Constitution Question

Several bits of the constitution refer to state legislatures and executives.

How broad is ‘legislature’ interpreted? Every state that I know of has a system with a strong resemblance to the Federal government, with one or two houses of legislature and an independantly elected Governor. Could a state decide to amend its constitution to have, say, a parliament with a Prime Minister, or a Diet with proportional representation instead of district representatives?

It is against the constitution for them to have a king or any form of royality.

Louisana almost had a dictatorship.

When a government has a prime minister and parliment there is also a King, president or other head of government, even if that position is only a figurehead.

:confused: [sup]Who would go to a governor’s conference; the prime minister or head of government?[/sup]

Proportional representation would be out due to the Supreme Court’s “one person one vote” decision a couple decades back.

However, there would be nothing wrong with a parliamentary system. The only constitutional requirement on the structure of state governments is that they have a “republican form of government.” I think a parliamentary system with election of a PM via the parliament would qualify.

There no inconsistency between the principle of proportional representation and the “one person, one vote” principle. In many, if not most, PR systems the elector casts one, and only one, vote. Arguably PR is more in keeping with the “one person, one vote” principle, since it attempts to equalise more nearly the weight to be attached to each vote in determining the outcome of the election.

I don’t know if any system of PR has ever been used at the state legislature level, but I recall reading that PR systems were at one time used at some levels of local government in the US - and were abandoned when they enable communist candidates to secure election. But that may be completely wrong.

In general, questions of how a legislature is formed are considered by the Supreme Court of the United States to be “political” and non-justiciable. According to the Court in its opinion delivered in Luther v. Borden, 48 U.S. (7 How.) 1 (1849), Section 4 of Article IV of the Constitution, in which the United States guarantees to every state a “Republican Form of Government,” places in Congress the duty of determining upon application by a state for admission to the United States, and upon application for admission to the Congress by a state’s representatives, whether or not the form of government in that state is “republican.” Having placed that duty in the hands of Congress, the courts cannot exercise it themselves. This doctrine the Court has steadfastly refused to reconsider, despite requests at various times over the intervening 150+ years.

However, there is one avenue by which the Court has authorized successful judicial attack on the organization of government in a state, specifically when there is a claim that the organization of the government, or of the method of voting for the government, is a violation of the equal protection clause of the Fourteenth Amendment. In Baker v. Carr, 369 U.S. 186 (1962), the Court specifically held that the “political question” doctrine did not preclude the consideration of whether or not the failure of the state of Tennessee to re-apportion representation in her legislature violated the Constitution of the United States. Immediately thereafter, the Court proceded to assert a broad principle that

Reynolds v. Sims, 377 U.S. 533, 568 (1964)

However, in the multiple cases that have followed, dealing with subjects as varying as apportionment, multi-member districts, selection of state-wide office holders, administrative v. legislative bodies, and super majorities, the Court has not ever required that state government be based upon the concept of representation by district, with the plurality winner (or majority run-off winner) being seated as the representative. The closest it came to asserting that this was mandatory came in Lucas v. Forty-fourth General Assembly, 377 U.S. 713 (1964), wherein it decided that Colorado’s scheme of apportioning members in the “upper” house of its legislature among its counties was unconstitutional. Under the statements in Lucas and Reynolds, a bi-cameral legislature must have both houses elected on the basis of “one person, one vote.”

Let us examine how these principles would apply to the concepts proffered in the OP.

  1. Parliamentary government is right out.

This isn’t a question on which past judicial decisions have issued. It is simply an application of the fact that, at the heart of the American political foundation is the concept that legislative and executive functions must be segregated to avoid the possibility of abuse of power in the absence of political checks on the use of power. I mention a separate judicial branch except that Britain is about to prove that parliamentary government doesn’t neccessitate consolidation of the judicial function in the parliament (assuming Tony Blair can overcome the reluctance of the House of Lords to see another of its functions stripped from it). But a parliamentary form of government presupposes the consolidation of the executive and legislative functions. The head of the government from a practical standpoint is the person who leads the governing party in the parliament; that person not only sees to the passage of legislation but also sees to the implementation of legislation. From a practical standpoint, nothing like that will ever take place in this country; if a state attempted it, it might well induce the Court into finding another exception to the general rule equating the “guarantee” of a “republican form of government” to a non-justiciable political question.

  1. Proportional representation is not neccessarily unconstitutional

Indeed, proportional representation in its purest form can be argued to be the best method of making sure that the political power of minority voters is preserved. Almost all the equal protection cases addressing apportionment and voting power in the '60s revolve around the issue of minority political power, even when it isn’t evident on the face of it. If one assumes “bloc” voting, and a minority of 30%, then there will be 30% of the representatives members of the “bloc” minority. So proportional representation does not inherently constitute a violation of equal protection.

While the Court hasn’t addressed proportional representation, it has addressed multi-member districts. However, it has done so only in cases where the use of multi-member districts has the potential for diluting the votes of minorities; i.e., when proportional representation isn’t applied to determine the outcome in multi-member districts. The Court has yet to ennunciate a clear rule for such situations; but, again, in light of the fact that proportional representation doesn’t dilute minority voting strength, it is hard to conceive from the decisions it has issued that the Court would object to them on equal protection bases.

DS, that’s a basic principle at the federal level, but how can you say that it’s a fundamental principle at the state level? Article IV doesn’t say that states have to follow that principle, just that they must have a republican form of government. States such as Germany, France and Italy are clearly republics, but do not have the same separation as a congressional republic. Why wouldn’t a state government with a parliament modelled on the German Bundesrat be a republic for the purposes of Article IV? And in any event, isn’t that a decision for the Congress to take, not the courts?

Er… you might think so, given that the concept of a Prime Minister is derived from the office of first advisor to the monarch. Not true anymore, though; there are plenty of states with a Prime Minister and a Parliament, like Japan, Italy, and Latvia, to name a few.

I understand that Japan has an emperor…

And Italy and Latvia both have Presidents who act as head of state.

DSYoungEsq, I don’t see any constitutional requirement for seperation of powers at the state level. I don’t recall any case law that addresses this issue; can you cite a precedent?

friedo, Northern Piper, did you actually read what I posted? I suggest really reading it, especially the first sentence of the paragraph under the heading “Parliamentary government is right out.”

I could go into a long, boring explanation and re-iteration of the history of the government that sprang up in the American colonies (did you know that Rhode Island did not change its form of colonial government until 1843?), and we could see that parliamentary government simply isn’t a part of our heritage. You will note that I said that 1. it won’t ever happen, and 2. if it did, likely the Court would not simply apply the usual hands off approach, even assuming Congress didn’t just do something about it themselves. It’s like talking about what will happen when the sun explodes; you simply aren’t discussing reality.

DS, actually, I did read your entire post. I understand from your first sentence that you think that politically, it just ain’t going to happen - the tripartite separation of powers is just too firmly entrenched in American political theory, popular opinion and so on, been working well for over two centuries, “this is why we broke from Britain”, etc.

But I also read your last sentence, to wit:

I read this sentence as your prediction that if a state ever did turn its back on all those political traditions and try to implement a parliamentary republic as its state government, the Supreme Court would have something to say about it, notwithstanding that the Court has consistently held that Article IV is non-justiciable.

So again I ask, on what basis do you think the federal courts could move in this way?

After all, there are other examples where states have not followed the strict federal model of separation of powers. For example, some states allow the executive or the legislative branches to ask their supreme court for advisory opinions, as the recent Massachussetts marriage flap shows.

oops. I see some words got missed out from my last post.

Meant to say: "…notwithstanding that the Court has consistently held that Article IV**'s guarantee of republican state governments** is non-justiciable.

Not trying to say that all of Article IV (e.g. - full faith and credit clause) is non-justiciable.