Christina H. Sanders9/27/11
The oldest constitution still functioning today belongs to the State of Massachusetts, and from 1775 to the ratification of the U.S. constitution in 1789, the 13 colonies debated 20 different constitutions. Today, the American constitutional system is made up of 51 constitutions, though many Americans don’t realize that fact.
“When Americans think about our constitution or our constitutional system, we tend to only think about the national constitution,” said Chief Justice Christine Durham of the Utah Supreme Court at BYU’s annual Constitution Day lecture.
However, Justice Durham explained that federal and state constitutions are interdependent features of a greater web of constitutional structure. The interdependence between the state and the federal constitutions is shown by the requirement that state officers must swear to defend both the federal constitution and the state constitution the officer is serving under.
The federal constitution also sets limits on the
states’ sovereign power, such as restricting the right to print money to
the federal government. However, as long as a state constitution does
not breach the national constitution, each state can create its own
system of government.
In reality, the power and the voice of the people resides in the states, Justice Durham pointed out.
For example, the national constitution has been relatively static, with only 27 amendments. However, state constitutions serve just as much as a framework for government as it does a legislative document. In other words, when citizens of a state fear the state legislature will be unable to initiate a policy because of the influence of special interests, they turn instead to the state constitution. Since the founding of the United States there have been 233 state constitutional conventions and more than 6,000 amendments made to the state constitutions.
Justice Durham said state constitutions are often criticized for having too much detail. However, state constitutions generally protect more of what the citizens deem to be their inalienable rights. For example, the right of everyone to have an education was created by the states, not the federal government. She said the constitutions often explicitly support judicial review, offer tax breaks or other benefits to religious or charitable organizations, are preoccupied with lotteries, and at times have restricted or prohibited liquor.
“There can be no debate that American constitutionalism is an evolving institution,” Justice Durham said.
Justice Durham challenged the audience to expand its usual focus on the federal constitution to all 51 constitutions and to read at least one state constitution.
“There are many people who will go forward with this constitutional project the founding fathers set up for us,” Durham said, “and I hope as they do that they will consider the other 50 constitutions.”
Durham has served on the Utah Supreme Court since 1982 and became chief justice April 2002. Constitution Day was established in 2004 to recognize the signing of the U.S. Constitution on Sept. 17,1787. BYU traditionally holds a lecture on a weekday close to the official day. The College of Family, Home, and Social Sciences and the Wheatley Institution sponsor the lecture.