Subnational Constitutionalism in the United States

James A. Gardner, Subnational Constitutionalism in the United States, in Subnational Constitutions, Popelier, Delledonne & Aroney, eds. (2020), Forthcoming

University at Buffalo School of Law Legal Studies Research Paper, No. 2019-010

40 Pages Posted: 6 Jan 2020 Last revised: 8 Jan 2020

Date Written: December 20, 2019

Abstract

The United States has an extremely robust network of subnational constitutions. It is one of the few federations in the world in which subnational entities are understood to be fully competent polities with virtually complete constituent powers of self-organization and self-authorization. The authority to adopt a subnational constitution is consequently understood to be an incident of subnational sovereignty, a concept in turn derived from a conception of the basic federal order itself as highly decentralized. Within this order, subnational powers of self-governance are understood to be plenary except as limited either permanently by the federal constitution, or temporarily by the exercise of national power that supersedes state law under the U.S. Constitution’s Supremacy Clause. Thus, the dominant constitutional issue within the U.S. federal system has never concerned the scope of power or authorization of the states, but rather the scope and authorization of the national government, and its consequent authority to occupy policy domains and to enact laws that constrain the authority of states to pursue their own preferred forms and paths of self-governance.

Keywords: constitution, subnational constitution, federalism, state constitution

Suggested Citation

Gardner, James A., Subnational Constitutionalism in the United States (December 20, 2019). James A. Gardner, Subnational Constitutionalism in the United States, in Subnational Constitutions, Popelier, Delledonne & Aroney, eds. (2020), Forthcoming ; University at Buffalo School of Law Legal Studies Research Paper, No. 2019-010. Available at SSRN: https://ssrn.com/abstract=3514561

James A. Gardner (Contact Author)

University at Buffalo Law School ( email )

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