Ex Uno Plura

James T. Mchugh

Description

State constitutions have become increasingly important in light of recent trends in jurisprudence that favor decentralizing the American federal system. Ex Uno Plura uses a political culture approach to explore eight state constitutional traditions. McHugh argues that state jurisprudence is not merely a reflection of the process, values, and decisions found at the federal level, especially through the influence of the Fourteenth Amendment. A close examination of separate state constitutions, including their origins, sociopolitical cultures, and jurisprudence, reveals historically, culturally, and philosophically unique characteristics, each of which will contribute to the ongoing debate concerning American judicial federalism. The states included are Alaska, California, Georgia, Hawaii, Louisiana, Utah, Vermont, and Wyoming.
Acknowledgments

Preface

Table of Cases

1. Introduction. American Constitutionalism and Political Culture

2. Alaska. Frontier Autonomy

3. California. Diverse Microcosm

4. Georgia. Southern Republicanism

5. Hawaii. A Multi-Ethnic Heritage

6. Louisiana. Constitutional Patriarchy

7. Utah. A Liberal Theocracy

8. Vermont. A Republic Apart

9. Wyoming. Communitarian Ideal

10. Conclusion

Notes

Index

Sujets

• Constitution
• États-Unis
• Regional
• Region
• Local government law
• United States of America
• USA

Informations

• Publié par: State University of New York Press
• Date de parution: 01 février 2012
• Nombre de lectures: 0
• EAN13: 9780791486726
• Langue: English
• Poids de l'ouvrage: 1 Mo

Extrait

Ex Uno PluraSUNY series in American Constitutionalism
Robert J. Spitzer, EditorEx Uno Plura
State Constitutions and Their Political Cultures
James T. McHugh
State University of New York PressChapter 6, “Louisiana: Constitutional Patriarchy,” was previously published in a slightly
different version as “On the Dominant Ideology of the Louisiana Constitution,” 59 ALB.
L. Rev. 1579 (1996). © Albany Law Review. Used with permission.
Chapter 7, “Utah: A Liberal Theocracy,” was previously published in a slightly different
version as “A Liberal Theocracy: Philosophy, Theology, and Utah Constitutional Law,”
60 ALB. L. Rev. 1515 (1997). © Albany Law Review. Used with permission.
Published by
State University of New York Press, Albany
© 2003 State University of New York
All rights reserved
Printed in the United States of America
No part of this book may be used or reproduced in any manner whatsoever
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For information, address State University of New York Press,
90 State Street, Suite 700, Albany, NY 12207
Production by Judith Block
Marketing by Michael Campochiaro
Library of Congress Control Number
McHugh, James T., 1961–
Ex uno plura : state constitutions and their political cultures / James T. McHugh.
p. cm. — (SUNY series in American constitutionalism)
Includes bibliographical references and index.
ISBN 0-7914-5749-4 (hbk. : alk. paper) — ISBN 0-7914-5750-8 (pbk. : alk. paper)
1. Constitutional history—United States—States. 2. Constitutional law—United
States—States. 3. State governments—United States. I. Title. II. Series.
KF4541.M38 2003
342.73’029—dc21 2002045265
10 987654321To EveContents
Acknowledgments ix
Preface xi
Table of Cases xv
Chapter 1 Introduction. American Constitutionalism and
Political Culture 1
Chapter 2 Alaska. Frontier Autonomy 27
Chapter 3 California. Diverse Microcosm 49
Chapter 4 Georgia. Southern Republicanism 78
Chapter 5 Hawaii. A Multi-Ethnic Heritage 107
Chapter 6 Louisiana. Constitutional Patriarchy 135
Chapter 7 Utah. A Liberal Theocracy 161
Chapter 8 Vermont. A Republic Apart 192
Chapter 9 Wyoming. Communitarian Ideal 221
Chapter 10 Conclusion 249
Notes 255
Index 319
viiAcknowledgments
Several people were very helpful in the ultimate creation and production of this
book. One of my most enthusisatic supporters was Dr. Vincent Bonventre (who,
I am pleased to add, recently completed his Ph.D. as a complement to his
academic and professional credentials in law), a professor at Albany Law School
and editor of the annual State Constitutional Notes and Commentaries issue of
the Albany Law Review. Additional advice and encouragement was received
from the eminent specialist on federalism, Dr. G. Alan Tarr from Rutgers
University, the gifted comparative constitutional expert, Dr. Kenneth Holland from
the University of Memphis, and Professor Robert G. Johnston, dean of the John
Marshall Law School, Chicago. The editorial staff of the State University of
New York Press has been instrumental to the final success of this book,
including Dr. Michael Rinella, the series editor, and Judith Block, the production
editor. I am, as always, indebted to the love and support of my family (especially
my parents, Thomas and Annette McHugh) in everything I do, including
scholarly projects such as this one.
ixPreface
Several years ago, I was interviewed for a faculty position at Caspar College in
Caspar, Wyoming as I was finishing my doctorate. I was informed, at that time,
that one of my responsibilities would be to teach a state-mandated course in
Wyoming constitutional law. I was reassured by one of the faculty members that
the task would not be as mundane as it might seem, for the Wyoming
Constitution includes, I was told, unique and interesting variations upon the usual
American constitutional themes. For example, I was told that land owners in
Wyoming are constitutionally barred from holding exclusive property rights over
the water found on their land.
This reference to Wyoming’s constitutional provision of state-controlled
riparian water rights seemed to contradict a common and popular image of this
state and its political community. The popular image of Wyoming as an archtype
of the “Old West” and the spirit of the rugged, individualistic cowboy, gun
slinger, and frontier entrepreneur would have led me to believe that individual
property rights (especially as vested in the category of real property that is
typified by a land claim) would be jealously and rigidly guarded and lauded by
the Wyoming constitutional tradition. This apparent contradiction forced me to
think seriously about the nature and sources of the fundamental values that
would make public ownership of water on a person’s otherwise-private property
a constitutionally entrenched principle of Wyoming society. So, even though I
ultimately did not become a member of the faculty at this Wyoming institution
of higher education, I did take from this brief experience a desire to explore this
matter further, as though I had, indeed, accepted the responsibility for teaching
the sort of course that this faculty position would have required of me. The final
result of that inquiry, several years later, is this book.
Just as this book was about to enter its final production, the Vermont
Supreme Court ruled on a landmark case that reinforced this same inquiry. It
provided, therefore, an intellectual “bookend” to the process of critical thought
that began in Wyoming, several years earlier. The 2003 case of State of Vermont
xixii Preface
vs. Jonathan L. Sprague reinforced, dramatically, the first premise of the thesis
that this book has sought to prove: constitutions are political and philosophical
documents that reflect (in the tradition of legal positivism) the ultimate will of
the sovereign, especially in terms of that sovereign’s most fundamental beliefs,
values, ideals, and cultural norms.
Chapter one, article eleven of the Vermont Constitution was invoked, within
Vermont vs. Sprague, as providing a more stringent standard of privacy than the
federal constitutional tradition, consistent with previous rulings that have
pondered the singular history and heritage of Vermont. The argument underlying
this unanimous Vermont Supreme Court ruling and its evaluation of a uniquely
Vermont understanding of the right to privacy is not merely a legal one; it
reveals the special role that constitutions play in identifying and shaping the
political culture of a society. That process is particularly obvious and effective
regarding relatively cohesive and homogeneous societies that small American
states, like Vermont, most often provide. But the validity of this sentiment
remains true, even when it is not so obvious.
The full thesis of this book is fourfold: (1) constitutions are political
expressions that are understood particularly well within the framework of a
politicalculture method of analysis; (2) that analysis requires the inclusion of traditional,
normative political philosophy, considerations of historical influences (especially
regarding the presence and migration of various peoples), and an evaluation
(even if only isolated or cursory) of examples of cultural expression through the
work of artistic, religious, and literary elites; (3) American states are not merely
geographically-manufactured entities defined by arbitrary boundaries but unique
societies with their own special histories and cultures; (4) this political-culture
analysis of select state constitutions provides important insights into the true
political nature of constitutional law and its proper role within the American
federal polity.
Therefore, this book begins with a general overview of the political culture
of the broader American constitutional tradition, including a review of widely
accepted analyses of the competing variations of American liberal democracy.
Then, several state constitutional traditions are examined (varying in size,
region, diversity, and heritage), providing an original analysis of each one from
this legal, philosophical, and political culture perspective. The book concludes
with observations regarding the increased relevance of state constitutions to
American society and its many political systems.
A decentralizing trend in American judicial federalism has made the study
of state constitutions increasingly important. That trend parallels a general and
ongoing need for political, social, and philosophical analyses of American states
and local communities. Constitutional law began, as an area of serious study and
application, within the discipline of political science; it was included within the
general law school curriculum only later. This book seeks to contribute to thePreface xiii
search for insight in this vital area, in addition to the attempt to remove
constitutional jurisprudence and public law from the parochial and overwhelming
dominance of technical practitioners and return them to their origins in the study
of the humanties and, especially, the social scien