Between you and the word
Common people in medieval times were often given prayer books rather than bibles by the church because the church didn’t want them reading and interpreting it for themselves. Clergy believed God’s word was too complex and too holy for common people and that only the clergy should see the scriptures. The publication of Martin Luther’s 95 Theses in 1518 gave the ordinary person a chance to have a more personal relationship with God. Likewise, attorneys and the professional class who know the formal language of laws and lawmaking often become members of legislative bodies. The language they use in laws can also be exclusive and excluding. Then as now, documents that govern the lives of ordinary people need to be accessible and understandable.
What do people care about?
There is little content on YouTube that explains how state constitutions are different from the federal constitution. Or how state constitutions differ from each other. A YouTube visitor using the search term “state constitutions” would not make it through the second page results before noticing them change from general to specific.
People are very interested in how religiously based state constitutions are. Or how state versus federal laws concerning sex discrimination compare. Many states including Montana and Ohio, have had public discussions about state sovereignty. Questions of abortion and property rights are common. And the concern for gun rights and the authority for gun ownership is also a heavily discussed topic. But the lack of discussion about state constitutions in general could lead a casual observer to believe that state residents care about their constitutions only when an issue directly threatens their quality of life.
Americans seem much more engaged in the US Constitution than their own state constitutions, even though state constitutions can have a much more direct effect on their day to day lives. A citizen might be marginally upset that a foreign policy decision commits US troops to a conflict. But that same citizen will take up a sign and march in the street if their state legislature votes to add fluoride to their town water supply. In other words, people sometimes seem less concerned with things done in their name than with things done to their lives.
Intrusion is the mother of vigilance
In 2005, it was publicly announced that the Bush administration had initiated several domestic surveillance programs that targeted telephone calls and email. The most notable at the time was the warrantless wiretap program, codenamed “Stellar Wind” which began after the 9/11 attacks and ended after it became public in 2007. But there were a host of others, including the “Real Time Regional Gateway”, “ThinThread”, “Trailblazer”, “Turbulence”, “Blarney”, “Boundless Informant”, “X-Keyscore” and “ECHELON” among others. And during this time, the legislative and judicial branches of federal government were nearly mute as the executive branch pushed through measures said to increase domestic security.
In 2011 came the revelations of Bradley Manning, Julian Assange and the Wikileaks disclosures. Releases of diplomatic cables by the anti-secrecy organization exposed what the US sometimes says it must do in our name to exert and maintain influence or protect strategic interests and the Constitution. But what about state constitutions? How do they interact with or counteract Federal influence? Many people see state constitutions as backstop against the relatively soft protections in the federal document. The Rhode Island constitution seems to say as much:
“The enumeration of the foregoing rights shall not be construed to impair or deny others retained by the people, The rights guaranteed by this Constitution are not dependent on those guaranteed by the Constitution of the United States.”
Rhode Island Constitution, Section 24
In 2013, more revelations of government spying came from NSA contractor Edward Snowden regarding surveillance programs code-named “Bull Run”, “Prism” and “Muscular”. All were updated versions of the earlier programs that now included monitoring of social networks and the Internet. Although some of these programs were begun during the Bush administration, they continued during the Obama administration. The “little brothers” responsible for all of our passwords and content, namely “Google”, “Yahoo” and others were (insert “Casablanca” reference here) “Shocked” to discover the NSA has used back doors into user accounts as well as international data access points for their own networks.
And there was the “Five Eyes” program in which trans-nation actors such as Canada, Great Britain, New Zealand and Australia, along with the US agreed to surveil their piece of the world and share information once a year with the promise to not spy on each other. As events have unfolded, honor among spies may be no better than honor among thieves.
State and federal constitutions should police each other
What effect does the sovereignty clause in Article IV, and in the Tenth Amendment of the US Constitution have on state constitutions? Could or would states resist the federal tendency to gather as much data it can about their citizens or do it in secret? And if the federal government tried to coerce them to do so, would states resist in the interest of protecting citizen civil rights and civil liberties?
This emphasis on state constitutions is not to say that they are necessarily better than the national constitution. If a preamble is a sample of a state’s promise to its people, it is clear that some states view issues of citizenship, freedom, liberty, individuality, religion and commerce very differently from the national constitution and each other. But one truth of all state constitutions is that they are the basis for all other state law. As such, they must show the latest executive, legislative and judicial changes as they affect the lives of the people within their borders. Citizens should have the chance to keep current on both state and federal constitutions and, if necessary, use one to police the other. A national constitutional issue may compel states to make legislative change for the better, whereas a collection of states that amend their laws in a common direction may compel the US Supreme Court to hear a challenge to amend national law or legislators to consider a change.
State constitutions are not always easy to find
Finding where a constitution originates within state government isn’t always clear. For example, the Vermont Secretary of State links to the Vermont State Constitution which originates at the Vermont Legislature web page. Although there are many versions of state constitutions available on line, state constitutions.us only links to versions originating from one of the three branches of official state government.
Half of state legislatures maintain their constitutions since it is they who are responsible for creating and managing the laws. Sometimes, state constitutions are maintained by the lieutenant governor or secretary of state, which are offices of the executive branch. But states do not offer equal access to their constitutions. While some states provide more than one access to more than one version of their constitution, many states offer only a single access point which may not be that easy to find. Also, a state constitution itself may have no direct URL meaning a user must go through another portal to reach it or use a search box to find it.
The availability of paper versions can also be spotty. About 44% (22 of 50) of states sent free, printed copies of their state constitutions upon request. Three charged between $2 and $14 for a printed copy. One referred to the Internet. Overall, 26 of 50 requests made directly to state legislatures for written copies of constitutions were responded to either directly from those legislature or through the forwarding of those requests to other branches of state government, such as a secretary of state. Ten of those respondents replied to follow up questions of how often requests for paper constitutions were made, or how often web versions were accessed. Eight of 10 respondents indicated they do not keep track of those numbers.
A variety of third parties also offer links to state constitutions through their websites for commercial purposes. They include v/lex, LexisNexis, Justia US Law, USLegal and the Colorado Research Service among others. Also non-profits such as Ballotpedia, the Land Institute, Felon Voting, whpgs.org, the Avalon Project, the League of Women Voters, ncsl.org and the NBER/Maryland State Constitutions Project provide pdfs or hyperlinks to other versions. A number of other individuals and entities have created websites that link to versions of state constitutions including the patriotactionnetwork.com, greenpapers.com, patrickcrusade.org, 50states.com, stateconstitution.com and paralegal.net among them.
State constitutions are not always easy to use
All states make their constitutions available as either text, html or pdf files. Some state constitutions use hyperlinks or frames for these files. But since those only open specific segments rather than the whole document, both can offer limited rather than full access to the entire document at any one time. This can make using frames and hyperlinks to search or print very time consuming. Some states provide search boxes that lets users input keywords to find what they’re looking for. However, because users may not use the same language as legislators, search boxes can prove difficult for users unfamiliar with the document in general or a subject in particular.
Government; aid or hinderance
Some experts, such as Dennis Pohill, suspect legislatures make citizen involvement more difficult than it should be. Mr. Pohill is a Senior Fellow for Public Infrastructure for the conservative Colorado based public policy think tank, the Independence Institute. In an email, he was asked if it seemed to him that legislatures are not always happy to engage passionate and informed citizens. His reply: “Do legislators want an informed populace? I don’t know. Because they generally have the attitude that they know best, they do tend to move in the direction of throttling the citizenry. They would probably deny it … and they might even pass a lie detector test asking that question. If so, that just means they are unaware that their actions are as anti-democratic as they tend to be.”
Issues of civil rights and civil liberties related to the most recent surveillance disclosures are frequently part of the public discussion. It is not surprising that legislators need occasional goosing to do what so many of them are fond of calling “the right thing” regarding scrutinizing alleged government overeach. But these revelations are not new. A recently released NSA report showed that former Senator Frank Church (D-ID) had warned the American people in 1975 that the government’s appetite for surveillance could easily be turned on citizens. But Senator Church, a critic of the Vietnam War and chairman of the Senate Intelligence Committee, didn’t know he was being monitored by an NSA program called “Minaret”. It is an example of how governments have always walked a thin line between collecting information on behalf of its people and collecting information about its people.
Glen Greenwald, the reporter who broke the Edward Snowden story was interviewed by National Public Radio in September 2013 about just how thin that line may be. “There is a temptation on the part of every power faction to try and exploit the Internet to erode privacy and to increase their own surveillance and I think that a lot of vigilance is going to have to be devoted to these alternatives as well to make sure they don’t end up being as bad, just in different ways”. This danger was echoed by philosopher Noam Chomsky when he told the Guardian newspaper in June 2013, “Governments should not have this capacity. But governments will use whatever technology is available to them to combat their primary enemy – which is their own population.”
One of the problems with such abuses and incursions into the lives of individuals is that over time, they may grow so numerous as to become mundane. And mundaness is something the government seems to promote, whether by declaring that a particular program is based on some long established precedent, or that it serves a larger and immutable public good. The Grand Inquisitor in Dostoevsky’s “Brothers Karamazov” tells his prisoner that people can eventually become accustomed to anything.
Still, the United States is one of a handful of nations where almost anything we seek we can find, including copies of our laws and access to our legislators; a point highlighted by conservative commentator Charles Krauthammer. He said in an interview with the Washington Post in June 2013, “The problem here is not constitutionality…. We need a toughening of both congressional oversight and judicial review, perhaps even some independent outside scrutiny. Plus periodic legislative revision – say, reauthorization every couple of years – in light of the efficacy of the safeguards and the nature of the external threat. The object is not to abolish these vital [surveillance] programs. It’s to fix them.”
Tools, plan and hands
Many state constitutions share this sentiment, but none say it better:
“A high degree of intelligence, patriotism, integrity and morality on the part of every voter in a government by the people being necessary in order to insure the continuance of that government and the prosperity and happiness of the people,…”
North Dakota Constitution, Article Eight, Section One
State constitutions can present a contradiction to the average person. On one hand, they are in plain sight and are by definition by, of and for the people. But on the other, they can be so large and intricate as to seem inpenetrable. Ultimately, we are responsible for the efficacy of our government. It is hoped that stateconstitutions.us will encourage people to engage these source documents that are the basis for our country at a state level. Like Martin Luther’s 95 Theses, this site intends to contribute to a more involved and informed population pushing more responsive and reponsible leaders toward more functional, efficient, fair and compassionate leadership.