The true meaning of constitutionalism is limited government. Today most of the world’s governments, including even the most authoritarian regimes, have written constitutions that describe the government’s formal structure. But the constitutions of authoritarian regimes rarely place any restrictions on the government’s powers. In the English and American political heritage, constitutionalism means that the power of government over the individual is clearly limited, that there are some aspects of life that even majorities cannot regulate, and that government itself is restrained by a higher law. Constitutional government places individual liberty beyond the reach of governments, even democratic governments. Thus, if a majority of voters wanted to prohibit communists, or atheists, or racists, from writing or speaking or organizing, voters could not do so under a constitutional government that protected free speech, press, and assembly.

All 50 state constitutions limit the powers of state government and protect individual liberty. While we have come to rely principally on the U.S. Constitution for the protection of individual liberty, every state constitution also contains a bill of rights that protects individuals from deprivations of personal liberty by their state government. Most of these state constitutional guarantees merely reiterate rights guaranteed to all Americans in the U.S. Constitution, but some state documents extend rights beyond the federal guarantees.

State constitutions are the supreme law of the state. They take precedence over any state law in conflict with them. Since constitutions govern the activities of governments themselves, they are considered more fundamental than the ordinary laws passed by governments.

The U.S. Constitution is the supreme law of the nation. State constitutions take precedence over state law, but they are subordinate to the U.S. Constitution and the laws of the United States. The U.S. Constitution mentions state constitutions once, and only to assert the supremacy of the U.S. Constitution and the laws and treaties of the United States. Article VI states:

Probably no other people in the world are more devoted to the idea of written constitutions than are Americans. This devotion has deep roots in national traditions. In 1215 a group of English lords forced King John to sign a document, later known as the Magna Carta, which guaranteed them certain feudal rights and set a precedent for constitutional government. Although the British political tradition eventually rejected formal written constitutions, the idea of a written constitution was strongly reinforced by the experience in the Thirteen Colonies. The Colonies were created by charters given to companies establishing settlements in America. These charters became more elaborate as the colonial ventures succeeded, and dependence on a written code for government organization and operation became strongly entrenched.

Colonial charters, or “constitutions,” were granted through royal action, by recognizing proprietary rights, as in Maryland, Delaware, and Pennsylvania, or by granting royal commissions to companies, as in Virginia, Massachusetts, New Hampshire, New York, New Jersey, Georgia, and North and South Carolina. In two colonies, Connecticut and Rhode Island, royal charters were granted directly to the colonists, who participated in drawing up the charter for submission to the Crown. The important point is that these charters, whatever their origin, were present in all the Colonies, and many political traditions and expectations grew up around them.

All the Colonies were subject to royal control. Yet colonists looked to their charters for protection against British interference in colonial affairs. This was particularly true in Connecticut and Rhode Island, which had elected governors and legislatures whose acts were not subjected to a royal governor’s veto, nor sent to England for approval. The political importance of these early charters is illustrated by the conflict over the Fundamental Orders of Connecticut. In 1685 King James issued an order for the repeal of Connecticut’s charter. In 1687 Sir Edmund Andros went to Hartford and in the name of the Crown declared the government dissolved. The charter was not surrendered, however, but hidden by Captain John Wadsworth in an oak tree, which is now displayed for sightseers. Immediately after the English revolution of 1688, the document was taken out of the “Charter Oak” and used again as the fundamental law of the colony. Succeeding British monarchs silently permitted this colonial defiance. After the Declaration of Independence, new constitutions were written in 11 states; Connecticut retained its charter as the fundamental law until 1818, and Rhode Island kept its charter until 1842. The colonial experience, together with the earlier English heritage, firmly implanted the tradition of written constitutions.

Theoretically, constitutional decision making is deciding how to decide. It is deciding on the rules for policymaking; it is not policymaking itself. Policies are to be decided later, according to the rules set forth in a constitution.

But in reality, all state constitutions not only specify organizations and processes of decision making, but also undertake to determine many substantive policy questions. Unlike the U.S. Constitution, state constitutions contain many policy mandates on topics as diverse as tax rates, utility regulation, labor–management relations, insurance regulation, debt limits, educational funding, gambling, and a host of other policy matters. In nearly every election, voters are asked to decide on proposed amendments to their state constitutions. Most of these amendments deal with policy questions about which the voters have little knowledge or information. The result, of course, is that most state constitutions have become ponderous tomes that look more like law books than constitutions. While the U.S. Constitution contains only about 8,700 words, the average state constitution contains 26,000, and some run to over 100,000 (see Table 2-1). Length itself is not the problem but, rather, that these constitutions are laden with detailed policy decisions.

Why have so many policy mandates crept into state constitutions? Inasmuch as constitutions govern the actions of governors, legislators, executive agencies, and courts, many groups have sought to place their own policy preferences in constitutions. This places these preferences beyond the immediate reach of government officials, who are bound by constitutional mandates. If a policy preference is enacted into state law, it can be changed by ordinary actions of the legislature and governor. But if a policy preference is written into the state constitution, it can be changed only by extraordinary procedures—for most states a two-thirds vote in both houses of the legislature and majority approval of the voters in a statewide referendum.

Interest groups frequently strive to “constitutionalize” their policy preferences. In Texas, for example, higher education proponents successfully persuaded the voters to approve a constitutional amendment expanding the number of schools benefitting from the proceeds of the public endowment that supports state universities. Similarly, grassroots citizens’ movements in the United States, often displaying a distrust of elected officials, have sought to bind officials by constitutional mandates. Indeed, referenda on proposed state constitutional amendments confront voters in many states in almost every election.

Along with interest groups and citizens’ movements, lawyers and judges have contributed to the growth of state constitutional law. In a significant number of cases, state court judges have interpreted their own constitutions independently of the U.S. Constitution regarding civil rights and other controversies (see “Judicial Federalism” in Chapter 9). An emerging body of state constitutional law is a reminder of the legal importance of state constitutions.

Over the years, specific constitutional amendments have resulted in lengthy documents. The more detailed and specific a state’s constitution, the more likely it is to require more amendments to meet changing circumstances over time, thus leading to an even longer document. Constitutional reformers and “good government” groups have sought for many years to take policy matters out of the state constitution. They argue that governors and legislators should not be bound by constitutional details, that they need flexibility in confronting new challenges, and that state government should be strengthened, not weakened, in the modern era. These reform efforts have met with some success; newer state constitutions tend to be shorter than older ones. But it has become more difficult for reformers to convince politicians or the public that a state’s constitution needs a complete overhaul.

All state constitutions have a bill of rights, which asserts the basic freedoms of speech, press, religion, and assembly. (See “Up Close: The Sandy Hook Shootings and the Right to Bear Arms” and “Rankings of the States: State Gun Law Restrictiveness and Firearms Death Rate.”) There are frequent references to basic procedural rights, such as the writ of habeas corpus, trial by jury, protection against double jeopardy and self-incrimination, prohibitions against ex post facto laws, imprisonment for debt, unreasonable searches and seizures, and excessive bail. Most of these protections merely duplicate the guarantees of the U.S. Constitution. However, frequently one finds in the state constitutions interesting “rights” that are not found in the national Constitution. For example, the Florida Constitution guarantees “every natural person the right to be let alone and free from government intrusion into his private life”; Mississippi guarantees the right of crime victims to speak in court and receive restitution; Indiana prohibits “unnecessary rigor” in punishment for crime. Some state constitutions have “little ERAs”—equal rights amendments—guaranteeing gender equality under law. Moreover, a state supreme court may place a different interpretation on a state constitutional right than the federal courts place on the same guarantee in the U.S. Constitution. (See “Judicial Federalism” in Chapter 9.)

All state constitutions reflect the American political tradition of separation of powers, with separate legislative, executive, and judicial articles establishing these separate branches of government, and ensuring a system of checks and balances. Generally, however, state constitutions emphasize legislative power over executive power. The historical explanation is that governors were appointed by the king in most colonies and the early constitutions reflected the colonists’ distaste for executive authority. Yet the fact that constitutions are usually written by legislatures, legislative commissions, or constitutional conventions that resemble legislatures may also explain why legislative power is emphasized. Finally, the curtailment of executive power may reflect the desires of important interest groups in the states, who would prefer to deal with independent boards and commissions in the executive branch rather than with a strong governor. (See Chapter 7 for further discussion.)

Whether the reasons are historical or political, the executive branches of most state governments are weakened and divided by state constitutions. Executive powers are divided between the governor and many separately elected executive officers—attorney general, secretary of state, treasurer, auditor, lieutenant governor, state school superintendent, and others. State constitutions also curtail executive authority by establishing a multitude of boards or commissions to head executive departments. Membership on these boards and commissions is generally for long overlapping terms, which are not coextensive with the term of the governor.

Only the Nebraska Constitution provides for a unicameral legislature. All other state legislatures are bicameral—divided into an upper and a lower chamber—making a total of 99 state legislative bodies. In many states the basis for apportioning these bodies is set forth in the state constitution. However, since the guarantee of the U.S. Constitution that no state shall deny to any person the “equal protection of the laws” takes precedence over state constitutions, federal courts require state legislative apportionment in both houses to meet the constitutional standard of one person, one vote. (See Chapter 6.)

All state constitutions have provisions regarding the organization and powers of local governments. Local governments are really subdivisions of state governments; they are not independent governmental bodies. State constitutions generally describe the organization of counties, cities, towns, townships, boroughs, school districts, and special districts. They may delegate responsibilities to them for public safety, police, fire, sanitation, sewage and refuse disposal, hospitals, streets, and public health. State constitutions may establish tax and debt limits for local governments, describe the kinds of taxes they may levy, and prescribe the way in which their funds may be spent. In the absence of constitutional provisions governing local governments, these subordinate units must rely upon state legislatures for their organization and powers. In recent years there has been a movement toward greater home rule for communities. More than half the states have provided for some semblance of home rule, which removes some of the internal affairs of communities from the intervention of state legislatures. Of course, when a “home rule” charter is granted to a community by an act of the legislature, it can be readily withdrawn or revised by the legislature. Constitutional home rule is a more secure grant of power to communities than legislative home rule. (See Chapter 10 for further discussion.)

Since state constitutions take precedence over state laws and are more difficult to amend, interest groups prefer to see special protections written into the state’s fundamental document. This prevents legislatures from meddling in important business affairs each legislative session. Even reformers sometimes support the inclusion of regulatory language in the state’s constitution, out of fear that later lobbying efforts by business could easily change

state laws. So most state constitutions include long sections on regulation of insurance, utilities, corporations, alcoholic beverages, railroads, mining, medicine, real estate, the state bar association, and education.

All state constitutions have articles on taxation and finance. Frequently these place severe restrictions on the taxing power of state and local governments. Taxpayer groups distrust state legislatures and wherever possible seek to restrict taxing powers by constitutional mandate. Many referenda votes are designed to amend the state’s constitution to limit tax burdens. (See Chapter 14.) Local governments may also be limited in state constitutions to specific tax sources and upper limits or “caps” on local taxation. Certain classes of property may be protected, such as that devoted to religious, educational, or charitable uses; government property; some agricultural or forestry land; and even “homesteads ,” that is, owner-occupied homes. Some constitutions may grant tax exemptions to new industries in order to attract industrial development. Constitutions may “earmark” certain tax revenues for specific purposes; for example, gasoline taxes may be earmarked for highway use only.

Most state constitutions limit debt that can be incurred by the state only or by local governments. Many states must have a balanced operating budget. (Although such a constitutional command does not always succeed, on the whole, state governments are less burdened by debt than is the federal government.) Local governments are frequently limited to a debt that cannot exceed a fixed percentage of the value of property in the community. Moreover, state constitutions generally require a local referendum to approve any increase in local debt. Occasionally, however, state and local governments devise ways to get around constitutional debt limits; for example, they may pledge the revenues of a new project (“revenue bonds”) to pay off the debt, rather than taxes (“full faith and credit bonds”). (See Chapter 14.)

The most common method of amending state constitutions is by legislative proposal. Many states require that a constitutional amendment receive a two-thirds vote in both chambers of the legislature before submission to the voters; a few states require a three-fifths majority in both houses, while others require only simple legislative majorities. Some states require that a constitutional amendment be passed by two successive legislative sessions before being submitted to the voters. Every state except Delaware requires constitutional amendments proposed by the legislature to be submitted to the voters for approval in a referendum. (See Table 2-3.)

Popular initiative of constitutional revision was introduced during the Progressive Era at the beginning of the twentieth century; this method usually requires that an initiative petition be signed by 5, 10, or 15 percent of the number of voters in the last governor’s election. The petition method allows citizens to get an amendment on the ballot without the approval of the state legislature. It is not surprising that measures designed to reduce the powers of legislators—for example, tax limitation measures and term limits for legislators—have come about as a result of citizen initiatives.

While there has been only one national Constitutional Convention, in 1787, there have been over 230 state constitutional conventions. State constitutional conventions are generally proposed by state legislatures, and the question of whether or not to have a convention is generally submitted to the state’s voters. (Some state constitutions require periodic submission to the voters of the question of calling a constitutional convention.) The legislature usually decides how convention delegates are to be elected and the convention organized. More important, the legislature usually decides whether the convention’s work is to be limited to specific proposals or topics, or unlimited and free to write an entire new constitution.

In recent years, however, neither legislators nor voters have shown much enthusiasm for state constitutional conventions. No state conventions were held in the 1990s. (The Louisiana legislature convened itself as the “Louisiana Convention of 1992,” but the meeting was really only a special session of the legislature; moreover, its proposed constitutional revision failed by a wide margin at the polls. Hawaii voters came close to calling a convention in 1996; they cast more “Yes” than “No” votes but not the necessary majority of all votes after blank votes were counted.) Indeed, voters have regularly rejected convention calls in the states that require periodic votes on whether or not to hold a convention. For example, in 2012, voters in Alaska, New Hampshire, and Ohio all rejected calling a constitutional convention—with nearly two-thirds voting against it in each state.

Political leaders and citizens alike appear wary of calling a constitutional convention. They are suspicious of “reform” and fearful about “runaway” conventions making unwanted changes in the political system. This is true of voters despite the fact that they always have the opportunity of later voting on the constitutional changes proposed by a convention. The current fear of conventions may also be a product of low levels of trust and confidence in government, as well as a lack of political consensus on many “hot-button” issues such as abortion, affirmative action, gambling, gun control, and tax limitations. Advocates on both sides of these kinds of issues may be unsure of the outcome of a

convention and therefore unite to oppose calling for one. Rhode Islanders reflected these concerns when they defeated such a call by a 52 to 48 percent margin in 2004. Comments by one citizen blogger analyzed the dilemma well: “I guess it’s a matter of cynicism. If you think an honest group of engaged citizens can get together and debate good reforms for our government, vote yes. If you’re worried that a slate of unaccountable insiders will stack the delegate deck or simple majorities will want to roll back things like gay rights or reproductive rights, vote no.”¹

These commissions are created by legislatures to “study and recommend” constitutional changes. Legislatures generally prefer a constitutional commission to a convention, because a commission can only study and report to the legislature. In addition, a commission can relieve the state legislature of a great deal of work. The typical commission is appointed by an act of the legislature, and its membership usually includes legislators, executive officials, and prominent citizens. Its recommendations are usually handled in the legislature like regular constitutional amendments, although they may be more sweeping than ordinary amendments.

Constitutional revision commissions have also been declining in number in recent years. (However, three of the nation’s largest states—California, New York, and Florida—together with Arkansas and Utah created constitutional revision commissions in the 1990s.) The value of these commissions is in their supposed ability to review fundamental governmental processes, to inspire citizen participation in this review, and perhaps to provide an opportunity for legislatures to shift some especially controversial issues away from themselves and onto the shoulders of independent bodies.² And, of course, legislatures still retain control of the revision process, since commissions must usually make their recommendations to their legislatures, which then decide whether to place them on the ballot for voter approval. More often than not, legislators have ignored commission recommendations or watered them down before submitting them to the voters.

At the beginning of the twentieth century, a strong populist movement in the midwestern and western states attacked railroads, banks, corporations, and the political institutions that were said to be in their hands.³ The populists were later joined by progressive reformers who attacked “bosses,” “machines,” and parties as corrupt. The populists believed that their elected representatives were ignoring the needs of farmers, debtors, and laborers. They wished to bypass governors and legislatures and directly enact popular laws for railroad rate regulation, relief of farm debt, and monetary expansion. They believed that both the Democratic and Republican parties of their era were controlled by the trusts and monopolies. The progressives and reformers viewed politics as distasteful. They did not believe that government should be involved in resolving conflicts among competing interests or striving for compromises in public policy. Instead, government should serve “the public interest”; it should seek out the “right” answer to public questions; it should replace politicians with managers and administrators. The progressive reform movement was supported by many upper middle-class, white, Anglo-Saxon, Protestant groups, who felt that political “machines” were catering to the votes of recent immigrants such as Irish, Italians, eastern and southern Europeans, working-class people, Catholics, and Jews.⁴ The progressive reform movement brought about many changes in the structure of municipal government. (See “Reformers and Do-Gooders” in Chapter 11.) The movement also brought about some interesting innovations in state government.

In order to reduce the influence of “politics,” “parties,” and “politicians,” the populists and progressives advocated a wide range of devices designed to bypass political institutions and encourage direct participation by voters in public affairs. They were largely responsible for replacing party conventions with the primary elections we use today. They were also successful in bringing about the Seventeenth Amendment to the U.S. Constitution requiring that U.S. senators be directly elected by the voters, rather than chosen by state legislatures. They also supported women’s suffrage, civil service, and restrictive immigration laws.

The populists and progressives were also responsible for the widespread adoption of three forms of direct democracy: initiative, referendum, and recall. These reforms began in the farm states of the Midwest and the mining states of the West. The populists provided much of the early support for these devices, and the progressives and reformers carried them to fruition. President Woodrow Wilson endorsed initiative, referendum, and recall, and most adoptions occurred prior to World War I.

This device allows a specific number or percent of voters, through the use of a petition, to have a proposed state constitutional amendment or a state law placed on the ballot. This process bypasses the legislature and allows citizens to both propose and adopt laws and constitutional amendments. Table 2-4 lists the states that allow popular initiatives for constitutional amendments, and those that allow popular initiatives for state law. Note that Alaska, Idaho, Maine, Utah, Washington, and Wyoming permit citizen initiatives for state laws, but not for constitutional amendments. Historically, use of the initiative process has been highest in Oregon, California, Colorado, North Dakota, and Arizona, according to the Initiative and Referendum Institute.

This device requires the electorate to approve decisions of the legislature before these become law or become part of the state constitution. As we noted earlier, most states require a favorable referendum vote for a state constitutional amendment. Referenda on state laws may be submitted by the legislature (when legislators want to shift decision-making responsibility to the people), or referenda may be demanded by popular petition (when the people wish to change laws passed by the legislature).

Recall elections allow voters to remove an elected official before his or her term expires. Usually a recall election is initiated by a petition. The number of signatures required is generally expressed as a percentage of votes cast in the last election for the official being recalled (frequently 25%). Currently 19 states provide for recall election for some or all of their elected officials (see Table 2-4). The impeachment and removal of Illinois governor Rod Blagojevich (D) led that state’s voters in 2010 to approve a constitutional amendment enabling recall elections of governors in their state. Recall efforts increase during economic downturns when voters are angry at elected officials’ for budget cuts or proposed tax and fee increases. Although officials are often publicly threatened with recall, rarely is anyone ever removed from office through this device. But it does happen. Regardless of the outcome, the recall process is often very expensive and divisive because it first involves an expensive petition drive, then a costly election campaign against the incumbent. Recent examples were gubernatorial recall elections in California and Wisconsin. In 2003, Californians removed California governor Gray Davis (D) from office in an election that cost nearly $70 million. In 2012, Wisconsin governor survived a recall effort that cost an estimated $81 million.

Proponents of direct democracy make several strong arguments on behalf of the initiative and referendum devices.⁵

• Direct democracy enhances government responsiveness and accountability. The threat of a successful initiative and referendum drive—indeed sometimes the mere circulation of a petition—encourages officials to take popular actions.

• Direct democracy allows citizen groups to bring their concerns directly to the public. Taxpayer groups, for example, who are not especially well represented in state capitals, have been able through initiative and referendum devices to place their concerns on the public agenda.

• Direct democracy stimulates debate about policy issues. In elections with important referendum issues on the ballot, campaigns tend to be more issue oriented. Candidates, newspapers, interest groups, and television news are all forced to directly confront policy issues.

• Direct democracy stimulates voter interest and improves election-day turnout. Controversial issues on the ballot—the death penalty, abortion, gun control, taxes, gay rights, English only, and so on—bring out additional voters. There is some limited evidence that elections with initiatives on the ballot increase voter turnout by three to five percentage points over elections with no initiatives on the ballot.⁶

• Direct democracy increases trust in government and diminishes alienation. While it is difficult to substantiate such a claim, the opportunity to directly affect issues should give voters an increased sense of power.

Opponents of direct democracy, from our nation’s Founders to the present, argue that representative democracy offers far better protection for individual liberty and the rights of minorities than direct democracy. The Founders constructed a system of checks and balances not so much to protect against the oppression of a ruler, but to protect against the tyranny of the majority. Opponents of direct democracy echo many of the Founders’ arguments:

• Direct democracy encourages majorities to sacrifice the rights of individuals and minorities. This argument supposes that voters are generally less tolerant than elected officials, and there is some evidence to support this supposition. However, there is little evidence that public policy in states with the initiative and referendum is any more oppressive than public policy in states without these devices. Nonetheless, the potential of majoritarian sacrifice of the liberty of unpopular people is always a concern.

• Direct democracy facilitates the adoption of unwise and unsound policies. Although voters have rejected many bad ideas, frequently initiatives are less well drafted than legislation.

• Voters are not sufficiently informed to cast intelligent ballots on many issues. Many voters cast their vote in a referendum without ever having considered the issue before going into the polling booth.

• A referendum does not allow consideration of alternative policies or modifications or amendments to the proposition set forth on the ballot. In contrast, legislators devote a great deal of attention to writing, rewriting, and amending bills, and seeking out compromises among interests.

• Direct democracy enables special interests to mount expensive initiative and referendum campaigns. Although proponents of direct democracy argue that these devices allow citizens to bypass special-interest-group-dominated legislatures, in fact only a fairly well-financed group can mount a statewide campaign on behalf of a referendum issue. And the outcome of the vote may be heavily influenced by paid television advertising. So money is important in both “representative” and “direct” democracy.

• Ballot initiatives also create an environment that encourages citizens to distrust their elected officials. By putting citizens in an “adversarial relationship with their governments,” they begin to criticize the regular political process and view public officials as “untrustworthy.”⁷

The chief justice of California’s Supreme Court in a speech on “The Perils of Direct Democracy” argued that there needs to be “some fundamental reform of the voter initiative process [otherwise] we shall continue on a course of dysfunctional state government, characterized by a lack of accountability on the part of our officeholders as well as the voting public.”⁸

Direct, popular participation in government in the American states has been growing in strength at the expense of representative democracy. State legislatures, and indeed state governments generally, are perceived by the American public as largely unresponsive, frequently unethical, and dominated by special interests. Whether or not this popular image is accurate, it drives the political movement toward increasing numbers of popular initiatives and referenda votes. National surveys report overwhelming support for “laws which allow citizens to place initiatives directly on the ballot by collecting petition signatures.”⁹ In American state and local government, “Participatory democracy is here to stay; there is no turning back.”¹⁰ Citizens have, in effect, become “Election Day lawmakers.”¹¹

The nation’s “tax revolt” got its start with citizen initiatives in the states, beginning with California’s Proposition 13 in 1978, a constitutional amendment initiative to reduce property taxes. “Prop 13” was funded by real estate developers, business, and agricultural interests. Opposition was led by public officials who believed the amendment would cripple public services. The political establishment was joined by public employee unions, teachers, and environmental groups, in making dire predictions about the impact of the amendment. But California voters went to the polls in record numbers to approve Proposition 13 by better than a two-to-one margin. By 1980 Democrats and Republicans across the nation were campaigning as “tax cutters.” Later, President Ronald Reagan would interpret it as part of a general mandate for lower taxes and less government, and as a forerunner to his own federal income tax cuts. But not all states joined in the “tax revolt.”

In the years since Proposition 13, however, almost as many states defeated tax limitation referenda as passed them. And California voters surprised anti-tax forces in 1998 by approving a citizens’ initiative to raise cigarette taxes by 50 cents a pack, then again in 2012 when they approved higher taxes for the wealthy. (Chapter 14 will devote more discussion to the politics of taxation.) Scholars have tried to distinguish between states in which the tax revolt was successful and those where it was not. It turns out that the states with constitutional provisions for citizen initiatives are more likely to join the “tax revolt”—that is, to pass tax limitation constitutional amendments—than states without provisions for citizen initiatives.¹² Cigarette tax increases are the exception—they seem to pass nearly everywhere, especially if the tax is earmarked for health programs for the poor.

“Getting tough on crime” has generally been popular with referendum voters. For years, the death penalty was approved everywhere it has appeared on the ballot, including Massachusetts. More recently, support for the death penalty has softened a bit. Voters in some states have been successful in prompting their legislators to reject the death penalty (New Jersey, 2007; Maryland, 2013).

Recent referendum votes have also shown that citizens are far less enthusiastic about the “War on Drugs” than most politicians proclaim to be. Governors and legislators apparently feel uncomfortable taking the lead in reducing penalties for drug possession or allowing marijuana use for medicinal or recreational purposes.

Voters in California approved an initiative statute, placed on the ballot by citizen petition, that substitutes treatment for prison as a consequence for unlawful drug possession and use. This initiative requires judges to impose probation and drug treatment, not incarceration, for possession, use, or transportation of controlled substances. Only the manufacture and sale of drugs remains a prison offense. Moreover, the initiative authorized the dismissal of charges after completion of drug treatment.

Early on voters in Arizona, California, Alaska, Colorado, Nevada, Oregon, Montana, and Washington approved referenda allowing the medical use of marijuana. By 2013, 18 states had approved medical marijuana use. (While the U.S. Supreme Court has held that federal law prohibiting such use prevails over state law, the federal government has not been aggressive in enforcing the law.) In 2012, the marijuana battle took a different turn. Voters in Washington and Colorado approved the recreational use of marijuana. It appears voters were swayed by proponents’ arguments that making it legal could raise much needed revenue (it would be taxed) and relieve overcrowded jails. Again, the U.S. attorney general expressed little interest in prosecuting these states. (The reticence of the federal government to get involved in the marijuana issue will be discussed in more detail in Chapter 3 on Federalism.)

Both abortion and physician-assisted suicide remain controversial issues among both citizens and legislators. In some states, referendum votes have prohibited the use of state funds for abortion, while in other states such a prohibition has failed. (The U.S. Congress, in its controversial “Hyde Amendment,” prohibits the use of federal funds for abortions, except to protect the life of a woman or in cases of rape or incest. See “Battles over Abortion” in Chapter 15.) Limits on abortion have been hotly contested in various state referendum votes; abortion opponents have lost more of these referendum votes than they have won. And no consensus appears to have developed in the states regarding physician-assisted suicide. In 1998, voters in Michigan defeated an initiative allowing it as did Massachusetts voters in 2012. But voters approved it in Oregon in 2000 and Washington in 2008.

Following a decision by the Supreme Court of Vermont that recognized the validity of same-sex marriages in that state, several states moved quickly to amend their constitutions to prohibit such marriages and to deny recognition to them. When a Massachusetts Supreme Judicial Court ruled in February 2004 that the state’s prohibition against gay marriage violated the state constitution, a number of other states rushed to put amendments outlawing same-sex marriages on their ballots. Referendum voters have approved such prohibitions when they have appeared on the ballot. The longest lasting amendment-related battle over same-sex marriage has been in California. In 2008, the California Supreme Court held that banning same-sex marriages was an unconstitutional denial of the Equal Protection Clause of the Fourteenth Amendment. But that same year California voters passed a state constitutional amendment, Proposition 8, declaring that “only marriage between a man and a woman is valid or recognized in California.” California officials, including the governor, refused to defend Proposition 8 in federal courts. Lower federal courts held that Proposition 8 was unconstitutional. But when the case was presented to the Supreme Court, it held on a technicality that the parties to the case had no “standing” before the Court. But the effect of the Courts decision was to let the lower federal courts’ rulings stand, thus approving same-sex marriages in California. Hollingsworth v. Perry, June 26, 2013.

Proposals to grant school vouchers to parents to spend at any school they choose, including private schools, have met with voter disapproval in several key referendum votes including California (in 1993 and again in 2000) and Michigan. These losses set back the advocates of “school choice.” However, the movement regained momentum as the number of failing schools increased, some minority leaders pushed for choice casting it as a civil rights issue, and state and local budgets needed to be balanced. But it remains a contentious issue.

No referendum issue has generated more controversy than the California Civil Rights Initiative, approved in 1996. Proposition 209 bans “granting preferential treatment to any individual or group” on the basis of “race, sex, color, ethnicity or national origin” in state employment, education, or contracting. Arizona’s Proposition 200 amendment, passed in 2004 (56% Yes vote), was nearly as explosive. It requires people registering to vote to prove their citizenship and those voting in person on Election Day to show identification. It also requires proof of citizenship or of legal residency when applying for nonfederally funded public assistance and establishes fines for state and local government employees who fail to check. Proponents (Protect Arizona Now) saw it as a way to discourage undocumented immigrants from influencing Arizona elections. Opponents (Hispanic groups such as the League of United Latin American Citizens [LULAC], the Mexican American League Defense and Educational Fund [MALDEF], and the National Council of La Raza) viewed the proposition as harassment against immigrants—both legal and undocumented. Even the Mexican government weighed in against it, predicting it “will lead to discrimination based on racial profiling while limiting access to basic health and educational services.”¹³ The antiracial-preference issue extended to Michigan where voters in 2006 also approved such an amendment. Proposal 2 prohibits giving preferential treatment on the basis of race in public education, public contracts, and public employment. The constitutionality of the Proposal was challenged in court, specifically the use of racial preferences in the admission practices of state public universities (the University of Michigan). The case was appealed all the way to the U.S. Supreme Court. Before that case was resolved, the U.S. Supreme Court ruled on another affirmative action case involving the University of Texas, Austin. The case was brought by a white female, Abigail Fisher, who sued the university after being denied admission in 2008. In Fisher v. University of Texas (2013), the Supreme Court reaffirmed its “strict scrutiny” doctrine in holding that the University of Texas, Austin, program that used race as part of an “index” for evaluating admissions applications was unconstitutional. The burden of proof that racial classifications meet strict scrutiny requirements rests with universities; lower federal courts cannot simply assume that universities are in compliance. Not all states approve anti–affirmative action proposals.

Services to undocumented immigrants have put more fiscal pressure on state and local governments than on the federal government since states and localities deliver most of the services. Arizona voters approved denying bail to undocumented immigrants charged with committing a serious felony and prohibited them from collecting punitive damages from civil suits. Colorado’s voters ratified an amendment directing the state attorney general to sue the federal government to get it to enforce existing federal immigration laws. More recently, Montana and Maryland voters approved amendments limiting services to undocumented immigrants.

Every 10 years, after completion of the Census, states have to redraw congressional and state legislative districts to reflect population shifts. Districts are redrawn to make sure each district has the same number of constituents (the principle of one person, one vote). Redistricting is often referred to as the fiercest of political battles because it sets the political landscape for the next decade. In recent years, voters in several states have been asked to approve changes to the process, often moving it out of the hands of legislators into those of an independent commission. In 2008, for example, California voters approved an amendment giving a nonpartisan independent commission the responsibility for redistricting but in 2012, Ohio voters rejected such a proposal.

Local governments have the power to “take” private property to use for public purposes (e.g., roads, schools), although the property owner must be paid for the land taken by the government. But when the U.S. Supreme Court ruled in Kelo v. City of New London (2005) that private property could be condemned via eminent domain proceedings and used for economic development purposes (which might mean taking private property for private sector gain if a developer were involved), citizens in many states were outraged. On the heels of the ruling, voters in many states approved constitutional amendments restricting such practices. (For example, California voters passed Proposition 99 prohibiting state and local governments from using eminent domain to take a person’s privately owned residence.) The issue of taking private property for economic development remains controversial, especially after the major corporation (Pfizer) that was enticed to locate in New London moved out five years later and the planned urban village development never came to fruition.¹⁴

Candidates for office are certainly attentive to issues that will be listed on the same ballot as they are for two reasons. First, they will undoubtedly have to take a public stand on them. One well-known political consultant warns: “Political candidates fool themselves into thinking campaigns are about the candidates and not the issues.”¹⁸ A candidate’s stance on a high-profile ballot issue is often an important determinant of whether that candidate will get a voter’s support.¹⁹ Second, ballot initiatives can “skew voter turnout and create competition for money, interests, and votes.”²⁰ Turnout in nonpresidential election years is higher, particularly among regular party-line voters, when a high-profile citizen initiative is on the ballot.²¹

Legislatures may be goaded at times into enacting legislation by the threat of a popular initiative. Recognizing that a popular initiative may gain a position on the ballot and win voter approval, legislatures may prefer to preempt an initiative movement by writing their own version of the policy. Indeed there is some evidence that legislatures in initiative states are more sensitive to majority preferences among voters than legislatures in states without the initiative device.²² Another threat is to rights of petition signers. In 2010, the U.S. Supreme Court ruled 8 to 1 in Doe v. Reed that ballot-measure petitions are public records and that making them so would help guard against election fraud in the petition-gathering process. The ruling stemmed from a Washington state group (Project Marriage Washington) that sued the state to keep petition signatures private so as to protect signees from harassment and harm by referendum opponents. Their petition had proposed repealing a 2009 state law giving gay and lesbian couples registered as domestic partners marriage-like benefits. The Court did, however, leave the door open to groups petitioning to keep names confidential should they be able to offer “a reasonable probability” that disclosing names would lead to threats, harassment, and reprisals.

Reformers have argued that initiative voting is becoming too common, that multiple initiatives on the ballot overload and confuse voters, that initiatives are often poorly drafted, and that voters are often poorly informed about the real purposes and intent of an initiative. They often urge that neutral voter guides be printed by the state, summarizing arguments for and against initiative questions; that the names and affiliations of major contributors to initiative campaigns be published; and that courts scrutinize titles on initiatives to ensure that they accurately reflect their purposes and intent.

Americans overwhelmingly support the initiative process. Indeed, 64 percent of Americans say that it is a good idea to let citizens place issues directly on the ballot by collecting petition signatures.

Many states have laws that allow citizens to place initiatives directly on the ballot by collecting petition signatures. If the initiative is approved by voters on Election Day, it becomes law. Is this a good idea?²³

Yet only 18 states currently have a statewide constitutional initiative process (see Table 2-4). Despite the popularity of the initiative and referendum process, legislators in a majority of states are unlikely to grant initiative rights to their citizens in the near future.

Citizen initiatives to limit the terms of public officials—Congress members, state legislators, and other state and local officials—have enjoyed great success whenever they have appeared on the ballot. The U.S. Supreme Court has held that a state cannot impose term limits on members of Congress. However, states, and citizens in states with the popular initiative and referenda, can limit the terms of their own state legislators. And indeed, term limits have usually won by landslide margins whenever they have appeared on referenda ballots (see Table 2-6).

Opponents of term limits, including state legislators themselves, have pursued

the two-pronged strategy against the measure: persuade the voters to reject it and, if that fails, persuade a court to declare it unconstitutional. Supporters of term limits clearly have public opinion on their side. (See “Did You Know? Term Limits Are Still Controversial.”) And voters are not at all supportive of legislators’ efforts to relax term limits once they have been voted in. In 2004, citizens of Arkansas and Montana overwhelmingly rejected proposals to allow legislators to serve longer before being “term-limited” out of office. And in 2012, West Virginia voters rejected a legislative proposal to eliminate term limits for sheriffs.

Constitutional arguments against term limits have led to prolonged litigation in the courts. Opponents argued that term limits placed an unconstitutional barrier on the right to be a candidate for public office, and that they violated the right of voters to cast their ballots for candidates of their choice. These arguments were rejected first by the California Supreme Court, and later by the U.S. Court of Appeals (together with the argument that voters did not understand what they were voting for on term limits referenda).²⁴ The U.S. Supreme Court has declined to hear appeals of cases upholding the constitutionality of term limits.²⁵

When the voters of Arkansas adopted a state constitutional amendment in 1992 setting term limits for their U.S. senators and representatives, the U.S. Supreme Court ruled in 1995 that this action violated the U.S. Constitution by setting forth qualifications for Congress members beyond those found in Article I. Only three qualifications are specified in the U.S. Constitution: age, citizenship, and residence. (The Arkansas term limit amendment actually set qualifications for eligibility for name placement on the ballot; Arkansas argued that this was a permissible exercise of power to regulate “times, places and manner of holding elections” granted to the states in Article I. But the Court dismissed this argument as an “indirect attempt to accomplish what the Constitution prohibits.”) The Court held that a state cannot limit the terms of members of Congress:

Justice John Paul Stevens, writing for the majority in the controversial 5–4 decision, set forth two key arguments in opposition: first, that the power to set term limits is not among the powers reserved to the states by the Tenth Amendment, and second, that the Founders intended age, citizenship, and residency to be the only qualifications for members of Congress.

The ruling was rather disappointing to many Americans. Polls show that 75 percent would vote for a law limiting the number of terms of U.S. Senators and Representatives. Support for term limits differs little across party lines (82% of Republicans, 79% of independents, and 65% of Democrats).²⁷

Term limits are taking their toll on state legislatures in the 15 states across the country that have them.²⁸ Significant numbers of state legislators have been “term-limited” out of office, resulting in an increase in the number of “freshman” legislators in most of them (Arizona, California, Florida, Maine, Michigan, Missouri, Ohio, Oregon, and South Dakota).

State legislators themselves are strongly opposed to term limits. The National Conference of State Legislatures reports that 83 percent of state legislators polled oppose term limits. Even many of those who originally favored limits now say they were mistaken: “Originally, I believed that fresh blood would be good; however, experience, understanding of the process and historical knowledge are lost. The same debates occur year after year.”²⁹ Another complaint is that eight-year terms encourage early and continuing political jousting for leadership positions (e.g., speaker of the House, presiding officer of the Senate, key committee chairs). A majority of legislators say that term limits have added to the influence of legislative staff and lobbyists. However, interestingly, both staffers and lobbyists oppose term limits; staffers fear losing their jobs when new legislators bring in their own new staffers, and lobbyists must work to establish new relationships with new legislators rather than rely on old acquaintances in the legislature. Some legislatures report taking proactive steps to mitigate the inexperience of new legislators by initiating pre-session training into the legislative process.