RECAP: “Hidden Laws: Understanding the Resilience of the American Constitution,” Colloquium with Howard University Prof. Robinson Woodward-Burns
The question at the heart of Howard University Assistant Professor of Political Science Robinson Woodward-Burns’ January 22 talk at the Kinder Institute—likewise the question at the heart of his forthcoming Yale University Press monograph—is a straightforward one: How, amidst continuous calls for reform, has the U.S. Constitution not only survived but survived in relatively stable form for the past two-plus centuries? One obvious answer is the high bar for amending it (the highest, in fact). Even as civic aspirations evolve, the legal and political realities that make amendment of the federal constitution so difficult remain entrenched.
But as Prof. Woodward-Burns quickly pointed out, this answer doesn’t adequately address the sweeping, landmark changes that have happened over time. To account for these changes, he put forth a theory of conflict decentralization through which constitutional controversies are often filtered down to—and, far more importantly, often resolved at—the state level. For example, we’ve seen federal actors simply punt on divisive issues, leaving them to be sorted out by the states which, under the umbrella of the 10th Amendment, have much broader regulatory powers. Though the cases of this have been fewer, Prof. Woodward-Burns noted that the reverse can unfold as well. As with the discordant slave laws of the 1850s, state controversy can force national homogenization, though, as Justice Louis Brandeis would later remark in regard to New State Ice Co. v. Liebmann (1932), this was one of many instances when states functioned as “laboratories of democracy” in which policies could be tested as a pathway to national harmonization.
The most common—and arguably most fruitful—pattern of conflict decentralization, however, comes when state controversy leads to state reform. In Jacksonian America, for example, widespread contest around the extent of white male suffrage became “the dog that didn’t bark” precisely because states uniformly repealed property requirements on the vote, effectively quieting national constitutional controversy by precluding the need for federal action. What underlies the frequency of this arrangement, Prof. Woodward-Burns explained, is the relative ease of constitutional change at the state level, where there are far lower bars for amendment (typically a simple majority); far smaller legislatures; better coordination; and, when amendment proves impossible, the opportunity to re-convene a constitutional convention and ratify a new state charter, something that half of state constitution-making bodies have done.
As flexible, less venerated documents that can readily adapt to reform pressure, state constitutions have, Prof. Woodward-Burns argued, long been a steady, stabilizing presence in American politics (if also an overlooked one). In fact, acknowledging the federal utility of state constitutional revision, as well as the ways in which state constitutions and the U.S. Constitution interact, can shed light on the degree to which we may have misunderstood certain aspects of the narrative of national constitutional change. To draw this out, Prof. Woodward-Burns first turned to 1968’s Harper v. Virginia Board of Elections, in which the Supreme Court famously ruled on the unconstitutionality of the poll tax. If we pull back the curtain on this decision, though, we see that states, in a long process of fulfilling the terms of the 15th Amendment, had already done the heavy lifting on this matter. All but four had outlawed the poll tax by 1968, meaning that the Harper decision, rather than a sui generis moment of reform, instead formalized state constitutional action that had been taken even as the Supreme Court (prior to 1968) upheld the tax.
The story of the 19th Amendment similarly reveals how state constitutionalism in many respects makes American politics work. After a string of early failures to get traction in Congress for an amendment enfranchising women, suffrage activists, perhaps most notably NAWSA’s Ruth McCormick and Carrie Chapman Catt, launched a robust, grassroots campaign to secure the vote at the state level via state constitutional reform. And it worked. As more and more states came aboard, more and more opponents to suffrage were ousted from office, and over time, the belief that enfranchising women did not impose on the popular will was normalized in D.C. When the 19th Amendment came before the Senate, 41 of 56 votes in favor came from representatives of states who had already enfranchised women, and the 19th Amendment, not unlike the 24th, thus became a federal safeguard for voting rights that emerged from concentrated, strategic state-level mobilization. The Equal Rights Amendment, Prof. Woodward-Burns noted in closing, shows an opposite pattern. By skipping over the states and immediately appealing to Congress for passage of the ERA, early advocates, like Alice Paul, underestimated the amendment’s unpopularity at the state level, where women’s trade unions in particular opposed it on the grounds that removing gender discrimination might simultaneously remove labor protections. When the tables turned in the 1970s and Congress sent a version of the ERA out for ratification, the states, acting with different agendas, instead started passing their own equal rights amendments, with state constitutional reform ultimately blocking a national variant from taking hold.
What does this tell us? That state constitutions matter. Yes, they are idiosyncratic and often unwieldy—Alabama’s totals over 870,000 words—and, yes, amendments to the federal constitution are of incredible importance. But if we study the latter in isolation, we often lose sight of the backstory of how and why they came to be in the first place.