American Constitutional Exceptionalism Revisited
University of Virginia School of Law
Johns Hopkins University
March 26, 2014
81 University of Chicago Law Review 1641 (2014)
Virginia Public Law and Legal Theory Research Paper No. 2014-28
The U.S. Constitution is a global outlier. Its omission of positive rights, its brevity, and its remarkable duration and stability make it exceptional by global standards. The uniqueness of the venerable document has spurred a passionate debate over America’s constitutional exceptionalism.
In this Article, we show that not all of American constitutionalism is nearly so distinct. Over the past two centuries, Americans not only wrote the federal Constitution, but have also written 149 state constitutions and approved thousands of amendments to these constitutions. These state constitutions are also an essential part of the American constitutional tradition, and yet, are unexceptional by global standards.
We draw on original data based on our own hand-coding of all state constitutions ratified between 1776 and 2011 to provide the first-ever systematic comparison of U.S. state constitutions to the world’s national constitutions. Using these data, we highlight three features of state constitutions that should prompt reconsideration of America’s constitutional exceptionalism. First, like most of the world’s constitutions, state constitutions are rather long and elaborate documents that set out government policies in painstaking detail. Second, like most of the world’s constitutions, state constitutions are frequently amended or overhauled. Third, like most of the world’s constitutions, state constitutions contain positive rights relating to, e.g., education, labor, social welfare, and the environment. Thus, at the state level, Americans have written their constitutions much like everyone else.
Our findings invite reconsideration not only of America’s alleged constitutional exceptionalism but also of the nature of state constitutions. State constitutions are frequently derided for falling short of the example set by the federal Constitution and dismissed as statutory rather than constitutional in character. Our analysis suggests that the defining features of state constitutions do not merely represent a subnational mode of constitution-making, but define national and subnational constitutions alike. Moreover, these features represent an underappreciated mechanism of constitutional design that emphasizes flexibility and specificity over the entrenchment of higher-order principles.
Number of Pages in PDF File: 67
Keywords: comparative constitutional law, state constitutions, american exceptionalism
JEL Classification: H1, K1
Date posted: March 26, 2014 ; Last revised: January 29, 2015