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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.
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).
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