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Plato noted in the fourth century B. Like the U. Constitution, some state constitutions do not articulate the separation of powers principle, but most do. The concept does not require absolute separation, and, as James Madison pointed out in essay 47 of The Federalist , it does not preclude one branch of government from having some control over another through checks and balances. The question of whether the principle has been violated by a particular branch of government is generally a matter that is settled by the courts. But even the courts sometimes have a hard time drawing a line between branches of government.


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Legislative Branch. The legislature has tended to be the dominant branch of state government. Reasons for this may stem from the people's historic distrust of the executive branch and a lack of aggressive judicial review at the state level. Many states, however, are experimenting with ways to circumvent and circumscribe their state legislators through direct democracy provisions such as the popular initiative, referendum, and recall as well as limits on the number of years legislators can serve.

More than one-half of all state constitutions now include some direct democracy provisions, and nearly as many limit legislators' terms.

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Such changes indicate that some citizens are not totally satisfied with the traditional form of representative state government. Except for Nebraska, all states and the three U. It was important when the parliamentary system of government was evolving in England because it required the agreement of the aristocracy and the commoners for laws to be passed; in the United States at the national level it allows states to be represented in the Senate and individuals to be represented in the House of Representatives.

A bicameral state legislature, however, does create the possibility of greater checks on the legislative process, especially when each house is controlled by a different political party. State constitutions generally provide basic procedures for enacting legislation, which vary from state to state and according to the type of legislative action specified.

They also define the quorum necessary for doing business and the majorities needed for approval of various types of legislation. Also addressed are the ways in which legislative business is conducted, such as the selection of the legislature's officers, and legislators' privileges and immunities, including the legislature's power to discipline members and sometimes the public for improper behavior. Executive Branch. The head of the executive branch in each state and territory with a constitution is invariably called the governor.

The term governor was used in the British colonial system to denote an intermediate executive position between a superior governor general and an inferior lieutenant governor. All governors are popularly elected for a term of four years except in New Hampshire and Vermont, where the governor serves for two years.

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Most states have a lieutenant governor, who may be elected jointly with the governor or separately, in which case the two may represent different political parties. In the majority of the forty-two states that elect both a governor and a lieutenant [Page xxii] governor, the two are elected jointly. Where the lieutenant governor must act as or succeed to the governor's position, this ensures political continuity. In some states, however, the desire to keep the executive branch from becoming dominated by one party outweighs the potential benefits of political party continuity.

Slavery and Freedom in American State Constitutional Development

Constitution in that they concentrate all executive power in the hands of a single elected official, the governor; in those states there are no other statewide elected officials in the executive branch with whom power must be shared. The governor is a true chief executive who, like the American president, can appoint the heads of the executive departments, such as the secretary of state, treasurer, and attorney general.

In most other states, the constitutions provide for a number of elected officials in the executive branch who share power with the governor. In such cases the state's chief executive, unlike the president, has to work with a secretary of state, an attorney general, or other elected officials who may be from an opposition party, thus making full implementation of the governor's programs difficult.

This plural form of government is desirable in many states because it diffuses power throughout the executive branch rather than concentrating it in a single person.

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The governors of some states are required to submit a balanced state budget, while in others this task falls to the legislature. State constitutions detail age and additional qualifications for the governor and other statewide elected officials, along with their terms of office and the manner in which the governor is elected. Most states restrict the governor's service to two consecutive terms or two terms only. Indiana and Oregon, however, limit it to eight of twelve years and Montana and Wyoming to eight of sixteen years. The lieutenant governor often serves as president of the upper house of the state legislature, just as the vice president of the United States presides over the Senate.

The incumbent may also act for the governor when the governor is incapacitated or simply out of the state and succeeds to the governorship in the case of resignation, conviction on impeachment, or death. Judicial Branch. The judicial branch in state governments has not been truly coequal with the other two branches and has tended to be more deferential to them than the federal judiciary has been to the president and Congress.

A number of state constitutions, especially in the Northeast, provide little detail about the judiciary, which is true of the U. Constitution as well. The courts were not the focus of the American Revolution, and the framers of the early state constitutions were more concerned with the legislative and executive branches, letting the judiciary take care of itself to a great extent. But this tendency has changed. Many state constitutions now go to great lengths to describe the structure, jurisdiction, and duties of their state court system.

During this century state judges have also become increasingly subject to regular scrutiny by the electorate. In contrast to the selection process for justices of the U. Supreme Court and other federal courts, the vast majority of state constitutions today provide for some form of popular input into the selection or retention of the state judiciary. Justices and judges [Page xxiii] may be either elected for fixed terms or initially appointed by the governor, with the approval of the legislature generally the senate , and then subjected to popular approval at fixed intervals through partisan or nonpartisan elections.

In South Carolina and Virginia, justices are elected by the legislature, whereas in Connecticut they are appointed by the legislature. Only three states—Massachusetts, New Jersey, and Rhode Island—still mandate virtually life tenure for appointed justices. The highest state court is usually called the supreme court, but in a few cases it is known as the court of appeals. This court generally consists of a chief justice and an even number of other justices. Some states, including Delaware and Indiana, have just five members on their supreme courts, while others, such as Mississippi and Oklahoma, have as many as nine justices.

Qualifications for the supreme court generally include admission to the state bar and a period of time spent either practicing law or serving on a lower court. Procedures for disciplining and removing judges vary, but they are often subject to impeachment, and some special commissions may recommend disciplinary action. The state supreme court may be given constitutional authority to hear disciplinary charges.

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The jurisdiction of a state supreme court is generally limited to hearing cases on appeal from lower courts, issuing writs necessary to carry out their judicial functions, and overseeing the state bar. Seven state constitutions authorize the state's highest court, unlike the U.

Supreme Court, to give advisory opinions to the other branches of government. All state constitutions except Oregon's have provisions for impeachment of executive branch officials; in some, officials in another branch are also subject to removal in this fashion.

Impeachment procedures are found in different parts of constitutions and generally follow the language of the U. These rules are derived from the British Parliament, the highest court in the United Kingdom, where impeachment is the prosecution by the House of Commons before the House of Lords of any person, peer or commoner, for treason or other high crimes and misdemeanors. In most state constitutions, as in the U. Constitution, impeachment charges are brought against a government official by the lower house of the legislature and then tried before the upper house. In Nebraska, because of its unicameral legislature, the procedure has been modified.

In addition to formal impeachment proceedings, many state constitutions provide for other means of disciplining and removing government officials, including recall by the voters—an action that puts democratic power directly in the hands of citizens. Other Provisions. Other provisions that are often included in state constitutions and that are generally highlighted in State Constitutions of the United States include direct democracy procedures, local government such as home rule , taxation and finance, education, and, less frequently, health and welfare and environmental protection.

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Direct democracy procedures include popular initiatives for state legislation or constitutional amendments; referendums on legislation or statewide issues; and recall of state officials. Although not focused on in this book, a few state constitutions provide for initiative, referendum, and recall only with respect to special matters or to issues below the state level, such as municipal officers or decision making. Most state constitutions provide for local management of government affairs by cities [Page xxiv] or counties, often referred to as home rule. The state constitution may also prescribe the methods by which home rule charters are obtained by municipalities.

Education policy varies only slightly from constitution to constitution: all states generally undertake to provide for the education of children, and some go further, promoting higher education for high school graduates. All states have some sort of welfare policy, but to date only about a dozen include welfare in their constitutions. All states also have some environmental protection policy—a growing area of public concern about clean air and water and preservation of wildlife, wilderness, and historic areas—but not many spell out such policy in their constitutions.

Addressing contentious current issues, sixteen states have joined Hawaii in amending their contitutions to prevent same-sex marriage. Several states—Arkansas, Colorado, and Rhode Island—inserted language regarding abortions into their constitutions; all other states have adopted statutory language on the subject. In California added an amendment authorizing stem-cell research. A handful of states, among them Arizona, California, Florida, and Nebraska, have adopted constitutional provisions making English their official language; others use statutory provisions to this effect.

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Amendment Procedures.