Explaining Subnational Constitutional Choices: Separation of Powers in American States

Long relegated to the background of both federalism studies and constitutional law, within the last several decades subnational constitutionalism has begun to attract significant scholarly interest. However, most scholarship in this area focuses either on how subnational constitutions are allowed to vary – the problem of subnational constitutional space (see, e.g., Popelier et al. 2022) – or on how they actually differ from each other. The latter body of work has a mostly qualitative emphasis, focusing on either descriptive analogy, distinction, and contrast, or on concept formation driven by comparative description. There have been few attempts to engage in inference-oriented, large-N quantitative studies that would explain the differences and similarities in subnational constitutions. We seek to fill that gap by testing how different theories of subnational constitutionalism explain variation among American state constitutions with respect to their separation-of-powers provisions. We identify 45 basic separation-of-powers dimensions, and encode each state's positions along those dimensions. This process yields a mathematical representation of state institutional arrangements which can then be used to statistically test hypotheses regarding three basic research questions: First, what are the determinants of specific state separation-of-powers law features? Second, what factors make some states more or less similar with respect to their separation-of-powers profiles? Finally, what factors determine the level of state-federal similarity? We test hypotheses that state institutional arrangements are shaped by political cultures, constitutional origins, partisan profiles, demographical similarities, and textual similarity of state constitutions.