LS606
Legislative Process
Looking at What Legislatures Do
Unit 2/Chapter 1
Dr. Christie L. Richardson
Kaplan University
Spheres of Sovereignty
• Dual constitutionalism
–
–
–
–
Establish roles and responsibilities of government
Define institutional structure
Establish operational procedures
Spell out rights of citizens
• James Madison (Federalist No. 45) stated that,
“The powers delegated by the proposed
Constitution to the Federal Government are few
and defined. Those which are to remain to the
State Governments are numerous and indefinite.”
Different from U.S.
Constitution
• State constitutions reveal a strong suspicion
of government power.
• State constitutions act as a roadblock to
change.
– Should be brief and to the point.
– Establish a basic framework.
– Should be receptive to orderly change.
• Strong movement to pass constitutional
amendments aimed at increasing power.
Amending State Constitutions
• Formal changes
– Legislative Proposals
• Available in all 50 states. It is the most common form of
change.
– Constitutional Ballot Initiatives and Referendums
• Can be used in 18 states
– Constitutional Conventions
• Oldest method for delegates to meet to amend or completely
rewrite state constitutions.
– Constitutional Revision Commissions
• Available in all 50 states
• Formed to study and make recommendations for change.
– Ratification
Why State
Constitutions Vary
• Vitality
– States - education, health care, and welfare
– Local Government - policing, controlling, illegal
drugs
• Political Culture
– States - traditionalist in the South, moralistic in
the North, individualistic in the Midwest
– Local Government - culture will flourish in cities
that have business centers
Why State
Constitutions Vary
• Population Shifts
– States - gains in the Sunbelt, losses in the Great Plains,
little change in the Midwest and Northeast regions of the
country
– Local Government - Gains in the Sunbelt cities, large
losses in many of the Midwest cities
• Legal Documents
– States - Constitutions prescribe the structure of state
government
– Local Government - Cities and counties are legal
creatures of the states by controlling the kinds of
charters they can have.
Constitutional and Legal
Limits on State Action
• U.S. Constitution limits what the states can do.
• Ex Post Facto Laws
– Prevents a person from being punished for an action
that was not a crime when it was committed.
• Tenth Amendment to the U.S. Constitution
– Powers not given to the federal government, nor denied
to the states, are reserved to the states, or to the
people.”
– Amendment rediscovered in the 1990s
– It is consistently a factor when federal intrusion into
state affairs becomes an issue.
• McCulloch v. Maryland, 17 U.S. 316 (1819)
McCulloch v. Maryland
17 U.S. 316 (1819)
Basis of Federal Power
• Facts
– In 1816, Congress chartered The Second Bank of the United States. In 1818, the
state of Maryland passed legislation to impose taxes on the bank. James W.
McCulloch, the cashier of the Baltimore branch of the bank, refused to pay the
tax.
• Issues
– Did Congress have the authority to establish the bank?
– Did the Maryland law unconstitutionally interfere with congressional powers?
• Decision (7 to 0)
– The Court held that Congress had the power to incorporate the bank and that
Maryland could not tax instruments of the national government employed in the
execution of constitutional powers.
– Chief Justice Marshall noted that Congress possessed unenumerated powers
not explicitly outlined in the Constitution.
– Marshall also held that while the states retained the power of taxation, "the
constitution and the laws made in pursuance thereof are supreme. . .they control
the constitution and laws of the respective states, and cannot be controlled by
them."
Conclusion
• State constitutions provide the border and the
foundation.
• Reflect and reveal variation across states,
which must provide continuity, in order to be
the United States
• Provide an additional outlet for citizen
participation through government elections,
exercising constitutional rights, and to move
from one state to another freely.
References
• Kernell, S., Jacobson, G. C., & Kousser, T. (2012). The
logic of American politics. (Fifth ed.). Los Angeles, CA: CQ
Press.
• McCulloch v. Maryland,17 U.S. 316 (1819). Retrieved from
http://www.oyez.org/cases/1792-1850/1819/1819_0.
• Nowak, J. E., & Rotunda, R. D. (2010). Principles of
constitutional law. (Fourth ed.). St. Paul, MN: Thomson
Reuters.
• Rosenthal, A. (2004). Heavy lifting: the job of the american
legislature. Washington, DC: CQ Press.
• Saffell, D. C., & Basehart, H. (2009). State and local
government: Politics and public policies. (Ninth ed.).
Boston, MA: McGraw-Hill Higher Education.