State governments

State governments. The American scheme of government is a historical paradox. The federal Constitution proclaims the supremacy of the federal government in a theoretically indissoluble Union, but since the inception of the nation, states and cities have performed most of the tasks of day‐to‐day governance. The states, like the national government, claim their authority based on the will of the people, yet the Constitution is entirely silent on where cities derive their powers. Indeed, the word “city” nowhere appears in the document. Far from being a neat hierarchy of local, state, and national governments, the American scheme of governance has historically mixed and overlapped levels of governmental activity, combined public and private interests, and appealed to often conflicting theories of popular and state sovereignty.

Creating and Defining State Government.

Each of the original thirteen states had a colonial antecedent that lacked a well‐defined scheme of separation of powers. In most colonies, power rested with the assembly, and the judiciary was often tied to the legislature. The Revolutionary War, however, transformed these colonial appendages into independent states, each with its own form of government that rested, except for Connecticut and Rhode Island, on a constitution.

These new American states bound themselves into a revolutionary alliance that worked first through the Continental Congress and then, beginning in 1781, the Articles of Confederation. Under the Articles, the national government rested upon a compact among the states. The members of the federal Congress were selected by the state legislatures and any amendment to the Articles required the unanimous vote of the states. The Constitution of 1787, however, provided for a popularly based federal republic of enumerated powers in which the nation held sway in a few areas (e.g., making war, controlling commerce, issuing legal tender), but with a high level of dependency on state governments. For example, the framers allotted representatives in Congress based on population, but the state governments were given the task of apportioning these representatives among districts in the states and setting the terms of their election. Each state was guaranteed two senators to be selected (until passage of the Seventeenth Amendment in 1913) by the state legislatures. The president of the United States was elected not by the people but through the states in an Electoral College. Finally, the Tenth Amendment, ratified in 1791 along with the other Bill of Rights amendments, reserved to the states all governmental power not delegated to the national government.

Under this arrangement, state and local governments retained significant powers, most notably the police powers. Through these powers the states (and local governments) provided for the health, safety, morals, and welfare of their citizens. Throughout American history, therefore, while the national government has fulfilled high political functions (e.g., national defense, foreign policy, and territorial acquisitions), state and city governments have played decisive roles in matters such as crime and punishment, marriage, family affairs, contracts, property, and all manner of commercial relations.

When the Constitution was written, no legal distinction existed between cities and other corporations. Gradually, however, American law began to recognize such distinction. In Dartmouth College v. Woodward (1819), Supreme Court justice Joseph Story crafted an important distinction, defining as public corporations legal entities such as towns and cities that existed for public political purposes only. As a practical matter, city governments developed as if they were the state itself. In Hunter v. Pittsburgh (1907), the Supreme Court held that “[municipal corporations are political subdivisions of the State created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them.” States were free to add, withdraw, and modify at their pleasure the powers exercised by cities. In Community Communications Co. v. City of Boulder (1982) the high court pithily ruled: “We are a nation not of city‐states but of States.”

The Evolution of State Government.

By the late nineteenth century the states began to develop legal schemes assuring cities a measure of self‐government. The Missouri Constitution of 1875, for example, was the first to include a home‐rule provision, which was adopted widely. These provisions granted municipalities control over their local affairs in return for a pledge to abide by certain legislative restrictions, the most important of which involved their borrowing power.

Unlike cities, the federal Constitution recognized the states. One of the most profound powers delegated to the national government was the provision in Article IV, section 4, guaranteeing each state a “republican form of government.” Since the Supreme Court's decision in Luther v. Borden (1849), the power to assess either the legitimacy or the republican character of a state government has rested with Congress.

Republican government has meant in concrete terms executive, legislative, and judicial branches. Throughout their history, the legislatures have exercised the greatest authority. In the modern era, except for Nebraska, which has been unicameral since 1934, states have been bicameral, with an upper house composed of members with usually longer terms and larger districts, and a more numerous lower chamber with shorter terms and smaller districts. Today, these legislatures average about 180 total members, with New Hampshire's more than 400 legislators topping the list.

Governors have invariably been popularly elected and generally weaker than their counterparts in the White House. Many states, for example, have an “executive department” of government, of which the governor is one of only several elected officials, such as a treasurer, attorney general, superintendent of public instruction, and secretary, any of whom may be from other than the governor's party. Some states also limit the governor's power to commute sentences and pardon convicted criminals.

Populist forces have similarly shaped state judiciaries. State courts form the largest system of justice in America. Over 97 percent of all judges serve on state or local benches. Each state has a system of trial courts, one or more intermediate courts of appeal, and a final appellate court, usually called a supreme court, to decide matters of state law. These courts exercise the great residue of common law concerning private transactions as well as interpreting state statute and constitutional law. The relationship between state and federal courts is complex. The state courts have some authority to rule on the federal Constitution, but the federal courts, especially the district courts, hold broad powers to adjudicate questions of state law. Most state judges, moreover, exercise their powers on short tethers. For example, federal judges are appointed by the president with the advice and consent of the Senate and serve during good behavior. In the mid‐nineteenth century, however, the states began to rein in the judiciary by electing most of them for limited terms of office. The judges of the highest state appellate courts also exercise the power of judicial review, as do federal Supreme Court justices, but in seven states these judges can also render advisory opinions, a practice prohibited to the Supreme Court under the Constitution.

State government differs from the federal government in another important way: the limits placed on the terms of elected public officials. The practice dates to the Louisiana constitution of 1812, which provided that no governor could serve more than two consecutive terms of four years each. Missouri followed suit in 1821, Indiana in 1851. (Indiana did permit a former governor to run again after four years out of office.) By the end of the twentieth century some thirty‐eight states limited governors to two four‐year terms, and eighteen limited the terms of state legislators, hoping to encourage a citizen legislature free from professional politicians.

The States as Laboratories of Reform.

In this and other areas, state governments have been laboratories of the federal system. In fiscal matters, for example, many state governments, unlike the federal government, require a balanced budget and allow the governor a line‐item veto. The states are also limited in their authority to tax and to issue bonds. These restrictions reflect the ease with which many state constitutions can be amended. State governments, therefore, have been subjected to direct popular pressures in ways that the federal government has not. For example, the federal equal rights amendment failed to win ratification, yet at least twelve states have adopted just such a provision. Eight other states have adopted constitutional guarantees of a right to privacy.

The Progressive Era was a particularly active period of experimentation for, state and municipal governments, with longlasting consequences. To stem the power of political parties, many states adopted the initiative, referendum, and recall; adopted woman suffrage; established non‐partisan elections for city councils, and provided for home rule by municipal governments. The states were the first to prohibit the sale of alcohol and the first to create nature preserves. The Progressives also accelerated the trend toward greater involvement by the states in economic matters, creating new nonpartisan agencies to oversee labor, business, and health issues on a scientific basis.

The Shifting Balance of State‐Federal Power.

Since the Civil War two broad trends have shaped the fortunes of state government. First, the power balance between, the states and the national government has tilted in favor of the latter. For example, the Civil War Amendments, especially the Fourteenth Amendment, affirmed in law what the war had made plain on the battlefield: the national government was supreme. The new amendments established the primacy of federal citizenship and introduced the concept of state action, which authorized the federal government to override specific measures taken by the states.

Second, as America became more industrialized and population more mobile, political issues became increasingly national and less susceptible to solution by state and local government. Amidst the Depression of the 1930s, for example, Congress passed a host of legislation, most of it eventually sustained by the Supreme Court, granting Washington broad powers of economic regulation. By the mid‐twentieth century, state law in matters involving consumer transactions and civil rights had been replaced in part by federal law and regulation based on a significantly expanded understanding of the power granted the federal government through the commerce clause of the Constitution (Article I, section 8).

The federal government impacted state and local governments in another way as well. Among the powers delegated to the national government was the authority to tax and spend for the general welfare. Beginning in 1921, with the Sheppard‐Towner Act, Congress has appropriated federal tax dollars to support national programs carried out at the state level. As the twentieth century wore on, these grants grew in importance, comprising in some instances the largest part of a state's budget. These revenues, however, carried with them restrictions on the ways states and cities could expend them. Moreover, Congress increasingly enacted so‐called unfunded mandates that require the states to use their own funds to meet federally imposed guidelines on such matters as highway construction, health care, welfare, and education.

Despite the federal government's broadened powers, the states, and (to a lesser extent) local governments, retain great vitality. State governments have done so not by reclaiming lost autonomy but by carving out new areas of authority. Through this process, state governments remain, as they were at the nation's founding, the most ubiquitous influence on the day‐to‐day lives of Americans.
See also Dartmouth College Case; Depressions, Economic; Economic Regulation; Federalism; Industrialization; Municipal and County Government; National Civic Federation; New Deal Era, The; Republicanism; Taxation; Temperance and Prohibition; Urbanization.

Bibliography

Daniel J. Elazar , American Federalism: A View from the States, 1972.
Daniel J. Elazar , Cities of the Prairie: The Metropolitan Frontier and American Politics, 1984.
Gerald E. Frug , The City as a Legal Concept, Harvard Law Review (1980).
Kermit L. Hall , Mostly Anchor and Little Sail: The Evolution of American State Constitutions, in Toward a Usable Past: Liberty under State Constitutions, eds. Paul Finkelman and Stephen E. Gottlieb, 1991, pp. 388–417.
Hendrik Hartog , Public Property and Private Power: The Corporation of the City of New York in American Law, 1730–1870, 1983.

Kermit L. Hall