Brian Highsmith (APRW)

Speaker & Title

Brian Highsmith, “Anti-Oligarchy State Constitutions"

Abstract

This Article describes how populist reform movements during the Gilded Age and Progressive Era used state constitutions to mitigate the democratic harms of concentrated wealth. It explores how a coalition of Western and Prairie state reformers—indebted farmers, militant miners, and rural  socialists—refined a theory of state constitutionalism over three decades of efforts to challenge railroad capitalism. Through archival research about conditions preceding the 1907 Oklahoma and 1910 Arizona statehood conventions, I show that key institutional design choices were motivated by a shared commitment against concentrated economic power. In particular, two features of state constitutions that are commonly observed to distinguish them from the federal charter—their considerable length and detail, and the availability of formal amendment—were intended to facilitate democratization from oligarchy.

These distinctive features are viewed by some scholars today as constitutional defects: unwise and unwarranted departures from the celebrated federal model of static minimalism. Such criticisms echo the reception that initially met these episodes of agrarian constitution-tinkering from Eastern elites, who widely derided the Oklahoma and Arizona charters as “freak” documents undeserving of constitutional status. But I demonstrate that these design choices—intentional and considered rejections of court-interpreted constitutional generality—were responsive to a particular form of authoritarianism that undermined self-governance. This state-level experimentation, in turn, contributed to national debates about the nature of a constitution and the material stakes of its design. I trace how reformers, and their opponents, learned from these state conflicts—shaping their thinking not only about state constitutions, but about constitutionalism.