Document Type

Article

Publication Date

Spring 2014

Rights

In Copyright

Abstract

In the American system of federalism, states have almost complete freedom to adopt institutions and practices of internal self-governance that they find best-suited to the needs and preferences of their citizens. Nevertheless, states have not availed themselves of these opportunities: the structural provisions of state constitutions tend to converge strongly with one another and with the U.S. Constitution. This paper examines two important periods of such convergence: the period from 1776 through the first few decades of the nineteenth century, when states were inventing institutions of democratic governance and representation; and the period following the Supreme Court’s one person, one vote decisions in the early 1960s, when the Court’s destruction of the existing constitutional model created an important opportunity for states to experiment with alternative forms of legislative representation. In the first period, initial innovation and diversity were followed quickly by convergence and isomorphism; and in the second period, no burst of innovation occurred at all. After reviewing studies of institutional isomorphism and policy diffusion from other fields, the paper concludes that the facts best fit explanations based on the resort by constitutional drafters to well-known patterns of non-rational decision making such as “availability” and “anchoring” heuristics. American state constitutions thus likely display little diversity in their structural provisions not because prevailing models have proven superior to the alternatives, but because imitating the choices of seemingly similar entities is a common way to dispatch cognitively challenging tasks.

Publication Title

Wayne Law Review

First Page

31

Last Page

67

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