The literature on America’s unwritten constitution is rigorous and compelling, but it tends to focus almost entirely on how the federal Constitution has evolved through informal processes. In this chapter, I argue that our understanding of America’s unwritten constitution would be improved if we broadened the inquiry to include state constitutions. Unlike the federal Constitution, where Article V’s near-impossible amendment rules force essentially all reforms into informal pathways, the states have designed amendment rules and facilitated political cultures that encourage frequent formal amendment of constitutional text. Consequently, to the extent that unwritten constitutional commitments exist in the states, they are not the product of necessity, and they may shed new light on how constitutional rules evolve. In this chapter, I show that in various significant areas, states have indeed fostered robust unwritten constitutions and that state constitutionalism is characterized by a complex, competitive, and highly contextual interaction between codified and unwritten constitutional commitments.

A core function of constitutions, unwritten and written alike, is to constrain the actions of government officials. This chapter argues that a constitution cannot serve this function unless communities of “constitutional participants” pay attention to and engage with the constitution and its meaning. Participants are needed not only to develop shared understandings of ambiguous text but also to create a credible threat of sanctions, legal or otherwise, for unconstitutional actions. The chapter further suggests that American states may have, at least on certain issues, constitutional communities too sparse to activate constitutional constraint. Finally, the chapter briefly problematizes the creation of constitutional communities, asking whether and how they could be forged in the states without generating costs of capture or further polarization.

The eighteenth-century American founders believed that religion is special and deserves special constitutional protection, and that all peaceable faiths must be drawn into the constitutional process and protection. The founders introduced six constitutional principles for the protection of religious freedom – freedom of conscience, free exercise of religion, religious pluralism, religious equality, separation of church and state, and no federal establishment of religion. Since the 1940s, the US Supreme Court has upheld these religious freedom principles in more 170 cases, albeit unevenly of late. Moreover, in recent years religious freedom has come under sharp popular and academic attack, particularly as religious pathologies have come to light and religious freedom claims have clashed with sexual liberty claims. This chapter calls for a return to the first principles of religious freedom for all, at home and abroad, and for a new balance between religious freedom and other fundamental rights claims.

Nathan Chapman considers the link between free exercise and freedom of conscience in the US Constitution and legislation. Some theorists emphasize the similarity between religion and other moral or philosophical commitments and insist there is no reason to privilege the former over the latter. However, for the founding generation, freedom of conscience meant religious freedom, exercised as a response to one’s duty to God. Courts and legislatures often negotiate different relationships between freedom of religion and of conscience. Speech, press, and association rights have been employed to protect conscience. And some state and federal statutes accommodate religion and other commitments under the label of conscience. However, the Free Exercise, Establishment, and Equal Protection Clauses have not been interpreted to prioritize nonreligious conscience. The Supreme Court has interpreted the law about conscientious objection to military service to include non-theistic beliefs. Some statutes accommodating religion also protect nonreligious beliefs or practices, for example, statutes governing abortion, physician-aided suicide and capital punishment.