Federalism, Part I: The States
Welcome back to Constitutional Perspectives!
Over the last few installments, I covered the three branches of the federal government – legislative, executive, and judicial – as well as the overall dynamic between those branches. That just about wraps up the structure of the federal government, at least for our purposes here in Level One. But there's an entire second layer to the American government: the States! Our nation's territory is subdivided into, as of writing, fifty of these subunits, each of which has its own form of government. Today, I'll be talking about these state governments, what they're like, the ways in which they are similar to or different from the federal government, etc. Then in the next installment I'll talk more about federalism, the relationship between the state and federal governments.
When last we saw our friends, the several States, they were just thirteen in number. Thirteen of Great Britain's North American colonies, from Georgia in the south to Massachusetts in the North, had rebelled against their king, and had won their independence in the Revolutionary War. During the course of their struggle for independence, most of these states transformed their colonial-era royal charters into popularly adopted constitutions, which, as I mentioned earlier in this series, helped to presage the federal Constitution of 1789 itself. In the intervening two and a half centuries, thirty-seven new states have been admitted to the Union, expanding the territory of the nation from the Atlantic seaboard all the way to the Pacific coast (and beyond).
To this day, each state has its own constitution, a written document that constitutes the state's government just as the federal Constitution creates Congress, the president, and the federal courts. And I think the first thing to know about the states, from a constitutional perspective anyway, is that they're all different. Each state's government is a bit different from every other state's, all according to the particulars of the state constitution. Within certain broad limits, the federal Constitution places no constraints on how states design their own governments. The so-called "Guarantee Clause," found in Article IV, requires that each state's government be "republican" (i.e. democratic) in form, but this is quite capacious.
Despite this broad legal freedom, the states, almost without exception, have adopted something very much alike the structure of the federal government for themselves. Every state has the same three branches of government: legislative, executive, and judicial. With one exception (Nebraska), every state's legislature copies the federal "bicameral" model, with a large "lower" chamber and a smaller "upper" chamber. In most states, the small upper chamber is even called a Senate. In every state, the legislature (often called a "General Assembly" or something of the sort) is chosen through single-member geographic districts, just like the federal Congress.
Without exception, every state has a single chief executive, called the Governor, who is elected by the people of the entire state. In most states (Vermont and New Hampshire the only remaining exceptions), the governor serves a four-year term, just as the President does. In every state, the governor has the power to veto legislation, just like the President. You'll hear people use the (godawful) word "trifecta" to refer to the quality of controlling both houses of the legislature and the executive, both at the state and federal levels, because this is what is required to have an effective governing majority.
Finally, the state judicial systems also look a lot like the federal model. Every state has some kind of trial court, which will have "original jurisdiction" over both civil suits and criminal prosecutions. Every state, I believe, also has two tiers of appellate courts, both an intermediate level that handles run-of-the-mill appeals and a supreme court with final appellate jurisdiction. And every state is required to use trial by jury for criminal cases, just like the federal courts. Moreover, every state except one follows the "common law" model. (The exception is Louisiana, whose French heritage includes the Napoleonic Code and the civil law model descended from it.) And in every state, the authorities that bring criminal prosecutions are separate from the judiciary.
All of this being said, there are some broad differences between the federal model and the design of most state governments. Yes, the states have bicameral legislatures modeled on the national Congress. But, in the wake of some key Supreme Court decisions in the 1960s, both chambers of each state's legislature must be apportioned by population. State senates cannot actually be structured in the same way as the federal Senate, with equal representation for each unit of local government; each district must have the same population as every other. Thus, the sense in the federal Congress that the two chambers represent different entities or "estates" is not present in the states. Partly for this reason, I find it honestly kind of surprising that states haven't experimented with the design of their legislature.
Similarly, state governors are quite unlike the President in many ways. In general, they are quite a bit weaker, and I don't just mean because they lead one of the fifty states rather than the entire Union. The President is the only elected executive official, federally, apart from a Vice President who is chosen on the same ticket. In many states, the Lieutenant Governor (analogous to the VP) will be elected separately. You will sometimes have a candidate win the race for Governor while their running-mate loses the race for Lieutenant Governor.
Additionally, many or most states also elect some number of statewide executive officials even beyond the top two, state Attorney General being perhaps the most common. Many states also restrict their Governor's pardon power, for example, or give it outright to some kind of independent pardon board, whereas the President's is absolute and arbitrary. So although every state does have a single Governor as chief executive, they mostly do not follow the federal "unitary executive" model where all executive power belongs to the governor. Parts of that power are instead given to other officials who have their own mandate direct from the People, and are not controlled by or dependent on the Governor.
And there are plenty of differences between the state and federal courts as well. While it is generally true that states have the same three tiers as the federal judiciary, there's actually a ton of variety in the specifics of how their courts are organized, especially at the trial levels. You'll have things like family courts, at the state level, that have original jurisdiction over certain domains of law, whereas at the federal level there is only the District Courts. (A note on terminology: if you ever hear of something called a "superior" court, what that connotes is that it can hear all kinds of cases, that it has "general" original jurisdiction rather than being limited to a particular kind of case like a family court or whatever.) Most states have the civil and criminal courts combined, as the federal courts do, but some – notably Texas, separate civil and criminal appeals into different tracks. Delaware, almost uniquely among the entire Angl0-American legal world, still maintains a court of "equity" separate from its common law courts. (I haven't explained what this means yet; don't worry about it.)
But the single biggest difference between the state and federal judiciaries is the tenure and method of selection of the judges. Federal judges are appointed by the President, subject to Senate confirmation, and then hold their offices "during good behavior," i.e. for life. Nearly half of all states, however, actually elect their judges, and I believe that number used to be higher. Only a tiny handful of states, mostly in the Northeast, follow the federal model in full; the remainder use a kind of hybrid system where the governor is constrained by some kind of merit selection board. On the tenure side, things are even more stark. Literally only one state, Rhode Island, actually gives its judges life tenure. Every other state has either fixed terms of service, a mandatory retirement age, or both. Indeed, only a tiny handful of states have just a mandatory retirement age. Fixed terms of judicial service are essentially universal at the state level.
Similarly, while criminal prosecutions at the federal level are brought by the United States Attorneys in the Department of Justice, who are appointed by the President, in the states this is typically done by something called a "district attorney" (or something similar). These are local officials, typically at the county level, and they are generally elected rather than appointed. The combined effect is to make the state legal systems quite a bit more populist than the federal one, which has a kind of refined, elite quality to it. Personally I quite prefer the federal model, but there are many people who feel otherwise.
There's another big difference between the state governments and the federal Union, and that's how they relate to their own subdivisions. As I just alluded to, states have their own local subunits of government. Indeed most have multiple different kinds of local subunits, from counties to municipalities, and in some states (like my own New Jersey) a baffling array of subtly different forms. In a way these local governments can be considered the state-level analogues of, well, the states themselves. But this is really not correct at all. Local and municipal governments are dependent on the states in a way that the states are not dependent on the federal government. They are created by state law, and indeed can be dissolved and reorganized by state law pretty much at will (subject only to whatever limits might be found in the state constitutions). Congress, on the other hand, is expressly forbidden from making new states out of existing ones.
Indeed, the better model for the local governments might, ironically, be the states prior to Independence – in other words, the British colonies. Like the colonies, local governments are technically corporations. They have charters, issued by the state, rather than constitutions, created directly by the People. And, from the perspective of the federal Constitution (and most federal law), they are not materially distinct from the state that created them. When a municipal government acts, it is the state that acts; they are bound by the same constitutional limits that apply to the states. This is also related to why state upper chambers cannot follow the model of the federal Senate: local subunits of state government are not fundamental in the way that the states are. In many ways the federal government is built out of the states; municipal governments, conversely, are creatures of the states.
Finally, we have the state constitutions themselves. As I already said, in certain key ways these are like the federal Constitution: they are written documents, adopted by the People, that organize and empower the various institutions of government. But in practice they are very different from the federal Constitution in a couple of key regards. They are, without exception, much easier to amend. There is a wide range of how hard it is to amend the different state constitutions, with California a notorious example on the low end. But not a single state approaches the high hurdle required to amend the federal Constitution.
As a result, state constitutions tend to be long, whereas the U.S. Constitution is famously concise. Not every state is as bad as California, but essentially every state has some kind of laundry list of kinda-random substantive provisions tacked onto its constitution. And most states have some kind of popular amendment system, whereby proposed amendments can be put on the ballot at an election, often without any involvement of the legislature. To a significant degree, the state constitutions function just as an alternate track for lawmaking, often a way for the People of the state to circumvent their legislature. The federal Constitution has the feel of a social contract to it, the fundamental compact by which the American People govern themselves. State constitutions, on the other hand, can often feel like just one more layer of laws created within that compact.
In a way, of course, this is just a reflection of the single greatest difference between the states and the federal government: the states are part of the federal Union, whereas the federal government is a sovereign, independent nation.