State constitutions have been the motive force in American political and economic development. This is not to dismiss the role played by the national Constitution, but that document has undergone very few changes in our history while changes in state constitutions have precipitated economic and political change. These changes in turn produced notable revisions in state constitutions, which contributed to subsequent transformations of American political and economic interests. (1) In the nineteenth century, when the wheel of politics turned, many constitutions had to go, to be replaced by instruments embodying the aims and policies of the victors. (2) It was state constitutions that gave form to corporate organization and governance. These documents imposed hard budget constraints limiting state governments and expanding the foundations for private economic endeavor. The twentieth century witnessed not only minor technocratic adjustments but also "bloated, conflated" constitutions resulting from democratic pressures in some states. (3) Overall, state constitutions have given rise to economic and political interests, and they have been revised in response to new pressures generated by these interests. (4) Notably, change and content in state constitutions reflects the power of interest groups seeking special protections or conservative mistrust with concentrated government power, (5) with long constitutions protecting the status quo and inhibiting reform through state government intervention. (6)
Throughout these changes one enduring feature of state constitutions has been the separation of powers, including the power of judicial review: "[T]o talk about state constitutions means to talk about state high courts and the way they use, interpret, or manipulate the state constitutions." (7) State supreme courts are the final arbiters of state constitutions, but state constitutions "are different" with some juxtaposing "broad statements of principle with subjects as mundane as ski trails and highway routes, public highways and motor vehicle revenues". (8) Some contain particularistic policy content and are replete with "superlegislation" that in length and detail are indistinguishable from statutes. (9) Other constitutions are focused more narrowly on "framework" questions that detail fundamental law. (10) State constitutions vary widely in their social and economic provisions. These provisions: (1) shift the inertial bias associated with the federal government (if negative rights under the federal Constitution restrain government action, positive rights under state constitutions mandate such action), (11) and (2) afford state courts opportunities to reshape government structures in light of evolving needs. (12) For participants in the judicial process--judges, lawyers and litigants---constitutional breadth can affect the constitutional discourse that promotes or inhibits litigation. This discourse is largely framed by constitutional language and the set of conventions that allow a participant in the legal system to make an intelligible claim about the meaning of the constitution. (13) State constitutions thus serve as foundations for state supreme court action and litigant strategies. It is the premise of this study that state constitutional content--the basic rules of the game--influences the business of state supreme courts when it comes to civil appeals.
II. A LOOK AT STATE CONSTITUTIONS
How might state constitutions influence state court dockets? James Madison reasoned that constitutions should be short and institutionally oriented rather than excessively devoted to law which could promote instability and inflexibility. (14) In the American states, constitutions vary from shorter framework-oriented to longer policy-oriented constitutions. (15) Because many states were inclined to amend their constitution, this produced comparatively long documents resulting in significant diversity among state constitutions. …