Grace Mallon: Hello and welcome to Convention's a podcast about the history of constitutions brought to you by the Quill Project at Pembroke College, Oxford.
My name is Grace Mallon and I'm your host. Cohosting today's episode is Dr Nicholas Cole, the director of the Quill Project.
Hi, Nicholas. Nicholas Cole: Hello, Grace. Grace Mallon: Our guest is Robinson Wood Woodburn's, assistant professor of political science at Howard University.
He's joining us today to talk about his new book, Hidden Laws How State Constitutions Stabilise American Politics,
which is out this year with Yale University Press. Robinson, thank you for joining us.
Robinson Woodward-Burns: Thank you for having me. Grace Mallon: It's a great pleasure. I obviously haven't had a chance to get my hands on the book itself yet,
but I have had the opportunity to read the manuscript, which obviously overlaps a lot with my own interests in federalism.
Which leads me to my first question. I'm always interested in the generation of of these projects,
particularly when they sort of overlap with my own interest in state government and federalism.
So how did you get interested in state constitution making and how did this project come to be?
Robinson Woodward-Burns: That's a great question. State constitutions are pretty esoteric.
The United States has these 50 states, each of which has its own constitution, but there's not too much academic attention that's been paid to them.
And so I actually began by studying a particular constitution. It's one I'm sure, you know, graced the Pennsylvania Constitution of 1776.
And it was for its own time a radical document. It did things that other documents in its time did not do.
It was a unicameral ist document. It provided for one chamber of legislature because that was thought at the time to be more democratic.
It had a very wide franchise, the widest in the Western world, according to this story.
And Gary Nash at the time at least. And it also had a sort of idiosyncratic provision, an odd one in an early draught, which held, quote,
An enormous proportion of property vested in a few individuals is dangerous to the rights and destructive to the common happiness of mankind.
And so this sort of odd provision that eventually gets cut provided for mandatory property redistribution and potentially even land redistribution.
So it was also an economically radical document. And that's sort of what got me interested in American constitution making at the state level.
It was a very influential document.
It went to the genesis of the Vermont and Georgia constitutions and ultimately backlash against the document shaped the United States Constitution,
which was a much more conservative document. And so it was seeing the interaction between state and federal constitution making
between state and national constitutionalism that inspired the project in a larger sense.
Grace Mallon: That's really interesting to hear.
I think the Pennsylvania Constitution is the gateway drug for a lot of people who end up being interested in state government,
in state constitution making,
because it is this sort of extraordinary, this extraordinary document about economic radicalism is so striking for the period that said,
although I mean, one of the things that got me interested in the United States as a as a sort of area of study is federalism,
American federalism, being this sort of peculiar system, this peculiarly old federal system.
At the same time, what I find certainly working on federalism, working on state government,
is there's still an overwhelmingly national focus in a lot of scholarship and also in the media.
And I was wondering if if you Robinson and perhaps also Nicholas could comment on on why that is.
Robinson Woodward-Burns: I think you're absolutely right. It's the case that most study of public law in the United States focuses on the national constitution.
And there are a few reasons for that. One is that the Constitution, the federal constitution is relatively short.
It's only seven to eight hundred words.
And it's a lot easier as such to study the state constitutions have much lower bars to amendment and replacement.
And as such, we've had many, many more state constitutions. We've had four hundred and eleven attempts to write new state constitutions,
which has produced one hundred and forty four documents that have been ratified.
And these are much longer documents. The Constitution of the state of Alabama, for example, is three hundred and eighty nine thousand words long.
And so that's something of a deterrent to scholars. It's difficult, I think, to get into these constitutions with their thousands of amendments.
And because of that, there's been a focus on federal constitutionalism, national constitutionalism, I think.
So there's sort of a sacrifice that comes with that and that it requires one to ignore most constitutional change in the United States.
So over ninety nine percent of amendments ratified in the United States have been to the state constitutions.
There have been only twenty seven federal amendments ratified as opposed to the eleven thousand amendments proposed at the state level.
And 95 percent of litigation in the United States is filed in the state courts rather than the federal courts.
And so by ignoring state constitutionalism, really we're ignoring most of the constitutional change in America and.
Studying instead is pretty small and unrepresentative slice of constitutionalism, and I think in some troubling ways,
taking that very small slice to represent the whole in ways that misrepresents
American constitutional change in American constitutional history more generally.
Nicholas Cole: I think all of that, of course, completely right.
The other thing, of course, is that the the national reporting of politics in America most naturally reports the workings of the federal government.
And likewise, you know, historical writing that is of national appeal often focuses as well on the national government.
So if you if you're looking for reasons why state constitutions are often neglected, those are part of the reason.
I think another thing as well is that particularly because of the civil war,
the the late 19th century historical trends that still in many ways influenced the way history is studied today,
focussed on the the the business of constitution,
writing in the founding moment and bringing together parts of the nation that really disagreed with each other.
And there was a huge effort at the end of the 19th century to publish and edit the records of federal constitution writing.
And in that narrative, state constitutions seemed much less interesting,
much less important that the element of government that was perhaps failing in 1787 and which needed international politics to rescue it.
And and by contrast, you know,
the same amount of of money and attention has not been given to and paid to editing state level records and publishing them.
And, of course, they are bound to be of of more local rather than more national interest.
But that leaves everybody with the sense that constitutions all have the sort of qualities
of the federal system and that the sort of really important things that people want to
work out were how many people would be in a in a Senate or how would the how would the
sort of schedule of elections between a lower and an upper house relate to each other?
And so they miss the fact that actually the state level conversations are about a much
wider range of topics than trying to navigate the problem of divided sovereignty,
which is at the heart of the federal system. And I think people are often surprised when they when they turn to state constitutions just
to see how rich the range of topics that's covered in different state constitutions is.
Grace Mallon: I'm always interested in this myself, because my my own project was sort of inspired by the fact that the states seem to fall
out of the historiography at exactly the moment that the federal constitution is created.
And I think, you know, because historians perhaps quite naturally are just mostly interested in figuring out, well,
how did you get this group of very disparate in some ways, polities, regions, peoples to come together as a nation.
And so I suppose in that sense it's quite natural.
But it's interesting to think about these things and to sort of get back to the argument of the book itself, hidden laws.
What the book essentially does is, well,
one of the things that the book does is it explains why the federal constitution has managed to have only 27 amendments,
why it still looks very, very similar in terms of its text to what was produced in the 70s, 80s.
By by the framers, and so what I wanted to ask you, Robinson, is, is how has the nation I mean,
what is the role of state constitutions in allowing the nation to change so much while the Constitution on its face seems to have changed so little?
Robinson Woodward-Burns: Well, thank you for that question, Grace. It's an important one.
The United States Constitution, as I mentioned, has been amended only 27 times, and that's a remarkably low number.
In a comparative context, we see that other national constitutions tend to be amended at a much higher rate.
And similarly, the Supreme Court only rarely fundamentally reinterprets the meaning of the United States Constitution.
So the question then might be,
how has the United States Constitution remained in its fundamentals untouched or in some very fundamental ways untouched since it was framed in 1787?
And I think there are maybe two main answers, neither of which I think is right.
And that's sort of why I wrote the book, was to try to tackle these two stories.
And so one would say the United States Constitution is just very difficult to amend.
It sets the highest bar to amendment of any national constitution, according to a database built by the scholars Elkin's, Milton and Ginsburg.
And they point out that this three quarters of states required to ratify an
amendment is so high that it seems unlikely that the amendments would be ratified.
And that might explain the longevity of the Constitution and the dearth of amendments.
But one thing that they also point out is that constitutions that are hard to amend tend to be brittle.
They break instead of bending. And in fact, these really hard to amend.
Constitutions have shorter life spans. And so, if anything, the U.S. Constitution shouldn't have made it past the founding generation.
And so we still have this puzzle of how the Constitution survived.
Other people would point out that the federal courts in the United States, the national court system,
has reinterpreted the Constitution to update it, to bring it into the contemporary era.
But the issue there is that the federal courts tend to be fairly conservative in a small sea,
since federal judges are appointed by Congress, they're nominated by the president, confirmed by Congress.
And so they tend to uphold the values of the people who brought them into office.
That is to say, they slow pedal change.
So we see very little significant change coming through the federal courts relative to other court systems at the national level.
So I think the explanation is instead what I call conflict, decentralisation and through conflict decentralisation,
we see the state constitutions doing the heavy lifting in terms of addressing national political controversies.
The U.S. Constitution, because its very brief, allows the states to work out many issues that the federal government also can intervene in.
And so you've got this parallel system in which the federal government can intervene in many areas because of these high barriers to change.
Rarely does, whereas the states with their much lower bars to amendment and they're much lower
barriers to wholesale constitutional replacement are constantly undergoing change.
You get these very long constitutions at the state level,
hundreds of thousands of words that really tackle these national issues which are neglected at the national level.
Conflicts at the national level tend to get decentralised to the states.
And I think that's in a way that the American constitutional system has been able to grapple with needed change.
It's a slow and it's a very inefficient system. But the benefit of it, I think, is longevity, that it's a very stable system.
Grace Mallon: I think that point about concurrence, about the fact that, in fact, although there's this in these enumerated powers,
although there's this sort of idea that the federal and state governments handle different areas of stuff,
that there's actually a lot of overlap between what they can can manage.
This is really interesting in the fact that the states end up handling what you refer to as a national,
fundamentally national issues is absolutely fascinating.
So this being a podcast called Conventions and one of our big interests being the convention as a model,
I sort of wanted to ask by what processes do states change their constitutions?
Do they have loads and loads of constitutional conventions, or are they they finding other ways to change their constitutions,
to keep their constitutions flexible so that the national constitution can be relatively inflexible and as Nicholas.
So that's my first question. And my second question is, as Nicholas mentioned, the state governments,
when they're reforming their constitutions, are dealing with a huge number of different policy areas.
So could you talk us through like that? The different.
Areas of policy, that state constitutional change will handle that perhaps we might expect if we're looking at the federal constitution as a model,
to be handled more by by legislatures rather than constitutional conventions, certainly.
Robinson Woodward-Burns: So there's this question of how how state constitutions change and then there's the question of what what's in them and the how is fairly broad.
There are many ways to change state constitutions if you're attempting to entirely replace a constitution to draught an entirely new constitution.
There are several paths to do it. And perhaps the best-known one and one on which the project is focussed is the convention.
And there's this wealth of conventions.
There have been two hundred and fifty five constitutional conventions at the state level, all of which produce this great set of records.
And that's not the only way to change constitutions.
Beyond that, we see a rise in the 20th century in specialised commissions to draught state constitutions.
There was in the progressive era in the United States in the late though eighteen hundreds and early 19 hundreds,
an effort to have expert draughting of state constitutions.
And that continued through the 20th century in which lawyers and academics and legislators
and even governors would collaborate to draught a new constitution for the states.
Very rarely. You might also see a legislature draught a new constitution for the state.
But that's been fairly rare very early on. In fact, in the draughting of Pennsylvania's constitution in 1776,
there was a large pamphlet literature which established that constitutions were designed to constrain or bind legislators,
and therefore those legislators should not be the people left to draught a constitution. So that's been relatively infrequent.
In fact, in total, legislatures have draughted constitutions less than a dozen times, and we've only seen a few dozen, a few dozen commissions.
So the bulk of wholesale change has been through the constitutional convention process.
But even that has actually started to sort of gradually subside in the end of the 20th century.
And we've seen a rise. Instead of constitutional change through amendment,
states can pass amendments that are sponsored by the legislatures or by the voters of the state through the initiative or referendum process.
And as John Dynon, a scholar of American state constitutionalism, has pointed out in his book,
State Constitutional Politics, Modern State Constitutional Change really works through amendment.
And as he points out, there's all kinds of policy that gets embedded in amendments as well as through wholesale constitutional change.
So essentially, if you're asking what can be included in a state constitution, its state constitution, to have plenary authority,
they have this already state constitution draughters have the authority to tackle
any issue that's not expressly forbidden to them by the federal constitution.
And the federal constitution does disallow the states from, say,
engaging in the coining of money or framing treaties or establishing their own armed forces.
But outside of that, the states have the presumptive authority to engage in policymaking,
and that can include contentious modern issues like the regulation of abortion or the rights of same sex couples,
the deregulation of marijuana, the control of guns.
So modern, really contentious issues are being worked out constitutionally to some degree through the federal courts,
but to much greater degree through state constitutional reform and particularly now through state constitutional amendment.
Nicholas Cole: I think I'm right that, the most recent so traditional form of of state constitutional amendment,
that is a sort of convention and then then a popular ratification is Rhode Island, isn't it, in 1986.
And the trend subsequently has been very much amendments on very specific issues.
You know, sometimes I think seeming to contradict each other, you know,
in some places since I was wondering what you thought the the trends over the next decade might be and whether anything had been lost through
the shift to this new process of of amending constitutions by simply adding more amendments to the end of the on specific policy questions,
as opposed to having processes to hammer out new texts and in some some sort of considered and holistic kind of way.
Robinson Woodward-Burns: That's an excellent question. And you're absolutely right that this decline in constitutional replacement through convention
has resulted in the loss of that tradition of deliberative constitution making one
of one of the real sort of treasures of the American state constitutional tradition are
these records in which we can see convention delegates debating how to build a consistent,
coherent document. And that really has disappeared.
Again, as you pointed out, Rhode Island in 1986 was the last state to draught an entirely new constitution.
And there have not since been successful conventions, although just over a dozen states are required to have calls for conventions periodically.
No state has done that. New York state recently rejected an attempt to draught a new constitution by convention.
And there's been a little bit of research on this. But what we see is a lot of caution.
People are unwilling to throw out the entire document when they can simply change the one part that they seek to change.
And so we see this shift now towards revision by amendment,
which creates these somewhat conflicting documents, documents that, like the Alabama Constitution,
are very wrong, a bit parochial, has many different provisions which sometimes reflect the interests of particular policy or lobbying groups.
It reflects, I think, a different conception of democracy, not that of the founding era of deliberation and convention,
but that of the progressive era in the United States in which the public could voice its opinion through initiatives or referenda.
And that's something of a troubling view in that we often see the public passing initiatives
or referenda without fully understanding the content of what they're voting for.
So I think you're right to point out that we see a decline not only in deliberative democracy that you find in conventions,
but also in genuine public participation in the Constitution making process.
I think we've lost something when we lose conventions.
Nicholas Cole: I wondered as well about asking you about the question of statehood for the District of Columbia.
Do you think we'll see a constitution written for a state of D.C. and what do you think that might look like?
Or do you think that that question so hotly contested that it's never going to come to anything?
Robinson Woodward-Burns: That's a great question. And one very close to my heart. I'm actually from Washington, D.C. and that's where I teach now.
I think there are two questions.
One, whether the district can draught a constitution, and two, whether Congress will actually grant statehood to the district under that constitution.
D.C. actually has draughted a constitution. It did so in 2016 and the process was a bit contentious.
The mayor's office, in collaboration with some members of the District of Columbia City Council,
had a panel of lawyers draught a constitution which it presented to the public and then
named the public presentation session a convention and someone who studies conventions.
I can tell you that that's not an Orthodox convention. Normally, at least you elect delegates.
At a minimum, those delegates would debate and present the Constitution for a public vote.
While the D.C. Constitution of 2016 was subject to a public vote, it was not draughted by delegates who are popularly elected.
And this actually might present an issue should D.C. get statehood, given this is not only an unorthodox process,
but might actually violate the US Constitution's guarantee clause,
which requires, quote,
a Republican form of government long for a long time we've understood that to require electing delegates to a special convention.
Now, I should say I'm actually a proponent of D.C. statehood. I think this is fairly easy to fix by simply having another convention.
It's something that Washington, D.C. did successfully in nineteen eighty two in a much earlier statehood push.
So I think this can be fixed even after should Congress pass the pending statehood bill.
I think it would be possible afterwards for the district to hold a proper convention.
The real issue here, and this is the issue perennially for states applying for statehood,
is how it would change the balance of power in Congress and particularly the Senate.
D.C. would receive one member would have one member in Congress's lower house, but two members in the smaller upper house,
the Senate, which has only one hundred total members right now, it's split evenly 50 50 between the two parties.
So adding two seats to the left leaning District of Columbia would also likely
add two seats to the Democratic Party and pad their very narrow majority.
This is why Republicans consistently opposed D.C. statehood, and this is historically not unlike the admission of other states.
States have been denied admission on partisan reasons.
The Republican Senate in the late 19th and early 20th centuries denied statehood to Democratic leaning New Mexico and Arizona.
And that same Republican Senate admitted six states, many of which were underpopulated,
to get 12 Republican senators in about a 12 month span in order to pad their own majority substantially.
In fact, doing that bias, the current Senate towards these rural Western Republican leaning states, durably changing how the U.S. Senate works.
So I don't think there's anything new in the politics around D.C. statehood.
It really all comes down to partisanship, I think.
Should Democrats hold the House of Representatives in twenty, twenty two and gain a few Senate seats?
They'd probably be able to overcome the barriers they now face to passing D.C. statehood.
But sadly, for the seven hundred twelve thousand DC residents,
it really will sort of come down to what happens in the congressional election in twenty twenty two for that.
Well, we'll have to see.
Nicholas Cole: I can't resist asking whether you think had a constitution written by a panel of lawyers vs. an elected convention would look very different,
or whether this is a sort of cosmetic issue.
I I seem to remember that the original attempt to write a constitution for Massachusetts was rejected
on precisely these grounds that that the that the delegates had not been properly selected.
So this is actually an issue that goes all the way back to the the founding of the Republic.
But but it but in fact, you know,
does it result in something different or is this just just one of these sort of pleasing rituals of American statehood?
Robinson Woodward-Burns: I think it's both. It certainly is a pleasing ritual of American statehood.
I like that phrasing in that it's a very long tradition in American state constitution.
draughting the idea that legislators cannot draught the Constitution, which will bind them is, I think, an inherent part of constitution making.
Certainly you don't want people to select the rules that will determine their behaviour or the rules that are designed to constrain them.
You saw in the draughting of the Pennsylvania constitution of 1776 this debate and then Massachusetts and seventeen seventy eight attempting
to draught a constitution without properly electing delegates for which Massachusetts and its town meetings rejected that constitution,
forcing the draughting of another one two years later. In terms of substantively whether these constitutions are different,
it's kind of hard to say in that draughting constitutions by a panel of lawyers or an expert committee.
And that's really what happened in the case of D.C. It's closer to a constitutional commission that's only been successfully done a few times.
The real model is Florida's 1968 constitution, which was very carefully done.
The difficulty is that D.C. is Constitution of Twenty Sixteen was written in the summer of twenty sixteen in the lead up to the presidential election
of twenty sixteen in the expectation that Hillary Clinton would win the election and have a Democratic Congress quickly passed the Constitution.
And so there are some pretty fundamental oversights in this hastily draughted document,
one of which is that it would provide for the creation of a new state, Washington,
D.C. The sole city in that state would be Washington, such that your address in that new state would be Washington,
Washington, D.C. It's a typographical error that could have been avoided had the process not been rushed.
And again, when we talk about the deliberative benefits of having a proper constitutional convention,
this is one thing that I think would have probably come out in a real convention. Somebody would have caught that error.
Again, as a proponent of D.C., I'd be happy to have a state that had a long and somewhat redundant name,
given the benefits of statehood, full voting rights and so on. But it would be even better to have both statehood and a properly named state.
I think Grace Mallon: I love this story.
And it reminds me of the fact that that the neglected bit of the US Constitution being those final final sort of clauses at the end saying,
oh, we should probably put in a comma here and take this one out. It's a fun side effect of US Constitution making.
Well, thank you so much to Robinson and to Nicholas for joining me on this episode of Conventions, The Quill Project podcast.
Thank you for listening to conventions. I'm Grace Mallon and I was joined by Nicholas Cole, director of the Quill Project,
and Robinson Would Woodburn's assistant professor of political science at Howard University.
His book, Hidden Laws How State Constitutions Stabilise American Politics is out now with Yale University Press.
Next time, we're joined by Kiana MacAllister and Erika Croft,
researchers at Utah Valley University's Centre for Constitutional Studies to talk about their work in
reconstructing the reconstruction amendments and about the significance of America's second founding.