The "Mandatory" Clauses of State Constitutions

Abstract

Six state constitutions—those of California, North Dakota, South Carolina, Utah, Washington, and Arizona—include clauses declaring that everything in the state constitution is “mandatory” unless otherwise provided. This seems a strange thing to include; one might assume everything in a state’s fundamental law is mandatory. But these provisions, which I call Mandatory Clauses, originated during the wave of reform that swept the United States in the late nineteenth century, and they represent an effort to limit or even prohibit what is today known as “judicial deference.” That is, they were written by framers who wanted courts to be more diligent than they had been in enforcing constitutional commands or prohibitions, and less willing to accede to the acts or omissions of the legislative or executive branches. This article examines the history behind Mandatory Clauses and the problems their creators sought to fix. It concludes with some observations about how courts today should implement these clauses.

Keywords: state constitutions, originalism, "mandatory and prohibitory", california constitution, arizona constitution, north dakota constitution, utah constitution, south carolina constitution, washington constitution, judicial restraint