘new judicialfederalism’), state judges continue to employ the categories and conceptions offederal constitutional law in the interpretation of state rights guarantees. Indeed,in some instances states have incorporated the concepts and rulings of federaldecisional law directly into their constitutions. California has outlawed the useof busing for racial integration of public schools beyond that required to remedyviolations of the equal protection clause of the federal Constitution. 1 Florida hasrequired that its search-and-seizure provision ‘be construed in conformity withthe Fourth Amendment to the United States Constitution, as interpreted by theUnited States Supreme Court.’ 2 And Hawaii by amendment constitutionalizedthe U.S. Supreme Court’s ruling in Gideon v. Wainwright requiring governmentalprovision of counsel to indigent defendants in criminal cases. 31. California Constitution, Article I, section 7.2. Florida Constitution, Article I, section 12.3. Hawaii Constitution, Article I, section 14, constitutionalizing the U.S. Supreme Court’sruling in Gideon v. Wainwright, 372 U.S. 335 (1963).57. There is also a sense in which the contents of the U.S. Constitutionhave an influence on the contents of state constitutions. Scholars have describedthe U.S. Constitution as an ‘incomplete constitution,’ in the sense that ‘asignificant number of questions we can bring to it are not answerable using theone document alone.’ 1 This means that to understand the foundations ofAmerican government, one must look beyond the U.S. Constitution to otherdocuments, including the state constitutions. Thus insofar as the nationalconstitution leaves certain questions unresolved, there is an impetus to stateconstitutions to provide answers to those constitutional questions. Someexamples may serve to clarify the point. Instead of setting eligibility requirementsfor voting, the U.S. Constitution initially left that determination to thestates, and thus state constitutions addressed the issue. Similarly, the U.S.Constitution does not address the subject of education, and thus state constitutionsare obliged to treat it at length.1. Donald S. Lutz, ‘The United States Constitution as an Incompetent Text,’ Annals of theAmerican Academy of Political and Social Science, 496 (March 1988): 32.28 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

Constitutional Formation and Design, Part I, Ch. 1 58–5958. Federal constitutional amendments affecting voting and apportionmenthave also had a pronounced effect on state constitutions. The federal Constitutionoriginally left voting qualifications and apportionment to the states. Thefederalization of voting law began with the adoption of the Fifteenth Amendment,requiring that states not discriminate in their voting qualifications on thebasis of race, and continued with the adoption of the Nineteenth Amendment(women’s suffrage), the Twenty-Fourth Amendment (poll tax), and the Twenty-Sixth Amendment (eighteen-year-old vote). These amendments imposed uniformnational standards for voting, removing a major source of constitutionalcontroversy from state control. Many states subsequently brought their constitutionsinto conformity with the federal requirements, either deleting inconsistentprovisions or adopting amendments analogous to the federal amendments.Beginning in the 1960s, the Fourteenth Amendment spawned successfulchallenges to state systems of legislative apportionment and to state regulationsof voting, such as poll taxes and residency requirements. 1 Congress also enactedthe Voting Rights Act of 1965, and this act – together with its 1982 amendments– dramatically expanded and intensified federal supervision over stateelectoral laws and practices. Yet these federal interventions have not altogetherprecluded an independent state role. For example, many state constitutionsrequire that local boundaries be respected in districting decisions, and stateapportionment commissions and state courts have continued to enforce thatrequirement, insofar as it can be reconciled with the federal ‘one person, onevote’ standard. 21. See, e.g. Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966), and Dunn v.Blumstein, 405 U.S. 330 (1972).2. See, e.g., Fischer v. State Bd. of Elections, 879 S.W.2d 475 (Ky. 1994); Fonfara v.Reapportionment Commission, 610 A.2d 153 (Conn. 1992).59. Finally, Congress, acting through its spending power, may reach manysubjects normally reserved to the states, although it does so indirectly. It mayaccomplish its aims indirectly by attaching conditions to federal spendingprograms or grants. State constitutions may make state compliance with suchconditions difficult. For example, Congress required that states enact ‘certificateof need’ legislation as a condition for the receipt of federal health planning funds.Prior to this requirement, the North Carolina Supreme Court had ruled that state‘certificate of need’ legislation was unconstitutional as granting special privilegesand monopolies in violation of the North Carolina Constitution. 1 North Carolinatherefore argued that the congressional requirement interfered with state sovereignty.A federal district court rejected this argument. 2 This decision left NorthCarolina with the choice of foregoing the federal funds, amending its constitution,or seeking a different interpretation from its supreme court. Nevertheless, Congressmay sometimes choose not to impose conditions in federal grant programs thatrequire a state to do something that its constitution prohibits. 31. In re Certificate of Need for Aston Park Hospital, Inc., 193 S.E.2d 729, 736 (N.C. 1973).2. North Carolina ex rel. Morrow v. Califano, 445 F. Supp. 532, 535–536 (E.D.N.C. 1977),aff’d. mem., 435 U.S. 962 (1978).3. Wheeler v. Barrera, 417 U.S. 402, 416–419 (1974) (‘Whatever the case might be if therewere no expression of specific congressional intent, Title I evinces a clear intention that stateConstitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 29

60–63 Part I, Ch. 1, Constitutional Formation and Designconstitutional spending proscriptions not be preempted as a condition of accepting federalfunds.’) See also Retail Clerks Int’l. Ass’n. v. Schermerhorn, 375 U.S. 96 (1963).§4. SUB-NATIONAL CONSTITUTIONS AS MODELS FOR THE NATIONAL CONSTI-TUTION60. The delegates to the 1787 federal Constitutional Convention wereobviously well aware of the state constitutions, the debates surrounding them,and the experience governing under them. Thus, John Dickinson scarcely neededto remind his fellow delegates in Philadelphia on August 13, 1787, that‘[e]xperience must be our only guide.’ This exchange illustrates the foremostplace in the Framers’ minds occupied by the still unfolding state constitutionaldevelopments.A. Positive Models61. With many federal constitutional provisions modelled on stateexamples, it is quite clear that state constitutions had numerous positiveinfluences on the federal Constitution. The most widely recognized of these isthe federal Bill of Rights which, of course, was not added until several yearsafter the Convention of 1787.62. The absence of a Bill of Rights from the proposed federal Constitutionwas among the most well-known and effective of the anti-federalist argumentsagainst ratification. The evolution of the Bill of Rights, including the influenceof state constitutions, has been ably documented. There was an additional focuson the debates over participation in, and the structure of, governmental institutionsunder the new state constitutions and the influence of these matters on thefederal Constitution. Furthermore, the real controversies over the first stateconstitutions had little to do with ‘rights.’ What was at stake was how the newstate governments would be structured and what groups in society would havethe dominant role in making policy under the new governments.63. Numerous state constitutional provisions positively influenced thefederal Constitution, including the development of the executive branch and theSenate. The recognition of this positive modeling is obvious from John Adams’boast: ‘I made a Constitution for Massachusetts, which finally made theConstitution of the United States.’ Although clearly an oversimplification,Adams’ claim contains an important element of truth. Alexander Hamilton, notsurprisingly, relied on positive modeling in the very first number of TheFederalist, where he assured New Yorkers that the new federal Constitution wasan ‘analogy to your own State constitution....’30 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

Constitutional Formation and Design, Part I, Ch. 1 64–68B. Negative Models64. It is clear that by 1787, after more than a decade of experience withthe state governments, there were some state institutions and practices that amajority of the Framers did not wish to emulate. This was particularly true withrespect to the widespread dominance of the legislative branch under most stateconstitutions.65. Concern about what was taking place in the states by 1786 to 1787,viewed by some as a crisis, was as important a stimulus for the ConstitutionalConvention as the perceived defects in the Articles of Confederation. In viewof this reaction to perceived ‘excesses of democracy’ made possible by theconstitutions of most states, it is clear that state constitutional models exertednegative influences on the drafting of the federal Constitution. This wasaccomplished indirectly by the enumerated powers of Congress contained inArticle I, such as exclusive power over issuing money and determining legaltender, which operated to diminish the power of state legislatures. It wasaccomplished more directly through the Article I prohibitions on state legislatures,including the clause prohibiting state impairment of contractual obligations,and the clause guaranteeing the states a republican form of government.66. The negative influence of state constitutional experience may also beseen in the development of the separation of powers, and checks and balancesfeatures of the federal Constitution. While this had no direct effect on the states,unlike the aggregation of federal power in Article I, it reflected strong andfundamental disapproval by a majority of the federal constitutional Framers ofthe way most state governments were constituted. These negative influences arefurther reflected in the debates and the federalist defenses of the U.S. Constitutionwhich criticized the abuses, primarily of property and contract rights, bystate legislatures exercising vast authority under their constitutional arrangements.67. Sub-national or state constitution making in a federal system isexperimental. States have been referred to as the laboratories of federalism.States copy ideas one from the other, or reject ideas that have been tried in otherstates and haven’t worked. The federal government continues to look to thestates for models to emulate. One only has to look at the current debates overthe line-item veto, balanced budget, and term limits in Washington. These wereall invented in the states.§5. THE NATIONAL CONSTITUTION AS MODEL FOR SUB-NATIONAL CONSTITU-TIONS68. The federal Constitution has exerted considerable influence on stateconstitutions by providing a model for emulation. Yet it is difficult to measurethis influence with any precision. Many features of the federal ConstitutionConstitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 31

69–70 Part I, Ch. 1, Constitutional Formation and Design– such as protections of rights, popular rule, a separation of powers, and anindependent judiciary – are likewise found in state constitutions; so when a newstate constitution incorporates these features, it is difficult to determine whetherthe federal Constitution or its state counterparts provided the model. Even thepresence of textual similarities between the federal Constitution and subsequentstate constitutions is not determinative. In some instances federal constitutionmakersderived their formulations from earlier state charters, and these ratherthan the federal document may have guided later state constitution-makers aswell. Notwithstanding these obstacles to precision, in some instances the federalinfluence is unmistakable. Immediate emulation of the federal model reveals thedirect federal influence. For example, Pennsylvania, Delaware, New Hampshire,and Kentucky all adopted the federal mode of judicial selection within a decadeafter the Constitution was ratified. Distinctive federal language may alsoreappear in state charters. For example, twenty-three states have adoptedlanguage patterned after the freedom of speech and press provisions of the FirstAmendment; twelve have equal protection clauses similar to the FourteenthAmendment’s; and eleven prohibit religious establishments in terms comparableto the First Amendment’s establishment clause. In fact, in at least one instance,state constitution-makers modelled their provisions on a federal provision thatfailed of adoption. From 1968 to 1976, at the same time that the equal rightsamendment to the federal Constitution (guaranteeing gender equality) was underconsideration, fourteen states adopted their own ‘little ERA’s.’ The languageof these provisions tracks the federal amendment, and their legislative historiesreveal a desire to provide comparable protections in the state and federaldocuments. 11. For a listing of provisions and an account of their genesis, see G. Alan Tarr and MaryCornelia Porter, ‘Gender Equality and Judicial Federalism: The Role of State AppellateCourts,’ Hastings Constitutional Law Quarterly 9 (1982) 919–973.§6. SIMILARITIES AND DIFFERENCES AMONG SUB-NATIONAL CONSTITUTIONS69. All of the American state constitutions follow the same basic structuralpattern, but there is a wide variety of difference in the details. For example,each state has a Declaration, or Bill of Rights. There are standard provisions,such as free speech, protection against unlawful search and seizure, right tocounsel in criminal cases, and protection against deprivation of private propertywithout compensation that appear in virtually all of the state Bills of Rights. Onthe other hand, guarantees of equal rights for women and people with disabilities,protections for organized labor, and rights to privacy, to name a fewexamples, appear in only some of the states’ Bills of Rights.70. With respect to government structure, the state constitutions reflectbasic similarities, but also a wide range of differences in detail. For example,some states have only a single chief executive, while others have a number ofstate executive officials provided for in their constitutions. Some states providefor elected judges in their constitutions, while others utilize an appointed32 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

Constitutional Formation and Design, Part I, Ch. 1 71–73judiciary. Some states provide for direct lawmaking through initiative andreferendum while the majority do not. Western states include protections forwater rights in their state constitutions while Eastern states do not.71. Beyond these general differences among the state constitutions, eachof the states has its own specific differences. For example, in North Dakota thestate constitution requires four out of the five justices on the supreme court,rather than a mere majority, to vote to declare a law unconstitutional. NewJersey’s constitution provides for only a single state-wide elected official — thegovernor.§7. SUB-NATIONAL CONSTITUTIONS AS MODELS FOR OTHER SUB-NATIONALCONSTITUTIONS72. There is no requirement that state constitution-makers adopt provisionssimilar to those in other states or that state judges adhere to constitutionalrulings or doctrines developed by other states’ courts. Nevertheless, statesregularly look to other states for solutions to the common problems they face.This horizontal federalism affected state constitutional design from the veryoutset. For those drafting the initial state constitutions, the unfamiliarity of thetask, time constraints, and the pressing demands of war and governanceencouraged reliance on constitutional models developed in other states. Ifanything, the passage of time has increased interstate borrowing. During thenineteenth century, some states seeking congressional approval for theiradmission to the Union sought to avoid controversy by modeling their constitutionson those of existing states. In addition, settlers carried constitutional ideaswest with them and reproduced in their new homes the constitutional arrangementswith which they were familiar. Common problems also led to commonsolutions. Thus, during the late nineteenth century several Western states,seeking to promote mining and irrigation, adopted similarly expansive provisionson eminent domain to encourage those activities. Finally, on several occasionsconstitutional innovations in one or a few states unleashed a wave of change.The transition to an elective judiciary illustrates the process: after Iowa and NewYork in 1846 made all judges elective, eleven other states also did so (in wholeor in part) over the next four years, and nine more did so in the succeedingdecade.73. Developments during the twentieth century have facilitated the processof interstate borrowing. Among the most important of these is the increased useof constitutional commissions, which have the resources of staff, time, andexpertise necessary to study the constitutions of other states before they suggestconstitutional amendments. Likewise important has been the practice ofestablishing preparatory commissions to assemble pertinent information,including analyses of the constitutions of other states, for delegates to stateconstitutional conventions. Illustrative of this was the work of the LegislativeReference Bureau of the University of Hawaii, which prepared seventeenConstitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 33

74–76 Part I, Ch. 1, Constitutional Formation and Designbackground studies reviewing the experience of other states and relating thatexperience to the situation in Hawaii. Finally, the nationalization of stateconstitutional politics has also contributed to interstate borrowing. Interestgroups have become increasingly involved in promoting constitutional changesnationwide, which has prompted a transfer of information, including thesubstance of proposed constitutional reforms, from state to state. The adoptionof victims’ rights amendments and term-limits amendments illustrates thisprocess.74. The multiplicity of models provided by other states’ constitutions,however, has prevented interstate borrowing from degenerating into a passivecopying process. Rather, state constitution-makers have been obliged, in thewords of a delegate to the Wyoming constitutional convention, to ‘exercise anintelligent and discriminating judgment’ in choosing which provisions to adopt.Sometimes these choices have been influenced by the familiarity of constitutionalarrangements. At other times the choices reflected the delegates’ desireto avail themselves of the most up-to-date thinking on constitutional matters byconsulting the most recent constitutions. At still other times convention delegatesdrew upon the constitutions of neighboring states that shared similar circumstancesand political orientations. But frequently the constitution-makers’ choiceswere eclectic. Delegates borrowed constitutional ideas from a variety of statesand created a new synthesis. In addition, they frequently adapted the provisionsthey borrowed to the circumstances or political perspectives of their state.Pennsylvania’s Declaration of Rights of 1776 offers a prime example. Althoughit largely followed the Virginia Declaration of Rights, the PennsylvaniaDeclaration acknowledged the presence of Quakers in the state by expresslyrecognizing the rights of conscientious objectors. It also gave a more democraticthrust to the state government by adding the right to instruct representatives andpetition for redress of grievances.§8. PROCESSES FOR ORIGINAL ADOPTION, INCLUDING PROVISIONS FORNATIONAL APPROVAL75. Early in American history, a number of the state constitutions wereadopted by the state legislature, often without any approval by a referendum ofthe citizens of the state. Over the first forty or fifty years of American history,however, the basic pattern emerged both in the original states, and in new statesthat were admitted to the Union, of having a constitutional convention consistingof elected delegates, whose proposals were presented to the citizens of the statein a referendum for their approval. A number of proposed constitutions sincethat time have been rejected by the voters in such referenda. The constitutionalconvention has emerged as a very important, and unique, type of constituentassembly reflecting basic American conceptions of popular sovereignty.76. Now many of the state constitutions provide for the calling of constitutionalconventions and the submission of proposals of such conventions to the34 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

Constitutional Formation and Design, Part I, Ch. 1 77–79voters. In states without such provisions in their constitutions, it is nowunderstood that the state legislature may provide for the calling of a convention,limitations upon the subjects that may be considered at the convention, and thesubmission of proposals to the voters.77. For new states being admitted to the Union, the Congress of the UnitedStates exercises the power to decide on their admission. As a part of thisprocess, the new state must submit its proposed constitution to the Congress andthe President for approval. In some of the instances of admission of new states,Congress would pass an ‘enabling act’ prior to the submission of the new state’sapplication for admission to the Union. These enabling acts often containedrequirements for the calling and holding of constitutional conventions, and alsooften contained specific requirements that certain provisions be included in theproposed constitution of the state. In addition, there are several examples of stateconstitutions being rejected by Congress or the President until specified changeswere made. Once the state was admitted to the Union, however, it was free tochange its constitution however it saw fit.§9. PROCESSES FOR AMENDMENT (ALTERATION) AND REVISION (REPLACE-MENT)78. The American states have regularly revised and amended theirconstitutions. Only nineteen states still retain their original constitutions, anda majority of states have established three or more. Louisiana’s current constitutionis the state’s eleventh, and Georgia’s its tenth. The level of constitutionalamendment likewise underscores the states’ willingness to initiate formalconstitutional change. As of 1998, over 9500 amendments had been proposedto the states’ current constitutions and over 5900 adopted – an average of almost120 amendments per state. The Alabama Constitution of 1901 has been amendedover 580 times, and the California Constitution of 1879 almost 500 times. Eventhese figures substantially underestimate the states’ propensity for constitutionaltinkering, because they omit amendments and proposed amendments to thestates’ earlier constitutions.79. Constitutional revision (replacement) has occurred through constitutionalconventions. Forty-one state constitutions expressly authorize the legislature toconvene constitutional conventions – indeed, fourteen require that the legislatureperiodically poll the populace on whether to call a convention – and statelegislatures have assumed the power to call conventions even in the absence ofexpress constitutional authorization. The state legislature places on the ballotthe question of whether a constitutional convention should be called. In someinstances the ballot question may indicate that the convention is for limitedpurposes or that it will not consider certain issues. In 1947 in New Jersey, forexample, the legislature was willing to agree to a convention only if thedelegates were prohibited from changing the mode of apportionment for the statesenate. If the electorate approves calling a convention, delegates are elected byConstitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 35

80–83 Part I, Ch. 1, Constitutional Formation and Designpopular vote. When the convention finishes its work, it submits its proposedconstitution to the voters, who must ratify it by a majority vote.80. The states have devised and utilized a variety of mechanisms forproposing constitutional amendments. States may call constitutional conventionsto propose amendments, but the cost of calling a convention generally makesthis an unattractive alternative. In practice, most state constitutional amendmentsare proposed by state legislatures. Eighteen states currently permit constitutionalamendments to be proposed by a simple majority in each house of the legislature,five more by simple majorities in two sessions with an intervening election,and nine by a three-fifths vote in each house. In recent years, proposedamendments have often originated in constitutional commissions, groups ofexperts and notables appointed by the legislature or executive to developproposals either for consideration by the legislature or – in the case of Florida– for direct submission to the people for ratification. The advantage of thesecommissions is that they provide expert assistance to the legislature whileallowing it to keep control over what proposals are submitted for popularconsideration.81. Eighteen states have adopted the constitutional initiative, whichempowers citizens to propose amendments directly to the voters (sixteen states)or to the legislature before submission to the voters (Massachusetts andMississippi). To get a constitutional initiative on the ballot, supporters mustcollect signatures on petitions in support of the initiative. Although the laws ofthe various states differ as to the level of support that must be obtained,typically the level is a percentage of the turnout at the last election for governoror a percentage of the state population. Some states, in order to prevent oneregion of the state from dominating the process, require that a certain numberof signatures be obtained from each county. Once the requisite number ofsignatures has been obtained and certified by the secretary of state, the constitutionalinitiative is placed on the ballot.82. Regardless of the mode of proposing amendments, the mode ofratification remains the same – popular referendum. In forty-four states, onlya simple majority vote in a referendum is required to ratify amendmentsproposed by state legislatures. One state, Delaware, permits amendment of itsconstitution by an extraordinary majority in the legislature, without any popularratification. Of the eighteen states that permit amendment by constitutionalinitiative, thirteen permit ratification of proposals by a simple majority of thosevoting on the measures.§ 10. DESCRIPTION OF SOURCE MATERIALS REFLECTING DEBATES AND INTENTCONCERNING SUCH ADOPTION, AMENDMENT, AND REVISION83. Records of constitutional convention deliberations and legislativedebates on proposed constitutional amendments can shed light on the purpose36 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

Constitutional Formation and Design, Part I, Ch. 1 84–85and intent of state constitutional provisions. For good sources, see generallyCynthia E. Browne, State Constitutional Conventions, 1776–1959: A Bibliography(1973); Bonnie Canning, State Constitutional Conventions, Revisions andAmendments, 1959–1976: A Bibliography (1977); Elmer E. Cornwell, Jay S.Goodman and & Wayne R. Swanson, State Constitutional Conventions: ThePolitics of the Revision Process in Seven States (1975); Bernard Halvey, ASelective Bibliography on State Constitutional Revision (National MunicipalLeague, 2d ed. 1967); Susan Rice Yarger, State Constitutional Conventions,1959–1975: A Bibliography (1976). Many of the materials reflected in thesebibliographies are available on microfiche.§ 11. RANGE OF TOPICS ADDRESSED AND LEVEL OF DETAIL CONTAINED INSUB-NATIONAL CONSTITUTIONS84. State constitutions deal directly with many matters of public policy thatare not dealt with by the federal Constitution. State governments share commonpolicy responsibilities, and these are reflected in state constitutions. Thus, manystate charters contain separate articles on finance, on taxation, on corporations,and on education. Other policy provisions reflect problems that are peculiar toa region – for example, eight Western states adopted constitutional prohibitionson the employment of children in mines during the late nineteenth and earlytwentieth centuries. Still other policy provisions are distinctive to particularstates. A few deal with salient aspects of a state’s economy: for example,Idaho’s Constitution has articles on water rights and on livestock, and Californiaon water resources development. Others, such as New Mexico’s article dealingwith bilingual education, reflect the social composition of the state. Some policyprovisions are a product of the prevailing political movements during the erain which they were adopted. For instance, the tax revolt of the late 1970s addedto the California Constitution articles dealing with tax limitations and governmentspending limits, while the environmental movement of the late 1960sprompted Illinois to include an article on the environment in its 1970 constitution.Finally, some state policy provisions are simply constitutionalized statutes.Article 10B of the California Constitution, which is entitled the MarineResources Protection Act of 1990, is a case in point.85. Policy provisions in state constitutions may contain direct prohibitionson legislative action, such as the constitutional bans on the use of public fundsin support of any religious institution or for any sectarian purpose. Prohibitionsin finance and taxation articles, which may range from limitations on theimposition of ad valorem taxes by local governments to bans on state assumptionof local government debt, tend to be particularly detailed and specific.Policy provisions in state constitutions may also take the form of policydirectives. They may directly enact policy – the California Constitution’sestablishment of an eight-hour workday on public works is an example. Or theymay establish policy guidelines for legislative enactments. In some instanceslegislative enactment may still be discretionary, as when the Illinois ConstitutionConstitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 37

86 Part I, Ch. 1, Constitutional Formation and Designlisted the types of property that the General Assembly could exempt fromproperty taxes, restricting the range of possible exemptions but leaving thelegislature free to decide whether to grant those exemptions. More often,however, constitutional directives for legislative enactments are mandatory,requiring legislative action and presumably permitting judicial enforcement ifthe legislature fails to act. Finally, the policy provisions in state constitutionsmay be statements of principle, committing the state to achieve particular ends.These statements can impose specific duties on state governments. Thus, NewJersey is required to ensure a ‘thorough and efficient system of free publicschools’ for all children in the state; Alaska must ‘provide for the promotionand protection of public health’; and Idaho is obliged ‘to pass all necessary lawsto provide for the protection of livestock against the introduction or spread’ ofvarious diseases.86. Since state power exists in the absence of constitutional limitations andsince state courts have characteristically interpreted such limitations narrowlyin light of the plenary character of state power, American state constitutionmakershave found it necessary to specify the limitations on state power. Inaddition, state political majorities have often sought to write their policies intothe fundamental law in order to shield those policies from change by futuremajorities. As a result, state constitutions tend to be long and detailed. Indeed,state constitutions adopted during the late nineteenth century are replete with‘constitutional legislation,’ provisions that in their length and detail are indistinguishablefrom statutes but that nonetheless have been elevated to constitutionalstatus.38 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

121–124Part II. Forms of Sub-national GovernmentsChapter 1. General§1. INTRODUCTION121. Sub-national units in a federal system enjoy an independent constitutionalstatus and exercise independent powers. That is, their existence and theirpowers are constitutionally guaranteed rather than under the control of thenational government.122. The U.S. Constitution safeguards the position of the American statesin the federal system in several ways. First, it grants only limited powers to thenational government and reserves ungranted powers to the states (or the people).The Tenth Amendment states: ‘The powers not delegated to the United Statesby the Constitution, nor prohibited by it to the States, are reserved to the Statesrespectively, or to the people.’ Although this may initially have been the mostimportant protection for the states, the expansion of national power, togetherwith the U.S. Supreme Court’s acquiescence in its expansion, has raisedquestions about whether this continues to be an effective safeguard of stateautonomy. During the 1990s, the Supreme Court has shown a greater interestin safeguarding state power and curtailing overreaching by the nationalgovernment; 1 but its recent rulings have blocked the further expansion ofnational power rather than reversing the effects of earlier rulings that producedthat expansion.1. See, for example, United States v. Lopez, 514 U.S. 549 (1995); Seminole Tribe of Floridav. Florida, 116 S.Ct. 1114 (1996); City of Boerne v. Flores, 117 S.Ct. 2157 (1997); andPrintz v. United States, 117 S.Ct. 2365 (1997).123. Second, the Constitution grants extraordinary protection to theterritorial integrity of the states, forbidding tampering with state boundaries notonly by congressional legislation but also by the normal processes for constitutionalamendment. Article VI, section 3 of the Constitution states: ‘no new Stateshall be formed or erected within the Jurisdiction of any other State; nor anyState be formed by the Junction of two or more States, or parts of States,without the Consent of the Legislature of the States concerned as well as of theCongress.’124. Third, the Constitution secures to the states a role in the selection offederal officials and in the processes of the national government. Initially, stateConstitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 53

125–127 Part II, Ch. 1, Generallegislatures selected senators, who directly represented the interests of thevarious states. Even after the Seventeenth Amendment (1913) establishedpopular election of senators, states still enjoy equal representation in the Senate.This recognizes their equal status as component units of the American polity.In addition, as long as they do not discriminate on the basis of race, gender, orother factors, the states also set eligibility requirements for voting in bothnational and state elections. Finally, under Article V of the U.S. Constitution,constitutional amendments require ratification by three-quarters of the states.Taken altogether, these protections for state autonomy and state interests justifyJames Madison’s claim that the system created by the Constitution was partlynational and partly (con)federal.§2. POLITICAL PARTIES125. Few state constitutions mention political parties at all, since partiesare understood as non-governmental institutions. State constitutions do notprescribe what parties can be formed nor which parties can put forwardcandidates at election. The main contribution of state constitutions is to providethe freedom within which political activity can take place rather than toprescribe the form it takes. They provide this framework for political activityby guaranteeing the freedom of speech, the freedom of the press, and the rightto associate with others for political purposes.126. The federal Bill of Rights likewise provides such guarantees ofpolitical freedom. In addition, the federal Constitution limits the power of thestates to regulate political parties. In Eu v. San Francisco County DemocraticCommittee (1989), for example, the United States Supreme Court struck downa state ban preventing state parties’ official governing bodies from endorsingcandidates in primary elections, as well as state restrictions on the organizationand composition of political parties’ official governing bodies. According to theCourt, state regulations that burden the rights of political parties or theirmembers are subject to strict constitutional scrutiny and would be upheld onlyif the regulations serve a compelling state interest.§3. MISCELLANEOUS CHARACTERISTICS127. The initiative and referendum movement around the turn of thecentury was an indication of public dissatisfaction with state legislatures.Initiatives enabled the public to bypass unresponsive state legislatures, andreferendums provided a check on the effect of unpopular statutes. The initiativeallowed the people to take direct action when the legislature refused to act. Thereferendum enabled the people to target specific enactments for disapprovalrather than depend on the indirect deterrence of procedural restrictions. Finally,the recall permits voters to remove officials from office prior to the expirationof their term of office.54 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

General, Part II, Ch. 1 128128. The people of South Dakota began the process of taking back, orreserving to themselves, a measure of legislative power in a constitutionalamendment approved in 1898. During the next twenty years, about a dozenstates followed the lead.Constitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 55

129Chapter 2. Head of the Sub-national Governmental Unit129. There is no organ or head of an American state other than the threeco-equal branches of government. Each of the three branches has a defined legalstatus and competence.56 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

130–134Chapter 3. The Legislature§1. THE ORGAN OF STATE130. There is no separate organ of state for the legislative branch. SeeChapter 2 above.§2. LEGAL STATUS131. The legislative branch, pursuant to the constitutions of the Americanstates, has an independent and co-equal status with the other two branches. Mostof the state constitutions state that the Legislature shall be the judge of thequalifications of its members, and that members are immune from criminalcharges or civil liability for statements or actions made in connection with theirlegislative deliberations (the so-called ‘speech and debate clause’).§3. COMPETENCE132. The state legislative branch was the repository of the lion’s share ofgovernmental power in the state constitutions of the founding decade before1800. The Framers of the federal Constitution, therefore, had extensive experiencewith the theory and practice of legislative power under state constitutionsbefore 1787. Bringing the other two branches to some form of parity, or at leastbringing them closer to being ‘co-equal’ would continue to occupy stateconstitutional Framers for at least the next century.133. More so than either the executive or judicial branches, the legislativebranch is different at the state level from its federal counterpart, the Congress.State legislative power is ‘plenary,’ whereas federal legislative power isspecifically enumerated. Plenary power is the residual, unlimited legislativepower. This basic distinction is somewhat oversimplified because state constitutionsalso do contain authorizations for the legislature to act. Still, however, itis this basic distinction that led to the observation that the most importantquestions of judicial interpretation of the federal Constitution have to do withimplied powers, while at the state level implied limitations are most important.134. These prospectives lead to the important, and powerful presumptionof constitutionality for statutes enacted by the state legislature. Judicial deferenceConstitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 57

135–138 Part II, Ch. 3, The Legislatureto the legislative product surfaces even in the interpretation and application ofthe state constitutions’ procedural limitations on the legislature.135. An unwritten constraint on the plenary power of state legislatures isthe public purpose doctrine. This limitation on legislative power was clearlyrecognized as early as 1853 in Sharpless v. Mayor of Philadelphia, where theSupreme Court of Pennsylvania noted:‘Neither has the legislature any constitutional right to create a public debt,or to levy a tax, or to authorize any municipal corporation to do it, in orderto raise funds for a mere private purpose. No such authority passed to theAssembly by the general grant of legislative power. This would not belegislation. Taxation is a mode of raising revenue for public purposes.’ 11. 21 Pa. 147, 168–69 (1853).136. The public purpose doctrine has current importance in such controversialareas as legislation authorizing vouchers (public funds) for private schooleducation. Another way of thinking about the limitation of legislative power topublic purposes is to analyze the legislature’s ‘police power.’ The legislatureis limited to exercising the ‘police power’ – legislating to protect the health,safety and welfare of the people. Therefore, at least one state court has declareda state law requiring motorcycle riders to wear helmets unconstitutional becauseit exceeded the ‘police power.’ 11. People v. Fries, 250 N.E.2d 149 (Ill. 1969).137. A complete picture of legislative power under a state constitution mustinclude the waves of reaction to state legislative abuses, reflected in theprocedural and substantive limitations on the legislature adopted over the years.Further, the limitations contained in state constitutional declarations of rightsmust be included in the picture of state legislative power. The concurrent roleof the American state judiciary in common-law decision-making, which operatesalongside legislative power, even in the area of individual rights, must not beforgotten, even though state legislative enactments supersede the common law.Also, the impact of ‘positive’ rights contained in the state constitution itselfmust be analyzed for their potential, particularly in judicial interpretation, tosupplant legislative choices. For example, to the extent that a state constitutionguarantees a right to education, health care, or civil service protection, it takesaway legislative choice in the matter.138. The state legislature, as an institution, does much more than just enactstatutes. It may propose amendments to the state constitution, a power notgenerally considered to be part of the ‘legislative power.’ It may ratify proposedfederal constitutional amendments, but only within the federal Constitution’smandates. The state legislature may conduct investigations without passing anylegislation; it may appropriate money; and it may adopt resolutions which donot have the force of law. The state legislature in a number of states has even58 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

The Legislature, Part II, Ch. 3 139–142been required in recent times to share its power to reapportion itself (redrawlegislative district boundaries to reflect changes in population) with a constitutionallyestablished Reapportionment Commission. The advent of term limits(restrictions on the number of consecutive terms a legislator can serve) and theadoption of the initiative and referendum, both have changed the nature of thestate legislature in many of the American states.139. Despite the legal and political changes that have occurred since 1776,resulting in the types of limitations on the state legislative branch describedabove, state legislatures remain extraordinarily powerful. They are the focalpoint of policy-making in state government. The prevailing view is illustratedby the Supreme Court of Illinois:‘Under traditional constitutional theory, the basic sovereign power of theState resides in the legislature. Therefore, there is no need to grant powerto the legislature. All that needs to be done is to pass such limitations asare desired on the legislature’s otherwise unlimited power.’ 11. Client Follow-Up Co. v. Hynes, 390 N.E. 2d 847, 849 (Ill. 1979).§4. LIMITATIONS140. A commentator observed in 1892 that ‘one of the most markedfeatures of all recent State constitutions is the distrust shown of the legislature.’The transition from early state constitutions granting unfettered legislative powerto the more recent constitutions restricting legislative power reflects one of themost important themes in state constitutional law. The clearly established patternduring the founding decade of 1776–1787 was a gradual transition fromlegislative dominance, or ‘omnipotence,’ to an increased role for the executiveand judicial branches. The new executive and judicial powers operated as acheck on recognized legislative power rather than a sharing of legislative power.141. In 1776 and the years immediately following, virtually all of the newlyindependent constitution-makers’ trust was placed in the legislative branch,albeit usually in two houses. It was generally felt that, under the newlyflourishing ideas of republicanism, representatives in government should be likethe citizens themselves and mirror as closely as possible the makeup of thepopulation. The idea of professional politicians or representatives had not yetdeveloped. Rather, the virtuous members of society should serve, on a rotatingbasis, for short terms, representing small districts, and honor instructions fromtheir constituents.142. This philosophy soon began to change, however, as experience underthe new legislative supremacy proved to be less than satisfactory. The range ofhighly visible legislative abuses, such as suspension of debts, seizure of theproperty of those who supported England during the Revolution, generousConstitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 59

143–145 Part II, Ch. 3, The Legislatureauthorization of paper money, and legislative interference with the executiveand judicial branches, began to raise concerns. Increased executive veto powercame to be viewed as not inconsistent with popular sovereignty but, rather, asa necessary mechanism to limit legislative power.143. The transition in American history has been from relatively unfetteredlegislative power to a more evenly balanced distribution of governmental powersamong the branches. In addition, the legislative articles of modern stateconstitutions reflect two important characteristics: (1) the insertion of specific‘constitutional legislation’ into state constitutional texts, thereby supplantinglegislative prerogatives and sometimes leading to a limitation of legislativealternatives through judicially discovered ‘negative implications,’ and (2) theinsertion into state constitutions of detailed procedural requirements that thelegislature must follow in the enactment of statutory law.A. Negative Implication144. Many state constitutions include provisions that could be relegated tostatutory law. When these provisions mandate legislative actions or grantauthority to a legislature already vested with plenary power, courts can transformthese apparent grants of power into limitations on legislative power. Forthese reasons, many apparent grants of authority become, through judicialinterpretation, limits on legislative power. For example, many state constitutionscontain fairly explicit provisions on legislative compensation which, of course,would be within the legislative power even in the absence of such constitutionalprovisions. If the legislature seeks, by statute, to provide some other form ofcompensation, it is often successfully argued that the constitutional provisioncontains an implied limitation on legislative authority in the area of compensation.B. Procedural Limitations on the Enactment of Statutes145. The legislative articles of virtually all state constitutions contain awide range of limitations on state legislative processes. Generally, theseprocedural limitations did not appear in the first state constitutions. Instead, theywere adopted throughout the 19th century in response to perceived abuses oflegislative powers. Last-minute consideration of important measures; includingunrelated measures in the same law; mixing substantive provisions in appropriationsbills; low visibility and hasty enactment of important, and sometimescorrupt, legislation; and the attachment of unrelated provisions to bills in theamendment process — to name a few of these abuses — led to the adoptionof constitutional provisions restricting the legislative process. These constitutionalprovisions seek generally to require a more open and deliberative statelegislative process, one that addresses the merits of legislative proposals in anorderly and thoughtful manner.60 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

The Legislature, Part II, Ch. 3 146–149146. Familiar examples of American state constitutional limitations on thelegislature include requirements that a bill contain a title disclosing its contentand include only matters on a ‘single subject’; that all bills be referred tocommittee; that the vote on a bill be reflected in the legislature’s journal; thatno bill be altered during its passage through either house so as to change itsoriginal purpose; and that appropriations bills contain provisions on no othersubject. These procedural restrictions must be distinguished from the commonsubstantive limits on state legislation, such as those prohibiting statutes limitingwrongful death recoveries or mandating a certain type of civil service system,and from the general limits contained in state bills of rights.147. The limitations on state legislative procedure survived the wave ofstate constitutional revision that occurred during the middle of the 20th century.Therefore, because these limits have, in effect, been readopted in contemporarystate constitutions, they reflect policies relating to the nature of the deliberativeprocess in state legislatures. Further, they represent an important limit onlegislative authority and illustrate the lasting result of earlier public disillusionmentwith legislative abuses.148. Although the procedural limits outlined above are usually discussedas if they were all of the same quality, there are important differences. Someprovisions require the legislature to act affirmatively, while others prohibitcertain acts. A violation of certain restrictions, such as title and single-subjectprovisions, can be seen from examining the text of the final legislative enactment.By contrast, a violation of other restrictions, such as the prohibition ofa bill being altered on its passage through either house so as to change itsoriginal purpose, will not be reflected on the face of the final legislativeenactment. Consequently, a search for this type of violation requires anexamination of the legislative steps leading up to the enactment.149. State courts have developed a surprisingly wide range of approachesto enforcing restrictions on legislative procedure under circumstances where anact on its face does not reflect a violation of procedural limitations. Some courtswill not ‘go behind’ an enrolled bill, duly signed by legislative officers, toconsider evidence of violation of legislative procedure provisions in stateconstitutions. Other courts will consider only the official legislative journals butnot other evidence. Still other courts will consider any relevant evidence of suchstate constitutional violations. Even within single jurisdictions, one can detectinconsistent doctrines and a lack of continuity over time. These widely varyingjudicial doctrines reflect what are essentially political decisions, made in thecontext of adjudicating actual controversies, concerning the extent of judicialenforcement of state constitutional norms. On rare occasions, these proceduralprovisions may result in court decisions invalidating a statute. More importantly,such restrictions make the state legislative process significantly different from,and more rigidly structured than, the federal congressional legislative process.Constitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 61

150–153 Part II, Ch. 3, The LegislatureC. Direct Legislation150. The initiative and referendum movement that emerged in Americanstates at the beginning of the twentieth century was another indication of publicdissatisfaction with state legislatures. Initiatives enable the public to bypassunresponsive state legislatures, and referenda provide a check on the effect ofunpopular statutes. These devices are more sophisticated than the earlierprocedural restrictions, most of which reflected general disapproval of legislativeactions. The initiative allows the people to take direct action when the legislaturerefuses to act. The referendum enables the people to target specificenactments rather than depend on the indirect deterrence of procedural restrictions.§5. ELECTIONS AND QUALIFICATIONS151. State constitutions prescribe the scheduling of state elections for statelegislators. Most states schedule their elections to coincide with elections forfederal offices, thereby insuring a higher turnout at the polls.152. State constitutions also have historically determined the requisitequalifications to hold state offices, including legislators. During the lateeighteenth century, most states imposed a wide array of qualifications, rangingfrom age and residency to religious tests and property-holding requirements.During the first half of the nineteenth century, the states eliminated the religiousand property requirements, while retaining age and residency. Currently,seventeen states permit persons of voting age (18) to serve in the lower houseof the state legislature, while twenty-four states set the age qualification at 21.The age qualification for the upper house tends to be slightly higher – twentystates have a minimum age of 25, although fifteen set it at the voting age of 18.153. During the late eighteenth century, state constitutions typicallyrequired annual elections for members of the lower house of the state legislatureand, in some instances for their colleagues in the upper house as well. Duringthe nineteenth century, the length of state legislative terms increased. Currently,forty-five state constitutions establish a two-year term for members of the lowerhouse of the state legislature, and thirty-seven establish a four-year term for statesenators. A recent state constitutional innovation is the imposition of term limitson state legislators, that is, constitutional restrictions on the number of consecutiveterms of office that a legislator can serve. Nearly half of the states haveimposed such limits since 1990.62 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

181–185Part III. Citizenship and the Administrationof JusticeChapter 1. Rules Regarding Sub-national Citizenship and ItsRelevance181. The United States Constitution, as adopted in 1789, left the relationshipof national citizenship and state citizenship unclear. It nowhere definedwhat constituted citizenship and, although referring to both national citizenshipand state citizenship, failed to clarify the connection between them. It didindicate that state citizenship carried with it certain rights in other states:according to the privileges and immunities clause (Article IV, section 2), ‘TheCitizens of each State shall be entitled to all Privileges and Immunities ofCitizens in the several States.’182. For persons born outside the United States, Congress controlled theprocess of naturalization. However, states were free to grant state citizenship,even though that did not confer national citizenship, and some did, allowingaliens (non-U.S.-citizens) to vote and hold public office.183. The issue took on particular poignancy because of the existence ofslavery in several American states during the nineteenth century. In the infamousDred Scott case, 1 the United States Supreme Court took the position that personsborn in the United States derived their citizenship from their status as descendantsof persons ‘who were at the time of the adoption of the Constitutionrecognized as citizens in the several States [and] became also citizens of thisnew political body.’ According to the Court, African-Americans – regardlessof whether they were free or slave or whether they were recognized as citizensby the states in which they resided – could not be citizens of the United States.1. Scott v. Sandford, 19 How. 393 (1857).184. The Fourteenth Amendment to the U.S. Constitution reversed the DredScott decision and cleared up the uncertainties of the original Constitution. Itdefined both national and state citizenship: ‘All persons born or naturalized inthe United States and subject to the jurisdiction thereof, are citizens of theUnited States and of the state wherein they reside.’ This language made clearthat state citizenship now means little more than residence in the state.185. State constitutions typically contain no discussion of state citizenship.In part, this reflects a recognition that the Fourteenth Amendment has resolvedConstitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 71

185 Part III, Ch. 1, Sub-national Citizenship and its Relevancethe issue. In part, this reflects the fact that the status of citizen does not haveimportant implications in American law, because both federal and stateconstitutions generally guarantee rights to ‘persons’ rather than to ‘citizens.’72 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

186–190Chapter 2. Fundamental Rights and Liberties186. Federal constitutional decisions recognizing rights are extremelypowerful. Under the Supremacy Clause, these decisions have the power to reachinto every single trial court in the country because state judges must followthem. Based on this experience, it is an unusual feeling for American lawyersand state judges to think about having a ‘choice’ as to whether they must followdecisions of the United States Supreme Court. But, in fact, state courts do havea choice as to whether to follow decisions rejecting asserted federal constitutionalrights.187. It is critical to remember that it is very different for the SupremeCourt to hold that people have certain rights that must be respected under thefederal Constitution than for it to hold that people do not have such rights.Because both are decisions of the United States Supreme Court, however, judgesand lawyers ‘feel’ both kinds of decisions should have the same force. Uponcloser examination, however, it is clear that just because some action is notprohibited by the federal Constitution, it is not, therefore, automaticallynecessary for the state constitution to be interpreted the same way.188. If the Supreme Court upholds the federal challenge (striking down thestate policy), the decision establishes a minimum national standard applicablein every state. But if the Court rejects the asserted federal challenge (upholdingthe state policy), the decision can trigger a series of ‘second looks’ at thequestion by state-level decision-makers, including the courts, based on stateconstitutional and other policy arguments. During this second stage, the SupremeCourt decision, while certainly not controlling, continues to play an integral rolein the unfolding state legislative, executive, and judicial decisions. SupremeCourt dissenting opinions on the question play an equally important role as asource of legal guidance.189. United States Supreme Court decisions rejecting federal constitutionalchallenges to state policies are being subjected to ‘second looks’ in state courtsor legislatures more often than ever before. It should now be obvious thatUnited States Supreme Court decisions do not represent the final step in theconstitutional decision-making process surrounding any issue concerning statepolicy.190. The American state Bill of Rights ‘rediscovery’ presents importantsubstantive and procedural lessons about state constitutional law. ObservationsConstitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 73

191–197 Part III, Ch. 2, Fundamental Rights and Libertiessuch as the following by the Alaska Supreme Court still may surprise somelawyers and judges:‘While we must enforce the minimum constitutional standards imposedupon us by the United States Supreme Court’s interpretation of theFourteenth Amendment, we are free, and we are under a duty, to developadditional constitutional rights and privileges under our Alaska Constitution....We need not stand by idly and passively, waiting for constitutionaldirection from the highest court of the land.’ 11. Baker v. City of Fairbanks, 471 P.2d 386, 401–02 (Alaska 1970) (footnote omitted).191. The power of state courts to reject decisions of the United StatesSupreme Court and interpret their state constitutions to provide greater rightsprovides a number of lessons.192. Most of the protections of the federal Bill of Rights were ‘selectivelyincorporated’ into the due process clause of the federal Fourteenth Amendmentso as to make them applicable to the states — a relatively recent development.This observation emphasizes the fact that concepts of American constitutionalrights protections predated the federal Constitution.193. Identical state and federal constitutional language can have differentinterpretations.194. Notions of federalism can constrain the United States Supreme Courtin interpreting the Fourteenth Amendment in ways that do not affect statesupreme courts. Of course, questions regarding the proper judicial functionremain, but they are horizontal, intrastate matters without the additional vertical,federalism concerns.195. The language of state constitutional provisions often is more detailedthan that contained in the federal Bill of Rights or the Fourteenth Amendment.Such detail focuses attention on the text of the provision at issue and relatedprovisions of the state constitution.196. The federal Constitution protects only against governmental violationsof constitutional rights. Such ‘state action’ may not be required to trigger stateconstitutional protections. Many state constitutional provisions, like manystatutes, grant positive rights in specific terms and therefore may apply to limitnon-governmental action against individuals.197. Constitutional doctrines long ago repudiated by the United StatesSupreme Court may still be viable as matters of state constitutional law. Themost important examples are ‘substantive due process’ in the field of economicregulation, which many states still utilize, and the doctrine of non-delegationof legislative authority. The substantive due process doctrine provides that74 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

Fundamental Rights and Liberties, Part III, Ch. 2 198–202certain fundamental rights such as liberty, property rights, or, for example, theright to marry or have children, may not be taken away by the government. Thedoctrine of non-delegation of legislative authority requires the legislature tomake the major policy choices in statutes, and not to ‘delegate’ major policyquestions to executive branch (administrative) agencies.198. State constitutions may contain individual constitutional rights havingno analogue in the federal Constitution. For example, equal rights for womenprovisions, requirements of open access to courts for redress of injuries, rightsto privacy, and specific protections for the incarcerated may be found in stateconstitutions. Lawyers, therefore, often have wide-ranging opportunities understate constitutions for formulating arguments not available under federalconstitutional law.199. Because of the absence of federal models, state courts necessarily haveinterpreted these constitutional provisions independently of United StatesSupreme Court cases. Therefore, the state courts have developed a trulyindependent constitutional jurisprudence under some of these provisions.200. Even if a state court is convinced that its constitution provides moreextensive rights than the federal Constitution, the state court must considercarefully whether these greater rights for one litigant would interfere with thestate of federal constitutional rights of other litigants. Going beyond the federalminimum guarantees for one party may deprive the losing party of other stateor federal minimum guarantees. Such deprivations usually would occur,however, only if the party against whom the state constitutional right wasasserted was a private, rather than governmental, entity.201. In other words, it must be remembered that state courts may notinterpret their constitutions to provide rights beyond those recognized in federalconstitutional law in such a way as to infringe on other persons’ federalconstitutional rights. This is to say that, in some contexts — primarily inlitigation among private parties — American state and federal constitutionalrights can collide, with federal rights prevailing. State courts may not raise theceiling of state constitutional rights for one person, thus providing furtherprotection, so as to penetrate the floor of other persons’ federal constitutionalrights.202. State constitutions themselves can address the question of whetherthey should be interpreted to provide greater protections than the federalConstitution. In 1974, the voters in California adopted a constitutional provisiondistinguishing the coverage of the state and federal constitutions: ‘Rightsguaranteed by this Constitution are not dependent on those guaranteed by theUnited States Constitution.’ The next year, the California Supreme Courtobserved: ‘Of course this declaration of constitutional independence did notoriginate at that recent election; indeed the voters were told the provision wasConstitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 75

203–205 Part III, Ch. 2, Fundamental Rights and Libertiesa mere reaffirmation of existing law.’ 1 The Rhode Island Constitution containsa similar provision.1. People v. Brisendine, 531 P.2d 1099, 1114 (Cal. 1975).203. Interpretations of the state constitution that expand constitutionalprotections, therefore, are not governed solely by the attitude of state courts.Textual changes to the constitution as in California and Rhode Island also caninfluence courts’ decisions. This aspect of the process of state constitutional lawmaking— textual change — can be a two-way street. For example, in 1979,the California voters approved Proposition 1, amending Article I, section 7. Theamendment prohibited California courts from going beyond the requirementsof the federal equal protection clause of the Fourteenth Amendment in the useof pupil assignment and school busing remedies in school segregation litigation.The amendment was intended to overrule a long series of California decisionsordering such remedies in the absence of intentional segregation, a prerequisiteunder federal law.204. Judicial interpretation of state constitutions or amendment of the textsis not the only means by which states may provide greater protection to theircitizens than is required by the federal Constitution. Often overlooked meansof expanding such protection are by statute, common law, or even administrativeregulation.205. As a procedural matter, a final decision of a state court is insulatedfrom review by the United States Supreme Court if the decision is based on anadequate and independent state ground. A decision clearly based on the stateconstitution fits this category. Insulation results even if the case also decidesa federal constitutional issue. 11. Michigan v. Long, 463 U.S. 1032 (1983).76 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

206–208Chapter 3. Constitutional Protections of Minorities206. Initially, state constitutions reflected hostility to minority people,especially blacks. Voting and office-holding was limited to whites, and, ofcourse, men. Other provisions barred intermarriage between the races andrequired segregated schools. In the aftermath of the Civil War many of theseprovisions in Southern state constitutions were removed under the supervisionof the federal government, but they crept back in toward the end of thenineteenth century.207. Most of the modern state constitutional protections for minorities, asis true with the federal Constitution, have their origins in general guarantees ofequality, equal treatment, or prohibitions on the granting of special privilegesto individuals or groups. 1 Under these provisions, there are judicial interpretationsin the states that recognize a variety of protections for minority groups thatarise from these general equality guarantees. In addition, however, a numberof state constitutions go further to specifically prohibit discrimination on thebasis of race and national origin. A few state constitutions protect minoritylanguage or cultural rights. These tend to be more modern provisions, insertedinto state constitutions during the twentieth century. An example of judicialinterpretation of such a provision is a recent Connecticut case concluding thaturban and suburban schools were unconstitutionally segregated even thoughthere was never any law requiring such segregation. 21. Robert F. Williams, ‘Equality Guarantees in State Constitutional Law,’ 63 Tex. L. Rev. 1195(1985).2. Sheff v. O’Neill, 678 A.2d 1267 (Conn. 1996).208. Recently state constitutions have been amended to eliminate schoolbusing to achieve racial balance and affirmative action (California) and toprohibit laws protecting homosexuals (Colorado). The Colorado amendment wasdeclared unconstitutional by the United States Supreme Court. 11. Romer v. Evans, 517 U.S. 620 (1996).Constitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 77

209–212Chapter 4. Judicial Control of Administrative Action209. Each of the American states has its own system of administrative law,including administrative rule-making (regulations) and administrative decisionmaking.In very few of the states are these executive branch activities specifiedor controlled by the state constitution itself. In some of the instances whereexecutive branch agencies are created directly by the state constitution, andgiven powers therein, judicial review of their actions may be somewhatrestricted. For example, where the state constitution creates an agency toregulate public utility rates, or workers compensation systems, the courts willbe required to be more differential to their decisions than they must be todecisions rendered by agencies merely created by statute.§1. PREVENTIVE LEGAL PROTECTION210. Although the states all differ with respect to the details of preventiveactions, in most of them judicial remedies may be sought to prevent an agencyfrom acting outside the scope of its authority, or purporting to exercise someform of jurisdiction that it does not have. In addition, the constitutions of Iowaand New Jersey have been amended to permit the legislature to disapprove ofadministrative agency regulations by the mere passage of a resolution, ratherthan the prior requirement of the passage of a formal law.§2. CURATIVE LEGAL PROTECTION211. In virtually all of the states, there is an available procedure wherebythe decisions of administrative agencies may be reviewed by state courts. Thisform of review would focus on whether the agency applied the law properlyin making decisions, or exceeded its authority in adopting regulations.§3. MISCELLANEOUS212. Once again, each state is different with respect to the details of itsadministrative process. In most states, however, agencies are required to givereasons for their decisions and adoption of rules, as well as to provide publicaccess to their decision-making processes. Very few states employ the ombudsmansystem.78 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

213–214Chapter 5. Legal Position of Aliens213. Article I, section 8 of the U.S. Constitution authorizes Congress toestablish ‘an uniform Rule of Naturalization,’ thus excluding states fromdetermining when and how aliens can become citizens of the United States. TheConstitution also grants the federal government responsibility for the conductof foreign affairs – as James Madison noted in The Federalist No. 42, ‘If weare to be one nation in any respect, it clearly ought to be in respect to othernations.’ Because the regulation of activities of foreign nationals is likely toaffect foreign affairs, the status of aliens is a matter of national, rather than statepolicy. Under the equal protection clause of the U.S. Constitution, states havebeen prohibited from denying various benefits and opportunities to aliens. Thusthe U.S. Supreme Court has struck down state laws barring aliens from holdingpositions in the state civil service, preventing aliens from receiving financial aidfor higher education, and refusing public education to the children of illegalaliens. However, it has upheld state laws barring aliens from the state policeforce and forbidding certification of aliens as public school teachers. 11. In re Griffiths, 413 U.S. 717 (1973); Nyquist v. Mauclet, 432 U.S. 1 (1977); and Plyer v.Doe.214. Some state constitutions continue to contain provisions dealing withaliens that are of questionable constitutionality. For example, in 1921 NewMexico amended its constitution to prohibit aliens or companies in which themajority of stock is owned by aliens from acquiring real estate within the state,unless authorized to do so by state legislation. 11. Foley v. Connelie, 435 U.S. 291 (1978); and Ambach v. Norwick, 441 U.S. 68 (1979).Constitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 79

Part III, Ch. 5, Legal Position of Aliens80 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

Part IV. Local Government andSub-national Constitutions215Chapter 1. Constitutional Status of Local Government UnderNational Constitutions215. Local governments receive virtually no recognition under the federalConstitution. For most federal constitutional law purposes, local governmentsare viewed as mere creatures, or creations, of state government.Constitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 81

216–218Chapter 2. Constitutional Status of Local Government UnderSub-national Constitutions§1. TYPES OF LOCAL GOVERNMENTS216. Each of the American states employs a somewhat different terminologyfor their local governments, and they all have slightly different legalrelationships among them and the state government. Local governments at themunicipal level are referred to by different terms from state to state, includingcities, towns, municipalities, townships, villages, and boroughs. Virtually all ofthe states employ the mechanism of county governments. Finally, most statesalso use special purpose local governments, such as flood control districts, forestmanagement districts, transportation districts, etc. These special purpose localgovernments have only one function, by contrast to general purpose localgovernments like cities and counties. Special purpose local governments maybe given the power to tax.§2. CREATION OF LOCAL GOVERNMENTS217. In most American states, the legislature exercises the power to create,abolish, and change the boundaries of local governments. In some states withmajor cities, such as New York, the state constitution will provide someconstitutional status or recognition to the major city.§3. HOME RULE OR LOCAL AUTONOMY218. The home-rule movement in American state constitutional law soughtto utilize the constitution itself as the source of local government powers. Underthese state constitutional provisions, typically the local government enacts acharter which governs the actions of the local government. The constitutionitself delegates exclusive authority over municipal affairs directly to localgovernments. Under this scheme, the home-rule charter serves as a grant ofpower to the local government. The most recent home-rule recommendations,however, suggest ‘a direct constitutional devolution of substantive home rulepowers dependent only upon the adoption of a home rule charter. It does notplace any substantive power or function beyond legislative control by generallaw. Under this approach a home rule charter is an instrument of limitation andnot of grant.’82 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

219–222Chapter 3. Evolution of Constitutional Status of Local GovernmentUnder Sub-national Constitutions219. ‘At the time of the Revolution, the Framers of our state constitutionsfailed to allocate a basic power in fact acknowledged and practised, the powerof local government. In 1776, the United States enjoyed three levels ofsuccessful governmental operation – national, state, and local. Only the first twowere given constitutional legitimacy.’ 11. Herget, ‘The Missing Power of Local Governments: A Divergence Between Text andPractice in Our Early State Constitutions,’ 62 Va. L. Rev. 999, 1001 (1976). ‘[Although]one of the principal debates in 1776 centered around implementation of the newlyfashionable idea of separation of powers, the Framers gave no thought to separating powersvertically (state-local) as well as horizontally (executive-legislative-judicial).’ Id. For aninteresting evaluation of the development of city powers, see Frug, ‘The City as a LegalConcept,’ 93 Harv. L. Rev. 1057 (1980).220. The role of local government in state constitutional law evolved froma position of no constitutional recognition whatsoever and progressed throughthe home-rule movement. One commentator observed:‘[T]here is a very important choice between use of the state constitutionas the direct instrument for allocating governmental powers and relianceupon the legislature as a continuing power distribution organ in the state....The devolution of authority to local units has traditionally been a functionof the state legislature under the strongly prevailing doctrine of legislativesupremacy over local government. It is here that the basic choice ofpolitical method presents great difficulty. What factors militate in favor ofmodifying legislative supremacy by constitutional amendment?’ 11. Fordham, ‘Foreword: Local Government in the Larger Scheme of Things,’ 8 Vand. L. Rev.667, 668 (1955).221. Denied constitutional recognition, some local governments initiallyclaimed inherent powers. The more widely accepted notion, however, was‘Dillon’s rule,’ which cast local governments as creatures of the state legislature.Local governments thus consisted of delegated or enumerated powers. Not untilthe mid-nineteenth century, partly as a reaction against state legislatures whichdid not attend to the problems of cities, did local government begin to obtainrecognition in state constitutions. Such recognition primarily took the form oflegislative authorization to delegate power to local governments.222. The next stage in this evolution was reflected in five or six states thatplaced limits in their state constitutions prohibiting the state legislature fromcreating any kind of ‘special commission’ that could interfere with localConstitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 83

223–224 Part IV, Ch. 3, Evolution of Local Governmentgovernment affairs. These provisions sought to block abuses by the statelegislature where it provided for appointed commissions that could, in somecases, even impose taxation obligations on elected local government officials.223. The next stage in this evolution was the home rule movement,described in §3ofChapter 2 above.224. The most recent development in state constitutions and local governmenthas been the insertion of provisions prohibiting the state legislature fromimposing ‘mandates’ on local governments without also providing adequatefunding for the local government to carry out the function, duty or responsibilityof the mandate. About half of the states have limits on ‘unfunded mandates,’but some of them are not in the state constitution but rather only by statute.84 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

Part V. Representative Texts ofSub-national ConstitutionsConstitution of the State of IllinoisPreambleWe, the People of the State of Illinois – grateful to Almighty God for the civil, politicaland religious liberty which He has permitted us to enjoy and seeking His blessing uponour endeavors – in order to provide for the health, safety and welfare of the people;maintain a representative and orderly government; eliminate poverty and inequality;assure legal, social and economic justice; provide opportunity for the fullest developmentof the individual; insure domestic tranquility; provide for the common defense and securethe blessings of freedom and liberty to ourselves and our posterity – do ordain andestablish this Constitution for the State of Illinois.Article I – Bill of RightsSection 1. Inherent and inalienable rightsAll men are by nature free and independent and have certain inherent and inalienablerights among which are life, liberty and the pursuit of happiness. To secure these rightsand the protection of property, governments are instituted among men, deriving their justpowers from the consent of the governed.Section 2. Due process and equal protectionNo person shall be deprived of life, liberty or property without due process of law norbe denied the equal protection of the laws.Section 3. Religious freedomThe free exercise and enjoyment of religious profession and worship without discrimination,shall forever be guaranteed, and no person shall be denied any civil or politicalright, privilege or capacity, on account of his religious opinions; but the liberty ofconscience hereby secured shall not be construed to dispense with oaths or affirmations,excuse acts of licentiousness, or justify practices inconsistent with the peace or safetyof the State.No person shall be required to attend or support any ministry or place of worshipagainst his consent, nor shall any preference be given by law to any religious denominationor mode of worship.Section 4. Freedom of speechAll persons may speak, write and publish freely, being responsible for the abuse of thatliberty. In trials for libel, both civil and criminal, the truth, when published with goodmotives and for justifiable ends, shall be a sufficient defense.Constitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 85

Illinois ConstitutionSection 5. Right to assemble and petitionThe people have the right to assemble in a peaceable manner, to consult for the commongood, to make known their opinions to their representatives and to apply for redress ofgrievances.Section 6. Searches, seizures, privacy and interceptionsThe people shall have the right to be secure in their persons, houses, papers and otherpossessions against unreasonable searches, seizures, invasions of privacy or interceptionsof communications by eavesdropping devices or other means. No warrant shall issuewithout probable cause, supported by affidavit particularly describing the place to besearched and the persons or things to be seized.Section 7. Indictment and preliminary hearingNo person shall be held to answer for a criminal offense unless on indictment of a grandjury, except in cases in which the punishment is by fine or by imprisonment other thanin the penitentiary, in cases of impeachment, and in cases arising in the militia when inactual service in time of war or public danger. The General Assembly by law may abolishthe grand jury or further limit its use.No person shall be held to answer for a crime punishable by death or by imprisonmentin the penitentiary unless either the initial charge has been brought by indictment of agrand jury or the person has been given a prompt preliminary hearing to establishprobable cause.Section 8. Rights after indictmentIn criminal prosecutions, the accused shall have the right to appear and defend in personand by counsel; to demand the nature and cause of the accusation and have a copythereof; to meet the witnesses face to face and to have process to compel the attendanceof witnesses in his behalf; and to have a speedy public trial by an impartial jury of thecounty in which the offense is alleged to have been committed.Section 8.1. Crime victim’s rights(a) Crime victims, as defined by law, shall have the following rights as provided bylaw:(1) The right to be treated with fairness and respect for their dignity and privacythroughout the criminal justice process.(2) The right to notification of court proceedings.(3) The right to communicate with the prosecution.(4) The right to make a statement to the court at sentencing.(5) The right to information about the conviction, sentence, imprisonment, andrelease of the accused.(6) The right to timely disposition of the case following the arrest of the accused.(7) The right to be reasonably protected from the accused throughout the criminaljustice process.(8) The right to be present at the trial and all other court proceedings on the samebasis as the accused, unless the victim is to testify and the court determinesthat the victim’s testimony would be materially affected if the victim hearsother testimony at the trial.(9) The right to have present at all court proceedings, subject to the rules ofevidence, an advocate or other support person of the victim’s choice.(10) The right to restitution.(b) The General Assembly may provide by law for the enforcement of this Section.86 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

Illinois Constitution(c)(d)The General Assembly may provide for an assessment against convicted defendantsto pay for crime victims’ rights.Nothing in this Section or in any law enacted under this Section shall be construedas creating a basis for vacating a conviction or a ground for appellate relief in anycriminal case.Section 9. Bail and habeas corpusAll persons shall be bailable by sufficient sureties, except for the following offenses wherethe proof is evident or the presumption great: capital offenses; offenses for which a sentenceof life imprisonment may be imposed as a consequence of conviction; and felony offensesfor which a sentence of imprisonment, without conditional and revocable release, shallbe imposed by law as a consequence of conviction, when the court, after a hearing,determines that release of the offender would pose a real and present threat to the physicalsafety of any person. The privilege of the writ of habeas corpus shall not be suspendedexcept in cases of rebellion or invasion when the public safety may require it.Any costs accruing to a unit of local government as a result of the denial of bailpursuant to the 1986 Amendment to this Section shall be reimbursed by the State to theunit of local government. 1Section 10. Self-incrimination and double jeopardyNo person shall be compelled in a criminal case to give evidence against himself nor betwice put in jeopardy for the same offense.Section 11. Limitation of penalties after convictionAll penalties shall be determined both according to the seriousness of the offense andwith the objective of restoring the offender to useful citizenship. No conviction shallwork corruption of blood or forfeiture of estate. No person shall be transported out ofthe State for an offense committed within the State.Section 12. Right to remedy and justiceEvery person shall find a certain remedy in the laws for all injuries and wrongs whichhe receives to his person, privacy, property or reputation. He shall obtain justice by law,freely, completely, and promptly.Section 13. Trial by juryThe right of trial by jury as heretofore enjoyed shall remain inviolate.Section 14. Imprisonment for debtNo person shall be imprisoned for debt unless he refuses to deliver up his estate for thebenefit of his creditors as provided by law or unless there is a strong presumption offraud. No person shall be imprisoned for failure to pay a fine in a criminal case unlesshe has been afforded adequate time to make payment, in installments if necessary, andhas willfully failed to make payment.Section 15. Right of eminent domainPrivate property shall not be taken or damaged for public use without just compensationas provided by law. Such compensation shall be determined by a jury as provided by law.1. As amended by the Fourth Amendment to the Constitution. Approved November 4, 1986,effective November 25, 1986.Constitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 87

Illinois ConstitutionSection 16. Ex post facto laws and impairing contractsNo ex post facto law, or law impairing the obligation of contracts or making anirrevocable grant of special privileges or immunities, shall be passed.Section 17. No discrimination in employment and the sale or rental of propertyAll persons shall have the right to be free from discrimination on the basis of race, color,creed, national ancestry and sex in the hiring and promotion practices of any employeror in the sale or rental of property. These rights are enforceable without action by theGeneral Assembly, but the General Assembly by law may establish reasonable exemptionsrelating to these rights and provide additional remedies for their violation.Section 18. No discrimination on the basis of sexThe equal protection of the laws shall not be denied or abridged on account of sex bythe State or its units of local government and school districts.Section 19. No discrimination against the handicappedAll persons with a physical or mental handicap shall be free from discrimination in thesale or rental of property and shall be free from discrimination unrelated to ability in thehiring and promotion practices of any employer.Section 20. Individual dignityTo promote individual dignity, communications that portray criminality, depravity or lackof virtue in, or that incite violence, hatred, abuse or hostility toward, a person or groupof persons by reason of or by reference to religious, racial, ethnic, national or regionalaffiliation are condemned.Section 21. Quartering of soldiersNo soldier in time of peace shall be quartered in a house without the consent of theowner; nor in time of war except as provided by law.Section 22. Right to armsSubject only to the police power, the right of the individual citizen to keep and bear armsshall not be infringed.Section 23. Fundamental principlesA frequent recurrence to the fundamental principles of civil government is necessary topreserve the blessings of liberty. These blessings cannot endure unless the peoplerecognize their corresponding individual obligations and responsibilities.Section 24. Rights retainedThe enumeration in this Constitution of certain rights shall not be construed to deny ordisparage others retained by the individual citizens of the State.Article II – The Powers of the StateSection 1. Separation of powersThe legislative, executive and judicial branches are separate. No branch shall exercisepowers properly belonging to another.88 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

Illinois ConstitutionSection 2. Powers of governmentThe enumeration in this Constitution of specified powers and functions shall not beconstrued as a limitation of powers of state government.Article III – Suffrage and ElectionsSection 1. Voting qualificationsEvery United States citizen who has attained the age of 18 or any other voting agerequired by the United States for voting in State elections and who has been a permanentresident of this State for at least 30 days next preceding any election shall have the rightto vote at such election. The General Assembly by law may establish registrationrequirements and require permanent residence in an election district not to exceed thirtydays prior to an election. The General Assembly by law may establish shorter residencerequirements for voting for President and Vice-President of the United States. 2Section 2. Voting disqualificationsA person convicted of a felony, or otherwise under sentence in a correctional institutionor jail, shall lose the right to vote, which right shall be restored not later than uponcompletion of his sentence.Section 3. ElectionsAll elections shall be free and equal.Section 4. Election lawsThe General Assembly by law shall define permanent residence for voting purposes,insure secrecy of voting and the integrity of the election process, and facilitate registrationand voting by all qualified persons. Laws governing voter registration and conductof elections shall be general and uniform.Section 5. Board of ElectionsA State Board of Elections shall have general supervision over the administration of theregistration and election laws throughout the State. The General Assembly by law shalldetermine the size, manner of selection and compensation of the Board. No political partyshall have a majority of members of the Board.Section 6. General electionAs used in all articles of this Constitution except Article VII, ‘general election’ meansthe biennial election at which members of the General Assembly are elected. Suchelection shall be held on the Tuesday following the first Monday of November in evennumberedyears or on such other day as provided by law.2. As amended by the Fifth Amendment to the Constitution. Approved November 8, 1988,effective November 28, 1988.Constitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 89

Illinois ConstitutionArticle IV – The LegislatureSection 1. Legislature – power and structureThe legislative power is vested in a General Assembly consisting of a Senate and aHouse of Representatives, elected by the electors from 59 Legislative Districts and 118Representative Districts. 3Section 2. Legislative composition(a) One Senator shall be elected from each Legislative District. Immediately followingeach decennial redistricting, the General Assembly by law shall divide the LegislativeDistricts as equally as possible into three groups. Senators from one group shallbe elected for terms of four years, four years and two years; Senators from thesecond group, for terms of four years, two years and four years; and Senators fromthe third group, for terms of two years, four years and four years. The LegislativeDistricts in each group shall be distributed substantially equally over the State.(b) Each Legislative District shall be divided into two Representative Districts. In 1982and every two years thereafter one Representative shall be elected from eachRepresentative District for a term of two years.(c) To be eligible to serve as a member of the General Assembly, a person must bea United States citizen, at least 21 years old, and for the two years preceding hiselection or appointment a resident of the district which he is to represent. In thegeneral election following a redistricting, a candidate for the General Assembly maybe elected from any district which contains a part of the district in which he residedat the time of the redistricting and reelected if a resident of the new district herepresents for 18 months prior to reelection.(d) Within thirty days after a vacancy occurs, it shall be filled by appointment asprovided by law. If the vacancy is in a Senatorial office with more than twenty-eightmonths remaining in the term, the appointed Senator shall serve until the nextgeneral election, at which time a Senator shall be elected to serve for the remainderof the term. If the vacancy is in a Representative office or in any other Senatorialoffice, the appointment shall be for the remainder of the term. An appointee to filla vacancy shall be a member of the same political party as the person he succeeds.(e) No member of the General Assembly shall receive compensation as a public officeror employee from any other governmental entity for time during which he is inattendance as a member of the General Assembly. No member of the GeneralAssembly during the term for which he was elected or appointed shall be appointedto a public office which shall have been created or the compensation for which shallhave been increased by the General Assembly during that term. 4Section 3. Legislative redistricting(a) Legislative Districts shall be compact, contiguous and substantially equal inpopulation. Representative Districts shall be compact, contiguous, and substantiallyequal in population.(b) In the year following each Federal decennial census year, the General Assemblyby law shall redistrict the Legislative Districts and the Representative Districts. If3. As amended by the First Amendment to the Constitution. Approved November 4, 1980,effective November 26, 1980.4. As amended by the First Amendment to the Constitution. Approved November 4, 1980,effective November 26, 1980.90 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

Illinois Constitutionno redistricting plan becomes effective by June 30 of that year, a LegislativeRedistricting Commission shall be constituted not later than July 10. The Commissionshall consist of eight members, no more than four of whom shall be membersof the same political party.The Speaker and Minority Leader of the House of Representatives shall eachappoint to the Commission one Representative and one person who is not a memberof the General Assembly. The President and Minority Leader of the Senate shalleach appoint to the Commission one Senator and one person who is not a memberof the General Assembly.The members shall be certified to the Secretary of State by the appointing authorities.A vacancy on the Commission shall be filled within five days by the authoritythat made the original appointment. A Chairman and Vice Chairman shall be chosenby a majority of all members of the Commission.Not later than August 10, the Commission shall file with the Secretary of State aredistricting plan approved by at least five members. If the Commission fails to filean approved redistricting plan, the Supreme Court shall submit the names of twopersons, not of the same political party, to the Secretary of State not later thanSeptember 1.Not later than September 5, the Secretary of State publicly shall draw by randomselection the name of one of the two persons to serve as the ninth member of theCommission.Not later than October 5, the Commission shall file with the Secretary of State aredistricting plan approved by at least five members.An approved redistricting plan filed with the Secretary of State shall be presumedvalid, shall have the force and effect of law and shall be published promptly by theSecretary of State.The Supreme Court shall have the original and exclusive jurisdiction over actionsconcerning redistricting the House and Senate, which shall be initiated in the nameof the People of the State by the Attorney General. 5Section 4. ElectionMembers of the General Assembly shall be elected at the general election in evennumberedyears.Section 5. Sessions(a) The General Assembly shall convene each year on the second Wednesday ofJanuary. The General Assembly shall be a continuous body during the term forwhich members of the House of Representatives are elected.(b) The Governor may convene the General Assembly or the Senate alone in specialsession by a proclamation stating the purpose of the session; and only businessencompassed by such purpose, together with any impeachments or confirmation ofappointments shall be transacted. Special sessions of the General Assembly mayalso be convened by joint proclamation of the presiding officers of both houses,issued as provided by law.(c) Sessions of each house of the General Assembly and meetings of committees, jointcommittees and legislative commissions shall be open to the public. Sessions andcommittee meetings of a house may be closed to the public if two-thirds of the5. As amended by the First Amendment to the Constitution. Approved November 4, 1980,effective November 26, 1980.Constitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 91

Illinois Constitutionmembers elected to that house determine that the public interest so requires; andmeetings of joint committees and legislative commissions may be so closed if twothirdsof the members elected to each house so determine.Section 6. Organization(a) A majority of the members elected to each house constitutes a quorum.(b) On the first day of the January session of the General Assembly in odd-numberedyears, the Secretary of State shall convene the House of Representatives to electfrom its membership a Speaker of the House of Representatives as presiding officer,and the Governor shall convene the Senate to elect from its membership a Presidentof the Senate as presiding officer.(c) For purposes of powers of appointment conferred by this Constitution, the MinorityLeader of either house is a member of the numerically strongest political party otherthan the party to which the Speaker or the President belongs, as the case may be.(d) Each house shall determine the rules of its proceedings, judge the elections, returnsand qualifications of its members and choose its officers. No member shall beexpelled by either house, except by a vote of two-thirds of the members elected tothat house. A member may be expelled only once for the same offense. Each housemay punish by imprisonment any person, not a member, guilty of disrespect to thehouse by disorderly or contemptuous behavior in its presence. Imprisonment shallnot extend beyond twenty-four hours at one time unless the person persists indisorderly or contemptuous behavior.Section 7. Transaction of business(a) Committees of each house, joint committees of the two houses and legislativecommissions shall give reasonable public notice of meetings, including a statementof subjects to be considered.(b) Each house shall keep a journal of its proceedings and a transcript of its debates.The journal shall be published and the transcript shall be available to the public.(c) Either house or any committee thereof as provided by law may compel by subpoenathe attendance and testimony of witnesses and the production of books, records andpapers.Section 8. Passage of bills(a) The enacting clause of the laws of this State shall be: ‘Be it enacted by the Peopleof the State of Illinois, represented in the General Assembly.’(b) The General Assembly shall enact laws only by bill. Bills may originate in eitherhouse, but may be amended or rejected by the other.(c) No bill shall become a law without the concurrence of a majority of the memberselected to each house. Final passage of a bill shall be by record vote. In the Senateat the request of two members, and in the House at the request of five members,a record vote may be taken on any other occasion. A record vote is a vote by yeasand nays entered on the journal.(d) A bill shall be read by title on three different days in each house. A bill and eachamendment thereto shall be reproduced and placed on the desk of each memberbefore final passage.Bills, except bills for appropriations and for the codification, revision or rearrangementof laws, shall be confined to one subject. Appropriation bills shall be limitedto the subject of appropriations.A bill expressly amending a law shall set forth completely the sections amended.92 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

Illinois ConstitutionThe Speaker of the House of Representatives and the President of the Senate shallsign each bill that passes both houses to certify that the procedural requirementsfor passage have been met.Section 9. Veto procedure(a) Every bill passed by the General Assembly shall be presented to the Governorwithin 30 calendar days after its passage. The foregoing requirement shall bejudicially enforceable. If the Governor approves the bill, he shall sign it and it shallbecome law.(b) If the Governor does not approve the bill, he shall veto it by returning it with hisobjections to the house in which it originated. Any bill not so returned by theGovernor within 60 calendar days after it is presented to him shall become law. Ifrecess or adjournment of the General Assembly prevents the return of a bill, thebill and the Governor’s objections shall be filed with the Secretary of State withinsuch 60 calendar days. The Secretary of State shall return the bill and objectionsto the originating house promptly upon the next meeting of the same GeneralAssembly at which the bill can be considered.(c) The house to which a bill is returned shall immediately enter the Governor’sobjections upon its journal. If within 15 calendar days after such entry that houseby a record vote of three-fifths of the members elected passes the bill, it shall bedelivered immediately to the second house. If within 15 calendar days after suchdelivery the second house by a record vote of three-fifths of the members electedpasses the bill, it shall become law.(d) The Governor may reduce or veto any item of appropriations in a bill presented tohim. Portions of a bill not reduced or vetoed shall become law. An item vetoed shallbe returned to the house in which it originated and may become law in the samemanner as a vetoed bill. An item reduced in amount shall be returned to the housein which it originated and may be restored to its original amount in the samemanner as a vetoed bill except that the required record vote shall be a majority ofthe members elected to each house. If a reduced item is not so restored, it shallbecome law in the reduced amount.(e) The Governor may return a bill together with specific recommendations for changeto the house in which it originated. The bill shall be considered in the same manneras a vetoed bill but the specific recommendations may be accepted by a record voteof a majority of the members elected to each house. Such bill shall be presentedagain to the Governor and if he certifies that such acceptance conforms to hisspecific recommendations, the bill shall become law. If he does not so certify, heshall return it as a vetoed bill to the house in which it originated.Section 10. Effective date of lawsThe General Assembly shall provide by law for a uniform effective date for laws passedprior to July 1 of a calendar year. The General Assembly may provide for a differenteffective date in any law passed prior to July 1. A bill passed after June 30 shall notbecome effective prior to July 1 of the next calendar year unless the General Assemblyby the vote of three-fifths of the members elected to each house provides for an earliereffective date.Section 11. Compensation and allowancesA member shall receive a salary and allowances as provided by law, but changes in thesalary of a member shall not take effect during the term for which he has been elected.Constitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 93

Illinois ConstitutionSection 12. Legislative immunityExcept in cases of treason, felony or breach of peace, a member shall be privileged fromarrest going to, during, and returning from sessions of the General Assembly. A membershall not be held to answer before any other tribunal for any speech or debate, writtenor oral, in either house These immunities shall apply to committee and legislativecommission proceedings.Section 13. Special legislationThe General Assembly shall pass no special or local law when a general law is or canbe made applicable. Whether a general law is or can be made applicable shall be a matterfor judicial determination.Section 14. ImpeachmentThe House of Representatives has the sole power to conduct legislative investigationsto determine the existence of cause for impeachment and, by the vote of a majority ofthe members elected, to impeach Executive and Judicial officers. Impeachments shall betried by the Senate. When sitting for that purpose, Senators shall be upon oath, oraffirmation, to do justice according to law. If the Governor is tried, the Chief Justice ofthe Supreme Court shall preside. No person shall be convicted without the concurrenceof two-thirds of the Senators elected. Judgment shall not extend beyond removal fromoffice and disqualification to hold any public office of this State. An impeached officer,whether convicted or acquitted, shall be liable to prosecution, trial, judgment andpunishment according to law.Section 15. Adjournment(a) When the General Assembly is in session, neither house without the consent of theother shall adjourn for more than three days or to a place other than where the twohouses are sitting.(b) If either house certifies that a disagreement exists between the houses as to the timefor adjourning a session, the Governor may adjourn the General Assembly to a timenot later than the first day of the next annual session.Article V – The ExecutiveSection 1. OfficersThe Executive Branch shall include a Governor, Lieutenant Governor, Attorney General,Secretary of State, Comptroller and Treasurer elected by the electors of the State. Theyshall keep the public records and maintain a residence at the seat of government duringtheir terms of office.Section 2. TermsThese elected officers of the Executive Branch shall hold office for four years beginningon the second Monday of January after their election and, except in the case of theLieutenant Governor, until their successors are qualified. They shall be elected at thegeneral election in 1978 and every four years thereafter.Section 3. EligibilityTo be eligible to hold the office of Governor, Lieutenant Governor, Attorney General,Secretary of State, Comptroller or Treasurer, a person must be a United States citizen,at least 25 years old, and a resident of this State for the three years preceding his election.94 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

Illinois Constitution(b)(c)The General Assembly shall have no power to elect or appoint officers of theExecutive Branch.If, during a recess of the Senate, there is a vacancy in an office filled by appointmentby the Governor by and with the advice and consent of the Senate, theGovernor shall make a temporary appointment until the next meeting of the Senate,when he shall make a nomination to fill such office.No person rejected by the Senate for an office shall, except at the Senate’s request,be nominated again for that office at the same session or be appointed to that officeduring a recess of that Senate.Section 10. Governor – removalsThe Governor may remove for incompetence, neglect of duty, or malfeasance in officeany officer who may be appointed by the Governor.Section 11. Governor – agency reorganizationThe Governor, by Executive Order, may reassign functions among or reorganizeexecutive agencies which are directly responsible to him. If such a reassignment orreorganization would contravene a statute, the Executive Order shall be delivered to theGeneral Assembly. If the General Assembly is in annual session and if the ExecutiveOrder is delivered on or before April 1 the General Assembly shall consider theExecutive Order at that annual session. If the General Assembly is not in annual sessionor if the Executive Order is delivered after April 1, the General Assembly shall considerthe Executive Order at its next annual session, in which case the Executive Order shallbe deemed to have been delivered on the first day of that annual session. Such anExecutive Order shall not become effective if, within 60 calendar days after its deliveryto the General Assembly, either house disapproves the Executive Order by the recordvote of a majority of the member elected. An Executive Order not so disapproved shallbecome effective by its terms but not less than 60 calendar days after its delivery to theGeneral Assembly.Section 12. Governor – pardonsThe Governor may grant reprieves, commutations and pardons, after conviction, for alloffenses on such terms as he thinks proper. The manner of applying therefore may beregulated by law.Section 13. Governor – legislative messagesThe Governor, at the beginning of each annual session of the General Assembly and atthe close of his term of office, shall report to the General Assembly on the Conditionof the State and recommend such measures as he deems desirable.Section 14. Lieutenant Governor – dutiesThe Lieutenant Governor shall perform the duties and exercise the powers in theExecutive Branch that may be delegated to him by the Governor and that may beprescribed by law.Section 15. Attorney General – dutiesThe Attorney General shall be the legal officer of the State, and shall have the dutiesand powers that may be prescribed by law.96 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

Illinois ConstitutionSection 16. Secretary of State – dutiesThe Secretary of State shall maintain the official records of the acts of the GeneralAssembly and such official records of the Executive Branch as provided by law. Suchofficial records shall be available for inspection by the public. He shall keep the GreatSeal of the State of Illinois and perform other duties that may be prescribed by law.Section 17. Comptroller – dutiesThe Comptroller, in accordance with law, shall maintain the State’s central fiscalaccounts. and order payments into and out of the funds held by the Treasurer.Section 18. Treasurer – dutiesThe Treasurer, in accordance with law, shall be responsible for the safekeeping andinvestment of monies and securities deposited with him, and for their disbursement uponorder of the Comptroller.Section 19. Records – reportsAll officers of the Executive Branch shall keep accounts and shall make such reports asmay be required by law. They shall provide the Governor with information relating totheir respective offices, either in writing under oath, or otherwise, as the Governor mayrequire.Section 20. BondCivil officers of the Executive Branch may be required by law to give reasonable bondor other security for the faithful performance of their duties. If any officer is in defaultof such a requirement, his office shall be deemed vacant.Section 21. CompensationOfficers of the Executive Branch shall be paid salaries established by law and shallreceive no other compensation for their services. Changes in the salaries of these officerselected or appointed for stated terms shall not take effect during the stated terms.Article VI – The JudiciarySection 1. CourtsThe judicial power is vested in a Supreme Court, an Appellate Court and Circuit Courts.Section 2. Judicial DistrictsThe State is divided into five Judicial Districts for the selection of Supreme and AppellateCourt Judges. The First Judicial District consists of Cook County. The remainder of theState shall be divided by law into four Judicial Districts of substantially equal population,each of which shall be compact and composed of contiguous counties.Section 3. Supreme Court – organizationThe Supreme Court shall consist of seven Judges. Three shall be selected from the FirstJudicial District and one from each of the other Judicial Districts. Four Judges constitutea quorum and the concurrence of four is necessary for a decision. Supreme Court Judgesshall select a Chief Justice from their number to serve for a term of three years.Constitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 97

Illinois ConstitutionSection 4. Supreme Court – jurisdiction(a) The Supreme Court may exercise original jurisdiction in cases relating to revenue,mandamus, prohibition or habeas corpus and as may be necessary to the completedetermination of any case on review.(b) Appeals from judgments of Circuit Courts imposing a sentence of death shall bedirectly to the Supreme Court as a matter of right. The Supreme Court shall provideby rule for direct appeal in other cases.(c) Appeals from the Appellate Court to the Supreme Court are a matter of right if aquestion under the Constitution of the United States or of this State arises for thefirst time in and is a result of the action of the Appellate Court, or if a division ofthe Appellate Court certifies that a case decided by it involves a question of suchimportance that the case should be decided by the Supreme Court. The SupremeCourt may provide by rule for appeals from the Appellate Court in other cases.Section 5. Appellate Court – organizationThe number of Appellate Judges to be selected from each Judicial District shall beprovided by law. The Supreme Court shall prescribe by rule the number of Appellatedivisions in each Judicial District. Each Appellate division shall have at least threeJudges. Assignments to divisions shall be made by the Supreme Court. A majority ofa division constitutes a quorum and the concurrence of a majority of the division isnecessary for a decision. There shall be at least one division in each Judicial District andeach division shall sit at times and places prescribed by rules of the Supreme Court.Section 6. Appellate Court – jurisdictionAppeals from final judgments of a Circuit Court are a matter of right to the AppellateCourt in the Judicial District in which the Circuit Court is located except in casesappealable directly to the Supreme Court and except that after a trial on the merits ina criminal case, there shall be no appeal from a judgment of acquittal. The SupremeCourt may provide by rule for appeals to the Appellate Court from other than finaljudgments of Circuit Courts. The Appellate Court may exercise original jurisdiction whennecessary to the complete determination of any case on review. The Appellate Court shallhave such powers of direct review of administrative action as provided by law.Section 7. Judicial Circuits(a) The State shall be divided into Judicial Circuits consisting of one or more counties.The First Judicial District shall constitute a Judicial Circuit. The Judicial Circuitswithin the other Judicial Districts shall be as provided by law. Circuits composedof more than one county shall be compact and of contiguous counties. The GeneralAssembly by law may provide for the division of a circuit for the purpose of selectionof Circuit Judges and for the selection of Circuit Judges from the circuit at large.(b) Each Judicial Circuit shall have one Circuit Court with such number of CircuitJudges as provided by law. Unless otherwise provided by law, there shall be at leastone Circuit Judge from each county. In the First Judicial District, unless otherwiseprovided by law, Cook County, Chicago, and the area outside Chicago shall beseparate units for the selection of Circuit Judges, with at least twelve chosen at largefrom the area outside Chicago and at least thirty-six chosen at large from Chicago.(c) Circuit Judges in each circuit shall select by secret ballot a Chief Judge from theirnumber to serve at their pleasure. Subject to the authority of the Supreme Court,the Chief Judge shall have general administrative authority over his court, includingauthority to provide for divisions, general or specialized, and for appropriate timesand places of holding court.98 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

Illinois ConstitutionSection 8. Associate JudgesEach Circuit Court shall have such number of Associate Judges as provided by law.Associate Judges shall be appointed by the Circuit Judges in each circuit as the SupremeCourt shall provide by rule. In the First Judicial District, unless otherwise provided bylaw, at least one-fourth of the Associate Judges shall be appointed from, and reside,outside Chicago. The Supreme Court shall provide by rule for matters to be assigned toAssociate Judges.Section 9. Circuit Courts – jurisdictionCircuit Courts shall have original jurisdiction of all justiciable matters except when theSupreme Court has original and exclusive jurisdiction relating to redistricting of theGeneral Assembly and to the ability of the Governor to serve or resume office. CircuitCourts shall have such power to review administrative action as provided by law.Section 10. Terms of officeThe terms of office of Supreme and Appellate Court Judges shall be ten years; of CircuitJudges, six years; and of Associate Judges, four years.Section 11. Eligibility for officeNo person shall be eligible to be a Judge or Associate Judge unless he is a United Statescitizen, a licensed attorney-at-law of this State, and a resident of the unit which selectshim. No change in the boundaries of a unit shall affect the tenure in office of a Judgeor Associate Judge incumbent at the time of such change.Section 12. Election and retention(a) Supreme, Appellate and Circuit Judges shall be nominated at primary elections orby petition. Judges shall be elected at general or judicial elections as the GeneralAssembly shall provide by law. A person eligible for the office of Judge may causehis name to appear on the ballot as a candidate for Judge at the primary and at thegeneral or judicial elections by submitting petitions. The General Assembly shallprescribe by law the requirements for petitions.(b) The office of a Judge shall be vacant upon his death, resignation, retirement,removal, or upon the conclusion of his term without retention in office. Wheneveran additional Appellate or Circuit Judge is authorized by law, the office shall befilled in the manner provided for filling a vacancy in that office.(c) A vacancy occurring in the office of Supreme, Appellate or Circuit Judge shall befilled as the General Assembly may provide by law. In the absence of a law,vacancies may be filled by appointment by the Supreme Court. A person appointedto fill a vacancy 60 or more days prior to the next primary election to nominateJudges shall serve until the vacancy is filled for a term at the next general orjudicial election. A person appointed to fill a vacancy less than 60 days prior to thenext primary election to nominate Judges shall serve until the vacancy is filled atthe second general or judicial election following such appointment.(d) Not less than six months before the general election preceding the expiration of histerm of office, a Supreme, Appellate or Circuit Judge who has been elected to thatoffice may file in the office of the Secretary of State a declaration of candidacy tosucceed himself. The Secretary of State, not less than 63 days before the election,shall certify the Judge’s candidacy to the proper election officials. The names ofJudges seeking retention shall be submitted to the electors, separately and withoutparty designation, on the sole question whether each Judge shall be retained inoffice for another term. The retention elections shall be conducted at generalConstitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 99

Illinois Constitution(e)elections in the appropriate Judicial District, for Supreme and Appellate Judges, andin the circuit for Circuit Judges. The affirmative vote of three-fifths of the electorsvoting on the question shall elect the Judge to the office for a term commencingon the first Monday in December following his election.A law reducing the number of Appellate or Circuit Judges shall be without prejudiceto the right of the Judges affected to seek retention in office; A reduction shallbecome effective when a vacancy occurs in the affected unit.Section 13. Prohibited activities(a) The Supreme Court shall adopt rules of conduct for Judges and Associate Judges.(b) Judges and Associate Judges shall devote full time to judicial duties. They shall notpractice law, hold a position of profit, hold office under the United States or thisState or unit of local government or school district or in a political party. Servicein the State militia or armed forces of the United States for periods of timepermitted by rule of the Supreme Court shall not disqualify a person from servingas a Judge or Associate Judge.Section 14. Judicial salaries and expenses – fee officers eliminatedJudges shall receive salaries provided by law which shall not be diminished to take effectduring their terms of office. All salaries and such expenses as may be provided by lawshall be paid by the State, except that Appellate, Circuit and Associate Judges shallreceive such additional compensation from counties within their district or circuit as maybe provided by law. There shall be no fee officers in the judicial system.Section 15. Retirement – discipline(a) The General Assembly may provide by law for the retirement of Judges andAssociate Judges at a prescribed age. Any retired Judge or Associate Judge, withhis consent may be assigned by the Supreme Court to judicial service for which heshall receive the applicable compensation in lieu of retirement benefits. A retiredAssociate Judge may be assigned only as an Associate Judge.(b) A Judicial Inquiry Board is created. The Supreme Court shall select two CircuitJudges as members and the Governor shall appoint four persons who are notlawyers and three lawyers as members of the Board. No more than two of thelawyers and two of the non-lawyers appointed by the Governor shall be membersof the same political party. The terms of Board members shall be four years. Avacancy on the Board shall be filled for a full term in the manner the originalappointment was made. No member may serve on the Board more than eight years.(c) The Board shall be convened permanently, with authority to conduct investigations,receive or initiate complaints concerning a Judge or Associate Judge, and filecomplaints with the Courts Commission. The Board shall not file a complaint unlessfive members believe that a reasonable basis exists (1) to charge the Judge orAssociate Judge with willful misconduct in office, persistent failure to perform hisduties, or other conduct that is prejudicial to the administration of justice or thatbrings the judicial office into disrepute, or (2) to charge that the Judge or AssociateJudge is physically or mentally unable to perform his duties. All proceedings of theBoard shall be confidential except the filing of a complaint with the CourtsCommission. The Board shall prosecute the complaint.(d) The Board shall adopt rules governing its procedures. It shall have subpoena powerand authority to appoint and direct its staff. Members of the Board who are notJudges shall receive per diem compensation and necessary expenses; members who100 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

Illinois Constitution(e)(f)(g)are Judges shall receive necessary expenses only. The General Assembly by lawshall appropriate funds for the operation of the Board.A Courts Commission is created consisting of one Supreme Court Judge selectedby that Court, who shall be its chairman, two Appellate Court Judges selected bythat Court and two Circuit Judges selected by the Supreme Court. The Commissionshall be convened permanently to hear complaints filed by the Judicial InquiryBoard. The Commission shall have authority after notice and public hearing, (1)to remove from office, suspend without pay, censure or reprimand a Judge orAssociate Judge for willful misconduct in office, persistent failure to perform hisduties, or other conduct that is prejudicial to the administration of justice or thatbrings the judicial office into disrepute, or (2) to suspend, with or without pay, orretire a Judge or Associate Judge who is physically or mentally unable to performhis duties.The concurrence of three members of the Commission shall be necessary for adecision. The decision of the Commission shall be final.The Commission shall adopt rules governing its procedures and shall have powerto issue subpoenas. The General Assembly shall provide by law for the expensesof the Commission.Section 16. AdministrationGeneral administrative and supervisory authority over all courts is vested in the SupremeCourt and shall be exercised by the Chief Justice in accordance with its rules. TheSupreme Court shall appoint an administrative director and staff, who shall serve at itspleasure, to assist the Chief Justice in his duties. The Supreme Court may assign a Judgetemporarily to any court and an Associate Judge to serve temporarily as an AssociateJudge on any Circuit Court. The Supreme Court shall provide by rule for expeditiousand inexpensive appeals.Section 17. Judicial conferenceThe Supreme Court shall provide by rule for an annual judicial conference to considerthe work of the courts and to suggest improvements in the administration of justice andshall report thereon annually in writing to the General Assembly not later than January31.Section 18. Clerks of courts(a) The Supreme Court and the Appellate Court Judges of each Judicial District,respectively, shall appoint a clerk and other non-judicial officers for their Court orDistrict.(b) The General Assembly shall provide by law for the election, or for the appointmentby Circuit Judges, of clerks and other non-judicial officers of the Circuit Courts andfor their terms of office and removal for cause.(c) The salaries of clerks and other non-judicial officers shall be as provided by law.Section 19. State’s Attorneys – selection, salaryA State’s Attorney shall be elected in each county in 1972 and every fourth yearthereafter for a four year term. One State’s Attorney may be elected to serve two or morecounties if the governing boards of such counties so provide and a majority of theelectors of each county voting on the issue approve. A person shall not be eligible forthe office of State’s Attorney unless he is a United States citizen and a licensed attorneyat-lawof this State. His salary shall be provided by law.Constitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 101

Illinois ConstitutionArticle VII – Local GovernmentSection 1. Municipalities and units of local government‘Municipalities’ means cities, villages and incorporated towns. ‘Units of local government’means counties, municipalities, townships, special districts, and units, designatedas units of local government by law, which exercise limited governmental powers orpowers in respect to limited governmental subjects, but does not include school districts.Section 2. County territory, boundaries and seats(a) The General Assembly shall provide by law for the formation, consolidation,merger, division, and dissolution of counties, and for the transfer of territorybetween counties.(b) County boundaries shall not be changed unless approved by referendum in eachcounty affected.(c) County seats shall not be changed unless approved by three-fifths of those votingon the question in a county-wide referendum.Section 3. County boards(a) A county board shall be elected in each county. The number of members of thecounty board shall be fixed by ordinance in each county within limitations providedby law.(b) The General Assembly by law shall provide methods available to all counties forthe election of county board members. No county, other than Cook County, maychange its method of electing board members except as approved by county-widereferendum.(c) Members of the Cook County Board shall be elected from two districts, Chicagoand that part of Cook County outside Chicago, unless (1) a different method ofelection is approved by a majority of votes cast in each of the two districts in acounty-wide referendum or (2) the Cook County Board by ordinance divides thecounty into single member districts from which members of the County Boardresident in each district are elected. If a different method of election is adoptedpursuant to option (1) the method of election may thereafter be altered only pursuantto option (2) or by county-wide referendum. A different method of election maybe adopted pursuant to option (2) only once and the method of election maythereafter be altered only by county-wide referendum.Section 4. County officers(a) Any county may elect a chief executive officer as provided by law. He shall havethose duties and powers provided by law and those provided by county ordinance.(b) The President of the Cook County Board shall be elected from the County at largeand shall be the chief executive officer of the County. If authorized by countyordinance, a person seeking election as President of the Cook County Board mayalso seek election as a member of the Board.(c) Each county shall elect a sheriff, county clerk and treasurer and may elect orappoint a coroner, recorder, assessor, auditor and such other officers as providedby law or by county ordinance. Except as changed pursuant to this Section, electedcounty officers shall be elected for terms of four years at general elections asprovided by law. Any office may be created or eliminated and the terms of officeand manner of selection changed by county-wide referendum. Offices other thansheriff, county clerk and treasurer may be eliminated and the terms of office andmanner of selection changed by law. Offices other than sheriff, county clerk,102 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

Illinois Constitution(d)(e)treasurer, coroner, recorder, assessor and auditor may be eliminated and the termsof office and manner of selection changed by county ordinance.County officers shall have those duties, powers and functions provided by law andthose provided by county ordinance. County officers shall have the duties, powersor functions derived from common law or historical precedent unless altered by lawor county ordinance.The county treasurer or the person designated to perform his functions may act astreasurer of any unit of local government and any school district in his county whenrequested by any such unit or school district and shall so act when required to doso by law.Section 5. TownshipsThe General Assembly shall provide by law for the formation of townships in any countywhen approved by county-wide referendum.Townships may be consolidated or merged, and one or more townships may bedissolved or divided, when approved by referendum in each township affected. Alltownships in a county may be dissolved when approved by a referendum in the total areain which township officers are elected.Section 6. Powers of home rule units(a) A County which has a chief executive officer elected by the electors of the countyand any municipality which has a population of more than 25,000 are home ruleunits. Other municipalities may elect by referendum to become home rule units.Except as limited by this Section, a home rule unit may exercise any power andperform any function pertaining to its government and affairs including, but notlimited to, the power to regulate for the protection of the public health, safety,morals and welfare; to license; to tax; and to incur debt.(b) A home rule unit by referendum may elect not to be a home rule unit.(c) If a home rule county ordinance conflicts with an ordinance of a municipality, themunicipal ordinance shall prevail within its jurisdiction.(d) A home rule unit does not have the power (1) to incur debt payable from advalorem property tax receipts maturing more than 40 years from the time it isincurred or (2) to define and provide for the punishment of a felony.(e) A home rule unit shall have only the power that the General Assembly may provideby law (1) to punish by imprisonment for more than six months or (2) to licensefor revenue or impose taxes upon or measured by income or earnings or uponoccupations.(f) A home rule unit shall have the power subject to approval by referendum to adopt,alter or repeal a form of government provided by law, except that the form ofgovernment of Cook County shall be subject to the provisions of Section 3 of thisArticle. A home rule municipality shall have the power to provide for its officers,their manner of selection and terms of office only as approved by referendum oras otherwise authorized by law. A home rule county shall have the power to providefor its officers, their manner of selection and terms of office in the manner set forthin Section 4 of this Article.(g) The General Assembly by a law approved by the vote of three-fifths of the memberselected to each house may deny or limit the power to tax and any other power orfunction of a home rule unit not exercised or performed by the State other than apower or function specified in subsection (l) of this section.Constitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 103

Illinois Constitution(h) The General Assembly may provide specifically by law for the exclusive exerciseby the State of any power or function of a home rule unit other than a taxing poweror a power or function specified in subsection (l) of this Section.(i) Home rule units may exercise and perform concurrently with the State any poweror function of a home rule unit to the extent that the General Assembly by law doesnot specifically limit the concurrent exercise or specifically declare the State’sexercise to be exclusive.(j) The General Assembly may limit by law the amount of debt which home rulecounties may incur and may limit by law approved by three-fifths of the memberselected to each house the amount of debt, other than debt payable from ad valoremproperty tax receipts, which home rule municipalities may incur.(k) The General Assembly may limit by law the amount and require referendumapproval of debt to be incurred by home rule municipalities, payable from advalorem property tax receipts, only in excess of the following percentages of theassessed value of its taxable property: (1) if its population is 500,000 or more, anaggregate of three percent; (2) if its population is more than 25,000 and less than500,000, an aggregate of one percent; and (3) if its population is 25,000 or less,an aggregate of one-half percent.Indebtedness which is outstanding on the effective date of this Constitution or whichis thereafter approved by referendum or assumed from another unit of localgovernment shall not be included in the foregoing percentage amounts.(l) The General Assembly may not deny or limit the power of home rule units (1) tomake local improvements by special assessment and to exercise this power jointlywith other counties and municipalities, and other classes of units of local governmenthaving that power on the effective date of this Constitution unless that poweris subsequently denied by law to any such other units of local government or (2)to levy or impose additional taxes upon areas within their boundaries in the mannerprovided by law for the provision of special services to those areas and for thepayment of debt incurred in order to provide those special services.(m) Powers and functions of home rule units shall be construed liberally.Section 7. Counties and municipalities other than home rule unitsCounties and municipalities which are not home rule units shall have only powers grantedto them by law and the powers (1) to make local improvements by special assessmentand to exercise this power jointly with other counties and municipalities, and otherclasses of units of local government having that power on the effective date of thisConstitution unless that power is subsequently denied by law to any such other units oflocal government; (2) by referendum, to adopt, alter or repeal their forms of governmentprovided by law; (3) in the case of municipalities, to provide by referendum for theirofficers, manner of selection and terms of office; (4) in the case of counties, to providefor their officers, manner of selection and terms of office as provided in Section 4 of thisArticle; (5) to incur debt except as limited by law and except that debt payable from advalorem property tax receipts shall mature within 40 years from the time it is incurred;and (6) to levy or impose additional taxes upon areas within their boundaries in themanner provided by law for the provision of special services to those areas and for thepayment of debt incurred in order to provide those special services.Section 8. Powers and officers of school districts and units of local government otherthan counties and municipalitiesTownships, school districts, special districts and units, designated by law as units of localgovernment, which exercise limited governmental powers or powers in respect to limited104 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

Illinois Constitutiongovernmental subjects shall have only powers granted by law. No law shall grant thepower (1) to any of the foregoing units to incur debt payable from ad valorem propertytax receipts maturing more than 40 years from the time it is incurred, or (2) to makeimprovements by special assessments to any of the foregoing classes of units which donot have that power on the effective date of this Constitution. The General Assemblyshall provide by law for the selection of officers of the foregoing units, but the officersshall not be appointed by any person in the Judicial Branch.Section 9. Salaries and fees(a) Compensation of officers and employees and the office expenses of units of localgovernment shall not be paid from fees collected. Fees may be collected as providedby law and by ordinance and shall be deposited upon receipt with the treasurer ofthe unit. Fees shall not be based upon funds disbursed or collected, nor upon thelevy or extension of taxes.(b) An increase or decrease in the salary of an elected officer of any unit of localgovernment shall not take effect during the term for which that officer is elected.Section 10. Intergovernmental cooperation(a) Units of local government and school districts may contract or otherwise associateamong themselves, with the State, with other states and their units of localgovernment and school districts, and with the United States to obtain or shareservices and to exercise, combine, or transfer any power or function, in any mannernot prohibited by law or by ordinance. Units of local government and schooldistricts may contract and otherwise associate with individuals, associations, andcorporations in any manner not prohibited by law or by ordinance. Participatingunits of government may use their credit, revenues, and other resources to pay costsand to service debt related to intergovernmental activities.(b) Officers and employees of units of local government and school districts mayparticipate in intergovernmental activities authorized by their units of governmentwithout relinquishing their offices or positions.(c) The State shall encourage intergovernmental cooperation and use its technical andfinancial resources to assist intergovernmental activities.Section 11. Initiative and referendum(a) Proposals for actions which are authorized by this Article or by law and whichrequire approval by referendum may be initiated and submitted to the electors byresolution of the governing board of a unit of local government or by petition ofelectors in the manner provided by law.(b) Referenda required by this Article shall be held at general elections, except asotherwise provided by law. Questions submitted to referendum shall be adopted ifapproved by a majority of those voting on the question unless a different requirementis specified in this Article.Section 12. Implementation of governmental changesThe General Assembly shall provide by law for the transfer of assets, powers andfunctions, and for the payment of outstanding debt in connection with the formation,consolidation, merger, division, dissolution and change in the boundaries of units of localgovernment.Constitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 105

Illinois ConstitutionArticle VIII – FinanceSection 1. General provisions(a) Public funds, property or credit shall be used only for public purposes.(b) The State, units of local government and school districts shall incur obligations forpayment or make payments from public funds only as authorized by law orordinance.(c) Reports and records of the obligation, receipt and use of public funds of the State,units of local government and school districts are public records available forinspection by the public according to law.Section 2. State finance(a) The Governor shall prepare and submit to the General Assembly, at a time prescribedby law, a State budget for the ensuing fiscal year. The budget shall set forth theestimated balance of funds available for appropriation at the beginning of the fiscalyear, the estimated receipts, and a plan for expenditures and obligations during thefiscal year of every department, authority, public corporation and quasi-publiccorporation of the State, every State college and university, and every other publicagency created by the State, but not of units of local government or school districts.The budget shall also set forth the indebtedness and contingent liabilities of the Stateand such other information as may be required by law. Proposed expenditures shallnot exceed funds estimated to be available for the fiscal year as shown in the budget.(b) The General Assembly by law shall make appropriations for all expenditures of publicfunds by the State. Appropriations for a fiscal year shall not exceed funds estimatedby the General Assembly to be available during that year.Section 3. State audit and Auditor General(a) The General Assembly shall provide by law for the audit of the obligation, receiptand use of public funds of the State.The General Assembly, by a vote of three-fifths of the members elected to each house,shall appoint an Auditor General and may remove him for cause by a similar vote.The Auditor General shall serve for a term of ten years. His compensation shall beestablished by law and shall not be diminished, but may be increased, to take effectduring his term.(b) The Auditor General shall conduct the audit of public funds of the State. He shallmake additional reports and investigations as directed by the General Assembly.He shall report his findings and recommendations to the General Assembly and tothe Governor.Section 4. Systems of accounting, auditing and reportingThe General Assembly by law shall provide systems of accounting, auditing and reportingof the obligation, receipt and use of public funds. These systems shall be used by all unitsof local government and school districts.Article IX – RevenueSection 1. State revenue powerThe General Assembly has the exclusive power to raise revenue by law except as limitedor otherwise provided in this Constitution. The power of taxation shall not be surrendered,suspended, or contracted away.106 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

Illinois ConstitutionSection 2. Non-property taxes-classification, exemptions, deductions, allowances andcreditsIn any law classifying the subjects or objects of non-property taxes or fees, the classesshall be reasonable and the subjects and objects within each class shall be taxeduniformly. Exemptions, deductions, credits, refunds and other allowances shall bereasonable.Section 3. Limitations on income taxation(a) A tax on or measured by income shall be at a non-graduated rate. At any one timethere may be no more than one such tax imposed by the State for State purposeson individuals and one such tax so imposed on corporations. In any such taximposed upon corporations the rate shall not exceed the rate imposed in individualsby more than a ratio of 8 to 5.(b) Laws imposing taxes on or measured by income may adopt by reference provisionsof the laws and regulations of the United States, as they then exist or thereafter maybe changed, for the purpose of arriving at the amount of income upon which thetax is imposed.Section 4. Real property taxation(a) Except as otherwise provided in this Section, taxes upon real property shall belevied uniformly by valuation ascertained as the General Assembly shall provideby law.(b) Subject to such limitations as the General Assembly may hereafter prescribe by law,counties with a population of more than 200,000 may classify or continue to classifyreal property for purposes of taxation. Any such classification shall be reasonableand assessments shall be uniform within each class. The level of assessment or rateof tax of the highest class in a county shall not exceed two and one-half times thelevel of assessment or rate of tax of the lowest class in that county. Real propertyused in farming in a county shall not be assessed at a higher level of assessmentthan single family residential real property in that county.(c) Any depreciation in the value of real estate occasioned by a public easement maybe deducted in assessing such property.Section 5. Personal property taxation(a) The General Assembly by law may classify personal property for purposes oftaxation by valuation, abolish such taxes on any or all classes and authorize the levyof taxes in lieu of the taxation of personal property by valuation.(b) Any ad valorem personal property tax abolished on or before the effective date ofthis Constitution shall not be reinstated.(c) On or before January 1, 1979, the General Assembly by law shall abolish all advalorem personal property taxes and concurrently therewith and thereafter shallreplace all revenue lost by units of local government and school districts as a resultof the abolition of ad valorem personal property taxes subsequent to January 2,1971. Such revenue shall be replaced by imposing statewide taxes, other than advalorem taxes on real estate, solely on those classes relieved of the burden of payingad valorem personal property taxes because of the abolition of such taxes subsequentto January 2, 1971. If any taxes imposed for such replacement purposes aretaxes on or measured by income, such replacement taxes shall not be consideredfor purposes of the limitations of one tax and the ratio of 8 to 5 set forth in Section3 (a) of this Article.Constitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 107

Illinois ConstitutionSection 6. Exemptions from property taxationThe General Assembly by law may exempt from taxation only the property of the State,units of local government and school districts and property used exclusively foragricultural and horticultural societies, and for school, religious, cemetery and charitablepurposes. The General Assembly by law may grant homestead exemptions or rent credits.Section 7. Overlapping taxing districtsThe General Assembly may provide by law for fair apportionment of the burden oftaxation of property situated in taxing districts that lie in more than one county.Section 8. Tax sales(a) Real property shall not be sold for the nonpayment of taxes or special assessmentswithout judicial proceedings.(b) The right of redemption from all sales of real estate for the nonpayment of taxesor special assessments, except as provided in subsections (c) and (d), shall exist infavor of owners and persons interested in such real estate for not less than 2 yearsfollowing such sales.(c) The right of redemption from the sale for nonpayment of taxes or special assessmentsof a parcel of real estate which: (1) is vacant non-farm real estate or (2)contains an improvement consisting of a structure or structures each of whichcontains 7 or more residential units or (3) is commercial or industrial property; shallexist in favor of owners and persons interested in such real estate for not less thanone year following such sales.(d) The right of redemption from the sale for nonpayment of taxes or special assessmentsof a parcel real estate which: (1) is vacant non-farm real estate or (2) containsan improvement consisting of a structure or structures each of which contains 7 ormore residential units or (3) is commercial or industrial property; and upon whichall or a part of the general taxes for each of 2 or more years are delinquent shallexist in favor of owners and persons interested in such real estate for not less than6 months following such sales.(e) Owners, occupants and parties interested shall be given reasonable notice of the saleand the date of expiration of the period of redemption as the General Assemblyprovides by law. 6Section 9. State debt(a) No State debt shall be incurred except as provided in this Section. For the purposeof this Section, ‘State debt’ means bonds or other evidences of indebtedness whichare secured by the full faith and credit of the State or are required to be repaid,directly or indirectly, from tax revenue and which are incurred by the State, anydepartment, authority, public corporation or quasi-public corporation of the State,any State college or university, or any other public agency created by the State, butnot by units of local government, or school districts.(b) State debt for specific purposes may be incurred or the payment of State or otherdebt guaranteed in such amounts as may be provided either in a law passed by thevote of three-fifths of the members elected to each house of the General Assemblyor in a law approved by a majority of the electors voting on the question at the nextgeneral election following passage. Any law providing for the incurring or6. As amended by the Sixth Amendment to the Constitution. Approved November 6, 1990,effective November 26, 1990.108 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

Illinois Constitution(c)(d)(e)(f)guaranteeing of debt shall set forth the specific purposes and the manner ofrepayment.State debt in anticipation of revenues to be collected in a fiscal year may be incurredby law in an amount not exceeding 5% of the State’s appropriations for that fiscalyear. Such debt shall be retired from the revenues realized in that fiscal year.State debt may be incurred by law in an amount not exceeding 15% of the State’sappropriations for that fiscal year to meet deficits caused by emergencies or failuresof revenue. Such law shall provide that the debt be repaid within one year of thedate it is incurred.State debt may be incurred by law to refund outstanding State debt if the refundingdebt matures within the term of the outstanding State debt.The State, departments, authorities, public corporations and quasi-public corporationsof the State, the State colleges and universities and other public agencies createdby the State, may issue bonds or other evidences of indebtedness which are notsecured by the full faith and credit or tax revenue of the State nor required to berepaid, directly or indirectly, from tax revenue, for such purposes and in suchamounts as may be authorized by law.Section 10. Revenue Article not limitedThis Article is not qualified or limited by the provisions of Article VII of this Constitutionconcerning the size of the majorities in the General Assembly necessary to deny orlimit the power to tax granted to units of local government.Article X – EducationSection 1. Goal-free schoolsA fundamental goal of the People of the State is the educational development of allpersons to the limits of their capacities. The State shall provide for an efficient systemof high quality public educational institutions and services. Education in public schoolsthrough the secondary level shall be free. There may be such other free education as theGeneral Assembly provides by law. The State has the primary responsibility for financingthe system of public education.Section 2. State Board of Education – chief state educational officer(a) There is created a State Board of Education to be elected or selected on a regionalbasis. The number of members, their qualifications, terms of office and manner ofelection or selection shall be provided by law. The Board except as limited by law,may establish goals, determine policies, provide for planning and evaluatingeducation programs and recommend financing. The Board shall have such otherduties and powers as provided by law.(b) The State Board of Education shall appoint a chief state educational officer.Section 3. Public funds for sectarian purposes forbiddenNeither the General Assembly nor any county, city, town, township, school district, orother public corporation, shall ever make any appropriation or pay from any public fundwhatever, anything in aid of any church or sectarian purpose, or to help support or sustainany school, academy, seminary college, university or other literary or scientific institution,controlled by any church or sectarian denomination whatever; nor shall any grant ordonation of land, money, or other personal property ever be made by the State, or anysuch public corporation, to any church, or for any sectarian purpose.Constitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 109

Illinois ConstitutionArticle XI – EnvironmentSection 1. Public policy – legislative responsibilityThe public policy of the State and the duty of each person is to provide and maintaina healthful environment for the benefit of this and future generations. The GeneralAssembly shall provide by law for the implementation and enforcement of this publicpolicy.Section 2. Rights of individualsEach person has the right to a healthful environment. Each person may enforce this rightagainst any party, governmental or private, through appropriate legal proceedings subjectto reasonable limitation and regulation as the General Assembly may provide by law.Article XII – MilitiaSection 1. MembershipThe State militia consists of all able-bodied persons residing in the State except thoseexempted by law.Section 2. Subordination of military powerThe military shall be in strict subordination to the civil power.Section 3. Organization, equipment and disciplineThe General Assembly shall provide by law for the organization, equipment anddiscipline of the militia in conformity with the laws governing the armed forces of theUnited States.Section 4. Commander-in-Chief and officers(a) The Governor is commander-in-chief of the organized militia, except when they arein the service of the United States. He may call them out to enforce the laws,suppress insurrection or repel invasion.(b) The Governor shall commission militia officers who shall hold their commissionsfor such time as may be provided by law.Section 5. Privilege from arrestExcept in cases of treason, felony or breach of peace, persons going to, returning fromor on militia duty are privileged from arrest.Article XIII – General ProvisionsSection 1. Disqualification for public officeA person convicted of a felony, bribery, perjury or other infamous crime shall beineligible to hold an office created by this Constitution. Eligibility may be restored asprovided by law.Section 2. Statement of economic interestsAll candidates for or holders of state offices and all members of a Commission or Boardcreated by this Constitution shall file a verified statement of their economic interests, asprovided by law. The General Assembly by law may impose a similar requirement upon110 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

Illinois Constitutioncandidates for, or holders of offices in units of local government and school districts.Statements shall be filed annually with the Secretary of State and shall be available forinspection by the public. The General Assembly by law shall prescribe a reasonable timefor filing the statement. Failure to file a statement within the time prescribed shall resultin ineligibility for, or forfeiture of, office. This Section shall not be construed as limitingthe authority of any branch of government to establish and enforce ethical standards forthat branch.Section 3. Oath or affirmation of officeEach prospective holder of a State office or other State position created by this Constitution,before taking office, shall take and subscribe to the following oath or affirmation:‘I do solemnly swear (affirm) that I will support the Constitution of the United States,and the Constitution of the State of Illinois, and that I will faithfully discharge the dutiesof the office of ... to the best of my ability.’Section 4. Sovereign immunity abolishedExcept as the General Assembly may provide by law, sovereign immunity in this Stateis abolished.Section 5. Pension and retirement rightsMembership in any pension or retirement system of the State, any unit of local governmentor school district, or any agency or instrumentality thereof, shall be an enforceablecontractual relationship, the benefits of which shall not be diminished or impaired.Section 6. CorporationsCorporate charters shall be granted, amended, dissolved, or extended only pursuant togeneral laws.Section 7. Public transportationPublic transportation is an essential public purpose for which public funds may beexpended. The General Assembly by law may provide for, aid, and assist publictransportation, including the granting of public funds or credit to any corporation orpublic authority authorized to provide public transportation within the State.Section 8. Branch bankingBranch banking shall be authorized only by law approved by three-fifths of the membersvoting on the question or a majority of the members elected, whichever is greater, in eachhouse of the General Assembly.Article XIV – Constitutional RevisionSection 1. Constitutional Convention(a) Whenever three-fifths of the members elected to each house of the GeneralAssembly so direct, the question of whether a Constitutional Convention should becalled shall be submitted to the electors at the general election next occurring atleast six months after such legislative direction.(b) If the question of whether a Convention should be called is not submitted duringany twenty-year period, the Secretary of State shall submit such question at thegeneral election in the twentieth year following the last submission.Constitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 111

Illinois Constitution(c)(d)(e)(f)(g)The vote on whether to call a Convention shall be on a separate ballot. A Conventionshall be called if approved by three-fifths of those voting on the question ora majority of those voting in the election.The General Assembly, at the session following approval by the electors, by lawshall provide for the Convention and for the election of two delegates from eachSenatorial District; designate the time and place of the Convention’s first meetingwhich shall be within three months after the election of delegates; fix and providefor the pay of delegates and officers; and provide for expenses necessarily incurredby the Convention.To be eligible to be a delegate a person must meet the same eligibility requirementsas a member of the General Assembly. Vacancies shall be filled as provided by law.The Convention shall prepare such revision of or amendments to the Constitutionas it deems necessary. Any proposed revision or amendments approved by amajority of the delegates elected shall be submitted to the electors in such manneras the Convention determines, at an election designated or called by the Conventionoccurring not less than two nor more than six months after the Convention’sadjournment. Any revision or amendments proposed by the Convention shall bepublished with explanations, as the Convention provides, at least one monthpreceding the election.The vote on the proposed revision or amendments shall be on a separate ballot. Anyproposed revision or amendments shall become effective, as the Conventionprovides, if approved by a majority of those voting on the question.Section 2. Amendments by General Assembly(a) Amendments to this Constitution may be initiated in either house of the GeneralAssembly. Amendments shall be read in full on three different days in each houseand reproduced before the vote is taken on final passage. Amendments approvedby the vote of three-fifths of the members elected to each house shall be submittedto the electors at the general election next occurring at least six months after suchlegislative approval, unless withdrawn by a vote of a majority of the memberselected to each house.(b) Amendments proposed by the General Assembly shall be published with explanations,as provided by law, at least one month preceding the vote thereon by theelectors. The vote on the proposed amendment or amendments shall be on a separateballot. A proposed amendment shall become effective as the amendment providesif approved by either three-fifths of those voting on the question or a majority ofthose voting in the election.(c) The General Assembly shall not submit proposed amendments to more than threeArticles of the Constitution at any one election. No amendment shall be proposedor submitted under this Section from the time a Convention is called until after theelectors have voted on the revision or amendments, if any, proposed by suchConvention.Section 3. Constitutional initiative for Legislative ArticleAmendments to Article IV of this Constitution may be proposed by a petition signed bya number of electors equal in number to at least eight percent of the total votes cast forcandidates for Governor in the preceding gubernatorial election. Amendments shall belimited to structural and procedural subjects contained in Article IV. A petition shallcontain the text of the proposed amendment and the date of the general election at whichthe proposed amendment is to be submitted, shall have been signed by the petitioningelectors not more than twenty-four months preceding that general election and shall be112 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

Illinois Constitutionfiled with the Secretary of State at least six months before that general election. Theprocedure for determining the validity and sufficiency of a petition shall be provided bylaw. If the petition is valid and sufficient, the proposed amendment shall be submittedto the electors at that general election and shall become effective if approved by eitherthree-fifths of those voting on the amendment or a majority of those voting in theelection.Section 4. Amendments to the Constitution of the United StatesThe affirmative vote of three-fifths of the members elected to each house of the GeneralAssembly shall be required to request Congress to call a Federal Constitutional Convention,to ratify a proposed amendment to the Constitution of the United States, or to calla State Convention to ratify a proposed amendment to the Constitution of the UnitedStates. The General Assembly shall not take action on any proposed amendment to theConstitution of the United States submitted for ratification by legislatures unless amajority of the members of the General Assembly shall have been elected after theproposed amendment has been submitted for ratification. The requirements of this Sectionshall govern to the extent that they are not inconsistent with requirements by the UnitedStates.Transition ScheduleThe following Schedule Provisions shall remain part of this Constitution until their termshave been executed. Once each year the Attorney General shall review the followingprovisions and certify to the Secretary of State which, if any, have been executed. Anyprovisions so certified shall thereafter be removed from the Schedule and no longerpublished as part of this Constitution.Section 1. (Removed).Section 2. Prospective Operation of Bill of Rights.Section 3. (Removed).Section 4. Judicial Offices.Section 5. Local Government.Section 6. Authorized Bonds.Section 7. (Removed).Section 8. Cumulative Voting for Directors.Section 9. General Transition.Section 10. (Removed).Section 2. Prospective operation of Bill of RightsAny rights, procedural or substantive, created for the first time by Article I shall beprospective and not retroactive.Section 4. Judicial offices(a) On the effective date of this Constitution, Associate Judges and magistrates shallbecome Circuit Judges and Associate Judges, respectively, of their Circuit Courts.All laws and rules of court theretofore applicable to Associate Judges and magistratesshall remain in force and be applicable to the persons in their new officesuntil changed by the General Assembly or the Supreme Court, as the case may be.(b) (Removed)(c) (Removed)Constitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 113

Illinois Constitution(d)Until otherwise provided by law and except to the extent that the authority isinconsistent with Section 8 of Article VII, the Circuit Courts shall continue toexercise the non-judicial functions vested by law as of December 31, 1963, incounty courts or the judges thereof.Section 5. Local government(a) The number of members of a county board in a county which, as of the effectivedate of this Constitution, elects three members at large may be changed only asapproved by county-wide referendum. If the number of members of such a countyboard is changed by county-wide referendum, the provisions of Section 3(a) ofArticle VII relating to the number of members of a county board shall governthereafter.(b) In Cook County, until (1) a method of election of county board members differentfrom the method in existence on the effective date of this Constitution is approvedby a majority of votes cast both in Chicago and in the area outside Chicago in acounty-wide referendum or (2) the Cook County Board by ordinance divides thecounty into single member districts from which members of the County Boardresident in each district are elected, the number of members of the Cook CountyBoard shall be fifteen except that the county board may increase the number ifnecessary to comply with apportionment requirements. If either of the foregoingchanges is made, the provisions of Section 3(a) of Article VII shall apply thereafterto Cook County.(c) Townships in existence on the effective date of this Constitution are continued untilconsolidated, merged, divided or dissolved in accordance with Section 5 of ArticleVII.Section 6. Authorized bondsNothing in Section 9 of Article IX shall be construed to limit or impair the power toissue bonds or other evidences of indebtedness authorized but unissued on the effectivedate of this Constitution.Section 8. Cumulative voting for directorsShareholders of all corporations heretofore organized under any law of this State whichrequires cumulative voting of shares for corporate directors shall retain their right to votecumulatively for such directors.Section 9. General transitionThe rights and duties of all public bodies shall remain as if this Constitution had not beenadopted with the exception of such changes as are contained in this Constitution. Alllaws, ordinances, regulations and rules of court not contrary to, or inconsistent with, theprovisions of this Constitution shall remain in force, until they shall expire by their ownlimitation or shall be altered or repealed pursuant to this Constitution. The validity ofall public and private bonds, debts and contracts, and of all suits, actions and rights ofaction, shall continue as if no change had taken place. All officers filling any office byelection or appointment shall continue to exercise the duties thereof, until their officesshall have been abolished or their successors selected and qualified in accordance withthis Constitution or laws enacted pursuant thereto.114 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)

IndexThe numbers given are paragraph numbers.Administrative law, 209Admission of new states, 77, 90, 98Advisory opinions, 103, 104Aliens, 213, 214Apportionment, 7, 8, 50, 58, 138Balanced operating budget, 36Bill of Rights/Declaration of Rights, 29,69, 108, 190Centuries,eighteenth, 6, 9, 152, 153, 171nineteenth, 6, 8, 9, 11, 55, 72, 86,107, 108, 112, 113, 116, 120, 152,153, 176twentieth, 6, 8, 51, 73, 108, 116, 118,120, 147Citizenship, 181, 182, 184, 185Civil War, 12, 107, 206Colonies, British, 3Commonwealths, 2Commissions, constitutional, 73, 80Conventions, constitutional, 75–77, 79,80, 83, 87, 91, 94, 114–116, 119Corporations, 12, 37Discrimination, 207Due process of law, 197Economic development, 11Education, 37, 38, 55, 57, 84, 136, 137Elections, 151, 159, 171, 172Elective judiciary, 72, 93, 107Enfranchisement, 7Environment, 37, 38Equal Rights Amendment, 68Executive, departments, 13offices, 13, 33, 155, 158Executive orders, 162privilege, 155veto, 101, 142, 160, 161Federalism, American, 1, 194Foreign affairs, 213Government, branches of,executive, 133, 156, 163judicial, 133, 165legislative, 40, 64, 131, 133, 141, 142,156Governor, 13, 33, 71, 101, 155, 157,159, 161–164, 171, 172Gubernatorial powers, 156Home-rule movement, 218, 223Impeachment, 174Income tax, 40Initiative, 26, 39, 70, 81, 89, 120, 127,128, 138, 150, 180Intermediate courts of appeal, 167Item veto, 161Judicial article, 165, 169Judicial disciplinary commission, 174,175Judicial review, 107, 176, 180, 209Judicial selection, 170, 171Judicial tenure, 173–175Laboratories of federalism, 67Legislative article, 143, 145Legislative power, 21, 32, 137, 138,140, 143, 144Local government, 35, 36, 85, 113,215–222, 224Merit Selection, 172Minority people, 206, 207Negative implication, 143, 144‘New judicial federalism,’ 56, 108Plenary governmental power, 20, 133,135, 144Police power, 136Constitutional Law – Suppl. 34 (October 1999) USA (Sub-national) – 231

IndexPolitical parties, 125, 126Popular involvement, 26Popular sovereignty, 75, 142‘Positive’ rights, 137Preamble, 28Property taxes, 38Public purpose doctrine, 135, 136Railroads, 12Recall, 26, 54, 55, 127, 174Referendum, 26, 70, 75, 82, 89, 127,128, 138, 150Religious institutions, 38, 85Research sources, 44–46, 48Separation of powers, 30Slavery, 183Special privileges, 11, 59‘State action,’ 196State constitutions,amendments to, 6, 19, 23, 25, 26, 39,51, 58, 78, 80, 82, 83, 91, 95, 117,118, 138, 180, 203change, 6, 78development, 97history, 6,interpretation, 56, 109, 110, 144, 149,176, 178, 188, 203, 204politics, 119, 120revision, 6, 19, 26, 39, 78, 79, 95,112, 116, 147, 180State constitutional convention(s), 54, 76State courts, 34, 105, 165, 166, 169,176–178, 189, 191, 199, 200, 201,203, 205supreme courts, 105–107, 166, 167,177–180State judicial system, 13, 137State legislative power, 133, 138, 140State legislative procedure, 137, 145–150State legislatures, 10, 13, 32, 65, 75, 76,79, 80, 107, 113, 119, 120, 127, 138,139, 144, 147, 150–152, 160, 174,197, 221, 222Suffrage, 9, 31Uniformity in taxation, 36United States Constitution, 15–21, 25,26, 29, 40, 50, 51, 56–58, 61–63, 66,68, 89, 90, 97, 105, 113, 122–124,126, 138, 176, 178, 179, 181, 187,196, 198, 200, 202, 204, 207, 215Amendments,First, 68Tenth, 122Fourteenth, 51, 58, 68, 184, 185,192, 194, 195, 203Fifteenth, 9, 58Seventeenth, 124Nineteenth, 9, 58Twenty-fourth, 58Twenty-sixth, 58Article I, 51, 65, 66Section 8, 213Article IV,Section 2, 50, 181Section 3, 3, 53Section 4, 50Article V, 124Article VI, Section 3, 123‘equal protection’ clause, 213‘speech and debate’ clause, 131Voting, 9, 57, 58, 124, 152Water rights, 84, 93Taxation and finance, 24, 36, 40, 85Tax exemption, 40, 85Term limits, 138, 153Territories, 2Trial courts, 168, 169232 – USA (Sub-national) Constitutional Law – Suppl. 34 (October 1999)