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.

By 4.7.11

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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).

LEGISLATURE
Forty-nine of the states have bicameral (two-chamber) legislatures. Nebraska's legislature is unicameral -- and it is also nonpartisan. Nebraska has only 49 state legislators.

The state legislatures vary in numerous other ways including: the length of sessions (Montana's meets for no more than 90 days every other year); the size of the upper chamber compared to the size of the lower chamber; the length of terms for each chamber; and term limits. The legislatures vary in size in an absolute sense and as a ratio of citizens to legislator. Thus, New Hampshire's lower house has 400 members. Because it has a small population of 1.3 million, each New Hampshire legislator represents only 3,000 residents. Back in 1980, the current governor of Illinois, Patrick Quinn, led the "The Coalition for Political Honesty" in its successful effort to reduce the size of the Illinois House from 177 to 118 members. (As an aside, the number of U.S. Representatives, 435, is fixed by statute, not by the U.S. Constitution. An argument could be made that 435 is too large to be effective.) Some states (Maine, Connecticut, Massachusetts) employ a committee system that is bicameral -- each committee drawing members of both chambers.

Under Article IV, Section 4, the United States Constitution guarantees to each state a "republican form of government." A "republican" form of government need not be presidential. A state could adopt a parliamentary system, a system in which the chief executive of the state would be chosen by the legislature (as obtained under the first, the 1776 Constitution, of North Carolina) and whose tenure in office would be subject to the legislature's confidence. There are non-monarchical parliamentary systems, such as Israel's.

A state could also adopt, consistent with a "republican" form, a system of proportional representation where a candidate obtaining fewer than the majority or plurality of the votes may still win office with candidates who obtain more. Some states have multimember districts (which is not a federal level phenomenon). Before the 1980 changes noted above, Illinois allowed "cumulative voting" for its House elections.

Western states, including California, adopted the initiative and the referendum, Progressive measures in the early part of the 20th century. (Arguably these are contrary to a republican form of government.)

EXECUTIVE
Before then Texas Governor George W. Bush formally began his campaign for president, it was said that the executive under the Texas Constitution was "weak" -- as were all those gubernatorial offices established under the constitutions of the readmitted Southern states. There are various criteria used to evaluate the executive as "weak" or "strong." One criterion is the length of tenure. For the hundred years before 1972, Texas was only two years. Vermont and New Hampshire currently have two-year terms. The states vary in the number of terms allowed. On one end of the spectrum, a handful has no term limits. On the other end of the spectrum, one state, Virginia, limits its governors to one term. Some states which limit the number of consecutive terms, allow a prior occupant to be elected. Thus, in Alabama, Governor Wallace served 1963-67, 1971-79, and 1983-87. (His successor after his first term was his wife, Lurleen.)

Another criterion by which "weak" versus "strong" is evaluated is the number of statewide officers who are elected, separately accountable to the people. Texas, by this criterion, has a "plural executive" -- with the lieutenant governor, attorney general, secretary of agriculture, comptroller of public accounts, and commissioner of the general land office all elected separately.

Another criterion is whether the governor possesses veto power, particularly the line item veto power possessed by 43 governors. Under a 1995 constitutional amendment, North Carolina was the last state to grant its governor the power to veto legislation. The Texas governor is one who does not possess line item veto power. President Reagan often requested it for U.S. presidents.

If a candidate for governor does not obtain a majority, some states hold runoffs. Others, like Arizona, allow the candidate with a plurality to assume office. Others require the legislature to vote for the governor -- as occurred in Vermont this year.

Turning to the office of lieutenant governor, we observe that a handful of states do not have such an office. Apparently, they would agree with U.S. Vice President John Nance Garner who once described the vice-presidency as "not worth a bucket of warm p**s." But this characterization would not fit the duties of the lieutenant governor in many of the states where they have a strong legislative presence. Indeed in Tennessee and West Virginia, the lieutenant governor is elected by the legislature. For decades in the 20th century, the lieutenant governor of Tennessee appointed the leaders of the legislature. In 26 states, the lieutenant governor serves as the president of the upper chamber. In seven states the lieutenant governor appoints senators to membership on committees. Twelve states allow the lieutenant governor to assign bills to particular committees. In California, the lieutenant governor, who may be of a different party, may approve or disapprove legislation while the governor is out of state.

JUDICIARY
A principal difference between (some) state courts and our federal courts is that, in Massachusetts and a handful of other states, the highest court of the state may render advisory opinions -- in contrast to the U.S. Supreme Court which is bound by the U.S. Constitution, Article 3, Section 2, to hear only "cases or controversies." For example, in a fairly recent development, the Massachusetts Senate requested an opinion on the constitutionality of a law that would grant civil union status but not marriage status. The court replied on February 3, 2004, beginning with the following language:

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." "[A] solemn occasion exists 'when the Governor or either branch of the Legislature, having some action in view, has serious doubts as to their power and authority to take such action, under the Constitution, or under existing statutes.'" Answer of the Justices, 364 Mass. 838, 844 (1973), quoting Answer of the Justices, 148 Mass. 623, 626 (1889). The pending bill involves an important question of law and the Senate has indicated "grave doubt" as to its constitutionality. We therefore address the question…

Another salient difference obtains in Vermont, a state which employs lay judges (more properly, "assistant judges") according to its 1791 constitution.

There is a current, and recurring, debate over whether state judges should be elected or, as with all federal judges, appointed. Retired Supreme Court Justice Sandra Day O'Connor is campaigning for an end in the states to popular elections of judges. (In South Carolina, the legislature elects judges.) At the same time, voters in Iowa exercised their franchise in November 2010 to turn out three of their Supreme Court judges. And we've just seen what happened in Wisconsin.

CONCLUSION
A foreign friend once remarked that the 50 states are all alike. No, they aren't. When we address the "state of the Union" we ought to refer to the vibrancy of our 50 states.

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About the Author
James M. Thunder is a Washington, D.C. attorney.