Academic journal article Albany Law Review

Constrained Behavior: Understanding the Entrenchment of Legislative Procedure in American State Constitutional Law

Academic journal article Albany Law Review

Constrained Behavior: Understanding the Entrenchment of Legislative Procedure in American State Constitutional Law

Article excerpt

ABSTRACT

Political analysts have suggested that policy power will begin to shift from the federal government to state governments as gridlock in Congress persists. Therefore, understanding the policymaking process at the state level is more important than ever. Vitally missing from our understanding of policymaking in the states is the role of constitutional provisions. Many state constitutions contain directives that severely limit the ability of the legislature to act. Some of these directives are procedural while others are more substantive. This is relevant because constitutional rules are more difficult for members to alter than chamber rules. In this study we present a quantitative measure of constitutional restrictiveness and explore the variation in this measure across the fifty state legislatures and the U.S. Congress. We discover that constitutional restrictiveness is largely explained by the historical era in which the most recent constitution has been passed.

I. INTRODUCTION

Recent commentaries regarding the implications of persistent Congressional gridlock have suggested that we will see a significant shift in power to the states with regards to solving many of our most significant policy problems. (1) Gaining a better understanding of the politics of the state legislative process should be of increasing interest to us all. Understanding the evolution and development of state legislatures is vital to accomplishing this goal.

Scholars have been long fascinated by the evolution and development of legislatures in the United States. This fascination has focused predominately on the development of the United States Congress. Countless books and journal articles have focused on the development of congressional committee systems, (2) political party structures, (3) leadership, (4) and procedural rules. (5) Other works have addressed generally the process of congressional institutionalization. (6)

Disproportionately less scholarly attention has been given to the evolution and development of state legislatures. Many of the studies of state legislative evolution and development that do exist were conducted long ago and typically focus on the development of a legislative institution in a single state. (7) More modern explorations of state legislatures have focused on explaining institutional differences across state legislatures, with little attempt to track institutions over time or determine the evolution of these institutional differences. (8) There have been very few historical treatments of state legislatures that are cross-sectional in nature. Notable examples are Squire and Hamm's 101 Chambers: Congress, State Legislatures, and the Future of Legislative Studies (9) and Squire's The Evolution of American Legislatures: Colonies, Territories, and States, 1619-2009. (10) Our purpose in this study is to consider how constitutions impact the ability of legislatures to conduct business and solve policy problems.

II. THE PASSAGE OF ABORTION RESTRICTIONS, A TALE OF THREE STATES

Knowing that most efforts to lobby for more restrictive abortion policy at the federal level are futile and largely a waste of resources, the pro-life movement has chosen to focus its resources and efforts on the passage of laws at the state level. (11) A report from the Guttmacher Institute states that in just two years (2011-2013), 205 abortion restrictions were enacted in the states versus 189 during the previous ten years (2001-2010). (12) While pro-life advocates naturally will target ideologically conservative states in their efforts to have these laws enacted, they are sometimes enacted with substantial controversy. (13) In the summer of 2013 the legislatures of three states--Texas, Ohio, and North Carolina--passed bills that restrict abortion. (14) Each of these three states enacted these bills in very different ways, which were influenced by state constitutional provisions or lack thereof. …

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