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Critics of the proliferation of omnibus legislation in Congress have pointed to the constitutions of the American states as providing an alternative, and potentially superior, model for lawmaking. Forty-three state constitutions include some sort of “single-subject” rule, that is, the requirement that each act of the legislature be limited to a single subject. Many of these provisions date back to the second quarter of the nineteenth century, and, collectively, they have been the subject of literally thousands of court decisions. Nor is the rule a relic from a bygone era; one recent study found the rule at stake in 102 cases in 2016 alone. Many of these decisions have involved controversial, hot-button issues. In the last two decades, state courts have used single-subject rules to invalidate laws dealing with, inter alia, firearms regulation, abortion, tort reform, immigration, local minimum wage laws, sex offenders, enhanced criminal penalties, and school vouchers.

Yet, despite having long been a part of the constitutional law of most states, the single-subject rule is deeply problematic. Courts and commentators have been unable to come up with a clear and consistent definition of what constitutes a “single subject.” Instead, a persistent theme in the single-subject jurisprudence has been the inevitable “indeterminacy” of “subject” and a recognition that whether a measure consists of one subject or many will frequently be “in the eye of the beholder.” On the one hand, as the Michigan Supreme Court once explained, “[t]here is virtually no statute that could not be subdivided and enacted as several bills.” On the other hand, as an older Pennsylvania Supreme Court case put it, “no two subjects are so wide apart that they may not be brought into a common focus, if the point of view be carried back far enough.”


Constitutional Law | Law