Understanding Missouri’s Constitutional Government presents a case study in the foundations of state governments. The book provides a sweeping look at the constitutional foundations of the processes of Missouri government. Authors Richard Fulton and Jerry Brekke place Missouri within the context of our larger federal system while using the state’s constitution as a touchstone for the discussion of each element of state government.
Understanding Missouri’s Constitutional Government has a dual framework specifically designed to enhance the reader’s learning experience. First, the essential elements of government outlined in the constitution are introduced, and then analysis and interpretation of each of the document’s articles is covered. This organization permits readers to build an understanding of a particular element—for example, the legislature—by learning its fundamental organization, processes, and purposes in a straightforward manner. After gaining that primary perspective, the reader can use the formal analysis in the second section to explore interpretations of each article. Not only helpful to the general reader, this two-part structure makes the text especially useful in courses on American government, state and local governments, and particularly Missouri government and constitution.
In short, Understanding Missouri’s Constitutional Government is an approachable, valuable exposition on Missouri government as reflected in the day-to-day operations outlined in the Missouri constitution. It fills a significant gap in the literature on the interpretation, use, and operation of state constitutions. Since Missouri law dictates that all levels of education should teach government and constitution at the national and state levels, this book will be an indispensable resource for educators while serving as a valuable reference for journalists and public officials in the state.
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About the Author
Richard Fulton is Professor of Political Science at Northwest Missouri State University and the author or editor of several books, including The WTO Primer: Tracing Trade’s Invisible Hand through Case Studies. Jerry Brekke is Professor Emeritus of Political Science at Northwest Missouri State University and the author of Understanding the Missouri Constitution.
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Understanding Missouri's Constitutional Government
By Richard Fulton Jerry Brekke
University of Missouri PressCopyright © 2010 The Curators of the University of Missouri
All right reserved.
Chapter OneThe Missouri State Constitution
The constitution of Missouri, like all state constitutions, is grounded in the liberal ideals of the Enlightenment writings of Locke, Hume, Rousseau, and others. These ideals were cemented into the American environment in the earliest state constitutions and then into the U.S. Constitution of 1789. The ideals and pragmatic compromises of the founding fathers were not only a result of already extant state constitutions but were also to then echo in the consequent constitutions of the states.
The very concept of a constitution is built on the assumption that power must not only be carefully defined but also be carefully limited by spelling out the responsibilities and limitations of each power-holding center. If government has unlimited powers (as under an authoritarian or divine-right dictator), then constitutions are useless, for constitutions by their very nature define and therefore limit power.
The American Madisonian model limits the powers of government by first dividing the powers between the national government and the states. It further blunts the exercise of power by separating the powers of the three branches of government and then providing checks and balances to ensure no one branch can dominate. And then it insists that even the majority should be limited in its potential to dominate the system. There is no room for tyranny, even of the majority, in the American system. The independent judiciary and the indirect election of the president through the electoral college are prime examples of the reluctance of the U.S. Constitution writers, for example, to create a pure, direct democracy.
As we pursue Missouri's document and its operation, it will not be difficult to see these fundamental doctrines being adopted and adapted. The fundamental Madisonian element adopted in Missouri's constitution has been the concept of the limitation of the power of government. This represents the foundational idea of the social contract: we band together to protect against the whims of unchecked government by producing government by the consent of the governed.
It must be remembered that prior to 1789 the original thirteen states had their own constitutions that were an outgrowth of the charters that outlined government for the colonies under British rule. State experiences expanded the original blueprints, and states continued to experiment with government purpose and organization based on the fact that in forming the Union the states insisted that the federal system leave significant areas of government to the sovereign exercise of the states. It should not come as a surprise then that state constitutions, including that of Missouri, not only reflect elements of the U.S. Constitution but ultimately have formed a history and character all their own.
Protection of individuals from the powers of government was engraved in the early state constitutions and found its way into the U.S. Constitution in its Bill of Rights. The national Bill of Rights, remember, was tacked on to the Constitution only after criticism of its absence. It was needed to complete the state-centered ideal of limiting government's potential for oppression. Although each state's bill of rights already protected individuals from the excess power of the state governments, the national Bill of Rights needed to separately protect individuals from the national government's potential power. Only later, through the Fourteenth Amendment, were the national protections extended to individuals if states were to fall down on this responsibility. Both bills of rights remain operative, of course, but if states do not protect individual rights, the federal government has become the final appeal for protections. At whichever level, the point is clear that limiting government whenever it touches the individual has always been a top priority of American constitutions.
Missouri has lived under four constitutions, the first adopted by a convention on July 19, 1820. It was quite brief and general in its terms, as its function was to be the vehicle for bringing Missouri into the Union as an independent slave state under the terms of the Missouri Compromise, which simultaneously brought Maine's entry as a free state. That constitution was replaced in 1865 by a new document that was known as the "Drake Constitution." This constitution had a strong anti-Confederate orientation. For example, no person who fought for or aided the South during the Civil War was eligible to vote. As a result, this constitution was quite controversial, given the divided loyalties within the state during the Civil War. The "Ironclad Oath" of fealty to the Union in this constitution that disenfranchised Southern sympathizers was dropped fairly soon, in 1870.
By 1875 the dust of that war began to settle, so there was a referendum held to determine whether the state should hold a convention to formulate a new constitution. The call to a convention won by only 283 votes out of a total 261,670 cast. The consequent convention produced a new constitution that was then submitted to the public for a vote. It was adopted with a more comfortable margin of victory—91,205 to 14,517. Many interests successfully lobbied in the convention, producing a very long and detailed constitution, particularly in the redefining of legislative and executive powers. The document was further burdened by many amendments added over the years. Despite this cumbersomeness, it remained the basic law for the next seventy years.
One of the amendments that was added to the constitution of 1875 required that every twenty years a popular vote should be held on the question of holding a constitutional convention. The bulk and complexity of the 1875 document compounded by its added amendments finally convinced voters that reform was necessary. So at the general election in 1942 the people authorized the calling of a constitutional convention for the purpose of revising the state constitution. Consequently, sixty-eight delegates from thirty-four districts plus an added fifteen at-large delegates, including a mandated equal number from the two political parties (the odd-numbered delegate was an agreed upon non–New Deal Democrat), were chosen to prepare a revision of the constitution of 1875 for voter approval. The majority of the delegates was conservative, with a strong confidence in local self-government and the people, and had a keen interest in maintaining control over public officials.
The convention met on September 21, 1943. Three hundred and seventy-seven proposals were introduced, all suggesting changes to the existing constitution. After months of public hearings, a series of committees examined the proposals and drafted reports. These were considered section by section by the whole convention. Initially, the delegates wanted to rewrite a wholly new constitution; however, the final document contained many of the sections of the constitution of 1875 virtually verbatim. In point of fact, many of the provisions had been parts of the Missouri Constitution of 1820; some fundamentals, it appears, were not subject to the need for much changing. The new constitution was about 11,000 words shorter than the 1875 version; it was determined that some things just did not need to be in the constitution and could be taken care of by statutory law.
The new constitution was submitted to the voters on February 27, 1945. The vote was 312,032 in favor and 185,658 opposed, a strong majority, mitigated by the fact that the turnout at the election was only 20 percent. Therefore, only one-eighth of the eligible voters actually voted in favor of the new constitution. It has endured, nevertheless, to this day.
The constitution retained the right of voters to determine every twenty years whether there should be a call for a constitutional convention. In 1962 voters were given the opportunity to consider a call, as they were in 1982 and 2002, but the propositions were uniformly defeated by overwhelming votes.
Without a major rewrite of the constitution, needed (or wanted) changes had to come through the amendment process. An average of about two amendments a year have been proposed since 1945, voted on usually only at general elections every two years. Around 60 percent of those have been approved, ranging from a complete redo of the judicial article in 1976 and moderate additions like the state lottery to changes of only a few words for a technical adjustment.
The current Missouri Constitution has a length of about 42,100 words. This is above the national average for state constitutions, which run around 30,000 words. In contrast with constitutions of surrounding states, Missouri's is quite large: that of Iowa is 12,500, Kansas's 11,900, Illinois's 13,200, and Nebraska's 20,050. Still other states make Missouri's document look positively brief: Alabama's constitution has 174,000 words, New York's 80,000, and Oklahoma's 68,000. This illustrates the contrasting views of the role state constitutions should play: either a document with multiple specific indicators of state processes and actions or a document of general guidelines to be fleshed out by legislation.
The true importance of the Missouri Constitution, and of other state constitutions, is seldom appreciated because the study of American constitutional law has been dominated by a virtually exclusive focus on the U.S. Constitution and its judicial interpretation. Despite this focus, state constitutions have historically provided an important influence on not only the development but also the interpretation of the national Constitution. Many of the ideas and structures used in state governments have been included in the national Constitution. For example, bills of rights were often a part of colonial charters. The national Bill of Rights came later as a protection against abuses from that government, abuses already protected under state constitutions. Importantly, the national Constitution under its federalist doctrine leaves broad areas to be regulated by state constitutions and state laws, thus leaving many areas of American life defined by state judiciaries.
There has been in recent years a rediscovery of this role played by state constitutions. State constitutions and state laws have always been decisive in areas of major importance—for example, marital relations and custody cases, property rights and environmental cases, liability cases, taxation and financial cases, cases of all dimensions and variety. A recent development has been the willingness of more and more state courts to construe state constitutional provisions of their bills of rights as guaranteeing to citizens their state's protections in areas or on grounds that may not be allowed under the national Bill of Rights. This has been referred to as new judicial federalism. It is believed by some observers that state courts interpreting state bills of rights may become an important bulwark for individual protection against governmental abuse. The Missouri Constitution serves as a good example of a state constitution that provides extensive possibilities for increased importance, since it is very comprehensive.
The more recent increase in the importance of state constitutions perhaps was best stated by a justice of the Oregon Supreme Court when he noted, "Any defense lawyer who fails to raise an Oregon Constitution violation and relies solely on parallel provisions under the federal constitution ... should be guilty of legal malpractice." Clearly, a client would be deprived of an opportunity to prevail if the option of a state constitutional claim was not adequately presented or was ignored. The lawyer would, indeed, face possible charges of professional malpractice if a plausible state claim were not raised in the first instance. Most laws, civil and criminal, are state laws, thus the importance of looking to the state constitution and courts first.
Given all this background, a brief look at the contrast between the Missouri Constitution and that of the United States is in order to illustrate the potential it has for expanded citizen protection and interaction with the government. The most obvious difference between the two is their size, as we have already seen. But there are other more important contrasts between state and federal constitutions.
There are some broad contrasts between the national Constitution and Missouri's (and all state constitutions, for that matter) that reflect the foundational concepts of federalism. To begin with, you might notice in comparing state and national constitutions (Figure 1.1) that the focus of the national document is broad, emphasizing fundamental law and structure—a general document. It is succinct and to the point; it sets the structure of government, enumerates the powers of each branch, sets a few elements of federalism while never mentioning the term federalism (full faith and credit, privileges and immunities), articulates citizens' rights—and then it quits. There are a few other miscellaneous items and the amendment process, of course, but these are not central to the system and are quickly dealt with. In contrast, the Missouri and other state constitutions have a narrow focus on specifics, many of which it is often argued would better be left to ordinary statutory law—they are documents of multiple specific indicators. Much of this is necessary to facilitate the numerous important areas of responsibility left to the states in our federal system. The next-to-bottom element of contrasts in Figure 1.1 illustrates this point by indicating a few of the articles in the constitution of Missouri that deal with particular powers, powers that states must institutionalize, as they are their areas of supremacy (local government, elections, education) or are shared but discreet responsibilities (taxation, spending). In contrast, the U.S. Constitution simply and succinctly integrates its enumerated powers within its first two articles (legislative and executive).
The legal theory of government is also different between the two constitutions. The national Constitution, in theory—and putting aside the "loopholes" and interpretation and use discussed in the introduction that mitigate the fact—assumes the national government has only those powers invested in it by the Constitution. In stark contrast, state governments assume that their powers, reflected in their constitutions, extend to all areas not specifically prohibited to them. Note the Tenth Amendment to the U.S. Constitution, which specifically reserves powers not mentioned in the document to the states. Even given this, however, most states, unlike the national government, use their broad power of discretion in such a way as to limit their own range of activities, thus not taking advantage of all the possibilities open to them. For example, most state financial articles set limits on their state government's actions in the area of powers to tax and to incur debt, and much state power is allocated to local governments, giving them a degree of local autonomy. All states prohibit debt financing of their operational budgets. The Missouri Constitution, as we shall see, is a good example of this general trait of state constitutions, that of requiring very specific limits on its own scope and uses of governmental authority. These are dramatically different legal assumptions upon which the two levels of government operate. Courts and politics continually spar over the limitation of the powers of the federal government. On the other hand, states may be able to do what they please in many areas, but they usually please to limit their governments.
There is a caveat to these theories, however, and that is reflected in the supremacy clause of the U.S. Constitution. This states that the national Constitution is the supreme law of the land, leaving state constitutions subordinate to that Constitution and to federal law. We must be clear, however, that this clause applies only to those powers enumerated in the national Constitution and as expanded, to be sure, by the courts. But this clause most definitely does not apply to the rest of the powers of government given to, not prohibited to, or left to the states. We forget that states must give permission for the federal government to do much of what it does within the boundaries of the states, from welfare spending to disaster support, even if the federal government is paying for these services. It is quite important to remember that in these areas the states are supreme. It only appears as if the federal government has these powers because states seldom refrain from taking federal moneys in exchange for following whatever strings are attached to the money.
There is one last general point to be made about the various powers states possess and how they incorporate those powers into their constitutions. Missouri's choices in how to organize the distribution of its particularized powers within the constitution will be discussed in detail within subsequent chapters, but remember that states organize their constitutions differently. They put things where other states do not; they make certain aspects of state life separate articles, while other states incorporate those same aspects within the specifics of other titled articles. For our purposes now it might simply be instructive to give an indication of how states organize their constitutions quite differently.
All, of course, include quite early in their documents a bill of rights followed by philosophical statements and articles covering the three branches of government (though each state still has its idiosyncrasies even within these basic sections). In Figure 1.2 we can see the organization of the articles of the Missouri Constitution contrasted with some of the articles that are used to organize other state constitutions but are not found in Missouri's—at least as separate articles. The simple point in this illustration is that many states utilize separate articles for topics some of which may well be embodied within the Missouri Constitution but not as separate articles. Thus, Missouri's Bill of Rights talks about collective bargaining within one of its sections, but a couple of states use a separate article to provide this discussion.
Excerpted from Understanding Missouri's Constitutional Government by Richard Fulton Jerry Brekke Copyright © 2010 by The Curators of the University of Missouri. Excerpted by permission of University of Missouri Press. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Table of ContentsContents Acknowledgments Introduction: The Federalist Environment 1. The Missouri State Constitution 2. The Bill of Rights and Distribution of Powers 3. The Legislature 4. The Executive Department 5. The Judiciary 6. Miscellaneous Articles: Articles VI–XIII Conclusion: An Evolving Document Notes Index