USA - International Encyclopaedia of Laws

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