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Special Report
Are the States Different?
You bet they are. The third in a series of essays on our ever under-appreciated federal form of government.
This is the third in a series of essays on our federal form of government. The first, “Sister States-Fellow Citizens,” considered the history of the formation and admission of states equal to those of the Original Thirteen. The second, “Strengthening Federalism,” suggested ways in which we could enhance structures and processes to strengthen our federal form of government. This third essay considers the differences between the states.
One test for the vitality of federalism is whether the states are free of mandates from the Federal Government. Another is whether there are substantial differences among the states.
We are not talking here about the differences that would exist even if we had a unitary government, that is, differences of geography or natural resources or ethnic make-up. Some have cold climates and others hot. Some are humid and some dry. Some are mountainous and some flat. Some are forested and some not. Some, even an interior state like Michigan, have long shorelines, and some are landlocked. Some are agricultural and some industrial. Some have coal, some have oil, some have fish, and some do not.
Of course, some have large populations and some small. Some have a large number of square miles (Alaska, Texas) and some have a small number (Rhode Island, Connecticut). Some have long borders with Mexico, some with Canada. One is close to Russia and one close to Cuba.
Some have large numbers of residents of German ethnicity, some Norwegian, some Hispanic, some Vietnamese, etc.
Many differences in the laws and governmental structures of the states are derived from their history before joining the Union. Of the original 13, three had been governed by Holland (New York, Delaware and parts of Pennsylvania) and one by Sweden (Delaware). Pennsylvania and Delaware shared royal governors. Some were admitted in 1787 (Delaware, Pennsylvania, New Jersey) and others as recently as 1959 (Alaska, Hawaii). Before admission, one had been a monarchy (Hawaii), others had been independent republics (Vermont, Texas, California), a theocracy (Deseret, Utah). A number had been French as part of the Louisiana Purchase, a number had been part of Spain or Mexico, some came from Great Britain long after the Revolutionary War (Washington, Oregon and parts of others), Alaska was purchased from Russia, some had been part of other states (Kentucky from Virginia, Maine from Massachusetts, West Virginia from Virginia), and some were formed from land claimed by other states (Tennessee from North Carolina, Midwestern states). The theme park, “Six Flags Over Texas,” refers to the flags of the six different nations that have governed the land occupied by the State of Texas: Spain, France, Mexico, the Republic of Texas, the United States of America, and the Confederate States of America.
Of course, some were admitted as free and others as slave states. Some attempted to secede and were readmitted. This history, too, affects their laws and institutions.
One most obvious result from this history is the variations among the states concerning “private law.” Thus, California and a number of Western states incorporate Spanish laws, such as “community property.” Louisiana incorporates Napoleonic Civil Code and looks to France and Quebec for their interpretations.
The laws of the states are hardly uniform across the country and they are of a much wider scope than federal legislation, covering such topics as personal injury, consumer protection, domestic law, criminal law, real property, insurance, education, taxes and election law. We can touch only exceedingly briefly on this. In the extended Democratic presidential primary season in 2008, we witnessed a wide spectrum among primary laws. (See my essay on these pages.) We are familiar with the changes in health law wrought in Massachusetts under Governor Romney. In the context of the attempt by Governor McDonnell of Virginia to privatize liquor distribution and sales, we know a number of states share Virginia’s monopoly. In the context of Governor Walker’s efforts to remove some collective bargaining rights in Wisconsin, we know that a number of states have not created such rights and a number of others have. Maryland is one of three states that allow governors to overrule parole recommendations for criminals serving life sentences. Michigan is the only state where the state does not exercise a monopoly on gaming. One state, North Dakota, owns a bank. Vermont is the only state that does not have a balanced budget requirement. Hawaii has two official languages under its constitution: English and Hawaiian. Seven states have no income tax. In 1993, Michigan repealed property taxes as a method of funding local schools.
Every state has some history of “firsts.” Wisconsin, for example, was the first state to enact a law on workers’ compensation, start kindergartens, adopt an income tax, and regulate utilities. California recently adopted its Global Warming Solutions Act. For every development in law and government among the states, some state had to have been first.
A single state, Delaware, through its Chancery Court, has become the dominant voice in deciding questions of corporate governance. Over half of the largest American corporations choose to incorporate under the laws of Delaware.
We should make the following observation. We think of the states as consisting of all land within their perimeters. In fact, one-third of the land within the states is subject to the jurisdiction of the Federal Government. In 1982, during the “Sagebrush Rebellion,” the National Geographic Society published a map showing federal lands consisting of Indian reservations, national parks, national forests, military properties, and more. There appeared in the press at the time a picture of Nevada showing the non-contiguous 8% of the land within the state’s perimeter actually governed by the citizens of Nevada. The General Services Administration publishes a “profile” which, among other things, includes a list, by state, of the amount of federal land within a state. For example, in 2003, the Federal Government owned 92% within Nevada, 66% within Utah, 50% within Oregon and Wyoming.
As noted, Indian lands are not under state, but rather federal, jurisdiction. There are more than 500 federally-recognized American Indian tribes in the United States, each established under a constitution unique to the tribe.
CONSTITUTION
Let’s
proceed to a short examination of structural differences. They
begin with the state constitutions. Each of the 50 American states
has a written constitution. Alabama’s 1901 constitution is 357,000
words long. (For the sake of comparison, the U.S. Constitution is
7,500 words.) Each of these constitutions is a source of
“constitutional law” — different from federal constitutional
law.
While each state has three branches of government, there are salient variations. Let’s explore these briefly. Two useful texts in this regard are: T. Little and D. Ogle, The Legislative Branch of State Government (2006) and M. Ferguson, ed., The Executive Branch of State Government (2006).
Letter to the Editor View all comments (13) | Leave a comment
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Pecos Pete| 4.7.11 @ 8:23AM
Excellent article.
If we could remove the federal government from managing the states we could allow the stew of states' rights to bubble. The USA would return to our historical economic power engine.
Gordon W.| 4.7.11 @ 9:37AM
Pecos Pete, what laws should be redacted to allow for our economic power engine to get going. How would more differentiation amongst the laws of states increase economic growth and which duties and obligations would you cede to the states to achieve this.
ncatty| 4.7.11 @ 10:08AM
Thank you for the civics lesson Mr. Thunder. This is an excellent summary.
Occam's Tool| 4.7.11 @ 12:04PM
When I retire, I plan to move over the State line and retire in North Dakota, probably in Fargo. Nice people, non-annoying government with low taxes, good shopping, good food and easy to get around, with access to good medical care. I love my job, but Minnesota taxes are too high for a retired person.
Hint: the winters can be rather easily dealt with if you are prepared for them. North Dakota does.
RCV| 4.7.11 @ 12:25PM
Occam - As I mentioned, I have a close friend who lives in Fargo, and loves it. (Today he's probably filling sandbags with the rest of the residents, so keep him in your thoughts and prayers.) Not my cup of tea, but I can fully understand its attraction.
RCV| 4.7.11 @ 12:29PM
Mr. Thunder: Thanks for a fascinating catalogue of both historic and structural differences in our fifty states -- and you only scratched the surface. But one of the sad realities of our age is the increasing homoginization of the people and culture in the fifty states. Each year, it becomes more and more difficult to figure out where you are when you travel, as malls all look the same, hotel and food places are taken over by national chains, and people's mobility allows them to switch states at will and bring their old cultures with them. I'm old enough to miss the days when a trip to New Orleans or Montgomery was a world away from a trip to Chicago or Milwaukee. Much less so today. The same is true on the international level, at a frightening pace. Vive la difference!
Al Adab| 4.7.11 @ 1:29PM
We should indeed make great effort to recognize and celebrate the diversity of the state governments and the various personalities the states exhibit. Strange that it is the "Diversity" crowd who most oppose the heterogenous nature of Federalism. We should examine the state policies and tax codes to see which best serve their respective publics; which are more prosperous and free; and which allow the greatest opportunity for people to advance themselves. Those policies then could become the model for the national government to follow. If the wine is sour, throw it out, but if sucess follows actions then those actions should be emulated.
MOS was 71331| 4.7.11 @ 2:38PM
The U.S. Supreme Court is bound by the U.S. Constitution, Article 3, Section 2, to hear only "cases or controversies." Under Part II, c. 3, art. 2, of the Constitution of the Commonwealth, as amended by art. 85 of the Amendments, "[e]ach branch of the legislature, as well as the governor or the council, shall have authority to require the opinions of the justices of the supreme judicial court, upon important questions of law, and upon solemn occasions."
I believe Article 3, Section 2 of the US constitution should be amended similarly to allow either portion of the US congress or the president with respect to bills that have been passed and are awaiting his signature to request the advice of the Supreme Court.
Dee See| 4.7.11 @ 10:16PM
"Whether you realize it or not folks,
we are already under a soviet world government.
No kidding. The real decisions, the big decisions
are made by people you never vote for,
people who are utterly unaccountable.
These people, to a man, are Social Darwinists,
EUENISTS. These people are a bunch of
inbred, inter-generational,
inter-national psychopaths. Really. It's over."
-ALAN WATT
(essential online coverage as it unfolds)
To INTER meaning ---to bury.
Keep a goin' kids
-----------as the borders dissolves
---------------as fallout falls
--------------------as your dollars and pensions
evaporate
---------------------------JUST KEEP A GOIN'
Cause everything's just DANDY!--------------------
Pelligrino| 4.8.11 @ 5:12AM
RCV is right. We see and experience much too much sameness. Every city over a population of 60,000 now has a six lane throughway with lots of traffic lights that goes for over 2 miles with nothing but chain eateries, hotels, gas stations, pharmacies, and strip malls with the same you have in your city although it is 2,195 miles away.
And the local TV news and radio commentators speak with less regional accents. How sad.
Mr. Thunder I appreciate the article and will have to chew on it for a bit. But my initial thoughts are: We are more homogenous than we know -- or what is healthy for our own good. Despite the intracacies of strong or weak governors, line item veto powers, etc. the US national government has its tentacles into EVERYTHING.
And this constrains all our states from being more vibrant, more true, more unique (and more successful).
Example: If Governor Rick Parry of Texas were really a man, he'd lead and seal up all aspects of Texas' border with Mexico, kill off/war against the drug cartels in Texas, boot all illegal back on their asses across the border, and do even more to make Texas the economic juggernaut it could be.
He needs no real US national government aid to do any of this. Texas has an abudance of people and monetary resources. And the Army Texas National Guard is quite sizable. They'd get the job done.
Problem is: He and all governors/state legislators/big businessmen/guardsmen, etc. are held hostage by Washington and legions of regulations and bureaucrats. AND monies. AND lands (US lands in Texas), resources.
All governors are blackmailed and bribed. (In bailouts and stimulous $billions, US 'Federal' tax revenues, -- it is all "Hush Monies.")
Is this not what the US Dept. of Justice is doing with Arizona on a number of issues? And to Oklahoma over the "No Sharia Law" election day result?
Timely Renewed | 4.9.11 @ 6:29PM
All this wonderful diversity means nothing if we do not restore the Constitution's original allocation of power to the States. Unfortunately the constitutional framework Mr. Thunder describes has been so misconstrued and abused by over 70 years of progressive control of the Supreme Court and other branches of the federal government that legislative action to devolve power from the federal government is not enough. We need to promote amendments to the Constitution to restore its original meaning and structure.
The first step is to amend the amendment process itself to eliminate the unnecessary convention now required by Article V and permit States to directly initiate amendment proposals. This will break the current de facto federal congressional and judicial monopoly on interpreting the Constitution, and permit grassroots patriots on the state level to restore the Constitution by amendment. Only this will permanently constrain future federal overreach of the sort rejected by the people in November. See http://www.timelyrenewed.com
ckdo | 4.11.11 @ 3:22AM
Good summary of the situation.
Thanks for this article
Creative Recreation | 8.10.11 @ 10:40PM
is good