The Disfavored Constitution: State Fiscal Limits and State Constitutional Law
Abstract
The dominant theme in the resurgent state constitutional jurisprudence of the last quarter-century has been the effort of many scholars and jurists to find in state constitutions a progressive alternative to the conservative turn federal constitutional doctrine has taken in the Burger and Rehnquist eras. Following the tone set by Justice William Brennan's path-breaking 1977 article in the Harvard Law Review, the state constitutional law literature has sought a more expansive protection of civil liberties through state constitutional provisions dealing with criminal law and procedure, freedom of expression, and equality, and to ground positive rights to public services in state constitutional measures dealing with such affirmative governmental duties as education, welfare, and housing.
With much of the analysis of state constitutional law focused on the failings of federal constitutional law, far less attention has been paid to a distinctive feature of state constitutions that has little to do with civil liberties or positive rights – the many provisions that seek to protect taxpayers by limiting the activities and costs of government. The Federal Constitution says next to nothing about public finance, and when it does so, it either provides authority for congressional action or sets procedures for raising and spending money. It places just a handful of substantive constraints on federal taxation and no restrictions on federal borrowing at all. By contrast, state constitutions accord extensive consideration to state and local spending, borrowing, and taxing. State constitutions limit the purposes for which states and localities can spend or lend their funds, and expressly address specific spending techniques. These "public purpose" provisions narrow the range of government action and limit public sector support for private sector activities. Nearly all state constitutions impose significant substantive or procedural restrictions on state and local borrowing. A considerable number also limit state and local taxation. These provisions may be said to constitutionalize a norm of taxpayer protection.
Fiscal limits, as well as positive rights, thus characterize state constitutional law. Indeed, the states' fiscal constitutional provisions may offset the more widely heralded positive rights provisions. By giving priority to taxpayers over service recipients, these provisions can make it more difficult for states and localities to raise funds to finance public services.