USA - International Encyclopaedia of Laws

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