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81 U. Chi. L. Rev. 1641 (2014)
American Constitutional Exceptionalism Revisited

handle is hein.journals/uclr81 and id is 1665 raw text is: American Constitutional Exceptionalism Revisited Mila Versteegt & Emily Zackintt The US Constitution is a global outlier. Its omission of positive rights, its brevity, and its remarkable duration and stability make it exceptional by global standards. The uniqueness of this venerable document has spurred a passionate debate over America's constitutional exceptionalism. In this Article, we show that not all of American constitutionalism is nearly so distinctive. Over the past two centuries, Americans not only wrote the federal Constitution, but they have also written 149 state constitutions and approved thousands of amendments to those constitutions. Those state constitutions are also an essential part of the American constitutional tradition and yet are unexception- al by global standards. We draw on original data based on our own hand coding of all state constitu- tions ratified between 1776 and 2011 to provide the first systematic comparison of US state constitutions to the world's national constitutions. Using these data, we highlight three features of state constitutions that should prompt reconsideration of America's constitutional exceptionalism. First, like most of the world's constitu- tions, state constitutions are rather long and elaborate documents that set out gov- ernment policies in painstaking detail. Second, like most of the world's constitu- tions, state constitutions are frequently amended or overhauled. Third, like most of the world's constitutions, state constitutions contain positive rights relating to, for example, education, labor, social welfare, and the environment. Thus, at the state level, Americans have written their constitutions much like everyone else. Our findings invite reconsideration not only of America's alleged constitu- tional exceptionalism but also of the nature of state constitutions. State constitu- tions are frequently derided for falling short of the example set by the federal Con- stitution and dismissed as statutory rather than constitutional in character. Our t Associate Professor of Law, University of Virginia School of Law. ft Assistant Professor of Political Science, Johns Hopkins University. We thank Daniel Abebe, Richard Bonnie, Adam Chilton, Kevin Cope, John Dinan, Tom Ginsburg, Aziz Huq, Leslie Kendrick, Sandy Levinson, Paul Mahoney, Will Partlett, Ariel Porat, Eric Posner, David Strauss, Geof Stone, Alan Tarr, Fred Schauer, Louis Seidman, Larry Solum, Paul Stephan, and Kim Lane Scheppele for helpful conversa- tions, suggestions, and comments. We also thank participants of the faculty workshops at the University of Virginia School of Law, The University of Chicago Law School, Northwestern University School of Law, Washington and Lee University School of Law, Georgetown University Law Center, as well as participants in the 2013 Wayne Law Re- view Symposium on state constitutions and the Montpelier Roundtable on Comparative Constitutional Law for helpful comments. We thank Kristin Glover for tracking down many of the historical state constitutions on which this study is based, and Trevor Moore and Vera Shikhelman for excellent research assistance. Special thanks to James Melton, Zachary Elkins, Tom Ginsburg, Ros Dixon, and Richard Holden for sharing data. 1641

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