A state constitution forms the fundamental law of the states. The document embodies the principles and values by which the people live and serves as a blueprint for government policy. It provides the basic framework within which all other laws are enacted.
A constitution may be amended through a constitutional convention or initiative petition (initiative). Article V of the United States Constitution allows amendments to be proposed either directly by Congress or indirectly by a Constitutional Convention called by two-thirds of both houses of Congress.
This article discusses how a state constitution can be written and what happens after it’s drafted.
State Constitutions – Who Writes Them?
The first step in writing a state constitution is selecting a body with the authority to write one. This group might consist of representatives from each political party that holds at least 50% of the seats in the state legislature. Or, it could include members appointed by the governor who has been approved by voters statewide.
In some cases, the task falls to an independent commission rather than elected officials. Legislation passed by the state legislature may create these commissions.
Once chosen, this body writes up a draft constitution. This draft must then undergo several revisions before being ratified by the state’s citizens. One such revision occurs during the drafting process itself.
For example, if the drafters want to provide more power to their general assembly, they will need to add new sections to the constitution. Similarly, if they decide to strip certain powers away from the legislature, they’ll need to delete those provisions. This type of change often requires a supermajority vote to pass.
After the initial drafting phase, another round of changes occurs when the citizenry reviews the constitution and decides whether to adapt it. The entire process may take years, but there is no guarantee that the final product won’t be changed between the time the constitution was written and the day it is finally adapted.
Often, a constitution needs to be revised to reflect changing social norms and circumstances. Consider, for instance, the fact that many states now allow same-sex marriage. If the drafters had waited until the constitution was finalized before amending it, they would’ve ended up with an outdated document that didn’t correctly address these developments.
When Is a State Constitution Adapted?
If your state has already completed its constitution drafting process, you’re probably wondering when exactly this document became effective.
The constitution goes into effect whenever enough people sign petitions calling for a special election on the issue. However, this only applies to those states where multiple signatures equal one percent of the total number of votes cast in the last gubernatorial race.
Once this threshold is met, the question becomes part of the ballot measures and gets voted upon by the electorate. So while constitutions are generally effective immediately following adaption, they don’t always go into force right away.
For those states that require a separate legislative session to ratify the constitution, the timing varies based on the rules governing the process. Some states require a two-thirds majority vote in both the house and senate. Others use simple majorities.
After the amendment’s passage, the constitution enters into force once signed by the governor. Another method that some states employ is to hold a popular referendum on ratification. Voters can approve or reject the changes made to the document.
How Are They Written?
As mentioned earlier, state constitutions vary widely from state to state. But regardless of the differences, every constitution shares a common structure. Generally speaking, a state constitution consists of three parts:
The Preamble: The Preamble of a state constitution sets out the fundamental principles that guide the government of that state. It is often considered one of the most critical parts of a state constitution, as it lays out the basic rights and liberties that all people in the state are entitled to.
The Preamble to the Constitution of Texas, for example, states that “All political power is inherent in the people, and governments derive their just powers from the consent of the governed.” This means that Texans believe that the government should only have as much power as is granted to the people it governs.
And importantly, it also guarantees that all Texans are entitled to certain basic rights and liberties, such as freedom of speech and religion.
Declarations of Principle: The state constitution structure should be based on declarations of principle that promote the general welfare and common good. These declarations should be designed to provide a framework for government that is fair, effective, and accountable.
The principle of self-government should be at the heart of the state constitution. This means that the people are sovereign and have the right to govern themselves. The government should be based on the principle of popular sovereignty, which holds that all power belongs to the people and delegates it to representatives through elected officials.
Amendments: To propose an amendment to the state constitution, registered voters must sign a petition equal to at least five percent of the total votes cast for governor in the last gubernatorial election. A majority must then approve the proposed amendment of voters at the next general election.
If two-thirds of both houses of the legislature pass a proposed amendment, it is placed on the ballot as a referendum at the next general election, and it becomes law if approved by a majority of voters. Note that this two-thirds majority is not required to propose amendments but only pass them into law.
In short, the preamble sets out the purpose of the constitution. Declarations of principle are broad statements about the ideals and values the state wishes to uphold. Finally, amendments modify the original text to reflect current conditions and trends.
Since constitutions are meant to serve as guides for future generations, they should strive to evolve to remain relevant over time continually.
Because of their importance, constitutions are also known as “the Law.” Thus, any legal disputes involving them are referred to courts of law and not arbitration.
Unlike arbitrators, judges apply the standards outlined in a constitution to determine what actually happened. As such, a judge will look to the wording used in a constitution and interpret it according to the plain meaning of the words themselves.
Writing a state constitution is a complicated business. To recap, the process begins with choosing a body to write one, followed by a series of drafts, edits, and revisions before the constitution are finally accepted by the state’s citizens. While individual states differ significantly, most states’ overall process remains similar.