Hidden Laws: How State Constitutions Stabilize American Politics, Yale University Press, 2021

State constitutional revision data xls file

The federal Constitution is relatively stable. Americans have ratified only 27 of the 11,970 proposed constitutional amendments, never convened to replace the Constitution, and rarely significantly reinterpret the document. In contrast, Americans have called 411 state constitutional revision assemblies, ratified 144 state constitutions, held 255 state constitutional conventions, proposed 11,635 amendments to the current state constitutions, ratified 7,695, and repeatedly reinterpreted these documents. What explains this difference?

Hidden Laws argues that through “conflict decentralization,” state constitutional revision resolves national constitutional controversies, guiding and sometimes preempting national political change. A few brief clauses in the federal Constitution create overlapping, concurrent powers shared by the state and federal governments. This brevity grants elites and reformers broad interpretive leeway to construct and often enlarge this overlap, strategically channeling national reform pressure and power to the states. State constitutions have the flexibility the federal Constitution lacks — all states impose lower amendment thresholds and, with smaller legislatures, can better coordinate to propose revision by amendment, convention, or commission. While there are incentives for reformers to attempt both state and national reform, the most common outcome is state reform without national reform. State constitutional revision is a steady, constant, quiet background process in American politics, the heretofore largely unnoticed channel for most American constitutional development.

The book elaborates this claim with original datasets of all 12,000 proposed federal constitutional amendments and all 411 state constitutional revision bodies from 1776-2020, backed by chronological case studies. Case studies proceed by era, addressing Revolutionary debates over the franchise and legislative sovereignty, antebellum conflicts over slavery, banking, and suffrage, congressional efforts at Reconstruction, progressive campaigns for a federal income tax, direct election of senators, prohibition, and women’s suffrage, New Deal and Great Society conflicts over labor, welfare, and civil and gender rights, and modern conservatives’ campaigns to constrain taxation and government.

This theory of conflict decentralization has implications for understanding American political development. National outcomes attributed to Congress or the federal courts may instead be caused by prior state constitutional reform. State constitutional revision sometimes creates a national constitutional consensus that federal actors imitate. Suffragettes intentionally sought the vote by state constitutional reform before pushing Congress to pass the Nineteenth Amendment. And thanks to the work of New Deal reformers, nearly all states had outlawed the poll tax by the by the time Congress and the federal courts did the same in the mid-1960s. National outcomes may change after congressional or federal judicial action but not solely because of this intervention. Ignoring state constitutionalism risks misattributing the influence of the states to the federal courts or Congress and thus mischaracterizing, however slightly, national political development. In neglecting state constitutionalism, we not only have misunderstood a part of the American constitutional system but also risk misunderstanding the whole.