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ARTICLES
Courts and Informal Constitutional
Change in the States

JONATHAN L. MARSHFIELD *

CONTENTS

INTRODUCTION..................................................................................................... 455
I. FORMS OF CONSTITUTIONAL CHANGE............................................................. 461
A. Formal Amendment ............................................................................. 462
B. Informal Amendment ........................................................................... 466
C. The Interaction Between Formal and Informal Amendment ................ 470
II. WHAT WE KNOW (AND DON’T KNOW) ABOUT INFORMAL AMENDMENT
AND STATE CONSTITUTIONS .................................................................. 478
III. SOME NEW DATA RELEVANT TO COURTS AND INFORMAL AMENDMENT
IN THE STATES ........................................................................................ 484
IV. ASSESSING THE SCOPE AND SUBSTANCE OF INFORMAL AMENDMENT BY
STATE HIGH COURTS ............................................................................. 487
A. Quantitative Findings.......................................................................... 488
B. Qualitative Illustrations ....................................................................... 495
1. Individual Rights ..................................................................... 496
2. The Judicial Branch .................................................................. 505
3. Taxation & Finance, Voting, and Executive Power ............. 507
V. UNANSWERED QUESTIONS AND SOME POSSIBLE EXPLANATIONS................. 509
A. Is there something special about rights and informal amendment by
courts? ............................................................................................... 509
B. What affects the interaction between formal and informal amendment?
........................................................................................................... 511

* Associate Professor of Law, University of Arkansas School of Law. I am very grateful

to Professor Lawrence M. Friedman and the New England Law Review for inviting me to con-
tribute to this symposium. I am also grateful to the other authors who took time to review,
consider, and comment on this important issue in state constitutionalism.

453
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454 New England Law Review [Vol. 51|3

CONCLUSION ........................................................................................................ 512


APPENDIX A ......................................................................................................... 513
APPENDIX B .......................................................................................................... 515
APPENDIX C.......................................................................................................... 516
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INTRODUCTION

S
tate constitutions are often lost in the “shadow” of the Federal
Constitution. 1 They are nevertheless incredibly important to pub-
lic life in the United States. State and local governments employ
more than 7.4 million officials, who affect policy decisions regarding edu-
cation, health and safety, transportation, criminal justice, private trade and
contracts, land use, the environment, and many other things. 2 The states
also oversee the collection of more than $930 billion in annual taxes, 3 the
use of more than $628 billion in federal grants, 4 the allocation of more than
$2 trillion in total annual expenditures, 5 and the incurrence of more than
$1.2 trillion in public debt. 6 Stated simply, state government is large, sig-
nificant, and pervasive. State constitutions matter, therefore, because they
create, guide, and limit the institutions and officials that conduct vast pub-
lic business. 7
With so much at stake under state constitutions, it is important that we
have reliable information about how state constitutions evolve and change.
There is much scholarship on state constitutional change that focuses on
frequent formal amendment as the dominant method of constitutional
change. 8 This emphasis is understandable. Current state constitutions have

1 I borrow this analogy from Robert F. Williams. See Robert F. Williams, In the Supreme

Court's Shadow: Legitimacy of State Rejection of Supreme Court Reasoning and Result, 35 S.C. L.
REV. 353, 356 (1984) (explaining that constitutional rulings by the United States Supreme
Court regarding provisions that are “similar or identical” to state provisions “casts a shadow
over subsequent state litigation on what would otherwise be purely a question of state consti-
tutional interpretation”).
2 See U.S. CENSUS BUREAU, GOVERNMENT EMPLOYMENT AND PAYROLL TABLES (2015),

https://perma.cc/A5TN-8YUK. See generally G. ALAN TARR, UNDERSTANDING STATE


CONSTITUTIONS 3 (1998) (“[I]t is the state constitution—and not the Federal Constitution—that
creates the state government, largely determines the scope of its powers, and distributed those
powers among the branches of the state government and between state and locality.”).
3 See State and Local Government Tax Collections: 2016, U.S. CENSUS BUREAU (May 12, 2017),

https://perma.cc/F4B7-KSZC.
4 See ROBERT J. DILGER, CONG. RESEARCH SERV., R40638, FEDERAL GRANTS TO STATE AND

LOCAL GOVERNMENTS: A HISTORICAL PERSPECTIVE ON CONTEMPORARY ISSUES 1 (2015).


5 See 2015 Annual Survey of State Government Finances Summary Table, U.S. CENSUS BUREAU

(May 15, 2017), https://perma.cc/3GHA-GKCT.


6 See id.

7 See generally G. Alan Tarr, The State of State Constitutions, 62 LA. L. REV. 3, 7 (2001) (“[State

constitutions] create the institutions of state government, and the structure of those institu-
tions affects the policies that they produce. State constitutions influence how effectively state
governments can address policy concerns. They also forge the links between state govern-
ments and the citizens of those states, and at their best, they embody the aspirations of those
citizens.”).
8 See, e.g., TARR, supra note 2, at 23 (“Perhaps the most striking contrast with federal consti-
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456 New England Law Review [Vol. 51|3

been amended more than 7,400 times. 9 When compared to the Federal
Constitution, which has been amended only 27 times since 1789, state con-
stitutions are a “beehive” of amendment activity. 10 Indeed, state constitu-
tions rank among the most frequently amended constitutions in the
world. 11
There is less scholarship, however, exploring the forms and scope of in-
formal processes of change under state constitutions. 12 This is possibly be-
cause dominant theories of constitutional change assume that informal
processes are fueled primarily by high barriers to formal amendment. 13
These theories suggest that if a constitution’s text is easily and frequently

tutional practice is the states’ reliance on formal mechanisms of revision . . . and amendment .
. . to promote constitutional change.”); JOHN J. DINAN, STATE CONSTITUTIONAL POLITICS 1–8
(2018) (explaining that a distinctive feature of state constitutionalism is the use of formal
amendment procedures to manage and achieve constitutional change); id. at 265 (noting that
“constitutional amendments” are a “modest engine of change at the federal level but a promi-
nent feature of state politics”); John Dinan, State Constitutional Amendments and American Con-
stitutionalism, 41 OKLA. CITY U. L. REV. 27 (2016) (noting that change under the Federal Consti-
tution relies “heavily on judicial interpretation” but describing formal amendment as “the
dominant approach to constitutional change in the states”).
9 See John Dinan, State Constitutional Developments in 2015, in BOOK OF THE STATES 2015, at

Table 1 (July 1, 2016), https://perma.cc/92XL-FLVZ.


10 See John Kincaid, State Constitutions in the Federal System, 49 AM. ACAD. OF POL. & SOC.

SCI. 12, 14 (1988).


11 See Mila Versteeg & Emily Zackin, American Constitutional Exceptionalism Revisited, 81 U.

CHI. L. REV. 1641, 1676, at Table 1 (2014) (listing India as having the highest national constitu-
tional revision rate in the world and Louisiana with the same revision rate).
12 See, e.g., Richard Albert, How Unwritten Constitutional Norms Change Written Constitutions,

38 DUBLIN U. L. J. 387, 388–89 (“An informal constitutional change occurs where the enforcea-
ble meaning of the constitution changes without altering the constitutional text.”).
13 See Richard Albert, Constitutional Disuse or Desuetude: The Case of Article V, 94 B.U. L. REV.

1029, 1062 (“Perhaps the best way to conceptualize informal amendment is Heather Gerken's
hydraulics metaphor: Where the natural path of formal amendment is difficult or blocked,
alternative paths open to political actors to achieve its functional equivalent.”); see, e.g.,
Heather K. Gerken, The Hydraulics of Constitutional Reform: A Skeptical Response to Our Undemo-
cratic Constitution, 55 DRAKE L. REV. 925, 933 (2007) (“The simple point of my hydraulics ar-
gument is that an informal amendment process exists because formal amendment is so diffi-
cult”); Donald S. Lutz, Toward a Theory of Constitutional Amendment, 88 AM. POL. SCI. REV. 355,
355–56 (1994) (“A low amendment rate associated with a long average constitutional duration
strongly implies the use of some alternate means of revision to supplement the formal
amendment process”); Albert, supra note 13, at 1062 (“The study of constitutional amendment
must therefore account for amendments made both formally pursuant to amendment rules
and informally by political actors, social movements, and institutional dynamics often in re-
sponse to the difficulty of completing a formal amendment”); see also MELISSA SCHWARTZBERG,
DEMOCRACY AND LEGAL CHANGE 184 (2007) (“As we have seen, when constitutional provi-
sions are made unamendable and constitutional courts have final authority over the interpre-
tation of such provisions, entrenchment does not actually inhibit alterations. Instead, it shifts
the locus of change—and the power to determine the legitimate scope of mutability—away
from legislatures and toward the court.”).
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2017] State Constitutional Change 457

amended, constitutional rules are less likely to change through informal


processes. On these theories, informal change occurs because rigid
amendment rules reroute political actors into other less onerous processes;
such as constitutional litigation leading to transformative judicial rulings 14
and “superstatutes” that are effectively entrenched beyond ordinary poli-
tics. 15 Conversely, when formal amendment is frequent and relatively easy,
informal change is presumed to be a less meaningful pathway for constitu-
tional reform because pressures for change are adequately addressed
through formal amendment. 16 Viewed through this lens, state constitution-

14 See, e.g., David A. Strauss, The Irrelevance of Constitutional Amendments, 114 HARV. L. REV.
1457, 1459–60 (2001); see also Albert, supra note 13, at 1063 (“When national courts of last resort
in states with strong-form judicial review interpret the constitution in new ways, they effec-
tively ‘amend’ it by changing its meaning with binding effect.”).
15 See generally WILLIAM N. ESKRIDGE JR. & JOHN FEREJOHN, A REPUBLIC OF STATUTES 6–9

(2010) (explaining how federal statutes can obtain quasi-constitutional status that entrenches
them beyond ordinary politics). Informal amendment can also occur through “executive ac-
tion, implication, and convention.” Albert, supra note 13, at 1062.
16 See Michael Besso, Constitutional Amendment Procedures and the Informal Political Construc-

tion of Constitutions, 67 J. POL. 69, 70 (2005)(explaining prevailing constitutional theory as as-


suming that “the easier state procedures [for formal amendment] obviate the need to employ
informal means to secure constitutional change”); Gerken, supra note 13, at 933 (“If we could
simply rewrite the Constitution whenever we thought circumstances demanded change, why
would we bother with the difficult and complex task of doing so through informal means?”).
For a descriptive account of this basic logic in the context of state constitutional reform, see
DINAN, supra note 8, at 266–67 (“Although groups and officials occasionally view the amend-
ment process as an alternative to both legislative and judicial processes, for the most part
backers of amendments view only one or the other as a viable option in any given situation.
That is, in some cases groups conclude that success through legislation is unavailable and opt
to resort to the amendment process, whereas in a separate set of cases they conclude that a
goal is unattainable through the judiciary, thereby prompting resort to the amendment pro-
cess.”). This basic logic has been adopted by prominent non-governmental organizations ad-
vising constitutional designers around the world. The Institute for Democracy and Electoral
Assistance, for example, has issued “constitution-building primers” focused on designing
amendment procedures. One of these primers advises constitutional designers that, “in gen-
eral, the more difficult it is to formally amend the constitution, the more likely it is that ad-
justments will be made through judicial interpretation.” INST. FOR DEMOCRACY AND
ELECTORAL ASSISTANCE, CONSTITUTIONAL AMENDMENT PROCEDURES 1 (2014). The Venice
Commission’s Report on Constitutional Amendment provides similar guidance:
The more difficult it is to amend a given constitution, the more likely it is
that calls for change will be channelled into legal action, and the more
likely the courts will be to follow such invitations. This will in turn reduce
the need for formal amendment. On the other hand, in a with system flex-
ible rules on amendment, the need for dynamic judicial interpretation
will be less, and so often also the legitimacy. The interaction and possible
mutual compensation effects between the two are complex, and clearly
varies from country to country.
EUR. COMM’N FOR DEMOCRACY THROUGH LAW (VENICE COMM’N), REPORT ON
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458 New England Law Review [Vol. 51|3

al change is often presumed to occur mostly through formal amendment


rather than informal processes. 17
There are, however, well-known anecdotal instances of informal
change under state constitutions. Beginning in 1973, for example, several
state high courts struck down their states’ long-standing education financ-
ing schemes as violating state equal protection and education guarantees. 18
More recently, beginning in the 1990s, several state high courts broke new
ground and held that their state constitutions protect the right to marry for
same-sex couples. 19 Despite these well-known anecdotes (and others), 20
there has been surprisingly little scholarship investigating the systematic
influence of informal processes on state constitutional change. 21 In other
words, although we have good reason to believe that state constitutions
change informally despite frequent formal amendment, we know very little
about the full extent or nuanced nature of informal change under state con-
stitutions. This is especially unfortunate because careful study of state con-
stitutional change might shed new light on long-standing but untested as-
sumptions in constitutional design theory. 22

CONSTITUTIONAL AMENDMENT 22–23 (2009).


17 See, e.g., Justin Long, Intermittent State Constitutionalism, 34 PEPPERDINE L. REV. 41 (2006)

(“State courts are not doing what they are supposed to do-at least when it comes to state con-
stitutions.”); Lawrence Friedman, Path Dependence and the External Constraints on Independent
State Constitutionalism, 115 PENN ST. L. REV. 783 (2011) (“The promise of ‘the New Judicial
Federalism’—of the independent interpretation by state courts of state constitutional corollar-
ies to the federal Bill of Rights—has gone largely unfulfilled.”). See generally Besso, supra note
16 (conducting one of the few investigations into informal amendment under state constitu-
tions and noting that the states’ experience with informal amendment has “been neither exam-
ined nor considered”); Ernest R. Bartley, Methods of Constitutional Change, in STATE
CONSTITUTIONAL REVISION 21, 22–23 (W. Brooke Graves, ed. 1960) (“[T]here has sometimes
been a tendency to ignore interpretation as a medium of state constitutional change”). This is
consistent with the findings of many scholars who have noted that although state courts
sometimes spearhead constitutional change, their involvement is episodic and sporadic.
18 See generally Joshua E. Weishart, Transcending Equality Versus Adequacy, 67 STAN. L. REV.

477, 500–09 (2013) (describing the waves of education reform occurring in state courts and
under state constitutions).
19 The Massachusetts Supreme Judicial Court was the first state high court to so hold in

Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003); see also In re Marriage Cases,
183 P.3d 384 (Cal. 2008); Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407, 481 (Conn. 2008).
20 See supra notes 18–19 and accompanying text.

21 I am unaware of any systematic empirical study of informal processes of state constitu-

tional change.
22 See Versteeg & Zackin, supra note 11, at 1680 (explaining that constitutional flexibility as

experienced by state constitutions “appears to be the prevailing design strategy around the
world”). See, e.g., Mila Versteeg & Emily Zackin, Constitutions Unentrenched: Toward an Alterna-
tive Theory of Constitutional Design, 110 AM. POL. SCI. REV. 657, 659 (2016) (explaining that state
constitutionalism can shed light on broader themes and developments in constitutional design
theory around the world).
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In this Article, I explore informal state constitutional change from a


systematic empirical perspective. I hope to provide new information rele-
vant to assessing the relationship between informal processes of constitu-
tional change and formal amendment. To do this, I draw on an original da-
tabase of cases from supreme courts in all fifty states. 23 My data capture all
instances between 1970 and 2004 where state high courts brought about a
change in binding constitutional doctrine by explicitly and independently
overruling a prior state constitutional precedent. 24 I use these cases as a
measure of informal constitutional change by state high courts because po-
litical scientists have identified overruling behavior as a reliable indicator
of judicial activism. 25 For purposes of this Article, I reviewed all of these
cases and coded them based on the subject-matter categories used by the
Council of State Governments to catalogue formal amendments to state
constitutions. 26 This data provides a unique opportunity to measure and
explore informal amendment in the states. In prior work, I have explored
some of these data using more rigorous, multi-variant quantitative models
developed by political scientists for assessing institutional impacts on judi-
cial decision-making. 27 That analysis accounted for factors such as judicial
elections, ideological shifts on state high courts, judicial resources, docket
size, and several other possible influences. In all, it relied on more than
35,000 datum points and at least twenty variables. It is not my purpose
here to engage in that type of analysis, but instead to look at the data by
subject-matter for any preliminary suggestions it might offer regarding the
pathways of state constitutional change.

23 I first presented portions of this data in Jonathan L. Marshfield, The Amendment Effect, 98

Bos. U. L. REV. (forthcoming 2018). As presented and utilized in that article, the data did not
include the subject-matter codes that I rely on for this article and the data included many oth-
er variables that are not relevant to my analysis in this article.
24 See infra Part III (more fully describing my data and data collection process).

25 Infra Part III (explaining the data exclude cases where courts were compelled to overrule

prior precedent because of intervening changes in federal law or an intervening state constitu-
tional amendment. Thus, the data reflect instances where state courts independently chose to
repudiate an existing constitutional rule and adopt a new rule that had binding effect); see
Bruce Ackerman, Transformative Appointments, 101 HARV. L. REV. 1164, 1173 (1988) (arguing
that informal constitutional change is “marked by a decisive set of transformative judicial
opinions that self-consciously repudiate preexisting doctrinal premises and announce new
principles that redefine the American people's constitutional identity”).
26 For the entire period of my study, the Council of State Governments published annual or

bi-annual reports regarding the total number of formal amendments in the states by subject
area. See, e.g., Dinan, supra note 9, at Table A. The Council of State Governments uses twelve
categories to report formal state amendments. One of those categories captures the number of
instances that a general call for a constitutional convention was submitted and approved by
voters. I’ve excluded that category as irrelevant to my coding of the cases. See infra Part III for
a more complete explanation of my coding.
27 See infra note 23.
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460 New England Law Review [Vol. 51|3

These qualifications notwithstanding, my findings provide an oppor-


tunity to think more deeply about dominant theories regarding constitu-
tional change and provide important insight into processes of state consti-
tutional development. The data reveal that notwithstanding frequent
formal amendment, state courts remain active in constitutional change.
Although there were approximately 2,887 formal amendments between
1970 and 2004, I found 643 cases where state high courts explicitly changed
binding constitutional rules. 28 More surprisingly, however, when the data
are sorted by subject-matter, informal amendment by courts exceeds for-
mal amendment regarding individual rights issues. 29 Informal amendment
was also significant for rules relating to the authority of the judicial branch,
and was especially insignificant regarding voting, taxation and finance,
and executive power. 30
The cases are also informative from a qualitative perspective. On indi-
vidual rights issues, courts often assumed responsibility for “updating”
constitutional rights to account for cultural, political, or technological
changes even though formal amendment could have been used to do this. 31
Courts also tended to apply very liberal methods of constitutional con-
struction to justify changes in constitutional doctrine. 32 Finally, courts fre-
quently suggested an independent judicial obligation to update constitu-
tional rules consistent with vague ideals like justice, equality, and
fairness. 33
Overall, these findings suggest that informal amendment is more fre-
quent and prominent under state constitutions than previously thought.
My findings also raise important questions about the interaction between
formal amendment frequency and informal amendment. Prevailing theo-
ries of constitutional change seem to oversimplify how formal and infor-
mal amendment interact, and fail to account for the reality of constitutional
change under state constitutions. Under state constitutions, informal
amendment seems fueled by something other than high barriers to formal
amendment. It may, for example, reflect a political culture that prefers cer-

28 See infra Part IV.A.


29 See infra Part IV.A Figure 2 (illustrating results by subject category).
30 See Appendix B (containing informal amendment totals by subject category).

31 See infra Part IV. B (describing qualitative findings from the cases); see, e.g., Whitton v.

State, 479 P.2d 302, 312 (Alaska 1970) (“Our constitution . . . is not static. It is a viable, active
thing, designed to serve the needs of humanity and society with the ability to accommodate to
changes which inevitably occur with the progress of our civilizations.”).
32 See, e.g., In re Johnson, 257 N.W.2d 47, 50 (Iowa 1977) (“Sometimes, as here, the literal

language must be disregarded because it does violence to the general meaning and intent of
the enactment.”).
33 See, e.g., People v. White, 212 N.W.2d 222, 227 (Mich. 1973) (“It is our duty to assure to all

who come before us the rights guaranteed under the . . . Constitution of the State of Michi-
gan.”).
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2017] State Constitutional Change 461

tain issues (such as individual rights) to be modified through informal ra-


ther than formal processes. It may also reflect an active separation-of-
powers dynamic where courts refuse to surrender constitutional develop-
ment entirely to formal amendment processes, which are usually more po-
litical and majoritarian. Further study will surely be necessary to better
understand the interaction between formal and informal amendment, but
my data suggest that current theories are oversimplified and inadequate to
explain state change.
This Article has five major parts. Part I provides a very brief summary
of the various methods of constitutional change and the current theories
explaining the interaction between formal and informal amendment. Part II
explores the few studies that have addressed informal amendment under
state constitutions. Part III describes my original database and my empiri-
cal methodology and assumptions. Part IV presents my quantitative and
qualitative findings. Finally, Part V explores unanswered questions from
my data and proposes a few answers for future investigation.

I. Forms of Constitutional Change

Constitutional change occurs when the supreme rules that bind politi-
cal actors are modified. 34 This can happen in various ways. 35 “Formal” con-
stitutional change occurs when there are explicit changes to a constitution’s
text and those changes bind relevant political actors. 36 “Informal” constitu-
tional change occurs when binding constitutional rules are altered without
any corresponding change to the constitution’s text. 37

34 See Albert, supra note 12, at 390 (explaining how constitutional change can occur through

unwritten conventions that alter binding rules). Constitutional change can be a difficult phe-
nomenon to define. James A. Gardner, Practice-Driven Changes to Constitutional Structures of
Governance, 69 ARK. L. REV. 333, 346 n.56 (2016); see also Stephen M. Griffin, The Problem of Con-
stitutional Change, 70 TUL. L. REV. 2121, 2135-40 (1996) (describing the difficulty in defining
and identifying constitutional changes under the United States Constitution); Sanford Levin-
son, How Many Times Has the United States Constitution Been Amended? (A) < 26; (B) 26; (C) 27;
(D) > 27: Accounting for Constitutional Change, in RESPONDING TO IMPERFECTION 13 (Sanford
Levinson, ed. 1995) (exploring complexities of categorizing and identifying constitutional
change). For present purposes, I largely bracket these issues and rely on the definition of con-
stitutional change described above.
35 See generally Carlo Fusaro & Dawn Oliver, Towards a Theory of Constitutional Change, in

HOW CONSTITUTIONS CHANGE: A COMPARATIVE STUDY 405 (explaining various different forms
of constitutional change across fourteen liberal democracies).
36 See generally Richard Albert, The Structure of Constitutional Amendment Rules, 49 WAKE

FOREST L. REV. 913, 914–15 (2014). My discussion here focusses on “master-text” constitutional
systems rather than systems that have “unwritten” or multi-source, written constitutions. See
Albert, supra note, 12, at 388 n.1.
37 See Albert, supra note 12, at 388 (“An informal change occurs where the enforceable mean-

ing of the constitution changes without altering the constitutional text”); see also Gerken, supra
note 13, at 929 (defining “informal constitutional amendment” as “the alternation of constitu-
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462 New England Law Review [Vol. 51|3

In this section, I provide a brief description of the forms of constitu-


tional change that scholars have identified; with an emphasis on the dis-
tinction between formal and informal methods of constitutional change. I
then suggest that current scholarship has not fully theorized the interaction
between these two forms of constitutional change. The dominant theories
draw heavily on the U.S. experience under the Federal Constitution. That
narrative suggests that informal amendment occurs mostly when formal
amendment processes have failed or are too costly, and, as a corollary, that
informal amendment is unlikely when formal amendment is frequent and
relatively cheap. I suggest that this perspective is oversimplified and fails
to account for alternative interactions between formal and informal
amendment, and ultimately fails to account for the lived experience under
state constitutions.

A. Formal Amendment

In political systems with written constitutions, 38 constitutional change


occurs most obviously when the constitution’s text is altered. “Formal
amendments” of this kind are well-known in constitutional systems
around the world. 39 Indeed, all state constitutions in the United States and
all extant national constitutions around the world contain provisions that
explicitly “authorize political actors to change constitutional text in con-
formity with special” rules. 40
Formal constitutional change can serve various important functions,
especially in constitutional democracies. 41 It can allow for transparent and
ordered correction of “discovered faults in the constitutional text.” 42 It can
also provide an outlet for popular constitutional preferences and a check
on institutions and actors engaged in informal methods of constitutional
change. 43 Perhaps most importantly, formal amendment (or at least rules

tional meaning in the absence of textual change”).


38 I use “written” to refer to codified, master-text constitutions. See Albert, supra note 12, at

388 n.1 (explaining that “all constitutions are in some way written” and the “real distinction is
codification”).
39 See generally Fusaro & Oliver, supra note 35, at 405; Albert, supra note 35, at 914–916 (dis-

cussing importance and prevalence of formal amendment rules in national constitutions


around the world).
40 See Jonathan L. Marshfield, Decentralizing the Amendment Power, 19 LEWIS & CLARK L.

REV. 964, 972 (2015) (reporting that all extant national constitutions around the world have
rules for formal amendment); Dinan, supra note 9, at Tables 1.2 & 1.3 (describing formal
amendment rules for all fifty state constitutions).
41 See generally Fusaro & Oliver, supra note 35, at 425–27.

42 See Richard Albert, Constitutional Amendment by Stealth, 60 MCGILL L.J. 673, 681 (2015).

43 See Marshfield, supra note 40, at 968.


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2017] State Constitutional Change 463

providing for formal amendment) is “fundamental to written constitution-


alism” because it aspires to distinguish between entrenched higher law and
ordinary law. 44
Despite their prevalence and significance, constitutional amendment
rules are varied and complex in structure. 45 Many constitutions impose
special legislative voting thresholds and procedures for ratification of
amendments. 46 Constitutions frequently require, for example, that amend-
ments be approved by super legislative majorities (sometimes in both
chambers of a bicameral legislature). 47 Other constitutions require pro-
posed amendments to be ratified by successive, separately elected legisla-
tures. 48 Still other constitutions require subnational units (such as provinc-
es, regions, or states) to ratify amendments. 49 It is also common to require
ratification via popular referenda (sometimes with supermajority require-
ments or regional distribution thresholds). 50
Constitutions also vary greatly in prescribing who can initiate amend-
ments. Legislators can often propose amendments, but some constitutions
allow the executive to start the process. 51 A small minority of countries al-
low subnational units to initiate amendments. 52 The structure of amend-
ment rules is further complicated by the fact that many constitutions pre-
scribe different amendment procedures for different subjects. 53 South
Africa, for example, establishes special amendment procedures for changes
to the Bill of Rights or provisions affecting the provinces. 54 Canada’s

44 See Albert, supra note 42, at 681.


45 See generally Albert, supra note 36, at 914–15 (categorizing amendment rules from thirty-
six high-performing democracies).
46 See generally AREND LIJPHART, PATTERNS OF DEMOCRACY 218–21 (1999) (categorizing
amendment rules based on voting thresholds for ratifying amendments).
47 See id. at 220 (listing several countries that require supermajorities for ratification).

48 See, e.g., CONST. OF NETHERLANDS, ch. 8, art. 137–38; DEL. CONST. art. XVI; see Bjørn

Rasch, et al., Amendment Procedures and Constitutional Stability, in DEMOCRATIC


CONSTITUTIONAL DESIGN AND PUBLIC POLICY 523, 544 (Roger Congleton et al., eds. 2006) (dis-
cussing Netherlands’ amendment rules).
49 See Marshfield, supra note 40, at 1000–13 (describing all the ways that subnational units

are included in amendment rules).


50 See Marshfield, supra note 40, at 1007–09 (describing countries that require subnational

referenda); see Albert, supra note 36, at 949–50 (describing countries that require referenda).
51 See Marshfield, supra note 40, at 1012 (explaining that dominant procedure for initiation

of amendments is for legislature to propose amendments and citing S. AFR. CONST., 1996 ch. 4,
44 as an example).
52 See Marshfield, supra note 40, at 1012–13 (reporting that only eight national constitutions

around the world allow subnational units to initiate amendments).


53 See Albert, supra note 36, at 951.

54 See S. AFR. CONST., 1996 s.74(1) & 74(2); see also Richard Albert, The Expressive Function of

Constitutional Amendment Rules, 59 MCGILL L. J. 225, 251 (2013) (describing the subject-matter
triggers in South Africa’s amendment rules).
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464 New England Law Review [Vol. 51|3

amendment rules also establish different procedures for subjects affecting


provincial affairs, among other subject-specific amendment procedures. 55
Finally, it is increasingly common for constitutions to identify certain pro-
visions as formally unamendable. 56 Germany’s constitution, for example,
includes a provision on “human dignity” that cannot be amended through
formal processes. 57
This variety in amendment rules, combined with variations in political
culture and diverse pressures for constitutional change, has resulted in
great disparities in amendment rates across the world. 58 Some countries,
such as the United States, Japan, and Denmark, experience incredibly low
rates of formal amendment. 59 Other countries, such as Switzerland, India,
and South Africa, are amended frequently. 60
Amendment rules in state constitutions in the United States display
less variation in structure, but still demonstrate considerable diversity. 61
The dominant approach used by forty-nine states is to allow state legisla-
tures to propose and approve amendments (subject to varying legislative
thresholds), followed by a public referendum (again, subject to varying ref-
erenda thresholds). 62 Of those forty-nine states, eighteen also permit
amendment by “citizen initiatives,” which allows citizens to put proposed
amendments to a referendum if they obtain a set number of signatures in
favor of the proposal. 63 A few states require initiatives to be ratified by the
state legislature or allow the legislature to submit modified or alternative
measures to voters. 64 Delaware is unique among the states because it per-
mits amendment only by the legislature without a referendum or any citi-
zen initiative option. 65 Florida’s constitution contains a unique provision

55 Albert, supra note 54, at 247–49 (describing Canada’s amendment process).


56 See generally YANIV ROZNAI, UNCONSTITUTIONAL CONSTITUTIONAL AMENDMENTS 21–36
(2017) (describing unamendable provisions in constitutions around the world).
57 See Albert, supra note 54, at 265 (describing Germany’s amendment rules).

58 See Tom Ginsburg & James Melton, Does the Constitutional Amendment Rule Matter at All?

Amendment Cultures and the Challenges of Measuring Amendment Difficulty, 13 INT. J. CONST. L.
686, 687 (2015) (explaining how political culture influences amendment rates). See generally
DONALD S. LUTZ, PRINCIPLES OF CONSTITUTIONAL DESIGN (2006) (summary of various
amendment rates around the world); see Versteeg & Zackin, supra note 11, at 1674.
59 See Richard Albert, American Exceptionalism in Constitutional Amendment, 69 ARK. L. REV.

217, 226–28 (2016); Versteeg & Zackin, supra note 11, at 1674.
60 See Versteeg & Zackin, supra note 11, at 1674.

61 See generally G. Alan Tarr & Robert F. Williams, Getting from Here to There: Twenty-First

Century Mechanisms and Opportunities in State Constitutional Reform, 36 RUTGERS L. J. 1075, 1077,
1119–20 (2005) (describing structure of state constitutional amendment rules).
62 See Jonathan L. Marshfield, Improving Amendment, 69 ARK. L. REV. 477, 486 n.57 (2016)

(explaining that forty-nine states permit this form of amendment).


63 See id. (explaining that some of those states limit the initiative to certain subjects).

64 See id. at 487.

65 See DEL. CONST. art. XVI.


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2017] State Constitutional Change 465

that requires a constitutional commission to be formed every twenty years


to propose amendments to voters. 66 Several states also establish procedures
for calling limited constitutional conventions to propose amendments. 67
Perhaps the most notable trend in state amendment rules is the increas-
ing use of selective-entrenchment techniques to insulate certain subjects
from frequent formal amendment. 68 At least eight states single out certain
provisions as subject to more arduous amendment procedures, and at least
five state constitutions contain language suggesting that certain provisions
are unamendable. 69 These totals are likely oversimplified and understated,
however, because it has become increasingly common for proposed
amendments to embed language insulating the amendment from future al-
teration. This is increasingly common for citizen-initiated amendments,
which frequently purport to exempt the amendment from ordinary
amendment processes and prescribe unique rules for how the amendment
can be altered in the future. 70
State constitutions are amended much more frequently than the Feder-
al Constitution, which has been amended only twenty-seven times since
1787. According to the most recent data from the Council of State Govern-
ments, the states have submitted to voters more than 11,000 amendments
to current state constitutions. 71 Approximately 7,500 of those were rati-
fied. 72 Even the most rigid state constitution (Rhode Island) has been
amended thirteen times in just thirty years since adoption. 73 Interestingly,
although these amendment rates stand out when compared to the Federal
Constitution, they are generally very similar to amendment rates experi-
enced in other countries around the world. 74

66 See Tarr & Williams, supra note 61, at 1097 (describing the “automatic, periodic constitu-

tional commission”).
67 See Tarr & Williams, supra note 61, at 1085.

68 See David Landau, Selective Entrenchment in State Constitutional Law: Lessons from Compara-

tive Experience, 69 ARK. L. REV. 425, 449–50 (2016); Russell P. Plato, Selective Entrenchment
Against State Constitutional Change: Subject Matter Restrictions and the Threat of Differential Ame-
nability, 82 N.Y.U. L. REV. 1470, 1477 (2007).
69 See Jonathan L. Marshfield, Amendment Creep, 115 MICH. L. REV. 215, 258 n.278 (2016).

70 See, e.g., ARKANSAS PUBLIC POLICY CENTER, 2016 VOTER GUIDE: BALLOT ISSUES 30-37 (de-

scribing citizen-initiated amendment that included special rules for future changes to the
amendment).
71 See Dinan, supra note 9, at Table 1.

72 See Dinan, supra note 9, at Table 1.

73 See Dinan, supra note 9, at Table 1.

74 See Albert, supra note 59, at 229; Versteeg & Zackin, supra note 11, at 1674 (finding annual

average revision rate for all states of .35 and .21 for all foreign national constitutions; the rate
for the Federal Constitution was .07).
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466 New England Law Review [Vol. 51|3

B. Informal Amendment

Although formal amendment is certainly an important dimension of


constitutional change (and constitutionalism generally), “it is naïve” to
conclude that constitutional change occurs only through formal amend-
ment processes. 75 Constitutions also change informally. 76 This happens
“when the enforceable meaning of the constitution changes without alter-
ing the constitutional text.” 77 Informal constitutional change presumes that
political actors can be bound by constitutional rules that are not “mandated
by the constitutional text” itself. 78 When these extra-textual rules are
changed (or when the enforceable meaning of textual rules is changed by
extra-textual means), informal amendment has occurred. The touchstone of
informal amendment, therefore, is the alteration of binding constitutional
rules without any corresponding changes to the constitution’s text. 79
Informal constitutional change can be less obvious than formal
amendment, 80 but scholars have nevertheless identified various ways that
informal constitutional change can occur. 81 Bruce Ackerman famously ar-
gued, for example, that the United States Constitution has been informally
amended at various “transformative moments.” 82 Those moments involve
a multi-step process that occurs outside of the formal amendment rules in
Article V. 83 The process begins with a constitutional impasse between polit-
ical institutions, followed by an electoral mandate to address the impasse. 84
After political actors make a change of constitutional magnitude, the pro-
cess culminates with a “national election to serve as a referendum” on the
resolution of the constitutional impasse. 85

75 Sanford Levinson, The Political Implications of Amending Clauses, 13 CONST. COMMENT. 107,

109 (1996); see Clifton McCleskey, Along the Midway: Some Thoughts on Democratic Constitution-
Amending, 66 MICH. L. REV. 1001, 1012 (1968) (“Every schoolboy knows that our Constitution
is subject to change through informal processes as well as through formal amendment.”).
76 See Gerken, supra note 13, at 929.

77 Albert, supra note 12, at 388–89.

78 Albert, supra note 12, at 390.

79 Albert, supra note 12, at 388–89.

80 See Fusaro & Oliver, supra note 35, at 427 (noting that one benefit of formal amendment

over informal amendment is transparency).


81 See Albert, supra note 13, at 1062–71.

82 Bruce Ackerman, Storrs Lectures: Discovering the Constitution, 93 YALE L. J. 1013, 1056–57

(1984).
83 See BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS 20 (1998); see also Gerken, su-

pra note 13, at 934 n.51 (helpfully summarizing the steps in Ackerman’s theory).
84 See ACKERMAN, supra note 83.

85 See Gerken, supra note 13, at 934 (describing Ackerman’s theory in these terms).
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2017] State Constitutional Change 467

Bill Eskridge and John Ferejohn have articulated an important “Con-


gress-centered” theory of informal amendment. 86 They contend that certain
statutes obtain “quasi-constitutional” status and are effectively entrenched
beyond the realm of ordinary politics. 87 They describe these super-statutes
as altering the “then-existing regulatory baselines with a new principle or
policy” that sets a “new normative or institutional framework.” 88 Super-
statutes are also characterized by their longevity and influence. Through
rigorous public debate, institutional refinement, and ratification by succes-
sive legislatures, super-statutes eventually “stick[] in the public culture in a
deep way, becoming foundational or axiomatic to our thinking.” 89 They
also have a “broad effect on the law – including an effect beyond the four
corners of the statute.” 90 Superstatutes therefore resemble constitutional
rules because they constrain and influence political decisions and are en-
trenched beyond the immediate reach of extant political majorities. 91
Eskridge and Ferejohn identify several federal statutes as super-
statutes. 92 The Civil Rights Act of 1964 provides a helpful illustration.
Eskridge and Ferejohn characterize the Civil Rights Act as embodying the
“great principle” of “antidiscrimination” 93 adopted “after an intense politi-
cal struggle and normative debate.” 94 The Civil Rights Act has, through the
process of debate, institutional refinement, and consolidation, become en-
trenched in U.S. law. 95 Eskridge and Ferejohn argue that the Civil Rights
Act has influenced how the Supreme Court interprets the Constitution 96
and how Congress drafts other statutes and understands its public man-
date. 97 Eskridge and Ferejohn have also characterized “state statutory con-

86 See Aziz Z. Huq, The Function of Article V, 162 U. PA. L. REV. 1165, 1180 (2014) (describing

Eskridge & Ferejohn’s theory as “congress-centered”). See generally ESKRIDGE & FEREJOHN, su-
pra note 15.
87 See ESKRIDGE & FEREJOHN, supra note 15, at 12–13 (arguing that “America enjoys a consti-

tution of statutes supplementing . . . its written Constitution”).


88 See William N. Eskridge, Jr. & John Ferejohn, Super-Statutes, 50 DUKE L.J. 1215, 1231

(2001).
89 Id. at 1216, 1230; ESKRIDGE & FEREJOHN, supra note 15, at 26.

90 See Eskridge & Ferejohn, supra note 88, at 1216.

91 Albert, supra note 13, at 1063–64 (describing super-statutes as a kind of informal constitu-

tional amendment).
92 ESKRIDGE & FEREJOHN, supra note 15, at 16 (listing examples of federal superstatutes).

93 See Eskridge & Ferejohn, supra note 88, at 1237.

94 See Eskridge & Ferejohn, supra note 88, at 1237.

95 See Eskridge & Ferejohn, supra note 88, at 1237–41.

96 See Eskridge & Ferejohn, supra note 88, at 1241–42 (describing the Act as having a “con-

stitution-bending” effect).
97 See Eskridge & Ferejohn, supra note 88, at 1240 (describing how Congress limits federal

spending that would have the effect of “discriminating” in the manner envisioned by the Act).
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468 New England Law Review [Vol. 51|3

vergence” (such as marital property laws and no-fault divorce) as rising to


the level of informal constitutional change on a national scale. 98
Significant for present purposes, scholars have also articulated “court-
centered” theories of informal amendment. 99 These theories point to in-
stances where the judiciary has exercised its power of judicial review to rat-
ify changes brought about by the political branches or initiate changes that
are “ratified by the other branches through acquiescence or approval.” 100
These theories generally espouse that constitutional change can occur
when the political branches break from existing constitutional norms, and,
through the process of constitutional litigation, the judiciary is called upon
to legitimate (or strike) the change. 101 When a court upholds the change, it
effectively ratifies an informal amendment. 102
David Strauss and Bruce Ackerman are prominent theorists in this re-
gard. Strauss has argued that at various points in U.S. history, the Supreme
Court has issued opinions that effectively ratified constitutional changes
instituted by Congress or the president. 103 Strauss points to the Supreme
Court’s after-the-fact endorsement of administrative agencies in Crowell v.
Benson as an example. 104 Bruce Ackerman has also argued that the Supreme
Court codifies informal amendments in “transformative judicial opinions
that self-consciously repudiate preexisting doctrinal premises and an-
nounce new principles that redefine the American people’s constitutional
identity.” 105
Court-centered theories of informal amendment demonstrate a few key
characteristics. First, these theories are most applicable in jurisdictions with
strong-form judicial review, i.e., where a court of last resort has final au-

98 See ESKRIDGE & FEREJOHN, supra note 15, at 16, 224, 244.
99 See Huq, supra note 86, at 1180 (describing these theories as “court-centered”).
100 See Huq, supra note 86 (“[O]nce congressional and executive power swells, it is the judi-

ciary that steps in to legitimate the change” using its power of judicial review to “de facto rat-
if[y] constitutional transformation.”); Albert, supra note 13, at 1053 (“We may therefore under-
stand the concept of informal amendment by judicial interpretation as an informal
amendment initiated by the judiciary and ratified by other branches through acquiescence or
approval.”).
101 See Huq, supra note 86, at 1180.

102 See Albert, supra note 12, at 389 (explaining that the “functionally bind-

ing…interpretation of the constitutional text by the national court of last resort approximates
the formally binding quality of a written constitutional amendment”).
103 See Strauss, supra note 14, at 1473.

104 See Strauss, supra note 14, at 1473 (discussing Crowell v. Benson, 285 U.S. 22 (1932), and

McCulloch v. Maryland, 17 U.S. (4 Wheat) 316 (1819) as examples of “change of constitutional


magnitude . . . that took place without any formal amendment”).
105 See Ackerman, supra note 82, at 1173, 1175 (placing the court’s role within a larger pro-

cess that he calls “transformative appointments,” which includes important roles for the pres-
ident, the senate, and the public); Albert, supra note 13, at 1062 (articulating executive-
centered theories and theories of formal amendment based on “implication and convention.”).
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2017] State Constitutional Change 469

thority to determine constitutional meaning. 106 The power of judicial re-


view is ostensibly predicated on the court’s interpretation of relevant con-
stitutional text. 107 Consequently, “framework” style constitutions with
vague and general provisions can provide courts with greater flexibility
and discretion to “construct” transformative constitutional meaning over
time. 108 Conversely, detailed constitutional provisions presumably limit ju-
dicial discretion. 109 Frequent formal amendment is presumed to increase
constitutional detail, and, consequently, limit opportunities for informal
amendment by courts. 110 Second, and relatedly, informal amendment by
courts is often associated with liberal theories of constitutional interpreta-
tion, which allow for constitutional meaning to evolve and change without
any modifications to the text itself. 111 Theories of strict construction are
usually understood as impediments to informal amendment by courts. 112

106 See Albert, supra note 13, at 1063.


107 There is a blurry line between constitutional interpretation and informal amendment
through the power of judicial review. See generally Levinson, supra note 34, at 14–24 (explain-
ing the difficulty in separating amendment from interpretation and arguing that amendment
applies to “a legal invention not derivable from the existing body of accepted legal materi-
als”); Albert, supra note 13, at 1063 n.216 (suggesting that all transformative interpretations
can be classified as informal amendments when issued by the highest court with power to
issue authoritative decision regarding constitutional meaning).
108 See Jack M. Balkin, Framework Originalism and the Living Constitution, 103 NW. U. L. REV.

549, 560–61 (2009) (“Vague clauses can be built out through doctrine and institution-building
in ways that might also be achieved through amendment[,]” and the same is also true for si-
lences and gaps in the original Constitution); KEITH E. WHITTINGTON, CONSTITUTIONAL
CONSTRUCTION: DIVIDED POWERS AND CONSTITUTIONAL MEANING 5 (1999); Ernest R. Bartley,
Methods of Constitutional Change, in MAJOR PROBLEMS IN STATE CONSTITUTIONAL REVISION 21,
22 (W. Brook Graves, ed. 1960) (“The fact that the national Constitution is brief and is written
in broad, general terms has made it flexible enough so that it can be interpreted without
change in the basic language to meet the demands of a rapidly expanding and changing socie-
ty”).
109 Versteeg & Zackin, supra note 22, at 660 (“By placing a broad range of detailed policies

directly in a constitutional text, constitution-makers can attempt to constrain the exercise of


political power. In other words, the principal can use a constitutional text to tell its agents ex-
actly what to do. . . .”); Bartley, supra note 108, at 23 (“The detailed language of most state con-
stitutions leaves far less room for change and growth by interpretation.”).
110 See generally Versteeg & Zackin, supra note 22, at 660; Marshfield, supra note 40 (discuss-

ing this theory in more detail).


111 See Strauss, supra note 14, at 1473 (noting that rulings by Supreme Court were “hard to

reconcile with several provisions of the text”); Gerken, supra note 13, at 929 (associating in-
formal amendment with “living” constitutionalism); Lutz, supra note 13, at 358 (“The more
important the role of the judiciary in [the process of] constitutional revision, the less likely the
judiciary is to use theories of strict construction.”).
112 See Randy E. Barnett, Interpretation and Construction, 34 HARV. J. L. & PUB. POL. 65, 66

(2011).
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470 New England Law Review [Vol. 51|3

Informal amendment is often criticized as lacking the legitimacy and


transparency attributable to formal amendment processes. 113 Proponents of
informal amendment emphasize, however, that it has its own benefits.
Heather Gerken has argued that informal processes are valuable because
they facilitate a “dialogic process that involves popular mobilization and
interinstitutional debate.” 114 Gerken also suggests that informal amend-
ment is valuable because it records constitutional change “over time and
across factual scenarios instead of encapsulat[ing] [changes] within a thin
textual reference.” 115 Finally, Gerken suggests that informal change is bene-
ficial because it “ensures the ongoing contestability of constitutional
law,” 116 which Gerken sees as valuable for maintaining citizen involvement
in shaping constitutional law and addressing concerns about authoritative
claims to constitutional meaning. 117

C. The Interaction Between Formal and Informal Amendment

The processes of constitutional change are incredibly complex and


should not be oversimplified. 118 Constitutional change is influenced by
myriad institutional, political, social, legal, and economic factors. Never-
theless, the dominant theories regarding the interaction between formal
and informal methods of constitutional change often suggest (or assume)
that informal constitutional change is mostly the byproduct or unintended
consequence of high barriers to formal amendment. That is, informal con-
stitutional change is not usually theorized or investigated as an independ-
ent phenomenon, but as the knock-on effect of rigid formal amendment
rules.
This perspective on informal constitutional change tends to draw heav-
ily on the U.S. experience with constitutional change under the Federal
Constitution. Numerous theorists have noted that Article V’s amendment

113 See ESKRIDGE & FEREJOHN, supra note 15, at 4 (stating that formal amendments carry great

legitimacy and should be taken seriously); Fusaro & Oliver, supra note 35, at 426 (“One of the
most relevant advantages of formal . . . constitutional changes . . . is that they are more trans-
parent compared to informal ones.”).
114 Gerken, supra note 13, at 934.

115 Gerken, supra note 13, at 935.

116 Gerken, supra note 13, at 937.

117 See Gerken, supra note 13, at 941.

118 See Jack M. Balkin, The Framework Model and Constitutional Interpretation, in THE
PHILOSOPHICAL FOUNDATIONS OF CONSTITUTIONAL LAW 241, 249 (David Dyzenhaus and Mal-
com Thorburn, eds. 2016) (“[P]rocesses of constitutional change operate on many different
levels simultaneously, incorporating contributions from nonconstitutional bodies of law as
well as from mobilizations in civil society, and informal mechanisms of cultural change and
social persuasion.”).
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2017] State Constitutional Change 471

procedures are “practically impossible” to satisfy. 119 This is a reflection of


Article V’s design as well as unforeseen developments that have under-
mined Article V’s functionality. As a matter of design, the founders intend-
ed Article V to be relatively difficult to use. 120 Article V was an implicit re-
jection of Jefferson’s view that every generation of citizens should revise
their constitution to ensure the document’s legitimacy. 121 To be sure, Arti-
cle V is more flexible than the amendment rules contained in the Articles of
Confederation, but it nevertheless operationalized Madison’s view that the
constitution should be lasting and binding on future generations. 122
Changed circumstances have also exaggerated Article V’s arduousness. As
Rosalind Dixon has explained, “the progressive increase in the number of
states in the U.S. . . . has meant that Article V’s ratification requirements
have effectively become more onerous over time.” 123 Indeed, Dixon esti-
mates that, “the functional equivalent to the 75% super-majority require-
ment adopted by the framers would in fact now be as low as 62%.” 124
Article V’s onerous amendment rules mean that the U.S. Constitution
has been amended very infrequently; only twenty-seven times since
1789. 125 Indeed, the U.S. Constitution has one of the lowest amendment

119 See, e.g., Rosalind Dixon, Updating Constitutional Rules, 2009 SUP. CT. REV. 319, 319 (ex-

plaining the “virtual impossibility of formal amendment to the Constitution under Article
V”); Bruce Ackerman, The Emergency Constitution, 113 YALE L.J. 1029, 1077 (2004) (stating that
Article V creates a “formidable obstacle course”); SANFORD LEVINSON, OUR UNDEMOCRATIC
CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN
CHANGE IT) 21 (2006) (“Article V, practically speaking, brings us all too close to the Lockean
dream [or nightmare] of changeless statis.”). For a more extensive list of descriptions of Arti-
cle V’s difficulty, see Albert, supra note 13, at 1046–48.
120 See generally RICHARD B. BERNSTEIN, AMENDING AMERICA 14–22 (1993) (recounting the

convention debates regarding Article V and concluding that Article V was intended to be dif-
ficult enough to ensure that the Constitution was not “prey to passing majorities”).
121 See ELKINS, ET AL., THE ENDURANCE OF NATIONAL CONSTITUTIONS 1 (2009) (explaining

the famous debate between Jefferson and Madison regarding constitutional revision); see also
JOHN R. VILE, THE CONSTITUTIONAL AMENDING PROCESS IN AMERICAN POLITICAL THOUGHT 32-
–35 (1992) (describing anti-federalist critique of Article V as focusing on Article V’s rigidity);
John Dinan, Framing a People’s Government: State Constitutionalism in the Progressive Era, 30
RUTGERS L.J. 933, 934 (1999) (“Thomas Jefferson . . . in 1788 tried unsuccessfully to persuade
Madison that it would be wise to provide for regular revision of the federal Constitution.”);
DAVID N. MAYER, THE CONSTITUTIONAL THOUGHT OF THOMAS JEFFERSON 295–319 (1994) (ex-
plaining Jefferson’s theory of constitutional change).
122 See James Madison, The Federalist No. 49, N.Y. Packet, Feb. 2, 1988; see also BERNSTEIN, su-

pra note 120, at 15–16 (describing the purpose behind Article V as liberalizing the amendment
procedures from the Articles of Confederation).
123 Rosalind Dixon, Partial Constitutional Amendments, 13 PA J. CONST. L. 643, 645 (2011).

124 Id. at 653.

125 Albert, supra note 13, at 1046 (“[L]et us recognize that the declining use of Article V is at-

tributable to its difficulty.”).


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472 New England Law Review [Vol. 51|3

rates in the world. 126 The difficulty of formal amendment has, as the narra-
tive goes, forced “a significant amount of constitutional change off the
books.” 127 Indeed, most scholars of U.S. constitutional change observe that
“[t]he consequence of the difficulty of Article V has been to reroute politi-
cal actors pursuing constitutional change from formal to informal amend-
ment.” 128
Thus, Eskridge and Ferejohn explain that superstatutes are partly the
result “of the Article V juggernaut.” 129 Although they offer a sophisticated
and nuanced explanation for how superstatutes obtain quasi-constitutional
status, their underlying premise is that Article V’s rigidity has created
pressure for an entrenched body of law that updates government institu-
tions and structures, addresses contested contemporary normative issues,
and is the product of deliberative democratic processes over time. 130 The
superstatute, they contend, has filled this void in U.S. public law. 131
Eskridge and Ferejohn do not focus, however, on how superstatutes might
operate or look in constitutional systems oriented around flexible and re-
sponsive amendment rules. In those systems, positive constitutional law
might address the issues that Ferejohn and Eskridge identify as causing
superstatutes in the United States. 132
Even Strauss, who maintains that formal amendment is generally “ir-
relevant,” bases his conclusion on an assumption of amendment rigidity.
Strauss frames his claim this way: “a case can be made that . . . our system
would look the same today if Article V of the Constitution had never been
adopted and the Constitution contained no provision for formal amend-
ment.” 133 He contends that Article V has not had a meaningful influence on
constitutional change because informal methods of constitutional change
drive how binding rules are actually modified. 134 For example, he notes
that “by the time an Article V supermajority is galvanized into action,
chances are good that much of society has already changed . . . [, a]nd if a
formal amendment process were unavailable, society would find another
way to enforce the change it has determined to make.” 135 However, Strauss
presents something of a false choice when he compares Article V (which is

126 Versteeg & Zackin, supra note 11, at 1674–75; Albert, supra note 54, at 226–28.
127 Stephen M. Griffin, The Nominee Is . . . Article V, 12 CONST. COMMENT. 171, 172 (1995).
128 Albert, supra note 13, at 1051.

129 See ESKRIDGE & FEREJOHN, supra note 15, at 49, 73.

130 See ESKRIDGE & FEREJOHN, supra note 15, at 4 (“To begin with, the Constitution of 1789 is

too old to answer most of the looming social, political, and moral questions that Americans
want answered, and there is no process for updating it that is both workable and legitimate.”).
131 See ESKRIDGE & FEREJOHN, supra note 15, at 5–6.

132 See ESKRIDGE & FEREJOHN, supra note 15, at 4, 49–51, 73.

133 See Strauss, supra note 14, at 1459.

134 See Strauss, supra note 14, at 1462.

135 Strauss, supra note 14, at 1462.


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2017] State Constitutional Change 473

practically impossible to use) with a constitution that contains no amend-


ment rule. There is a third choice: What if formal amendment was readily
available? What if Jefferson’s theory of constitutional change prevailed
over Madison’s theory, and the Constitution was much easier to amend?
Would formal amendment then still be “irrelevant”? Like Ferejohn and
Eskridge, Strauss does not address these issues.
Heather Gerken has helpfully summarized the dominant theoretical
perspective on informal amendment as the “hydraulics” of constitutional
change. 136 Writing in response to Sanford Levinson’s claim that the United
States would benefit from more frequent formal amendment (especially
through constitutional conventions), Gerken argues that supporters of Lev-
inson’s view should first consider the costs to informal amendment pro-
cesses. 137 She explains that, at least in the United States, “informal amend-
ment . . . exists because formal amendment is so difficult.” 138 She continues
by suggesting that if formal amendment is more accessible and frequent,
informal amendment will surely dwindle. 139 Ultimately, Gerken’s critique
of Levinson is that formal and informal amendment are inversely related,
and Levinson has not accounted for the diminishing effect that frequent
formal amendment will have on informal processes. 140
My concern with these theories is not that they are descriptively inac-
curate regarding the U.S. Constitution nor that informal amendment is
normatively problematic. My concern is that they are U.S.-centric and may
not be a reliable basis for extrapolating broader theories of constitutional
design. 141 After all, the U.S. Constitution is probably a bad sample from
which to generalize regarding the dynamics of constitutional change. 142 Ar-

136 See Gerken, supra note 13, at 933 (“The simple point of my hydraulics argument is that

an informal amendment process exists because formal amendment is so difficult.”).


137 Gerken, supra note 13, at 933.

138 Gerken, supra note 13, at 933.

139 Gerken, supra note 13, at 933 (“If Levinson succeeds in what I take to be his real task—

making the constitutional convention a more routine and easier path for constitutional
change—I suspect we will see less political energy devoted to informally amending the Con-
stitution.”).
140 See Gerken, supra note 13, at 933.

141 Contra Lutz, supra note 13, at 357 (systematizing these ideas into a coherent theory of

amendment that he hoped would “include[] the American version [of amendment] but also
provid[ing] the basis for analyzing any version of constitutional amendment”) (emphasis add-
ed); see Lutz, supra note 13, at 365 (testing empirically whether frequent formal amendment
resulted in less informal amendment and vice versa but admitting that “[i]n the absence of
further research, there is only indirect evidence of this proposition. Table 6 shows that the
lower the rate of amendment, the less the legislature dominates. The executive is usually not a
major actor in formal amendment process, so we are left with the judiciary.”); infra n.146–
76and accompanying text.
142 See generally David S. Law & Mila Versteeg, The Declining Influence of The United States

Constitution, 87 N.Y.U. L. REV. 762 (2012).


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474 New England Law Review [Vol. 51|3

ticle V’s amendment process is an outlier when compared to other constitu-


tions around the world; even other long-lasting constitutions in liberal de-
mocracies. 143 It is also an incomplete representation of American constitu-
tionalism because it excludes state constitutions, 144 which function very
differently than the Federal Constitution but are an essential part of Ameri-
can public law. 145
Indeed, anecdotal evidence from other constitutional systems around
the world suggests that the relationship between formal and informal
amendment is complex, nuanced, and influenced by a variety of factors. 146
In a recent study of constitutional change in Austria, for example, Manfred
Stelzer notes that “Austria has a very flexible constitution, which has been
amended easily throughout the decades.” 147 Nevertheless, Stelzer finds that
“many informal amendments have also been made” through the power of
judicial review and changes in unwritten constitutional conventions. 148
Stelzer notes that these changes have coincided with the Constitutional
Court’s enhancement of various individual rights protections and its ex-
pansion of the power of judicial review. 149 Tuomas Ojanen makes a similar
observation in Finland. 150 He explains that informal constitutional change
in Finland has coincided with a shift away from parliamentary supremacy
toward a court-centered, rights-based constitutionalism. 151 The Austrian
and Finish experiences suggest that some constitutional changes might
gravitate toward informal processes even when formal amendment is rela-
tively accessible.
Ireland presents a particularly interesting experience with informal
amendment. According to Fiona de Londras and David Gwyn Morgan,
many of Ireland’s constitutional changes have occurred informally through
judicial review even though the Irish Constitution is relatively easy to
amend. 152 They describe a process where constitutional litigation has driv-

143 See id. at 806–07; see also ESKRIDGE & FEREJOHN, supra note 15, at 49 (“The inference that

Article V is a modern outlier is supported by expanding the comparative eye. Our Constitu-
tion is also the most difficult to amend among all Western constitutions, and we have the
third-lowest amendment rate in the industrialized world.”).
144 See generally Versteeg & Zackin, supra note 11, at 1674.

145 See TARR, supra note 2, at 3.

146 See generally Xenophōn I. Kontiadēs, Constitutional Change Engineering, in ENGINEERING

CONSTITUTIONAL CHANGE: A COMPARATIVE PERSPECTIVE ON EUROPE, CANADA, AND THE U.S.


[hereinafter ENGINEERING] 1, at 4–5 (Xenophōn I. Kontiadēs, ed. 2014).
147 See Manfred Stelzer, Constitutional Change in Austria, in ENGINEERING, supra note 146, at

7, 12.
148 Stelzer, supra note 147, at 13.

149 See Stelzer, supra note 147, at 13.

150 See Tuomas Ojanen, Constitutional Amendment in Finland, in ENGINEERING, supra note 146,

at 93 n.33.
151 See Ojanen, supra note 150, at 93 n.33.

152 See generally Fiona de Londras & David Gwyn Morgan, Constitutional Amendment in Ire-
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2017] State Constitutional Change 475

en various important constitutional changes, and the legislature has taken


advantage of easy amendment procedures to selectively invalidate unpop-
ular court rulings and consciously acquiesce to other constitutional chang-
es made by the courts. 153 They also describe a political culture where con-
stitutional change is initiated through constitutional litigation, with the
understanding that flexible amendment rules give the legislature effective
veto power over judge-driven changes. 154 In this way, constitutional litiga-
tion serves an agenda-setting function, and accessible formal amendment
operates as a check on how the courts resolve particular constitutional is-
sues. 155 Interestingly, they note that the Supreme Court of Ireland has been
especially active in developing constitutional rights. 156
Greece presents another interesting issue not captured by the dominant
theories. Xenophon Contiades and Ioannis Tassopoulos report that the
Greek Constitution is very difficult to amend; especially because of the
“requirement that a new [amendment] cannot be initiated within five years
of the previous one.” 157 However, Greece also faces significant obstacles to
informal constitutional change. For example, Greece does not have one su-
preme court with final authority over constitutional adjudication. 158 That
power is shared by three different courts. 159 The “diffusion” of judicial re-
view has hindered this pathway of informal constitutional change. 160 Addi-
tionally, “persistent constitutional violations before the enactment of the
current Constitution of 1975” has resulted in great popular distrust of in-
formal constitutional practices, and a strong preference for “formal consti-
tutional procedure.” 161 The Greek experience highlights that theories of in-
formal amendment should account for political culture and the
accessibility and authority of alternative institutions (such as courts).

land, in ENGINEERING, supra note 146, at 179.


153 See Londras & Morgan, supra note 152, at 179.

154 See Londras & Morgan, supra note 152, at 179 (seeming to suggest that the legislature has

deferred to constitutional litigation to initiate constitutional changes because the legislature


has been pre-occupied with other issues; primarily socio-economic issues).
155 See Londras & Morgan, supra note 152, at 179.

156 See Londras & Morgan, supra note 152, at 179 (noting that the Supreme Court of Ireland

has “deduced” “substantial unremunerated rights” to the extent of “about 20 aspects of pro-
tections of the person and personality, including rights to privacy, to bodily integrity, and
freedom from torture.”).
157 See generally Xenophon Contiades & Ioannis Tassopoulos, Constitutional Change in Greece,

in ENGINEERING, supra note 146, at 151.


158 See Contiades & Tassopoulos, supra note 157, at 157.

159 See Contiades & Tassopoulos, supra note 157, at 157.

160 See Contiades & Tassopoulos, supra note 157, at 157 (“A number of particularities . . . do

not encourage informal change...Such features primarily concern the diffused system of judi-
cial review in Greece.”).
161 See Contiades & Tassopoulos, supra note 157, at 157.
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476 New England Law Review [Vol. 51|3

Gabriel Negretto has made an important discovery in this regard. 162


Negretto conducted a sophisticated quantitative empirical analysis of the
factors influencing constitutional change in eighteen Latin American coun-
tries from 1946-2008. 163 Negretto hypothesizes that even in systems with
rigid formal amendment rules, courts may be ineffective agents of constitu-
tional change if they enjoy only “moderate levels of judicial independ-
ence.” 164 He suggests that the “crucial variables that capture the importance
of judicial interpretation as a mechanism of constitutional change are the
scope, access, and effects of constitutional adjudication.” 165 He also hy-
pothesizes that in systems with flexible formal amendment rules and
meaningful judicial independence, formal and informal methods of consti-
tutional change may actually proliferate each other. 166 He explains:
[I]f courts have strong power of judicial review and the constitu-
tion is easily amendable, judicial interventions may increase
amendments by Congress . . . since legislators would often resort
to this mechanism to overcome controversial judicial interpreta-
tions. In addition, a constitution that incorporates substantive
policies may encourage both amendments to incorporate policy
shifts and frequent judicial interventions to decide on the consti-
tutionality of legislation. 167

Negretto accounts for these possibilities in his empirical analysis and


finds support for the idea that formal amendment flexibility can increase
informal change through judicial review. 168
I have also found evidence that the interaction between formal and in-
formal amendment may be more complicated than we currently appreci-
ate. 169 In another article, I discuss evidence suggesting that amendment
frequency might affect the incentives for judicial activism. 170 I applied a re-
gression model that accounts for multiple variables that might predict judi-
cial activism on constitutional issues, including formal amendment fre-

162 See Gabriel L. Negretto, Replacing and Amending Constitutions: The Logic of Constitutional
Change in Latin America, 46 L. & Soc. Rev. 749, 752, 761–62 (2012) (conducting empirical study
of constitutional change in 18 countries in Latin America at Table 2).
163 See id. at 763–70 (describing methodology and data).

164 Id. at 761.

165 Id. at 762.

166 See id. at 761.

167 Id.

168 See Negretto, supra note 162, at 774 (“The strength of constitutional adjudication is posi-

tively and significantly correlated with the rate of amendments. This provides prima facie ev-
idence that amendments and constitutional adjudication . . . may reinforce or complement
each other as means of constitutional adaptation.”).
169 See Marshfield, supra note 40.

170 See Marshfield, supra note 40 (applying assumptions from strategic analysis of judging to

an original dataset to test whether courts are affected by amendment frequency when decid-
ing constitutional cases).
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2017] State Constitutional Change 477

quency. I found that increased formal amendment reliably correlates with


judicial restraint only up to a point. When formal amendment becomes too
frequent, courts seem to accelerate their activism in constitutional change.
The cause of this phenomenon requires further investigation, but my find-
ings challenge current notions regarding interaction between formal
amendment and court activism in constitutional change.
There are, of course, countries that generally conform with the U.S. ex-
perience under the Federal Constitution. Richard Albert has explained that
informal constitutional change is prevalent in Canada, in part because
Canada’s constitution contains one of the most complex and onerous
amendment procedures in the world. 171 Similar dynamics likely exist in
Australia, 172 Italy, 173 and perhaps Spain. 174
All of this suggests (at least to me), that the study of informal constitu-
tional change would benefit from more detailed analysis of systems with
frequent formal amendment. It is not a foregone conclusion, for example,
that the lifeblood of informal amendment is the absence of functional for-
mal amendment procedures. Informal amendment processes might have
their own independent qualities that make them preferable even when
formal amendment is relatively easy and frequent. Informal amendment
might, for example, be better suited to certain constitutional issues; so that
change regarding those issues gravitates toward informal processes. Addi-
tionally, a general theory of informal amendment should account for the
relative accessibility of alternative institutions to accommodate informal
amendment. Formal amendment may be “difficult” compared to other
constitutional democracies, but it may be “easy” when compared to do-
mestic informal alternatives such as constitutional litigation. The relative
ease of a particular pathway for constitutional change might also be affect-
ed by factors like political culture. 175 Finally, formal amendment frequency

171 See Albert, supra note 42, at 687–88 (“In Canada, informal amendment has become the

primary vehicle for constitutional change in the face of the near impossibility of formal
amendment.”).
172 See Richard Albert, Quasi-Constitutional Amendments, in COURTS/CONSTITUTION AND
POLICY, at 1, 4 4 (Emmett Macfarlan, ed., forthcoming).
173 Tania Groppi, Constitutional Revision in Italy: A Marginal Instrument of Constitutional

Change, in ENGINEERING, supra note 146, at 203, 210 (“Most constitutional changes in Italy have
taken place without the enactment of constitutional amendments; that is, through informal
changes that did not modify the text of the Constitution.”).
174 See Abraham B. Ortega & Irene S. Guijarro, Constitutional Change in Spain, in
ENGINEERING, supra note 146, at 299, 299 (“In certain legal systems with a concentrated system
of constitutional review, such as the Spanish model, the constitutional case law has an ex-
traordinary relevance as the ultimate interpreter of the constitution”).
175 In other words, constitutional hydraulics may be more complicated than the U.S. Consti-

tutional experience suggests.


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478 New England Law Review [Vol. 51|3

may actually catalyze informal methods of change rather than “diffuse”


it. 176

II. What We Know (and Don’t Know) About Informal Amendment and
State Constitutions

In light of the above, one might expect that state constitutionalism


would provide an attractive laboratory to study these unexplored aspects
of informal amendment. After all, state constitutions are amended more
frequently than the Federal Constitution and they generally correspond
with higher formal amendment rates characteristic of most national consti-
tutions around the world. State constitutions provide a promising oppor-
tunity to investigate informal change in an environment where formal
amendment is frequent and relatively easy. 177
Most scholarship on state constitutional change, however, focuses on
formal amendment and often presumes that informal processes are less
significant pathways for state constitutional change. 178 This is likely be-
cause of the Federal Constitution’s influence on constitutional theory. 179
There is a perception that because informal amendment under the Federal
Constitution is caused by Article V’s rigidity, frequent formal amendment

176 See Negretto, supra note 162, at 774; Marshfield, supra note 40.
177 State constitutions present some unique features that might weaken comparisons to na-
tional constitutions. See Tom Ginsburg & Eric A. Posner, Subconstitutionalism, 62 STAN. L. REV.
1583 (2010) (explaining from the standpoint of principal-agent theory that the forces operating
on state constitutions are fundamentally different than forces affecting national constitutions).
But see Versteeg & Zackin, supra note 11 (drawing on state constitutional experience to com-
ment on constitutional theory generally); Versteeg & Zackin, supra note 22, at 660.
178 See, e.g., Besso, supra note 16, at 74–75 (“State constitutional scholarship generally sup-

ports” the assumption that “states responded to the need for constitutional change by insert-
ing specific rules into the constitution, an option that was closed for the federal government”);
G. Alan Tarr, State Constitutional Politics: An Historical Perspective, in CONSTITUTIONAL POLITICS
IN THE STATES: CONTEMPORARY CONTROVERSIES AND HISTORICAL PATTERNS 3, 3 (1996) (“One of
the most striking features of state constitutional politics is the tendency to pursue constitu-
tional change through formal mechanisms of constitutional change, through amendment or
replacement of the constitution, rather than through litigation.”); TARR, supra note 2, at 23
(same); Bartley, supra note 108, at 22–23 (W. Brook Graves, ed. 1960) (“Careful study shows
that state constitutional change by interpretation and informal processes does occur but that
state constitutions have not been broadly susceptible to growth by political, judicial, and pop-
ular interpretation.”).
179 See Besso, supra note 16, at 70 (“Th[e] conclusion regarding the importance of informal

political construction appears to be limited to the U.S. Constitution . . . That is because the ex-
tant studies address the federal constitutional experience only . . . The states’ constitutional
experiences have been neither examined nor considered”). See generally TARR, supra note 8, at
1 (“Legal scholars announce constitutional theories that actually encompass only the federal
Constitution”).
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2017] State Constitutional Change 479

under state constitutions limits informal processes in the states. 180 Conse-
quently, although scholars have filled volumes studying formal amend-
ment processes in the states, 181 there has been very little systematic empiri-
cal study of other forms of state constitutional change. 182
There are a few prominent exceptions. In an early and brief treatment
of informal state constitutional change, Ernest Bartley, observes that “state
constitutions do grow by the interpretive action of governors, legislatures,
courts, and the people.” 183 He offers as an example that many states effec-
tively amended their constitutions to avoid clauses that prohibited states
from issuing debt. 184 This was accomplished, according to Bartley, by “sub-
terfuge” where state executives and legislatures financed capital improve-
ments by issuing “revenue certificates” and creating special agencies to is-
sue debt. 185 Courts effectively ratified this constitutional shift by upholding
these financing schemes. 186 Bartley concludes that “this sort of evasive ac-
tion . . . is a striking illustration of constitutional change by interpreta-
tion.” 187
Michael Besso has conducted a more recent and extensive investiga-
tion. He studied how informal processes in the states restructured guberna-
torial power during the early twentieth century. 188 He found that during
this period, governors throughout the states moved “from places of obscu-
rity to positions of prominence . . . without formal constitutional chang-
es.” 189 According to Besso, gubernatorial power was restructured during
this time through statutes that reassigned state administrative agencies
from legislatures to governors. 190 Although formal amendment was availa-
ble for these changes, Besso finds that legislation “was clearly the preferred

180 See Besso, supra note 16, at 74; Bartley, supra note 108, at 22–23 (“there has sometimes

been a tendency to ignore interpretation as a medium of state constitutional change . . . As a


medium of state constitutional change, interpretation may be secondary to the more formal
processes of amendment or revision”).
181 See, e.g., JOHN J. DINAN, THE AMERICAN STATE CONSTITUTIONAL TRADITION 37 (2009);

LAURA J. SCALIA, THE STATES JEFFERSONIAN EXPERIMENT: REMAKING STATES CONSTITUTIONS,


1820–1850 (1999).
182 See generally Besso, supra note 16, at 70.

183 See Bartley, supra note 108, at 23.

184 Bartley, supra note 108, at 23.

185 Bartley, supra note 108, at 23. See generally Isabel Rodriguez-Tejedo & John J. Wallis, Fiscal

Institutions and Fiscal Crisis, in WHEN STATES GO BROKE: THE ORIGINS, CONTEXT, AND
SOLUTIONS FOR THE AMERICAN STATES IN FISCAL CRISIS 9, 26–27 (Peter Conti-Brown & David
A. Skeel, Jr. eds. 2012) (explaining the emergence of specific-revenue bonds and special dis-
tricts as a means of evading constitutional limits on debt).
186 See Bartley, supra note 108, at 23.

187 Bartley, supra note 108, at 23.

188 See Besso, supra note 16, at 71.

189 Besso, supra note 16, at 71.

190 See Besso, supra note 16, at 79–80.


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480 New England Law Review [Vol. 51|3

means both to attempt and to achieve reorganization.” 191 This is a striking


finding because, as Besso reports, most reformers understood that their
proposals conflicted with existing separation-of-powers principles under
state constitutions. 192 Besso concludes that although state constitutions are
easier to amend than the Federal Constitution, “this does not support an
assumption that informal construction does not take place” in the states. 193
He suggests that informal amendment can be attractive even in the states
because state legislation is usually easier to obtain than formal amend-
ment. 194
Besso’s study is important from theoretical and empirical perspectives.
Theoretically, Besso draws attention to the highly contextual nature of con-
stitutional “hydraulics.” From the perspective of a reformer looking to
change state constitutional rules, the rigidity of Article V is irrelevant.
What matters is whether it is easier to obtain a formal state constitutional
amendment or state legislation. If political sentiment is such that changes
of constitutional magnitude will be recognized via statute, then the hy-
draulics of change will likely push reform towards legislation and away
from formal amendment. Besso also identifies another contextual factor
impacting hydraulics. 195 He notes that informal constitutional change is
most plausible from a political standpoint when the change involves rules
emanating from vague and general constitutional provisions. 196 When con-
stitutional rules derive from very particular constitutional provisions, in-
formal methods are unlikely to be validated and recognized. 197 Under those
conditions, the hydraulics equation is different because informal processes
present large barriers to change. From an empirical perspective, Besso’s
study is important because it finds evidence of significant informal consti-
tutional change in the states notwithstanding the frequent use of formal
amendment.

191 See Besso, supra note 16, at 80.


192 See Besso, supra note 16, at 80, 82 (describing these cases as unique because other chang-
es with known constitutional problems occurred through formal amendment).
193 See Besso, supra note 16, at 71.

194 See Besso, supra note 16, at 80–83. Besso explains the preference for legislation over

amendment by emphasizing that although state constitutional amendment is easier than un-
der the Federal Constitution, it is much more difficult than state legislation. Besso, supra note
16, at 80–81. Besso does not explain why political actors were willing to accept constitutional
changes through legislation. He does not, for example, explain whether courts acquiesced in
the legislative changes or whether sentiment for change was so strong that nobody challenged
the changes.
195 See Besso, supra note 16, at 82.

196 See Besso, supra note 16, at 82.

197 See Besso, supra note 16, at 82.


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2017] State Constitutional Change 481

James Gardner has also found evidence of informal constitutional


change in the states. 198 Gardner focuses on “practice-driven” informal con-
stitutional changes, which he describes as changes in how the executive or
legislative branches “go about their official business.” 199 Gardner explains
that constitutional change can occur when officials perform their duties in
new ways that challenge existing constitutional norms. 200 When this occurs,
official conduct drives constitutional change by altering what is commonly
understood as appropriate practice for officials. 201
Gardner describes two particularly striking examples of practice-
driven change under New York’s constitution. 202 First, he describes chang-
es to constitutional aspects of New York’s legislative process. 203 New
York’s constitution establishes a conventional legislative process whereby
bills originate in either legislative chamber (perhaps following a committee
investigation or study), are then presented to all members of the legislature
for deliberation and debate, and then approved by a vote in each chamber
followed by presentment to the governor. 204 Gardner explains that the pro-
cess outlined in New York’s constitution “contemplates a law-making pro-
cedure that shares the attributes conventionally associated with democrati-
cally representative government – namely, a process that is open, inclusive,
and deliberative.” 205 He finds, however, that legislative process does not
follow the procedures outlined in the text. Instead, the established conven-
tion in New York is for the Governor, the Speaker of the Assembly, and the
majority leader of the Senate to control which bills will be proposed and
how they will be drafted. 206 This practice forecloses deliberation and input
from other representatives and essentially consolidates legislative power in
the “Big Three Leaders.” 207 Gardner reports that the practice has become
entrenched in New York because “generations of legislators have acqui-
esced in the reconstruction of the system.” 208

198 See Gardner, supra note 34, at 333.


199 See Gardner, supra note 34, at 349.
200 See Gardner, supra note 34, at 349–53.

201 See Gardner, supra note 34, at 349–53

202 See Gardner, supra note 34, at 354–62. Gardner discusses three, but I focus on the two

most striking examples. The third example involves a one-time appointment by Governor Pat-
terson that altered constitutional practice. See Gardner, supra note 34, at 362–64.
203 See Gardner, supra note 34, at 354–58.

204 See Gardner, supra note 34, at 354–55.

205 See Gardner, supra note 34, at 355.

206 See Gardner, supra note 34, at 355.

207 See Gardner, supra note 34, at 355.

208 See Gardner, supra note 34, at 356. He also notes that the Court of Appeals has held that

certain challenges to the legislative process are non-justiciable. See Gardner, supra note 34, at
358.
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482 New England Law Review [Vol. 51|3

Gardner also explains that New York’s judicial section process has
been informally amended through practice. 209 New York’s constitution
provides that judges on New York’s general trial courts are to be elected
“by the electors of the judicial district in which they are to serve.” 210 This
provision was included in the constitution to correct corruption in the prior
appointment system, which empowered the governor to select judges. 211
However, the current practice in New York is for party leaders to “cut
cross-endorsement deals across district lines.” 212 These deals ensure that
party leaders have the power to select judges because chosen candidates
run unopposed and are endorsed by both major parties. 213 Thus, as Gard-
ner observes, “the system contemplated by the state constitution has been
dramatically altered by changes in the practices of elite officials; a system
of competitive democratic elections has been replaced by one in which the
selection is performed by party officials who remain effectively insulated
from democratic accountability.” 214
Gardner’s findings highlight the significant changes that can occur
through informal amendment in the states. They also draw attention to the
need for further investigation. New York’s experience is instructive, but it
begs for a broader and more systematic study of informal amendment in
the states. Indeed, there is anecdotal evidence that other states have infor-
mally amended their legislative processes by acquiescing with extended
non-compliance. 215 Gardner’s findings highlight just how little we know
about informal amendment processes under state constitutions.
Finally, the New Judicial Federalism movement is important to note
when discussing informal constitutional change in the states. Alan Tarr has
explained the movement in helpful historical terms. 216 He reports that,
“although state courts occasionally contributed to state constitutional de-
velopment prior to 1970, states judges overall have been far less aggressive
than their federal counterparts in promoting constitutional change.” 217
However, beginning in the early 1970s, state courts became more active in
the process of constitutional change. 218 This was primarily because of a
movement spearheaded by Justice Brennan of the United State Supreme

209 See Gardner, supra note 34, at 358–62.


210 N.Y. CONST. art. VI, § 6(c); see Gardner, supra note 34, at 359.
211 See Gardner, supra note 34, at 358.

212 See Gardner, supra note 34, at 360.

213 See Gardner, supra note 34, at 360.

214 Gardner, supra note 34, at 360.

215 See ANN O'M. BOWMAN & RICHARD C. KEARNEY, STATE AND LOCAL GOVERNMENT: THE

ESSENTIALS 60–61 (6th ed. 2014) (describing various constitutional legislative rules that states
ignore).
216 See TARR, supra note 2, at 162–70.

217 TARR, supra note 2, at 162.

218 See TARR, supra note 2, at 165–66.


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2017] State Constitutional Change 483

Court that became known as the “new judicial federalism.” 219 The move-
ment encouraged state high courts to break from rights-restricting rulings
from the Burger Court by grounding their opinions in state constitutional
law. 220 As Tarr explains, before 1970, state high courts almost universally
decided constitutional cases (especially civil rights cases) by following rul-
ings from the Supreme Court. 221 After 1970, however, there was a dramatic
increase in state rulings grounded in state constitutional law. 222
Professor Tarr’s account of the new judicial federalism is important be-
cause it highlights that many state rulings after 1970 brought about consti-
tutional change by freeing state constitutional protections from the Su-
preme Court’s interpretation of the Federal Constitution. However, the
new judicial federalism movement was mostly about state court independ-
ence from the Supreme Court; especially on civil rights issues. The new
judicial federalism does not shed direct light on how state constitutional
law changes over time; other than to emphasize that developments by state
courts may be influenced by Supreme Court precedent and that there was a
dramatic re-discovery of independent state constitutionalism after 1970.
Although Bartly, Besso, Gardner, and the new judicial federalism chal-
lenge the conventional perception that informal change is less meaningful
than formal amendment in the states, they do not address many important
and pressing questions about the scope and operation of informal constitu-
tional change in the states. There is much that we do not know about how
informal amendment is shaping (or not shaping) state constitutional law.
An especially striking gap in the literature on state constitutional change is
any systematic inquiry into the role that contemporary state high courts
play in informal amendment. Informal amendment through judicial review
is perhaps the most frequent method of informal change under the Federal
Constitution and other constitutions around the world. 223 However, aside
from the substantial literature discussing the new judicial federalism, there
is little (or no) research into whether and how state courts participate in in-
formal amendment in the states. This is likely because of the perception
that frequent formal amendment of state constitutions has mitigated the
need for sustained judicial involvement in constitutional change. 224
Nevertheless, well-known state constitutional anecdotes suggest that
state courts may be systemically more active in constitutional change than

219 See TARR, supra note 2, at 161.


220 See TARR, supra note 2, at 161.
221 See TARR, supra note 2, at 165.

222 See TARR, supra note 2, at 165–67.

223 See Albert, supra note 13, at 1063 (“Informal amendment occurs most frequently by judi-

cial interpretation.”).
224 It may also be because of the difficulty in gathering systematic data regarding state court

involvement in informal amendment.


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484 New England Law Review [Vol. 51|3

current theories appreciate. For example, beginning in 1973, several state


high courts struck down their states’ long-standing education financing
schemes as violating state equal protection and education guarantees. 225
Similarly, near the end of the twentieth century, several state high courts
imposed new constitutional limits on local zoning power by finding that
their state constitutions prohibited zoning practices that had the effect of
excluding certain groups. 226 State courts have also struck new ground by
recognizing the enforceability of progressive economic rights under state
constitutions, 227 the right to marry for same-sex couples, 228 the right against
execution, 229 and the right to free speech on private property. 230 Other ex-
amples exist, 231 but these well-known anecdotes suggest that state courts
contribute to constitutional change in meaningful ways. There is surely
need for systematic study of state court involvement in constitutional
change.

III. Some New Data Relevant to Courts and Informal Amendment in the
States

To help advance our understanding of informal constitutional change,


I explore the extent to which state supreme courts may contribute to infor-
mal amendment of state constitutions by drawing on an original dataset of
hand-coded state high court opinions. My focus is both the quantity of in-
formal amendment by state high courts as well as the substantive areas in
which state high courts have participated.

225 See, e.g., Edgewood Ind. Sch. Dist. v. Kirby, 777 S.W.2d 391 (Tex. 1989) (striking down

Texas’s education financing scheme as violating the state constitutional education clause). See
generally Joshua E. Weishart, Transcending Equality Versus Adequacy, 67 STAN. L. REV. 477, 500–
09 (2013) (describing the waves of education reform occurring in state courts and under state
constitutions).
226 See, e.g., S. Burlington Cty. NAACP v. Mt. Laurel, 336 A.2d 713 (N.J. 1975). See generally

Thomas A. Brown, Democratizing the American Dream: The Role of a Regional Housing Legislature
in the Production of Affordable Housing, 37 U. MICH. J.L. REFORM 599, 602-05 (2004) (summariz-
ing states that took this approach).
227 See generally Helen Hershkoff, Positive Rights and State Constitutions: The Limits of Federal

Rationality Review, 112 HARV. L. REV. 1131, 1145–52 (1999); Helen Hershkoff & Stephen
Loffredo, State Courts and Constitutional Socio-Economic Rights: Exploring the Underutilization
Thesis, 115 PENN ST. L. REV. 923, 941 (2011).
228 See Kenneth P. Miller, Defining Rights in the States: Judicial Activism and Popular Response,

76 ALB. L. REV. 2061, 2076–79 (2013) (exploring these cases).


229 See id. at 2070-72 (exploring these cases).

230 See, e.g., Robins v. Prune Yard Shopping Ctr., 592 P.2d 341, 347 (Cal. 1979) (“The Califor-

nia Constitution protects speech and petitioning, reasonably exercised, in shopping centers
even when the centers are privately owned.”).
231 See Miller, supra note 228, at 2067–69 (listing examples).
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2017] State Constitutional Change 485

Before presenting my findings, a few explanations and qualifications


are necessary. First, as noted above, there are various theories explaining
how courts may contribute to informal constitutional change. Although
these theories vary in important respects, they share a core idea: courts can
informally amend a constitution by using the power of judicial review to
issue “transformative . . . opinions that self-consciously repudiate preexist-
ing doctrinal premises and announce new principles.” 232 This sometimes
occurs because political actors have already pushed constitutional bounda-
ries, and courts are simply ratifying a change that has already taken root.
But courts can also initiate change by changing constitutional doctrine and
striking long-standing conduct or legislation. In either scenario, courts par-
ticipate in informal amendment by “changing [constitutional] meaning
with binding effect.” 233 I adopt this general description of informal
amendment by courts.
Second, to systematically investigate the extent to which state high
courts may participate in this kind of informal amendment, I draw on an
original database of state high court opinions from 1970 to 2004. 234 The da-
tabase captures all opinions in that period where a state high court chose to
explicitly overturn one of its own constitutional precedents. The data ex-
clude instances where intervening constitutional amendments or changes
in federal law necessitated the overruling (including new decisions by the
United States Supreme Court). Thus, my data capture only instances where
state high courts independently chose to depart from their own constitu-
tional precedent.
Overruling decisions are a meaningful, but admittedly imperfect
measure, of informal constitutional change by courts. They are imperfect in
that they are likely under-inclusive of instances where courts contributed
to informal amendment. Courts can use judicial review to bring about sig-
nificant constitutional change without explicitly overruling prior prece-
dent. Marbury v. Madison, for example, is an oft cited example of informal
amendment of the United States Constitution, 235 but it did not involve the
explicit overruling of any prior Supreme Court precedent. 236 On the other
hand, overruling opinions are meaningful indicators of informal constitu-
tional change because a high court’s explicit overruling of prior constitu-

232 Ackerman, supra note 82, at 1173; see Albert supra note 13, at 1063 (“When national

courts of last resort in states with strong-form judicial review interpret the constitution in new
ways, they effectively ‘amend’ it by changing its meaning with binding effect.”).
233 See Albert supra note 13, at 1063.

234 I first introduced portions of these data in Marshfield, supra note 40.

235 See, e.g., Gardner, supra note 34, at n.65 (citing Marbury v. Madison, 5 U.S. 137 (1803) as

an example of informal amendment by the Supreme Court).


236 See Marbury v. Madison, 5 U.S. 137 (1803); see also Burnet v. Coronado Oil & Gas Co.,

285 U.S. 393, 402 (1932) (Brandeis, J., dissenting) (explaining that significant changes in consti-
tutional doctrine can occur without explicit overruling).
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486 New England Law Review [Vol. 51|3

tional precedent very likely amounts to a new and binding constitutional


rule. 237 Thus, political scientists have recognized that overruling behavior is
a reliable indicator of judicial activism. 238 By focusing my study on opin-
ions that overrule constitutional precedent, I adopt the assumption that
those opinions signal a court’s willingness to actively change constitutional
rules, which is the precise phenomenon I hope to quantify.
Third, I have fully described my collection of most of this data in an-
other article, which used some of the data for a different purpose. 239 Thus, I
only briefly describe my data collection process here. In short, I used
Westlaw to obtain citations for all published cases decided by all state high
courts from each state’s beginning until the end of 2004. This resulted in a
database of more than two million cases. I then obtained KeyCite infor-
mation for all those cases and isolated all cases with a “red” flag, which in-
dicates that the case is no longer valid for at least one point of law. I then
retrieved and reviewed full KeyCite reports for all red flagged cases and
identified all cases that were overruled in whole or in part by an opinion
from the same court between 1970 and 2004. 240 I next reviewed all of those
opinions to identify cases that overturned a point of constitutional law (as
opposed to statutory law or common law). 241
For purposes of this Article, I re-reviewed all cases overturning a point
of constitutional law and coded them with a subject-matter code describing
the subject of the invalidated point of constitutional law. I used the subject
categories applied by the Council of State Governments in its biennial re-
ports of formal amendments to state constitutions from 1970 to 2004. 242

237 Overruling behavior may also be imperfect by virtue of being over-inclusive if other

branches of government refuse to recognize the constitutional change made by the court. See
Albert, supra note 13, at 1053 (noting that no one branch can bring about informal constitu-
tional change). However, I assume that this is a very infrequent occurrence in jurisdictions
with an established and respected practice of judicial review. Thus, I make the assumption
that this imperfection would be negligible. I also recognize that overruling opinions can some-
times represent the expression of a change that has already occurred in society and elsewhere
in government. I assume, however, that those changes were finally ratified when the court
sanctioned them, and thus, they are properly counted as instances where courts participated
in informal amendment.
238 See STEFANIE A. LINDQUIST & FRANK B. CROSS, MEASURING JUDICIAL ACTIVISM 121–22

(2009) (using data from Supreme Court opinions explicitly overruling prior precedent as a
“baseline measure of activism[.]”).
239 See Marshfield, supra note 40.

240 Only this portion of my review was conducted in conjunction with research assistants. I

performed all other aspects of the data collection personally. Research assistants reviewed the
KeyCite reports pursuant to a strict written protocol and their results were randomly spot
checked.
241 See Marshfield, supra note 40 (explaining the protocol that I applied for this review).

242 Those reports generally appear in “Table B—Substantive Changes in State Constitutions

Proposed and Adopted” for 1970–1993, and “Table 1.7—Substantive Changes in State Consti-
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Those reports sort all formal amendments to all state constitutions into
eleven categories that correspond to the major sections in most state consti-
tutions. 243 The categories are: (1) bill of rights; (2) suffrage and elections; (3)
legislative branch; (4) executive branch; (5) judicial branch; (6) local gov-
ernment; (7) finance and taxation; (8) state and local debt; (9) state func-
tions; (10) amendment and revision; and (11) miscellaneous proposals. 244
Fourth, to facilitate category-specific quantitative comparisons between
formal amendments and informal amendment in state courts, I tabulated
all formal amendments to state constitutions by the same categories for the
same period (1970 to 2004). I obtained these data from the biennial reports
published by the Council of State Governments (mentioned above). Unfor-
tunately, the Council of State Governments reports this information only in
the aggregate and not on a state-by-state basis. The Council reported the
data for two-year periods for all years in my study except 2004, when the
Council appears to have shifted to reporting the data on an annual basis.
In the end, my database captures all cases by all state high courts be-
tween 1970 and 2004 that overruled a prior state constitutional precedent
and sorts those cases by substantive category. It also incorporates all for-
mal amendments in the same categories for the same period. This data
provides a new and important glimpse into the extent of state court in-
volvement in constitutional change. It is surely limited and imperfect, but it
represents a significant improvement on current available information. I
turn now to my findings from the data.

IV. Assessing the Scope and Substance of Informal Amendment by


State High Courts

In this section, I present the key findings from my data. I first present
the core quantitative findings. For necessary background, I include a very
brief summary of findings that I have documented elsewhere before pre-
senting original findings based on my new subject-matter coding. My prior

tutions Proposed and Adopted” for 1994–2004. (The report appears uniquely as “Table G” in
the 1982 Book of the States).
243 See Albert L. Strum, State Constitutions—State Constitutions and Constitutional Revision,

1974–75, in BOOK OF THE STATES (1976) (“Proposals of statewide applicability are further classi-
fied under subject matter headings that conform broadly to the principal functional areas of
state constitutions.”). The tables include a twelfth category that captures proposals for a con-
stitutional convention. I did not include that category as it was irrelevant to informal amend-
ment by courts. The tables also include local amendments, which capture amendments appli-
cable to only a particular locale within a state. These local amendments are not generally
applicable statewide. I similarly excluded local amendments from my analysis.
244 See, e.g., Janice C. May, State Constitutional Developments in 2004, in BOOK OF THE STATES

2004, at Table 1.7 (2005).


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488 New England Law Review [Vol. 51|3

findings were based on a multi-variant, regression analysis of the data and


they revealed a statistically significant curvilinear relationship between
amendment frequency and judicial activism. I then present a few qualita-
tive trends that I observed in my review of the cases in order to provide
more context to the quantitative analysis.
In short, although formal amendments vastly outnumber informal
amendments by courts in the aggregate, informal amendment regarding
individual rights was more prevalent than formal amendment. This gener-
ally holds true across states and time; suggesting that there is something
special about the relationship between courts, informal amendment, and
rights.

A. Quantitative Findings

There is no doubt that formal amendment plays a significant role in


state constitutional change. Over the period of my study (1970-2004), the
states adopted approximately 2,887 formal amendments to their respective
constitutions. 245 Those amendments touched on almost all aspects of consti-
tutionalism: individual rights, government structure, taxation and debt,
and many others. Amendment rates varied among states during this peri-
od. Texas topped the list with 241 amendments, California was second
with 149, and Alabama was third with approximately 130. 246 At the other
end of the spectrum, Vermont’s constitution was amended only 9 times,
Tennessee amended its constitution only 18 times, and Michigan only 20
times. 247 The average number of formal amendments across the states be-
tween 1970 and 2004 was 60.18, which equates to an annual rate of 1.7

245 This number was calculated by reference to the total number of amendments listed for

each state constitution at the end of 1969 compared to the total number of amendments listed
for each constitution at the beginning of 2005. See Albert L. Strum, State Constitutions—State
Constitutions and Constitutional Revision, 1967-69, in BOOK OF THE STATES, at Table 1 (1970) (re-
porting number of amendments to each state constitution through December 31, 1969); May,
supra note 244, at Table 1.1 (reporting number of amendments for each state constitution
through December 31, 2004). Adjustments were made to extract local amendments based on
the estimated proportion of local amendments reported in the Book of the States. Seven states
adopted new constitutions during the period of my study (Virginia, North Carolina, Illinois,
Montana, Louisiana, Georgia, and Rhode Island). See May, supra note 244, at Table 1.1. The
total number of amendments listed above (2,887) includes only amendments to the constitu-
tions of those seven states that were in force in 2004. There were approximately 2,998 amend-
ments to all constitutions for all states between 1970 and 2004.
246 These represent the number of state-wide amendments adopted to the constitution in

force in 2004.
247 These represent the number of state-wide amendments adopted to the constitution in

force in 2004.
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2017] State Constitutional Change 489

amendments per year. 248 The median number of amendments was 56


(Maine and Delaware are both at the median). 249 Appendix A includes
formal amendment data for all states from 1970 to 2004. When compared to
the Federal Constitution, which was amended only once during this period
by an amendment that was pending for more than 202 years, this is a sig-
nificant amount of formal amendment activity.
Notwithstanding this “beehive” of formal amendment activity, my da-
ta show that courts remained active in contributing to constitutional
change. My review identified 643 cases where state courts independently
dispensed with prior constitutional precedent and explicitly adopted new
and binding constitutional rules. Appendix A also includes the number of
informal amendments for each state for 1970-2004. As I have discussed
elsewhere, these data are informative when examined on a state-by-state
basis and compared to formal amendment rates in each state as well as tens
of other potentially relevant variables. 250 Under the dominant theories dis-
cussed above, when all else is equal, we would expect to find an inverse
relationship between formal amendment frequency and rates of informal
amendment. In other words, all else being equal, states with high formal
amendment rates should experience less informal amendment and vice
versa.
Surprisingly, however, my data suggest the opposite. Various states
with high formal amendment rates also have some of the highest rates of
informal amendment by courts. Texas, for example, had the highest num-
ber of informal amendment events (44) even though it has the highest for-
mal amendment rate. California and Alabama are similar. California has
the second highest number of informal amendment events (41) even
though it had the second highest formal amendment rate. Alabama has the
third highest number of informal changes (31) and the third highest formal
amendment rate. It is also interesting that a few states with relatively low
formal amendment rates have low informal amendment rates. Vermont,
for example, had only one instance of informal amendment from the bench
even though it had the lowest formal amendment rate (only 9 amendments
from 1970–2004). Indiana and Iowa (and perhaps Wyoming) also fit this
pattern.
Indeed, as I have reported elsewhere, when analyzing all the data
across the states, there is a statistically significant (p=0002) positive correla-

248 To calculate this average fairly, I exclude Virginia, North Carolina, Illinois, Montana,

Louisiana, Georgia, and Rhode Island because those states adopted new constitutions some-
time between 1970 and 2004. Thus, this average represented the total number of amendments
in the remaining 43 states (2,587) divided by 43.
249 Again, this excludes the seven states that adopted new constitutions between 1970 and

2004.
250 See Marshfield, supra note 40.
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490 New England Law Review [Vol. 51|3

tion (coefficient=0.5384) between amendment frequency and the rate of in-


formal change by courts. 251 This means that, in the aggregate, increases in
formal amendment correlate with increases in informal amendment. Figure
1 below illustrates the correlation with a fitted line showing 90% confi-
dence intervals.

Figure 1 – Correlation Between Amendment Rate and Overruling


Rate, 1970-2004 252

251 I have made similar observations from these data in The Amendment Effect, which pro-
vides more in-depth analysis of the correlation between formal amendment rates and rates of
informal change. See Marshfield, supra note 23. That analysis included twenty variables and
applied a model that accounted for potentially significant variations between states, such as
judicial resources, docket size, judicial selection and retention methods, and more. Figure 1 is
intended only as a helpful and simplified review of my more nuanced and robust findings
and analysis from prior work. I do not mean to suggest that a simple two-variable compari-
son could shed much meaningful light on statistical correlation; yet alone causation. The cor-
relation reported in figure 1 excludes the seven states that adopted entirely new constitutions
during my sample period because the young age of those constitutions and the few number of
years for change make them unfair comparisons. Even without this adjustment the correlation
remains statistically significant and positive.
252 First reported in Marshfield, supra note 23, at Figure 2.
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2017] State Constitutional Change 491

These aggregate findings are important and they challenge dominant


perceptions about the scope of informal amendment under flexible state
constitutions. Contrary to the dominant theories emanating from our expe-
rience under the Federal Constitution, informal amendment by courts may
in fact be catalyzed by higher formal amendment rates. Of course, this
analysis is just a helpful summary of my robust treatment of the data in
prior work, which accounts for myriad other possible influences on the in-
teraction between amendment frequency and judicial involvement in
change. It would be a mistake to rely on these aggregate data without ex-
amining the more robust analysis in my prior work showing a complicated
curvilinear correlation between amendment frequency and judicial activ-
ism after accounting for other alternative impacts.
My new subject-matter coding permits deeper analysis of the nature of
state court involvement in constitutional change. Specifically, because my
subject-matter codes correspond to the categories used by the Council of
State Governments to catalogue formal amendments, we can compare for-
mal and informal amendment by category. Figure 2 below illustrates this
comparison, and Appendix B contains the raw data by category.

Figure 2 - State Constitutional Change by Subject and Type


1970-2004
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492 New England Law Review [Vol. 51|3

These data contain several important findings. First, despite the tre-
mendous amount of formal amendment that occurred in the states (more
than four times as much as informal change), informal change by courts ac-
counts for the majority of reform to individual rights protections. There
were 230 formal amendments to state Bills of Rights between 1970 and
2004, but there were 361 informal amendments by courts. In other words,
courts contributed 61% of all changes to constitutional rules regarding in-
dividual rights. 253 This is the only category where informal amendment in
the courts outpaced formal amendments. Indeed, informal amendments
regarding individual rights account for approximately 56% of all informal
amendments by courts.
Second, state court activity regarding individual rights was wide-
spread across the states. Courts in every state except Delaware and Ver-
mont announced changes to constitutional rights. 254 California again led
the pack with 29 informal amendments to rights. Texas was second with
27, followed by Oklahoma with 20. Montana was a surprising fourth with
14, and Michigan had 13. The average number of changes to rights was 7.22
per state and the median was 6 (with Georgia, Hawaii, New Mexico, South
Dakota, Wisconsin, and Wyoming all at the median). Unfortunately, data
from the Council of State Governments does not track formal amendments
by category within each state, so it is not possible to conduct a state-by-
state comparison between formal and informal change for each category.
However, the aggregate data suggest that judicial participation in informal
amendment in the states is dominated by changes to individual rights pro-
tections. Indeed, in all but eight states, informal changes to individual
rights were the largest category. 255 In thirty-two states, informal changes to
individual rights were larger than all other categories combined. 256
This pattern also seems to hold true over time. Figure 3 illustrates for-
mal and informal amendments regarding rights by year from 1970 to 2004.
Although there are a few periods where formal amendment regarding
rights surpassed informal judicial amendments, the opposite is the more
frequent occurrence. Over the period of my study, informal amendments to
rights exceeded formal amendments in 27 of the 35 years studied. 257

253 This assumes, of course, that change occurs only through the courts or though formal

amendment, which is an overly simplistic assumption. There are likely other forms of infor-
mal change at play as well.
254 Appendix C, infra, contains the data for all categories by state.

255 The states where individual rights were not the largest category were Delaware, Ver-

mont, Arkansas, Nevada, Missouri, Idaho, Kansas, and New Mexico. See Appendix C, infra.
256 See Appendix C, infra.

257 The Book of the States reported formal amendment rate data biennially for all years ex-

cept 2004. To account for this, I divided the total number of amendments for each two-year
period evenly in half.
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2017] State Constitutional Change 493

Figure 3 - Informal and Formal Amendment to Rights


1970-2004

The rights data are also interesting when correlated with formal
amendment rate data. The correlation is stronger (p=0.0000) and slightly
more positive (coefficient=0.5832) than the correlation to informal amend-
ment in the aggregate. This suggests that as formal amendment frequency
increases, courts become more active in constitutional change regarding
individual rights. Figure 4 below illustrates the correlation with a fitted line
showing 90% confidence intervals.
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494 New England Law Review [Vol. 51|3

Figure 4 – Correlation Between Amendment Rate and Overruling Rate –


State Bills of Rights, 1970-2004

Another interesting observation from the data is the extent to which


courts have been active in changing the constitutional rules that regulate
the judiciary. This was the second largest category of informal amendment
by courts (125 across all states). Courts contributed 31% of all changes to
rules governing courts. This stands in contrast to rules regulating the legis-
lative and executive branches, where courts contributed only 9% (legisla-
tive) and 4% (executive) of all changes in those areas. In other words,
courts were significantly more active in bringing about constitutional
change affecting the judiciary than the other two branches of government.
It is also interesting to observe the areas where courts were the least ac-
tive in constitutional change. I found only one instance where a court in-
formally amended constitutional rules addressing voting issues, and only
five instances where courts changed rules regarding amendment and revi-
sion procedures. Courts were also relatively inactive in changes regarding
taxation and finance (only 4% of changes in those areas were by courts).
Table 1 below shows the percentage of each category attributable to formal
and informal amendment.
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2017] State Constitutional Change 495

Table 1 – Distribution of Constitutional Change by


Formal Amendment and Court Ruling
1970-2005

Courts Formal Amd.


Bill of Rights 61% 39%
Suffrage & Election 1% 99%
Legislative Branch 9% 91%
Executive Branch 4% 96%
Judicial Branch 31% 69%
Local Government 12% 88%
Taxation & Finance 4% 96%
State & Local Debt 7% 93%
State Functions 5% 95%
Amend. & Revision 7% 93%
Misc. Provisions 12% 88%

In sum, from an aggregate perspective, formal amendment was the


dominant method of changing state constitutions from 1970 to 2004. How-
ever, my data reveal that the opposite was true for reform of individual
rights protections. Informal amendment by courts was the dominant meth-
od used to change individual rights protections and it seems to increase in
frequency as formal amendment rates increase. Informal amendment was
also significant in reforming rules governing the judicial branch. Finally,
informal amendment is an especially insignificant method of reform re-
garding voting, taxation and finance, and executive power.

B. Qualitative Illustrations

Although the above quantitative results are informative and important,


quantitative analysis can obscure important nuances and contextual factors
that might enrich our understanding of informal constitutional change in
the states. Thus, I now shift to a summary of select qualitative illustrations
from my database. These illustrations are not an exhaustive catalogue of
the themes in the cases. Indeed, qualitative generalizations and categoriza-
tion are difficult in light of the great variety and nuance in the cases. Nev-
ertheless, this section strives to describe several representative themes an-
imating the cases underlying the quantitative data.
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496 New England Law Review [Vol. 51|3

In these summaries, I focus on the cases where courts engaged with


constitutional change directly and meaningfully. To be sure, I found in-
stances where courts dispensed with constitutional precedent in a perfunc-
tory manner or dealt with the constitutional issue rather indirectly, 258 but
the data are replete with meaningful discussions by courts of why constitu-
tional rules should change. I have organized my summaries around the
categories where courts were the most and least active.

1. Individual Rights

The 361 individual rights cases in my sample addressed many different


rights in many different contexts and with varying degrees of significance
and diligence. I discuss a few trends in the criminal procedure context be-
fore discussing civil rights more generally. Overall, the cases suggest that
notwithstanding frequent formal amendment, state courts believe that they
have an independent obligation to update and improve constitutional
rules, and they often deploy liberal methods of constitutional construction
to do this.

a. Criminal Procedure

Many of the rights cases (approximately 55%) related to criminal pro-


cedure protections of some kind. Within this group, there was tremendous
variety and nuance; making generalizations difficult. However, two trends
are illustrative of the sort of changes and reasoning made by courts.
First, various state supreme courts made changes to state double-
jeopardy protections. 259 A recurring issue in these cases was the proper
standard to apply in determining whether double jeopardy prohibited
prosecution or punishment for multiple crimes stemming from related
events. Some states rejected the older and more formalistic “statutory same
element test” 260 outlined by the United States Supreme Court under the
Fifth Amendment. 261 Those courts adopted standards that broadened dou-
ble-jeopardy protections for criminal defendants. 262 A few courts over-

258 See, e.g., State v. Reynolds, 642 A.2d 1368, 1371 (N.H. 1994) (“To the extent that our hold-

ing in this case is inconsistent with Theodosopoulos, that case is overruled.”); In re Lynch, 503
P.2d 921, 930 n.15 (Ca. 1972) (characterizing rule as only “dictum” but nevertheless declaring
that it is overruled).
259 See, e.g., Richardson v. State, 717 N.E.2d 32 (Ind. 1999); Cook v. State, 841 P.2d 1345

(Wyo. 1992).
260 This is also known as the same-evidence test.

261 See generally Blockburger v. United States, 284 U.S. 299 (1932).

262 See, e.g., Richardson, 717 N.E.2d at 32; Sate v. Ferguson, 274 S.E.2d 440 (W.Va. 1980);

Whitton v. State, 479 P.2d 302 (Alaska 1970); see also State v. Dunlop, 721 P.2d 604 (Alaska
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2017] State Constitutional Change 497

turned standards that provided broader protections in favor of narrower


standards that allowed multiple prosecutions consistent with the Supreme
Court’s interpretation of the Fifth Amendment. 263
In People v. White, 264 for example, the Supreme Court of Michigan con-
sidered whether to overrule a prior case that implicitly adopted a double-
jeopardy standard similar to the federal standard that allowed multiple
prosecutions “arising out of the same factual situation” so long as each
crime required proof of a different fact. 265 The court held that the time had
come for double jeopardy under the Michigan Constitution to prevent mul-
tiple prosecutions for crimes arising out of the “same transaction.” 266 To
justify the change, the court explained that “in a time of overcrowded crim-
inal dockets” the “same transaction test will promote the best interests of
justice” by forcing the state “to bring to trial a defendant as expeditiously
and economically as possible.” 267 The court further explained that the
change was necessary to “prevent harassment of a defendant” by provid-
ing finality, “equalizing the adversary capabilities of grossly unequal liti-
gants, and prevent[ing] prosecutorial sentence shopping.” 268
This court’s reasoning suggests that it was motived by a desire to up-
date a constitutional rule that had proven outdated and inefficient over
time. 269 The court did this by explicitly repudiating an existing constitu-
tional rule and clearly announcing a new rule purporting to bind other of-
ficials. 270 The court also emphasized that the new rule was appropriate be-
cause it best captured Michigan’s commitment to the idea that “the
prohibition of double jeopardy is for the defendant's protection.” 271 In this
sense, White is a compelling example of the kind of informal constitutional
change by courts that theorists often associate exclusively with the Federal
Constitution. 272

1986) (declining to disturb Whitton).


263 See, e.g., State v. Tanton, 540 P.2d 813 (N.M. 1975); People v. Nutt, 677 N.W.2d 1 (Mich.

2004); see also People v. White, 212 N.W.2d 222 (Mich. 1973).
264 212 N.W. 2d 222 (Mich. 1973).

265 See id. at 227–28 (“After a thorough reexamination of the double jeopardy clause as

found in case law and commentary, we have concluded that Grimmett did not properly weigh
the constitutional dimensions of the same transaction test.”).
266 See id.

267 See id. at 228.

268 See id.

269 See id. at 227–28 (“We therefore adopt the same transaction test . . . and overrule Grim-

mett to the extent that it is inconsistent with today’s opinion.”).


270 See White, 212 N.W. 2d 222, 228 (Mich. 1973) (stating that new rule will limit conduct of

officials by “prevent[ing] prosecutorial sentence shopping.”).


271 See id.

272 Ironically, the Michigan Supreme Court subsequently overruled White in Nutt, 677
N.W.2d at 10–16, with reasoning sounding in history and original meaning. As explained be-
low, this relaxed approach to constitutional stare decisis is also characteristic of informal con-
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498 New England Law Review [Vol. 51|3

Whitton v. State provides another example of this reasoning in the dou-


ble-jeopardy context. 273 There, the Alaska Supreme Court considered
whether to broaden double-jeopardy protections and overrule precedent
that applied the narrow “same elements” test. 274 The court repudiated the
same-element test in favor of a more open-ended, factor-based test. 275 In so
doing, the court explained: “Our constitution . . . is not static. It is a viable,
active thing, designed to serve the needs of humanity and society with the
ability to accommodate to changes which inevitably occur with the pro-
gress of our civilizations.” 276 The court did not mention the possibility of
formal amendment to update double-jeopardy protections or accommo-
date change. 277 Thus, Whitton provides another example of the sort of in-
formal constitutional change by courts that is often associated with the
Federal Constitution.
State v. Tanton illustrates another justification regarding constitutional
change that is often associated with informal amendment under the Feder-
al Constitution. 278 In Tanton, the New Mexico Supreme Court considered
whether to overrule various cases adopting the more protective “same-
transaction” test for double-jeopardy. 279 Those cases spanned more than a
decade. 280 The court overruled this line of cases and explained that they
represented a series of mistakes where the court applied the wrong test. 281
The court essentially engaged in constitutional error correction by over-
turning mistaken constitutional precedent. The court made no mention of
the fact that in the intervening decade, no formal amendment was intro-
duced to correct the errors. 282 This relaxed approach to constitutional prec-

stitutional change under the Federal Constitution.


273 479 P.2d 302 (Alaska 1970).

274 See id. at 312.

275 See id. at 312–13.

276 Id. at 310.

277 At the time of the court’s decision, the Alaska Constitution was only 11 years old, but it

had already been amended twice. See Strum, supra note 245, at Table 1 (showing that Alaska
Constitution was effective beginning in 1959 and had been amended twice as of December 31,
1969). Notably, the Alaska Constitution was amended five more times over the next two years
(1970-71). See Albert L. Strum, State Constitutions—State Constitutions and Constitutional Revi-
sion, 1970–71, in BOOK OF THE STATES, at Table 3 (1972).
278 540 P.2d 813 (N.M. 1975).

279 See id. at 816.

280 See id.

281 See id. (“We overrule State v. Anaya insofar as it applied [the same transaction] test. The

same evidence test would have reached the same result and should have been used.” (internal
citations omitted)).
282 At the time of the court’s ruling, the New Mexico Constitution was approximately sixty-

three years old and had been amended approximately 91 times. See Strum, supra note 243, at
Table 3 (showing that New Mexico Constitution was effective in 1911 and had been amended
ninety-one times by December 31, 1975).
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edent is usually associated with rigid constitutions where formal amend-


ment is not available to correct systematic and prolonged constitutional er-
rors by the courts. 283
A second recurring and informative trend in the criminal procedure
context was reform to jury trial rights. Various state constitutions include
strong language stating that the right to trial by jury “shall remain invio-
late.” 284 Defendants in various states challenged proceedings as infringing
this right and raised other defenses based on the “inviolate” nature of the
jury right. Many states responded to these claims with liberal constructions
of their state constitutions to the effect of upholding limitations on the right
to a jury trial. 285
For example, in In re Johnson, the Iowa Supreme Court considered
whether the state right to a jury trial applied to juvenile delinquency pro-
ceedings before a specialized juvenile court. 286 The minor in the case was a
fifteen year old accused of stealing and destroying property. 287 The state
petitioned the juvenile court for an order declaring the minor to be a “de-
linquent child” and transferring custody of the minor to the Department of

283 See generally Thomas R. Lee, Stare Decisis in Historical Perspective: From the Founding Era to

the Rehnquist Court, 52 VAND. L. REV. 647, 727 (1999). In Burnet v. Coronado Oil & Gas, Justice
Brandeis famously explained that the Supreme Court should not rigidly follow stare decisis
regarding constitutional precedent because formal amendment is practically impossible as a
means of correcting constitutional errors by the Court:
[I]n cases involving the Federal Constitution, where correction through
legislative action is practically impossible, this Court has often overruled
its earlier decisions. Court bows to the lessons of experience and the force
of better reasoning, recognizing that the process of trial and error, so
fruitful in the physical sciences, is appropriate also in the judicial func-
tion.
Burnet v. Coronado Oil & Gas, 285 U.S. 393, 405–08 (1932) (Brandeis, J., dissenting). The Court
later endorsed Justice Brandeis’s view in Smith v. Allwright, 321 U.S. 649, 664–65 (1944). Vari-
ous state high courts have adopted this approach even though state constitutions are much
easier to amendment; and even though Justice Brandeis noted in Burnet that “the policy of
stare decisis may be more appropriately applied to constitutional questions arising under the
fundamental laws of those States whose constitutions may be easily amended.” See, e.g., Texas
Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993) (“Although our concern
for the rule of stare decisis makes us hesitant to overrule any case, when constitutional princi-
ples are at issue this court as a practical matter is the only government institution with the
power and duty to correct such errors.”).
284 See Robert H. Miller, Six of One is Not a Dozen of the Other: A Reexamination of Williams v.

Florida and the Size of State Criminal Juries, 146 U. PA. L. REV. 621, 646 n. 146 (1998) (collecting
state constitutional provisions regarding the right to a jury trial).
285 See generally id. at 646 (“Cases interpreting such language, however, illustrate that jury

size has hardly remained inviolate, and any semblance of a consistent standard has been se-
verely eroded.”).
286 257 N.W.2d 47 (Iowa 1977).

287 See id. at 48.


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500 New England Law Review [Vol. 51|3

Social Services. 288 State law required all hearings in juvenile court to be
without a jury, but the Iowa Constitution provided that the right to a jury
trial was “inviolate” 289 and applied “[i]n all criminal prosecutions, and in
cases involving the life, or liberty of an individual.” 290 The court acknowl-
edged that “clearly a ‘liberty’ interest is at stake” in the juvenile delinquen-
cy proceeding. 291 However, in rejecting the minor’s claim, the court ex-
plained: “[U]nlike statutes, our constitution sets out broad general
principles. A constitution is a living and vital instrument. Its very purpose
is to endure for a long time and to meet conditions neither contemplated
nor foreseeable at the time of its adoption.” 292 The court continued:
The fact that a separate juvenile court system was not in existence
at the time our constitution was adopted in 1857 should not
blindly mandate an absurd result because our forefathers had not
yet seen fit to establish a separate juvenile court system. Some-
times, as here, the literal language must be disregarded because it
does violence to the general meaning and intent of the enact-
ment. 293

Thus, the Iowa Supreme Court explicitly rejected prior constitutional


precedent that juvenile proceedings required a jury trial, and adopted a
new rule that was sensitive to “new and changing conditions.” 294 It accom-
plished this by admittedly “disregarding” the Constitution’s “literal lan-
guage.” 295 This approach is strikingly similar to what scholars have pre-
dicted for judiciaries operating under rigid constitutional texts. 296
Short v. Commonwealth provides another compelling example. 297 There,
the defendant was charged with robbery and housebreaking. 298 He pled
not-guilty, and made a motion to be tried without a jury. 299 The Common-
wealth of Kentucky agreed to a non-jury trial. 300 After the defendant was
convicted, he appealed on the basis that the right to a jury trial is “invio-
late” and cannot be waived. 301 The Kentucky Constitution provided: “The
ancient mode of trial by jury shall be held sacred, and the right thereof re-

288 See id.


289 IOWA CONST. art. I § 9.
290 IOWA CONST. art. I § 10.
291 In re Johnson, 257 N.W.2d at 50.
292 Id.
293 Id. (emphasis added).
294 See id.
295 See id.
296 See supra notes106–1122 and accompanying text.
297 519 S.W.2d 828 (Ky. 1975).
298 See id. at 829–30.
299 See id.
300 See id.
301 See id. at 830.
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main inviolate, subject to such modifications as may be authorized by this


constitution.” 302 The Kentucky Supreme Court acknowledged that the Ken-
tucky Constitution contained a rigid and strong jury guarantee that hark-
ened back to a common law understanding of the jury right. 303 However, in
overruling long-standing precedent interpreting the Kentucky Constitution
by reference to “the common law, where the right originated and from
whence it came”, the court explained that “current constitutional safe-
guards are so comprehensive that there remains no further necessity for the
rule that an accused may not waive a jury trial.” 304 Thus, the court trans-
formed Kentucky’s jury right by holding that it is waivable and that it was
not co-extensive with the ancient common law right. The court did this
notwithstanding the language stating that the jury right should be inviolate
and the separate clause suggesting that it could modified only by formal
amendment. 305

b. Civil Rights

The cases also contain various instances of civil rights reform from the
bench. Again, these reforms were varied and are too diverse to fully cata-
log here. Instead, I focus on two issues that uniquely illustrate how state
courts remained active in informal constitutional change. I conclude with a
general overview of the diversity of civil rights issues reformed by state
courts during the period of my study.
First, a few courts relied on state constitutional rights to strike laws
containing gender classifications and overrule precedent upholding those
classifications. 306 These cases are especially interesting in light of the fact
that during this time many states adopted “mini” Equal Rights Amend-
ments to their state constitutions, forbidding gender discrimination. 307 The
amendments were, of course, a part of the broader national movement for
a federal Equal Rights Amendment. These cases are important, therefore,
because they were decided in a political environment that was mobilized
and focused on formal amendment to achieve constitutional reform. This

302 See id. (quoting KY. CONST. § 7).


303 Short, 19 S.W.2d 828, 830–31 (Ky. 1975).
304 Id. at 831–32.

305 See id. at 830 (quoting Kentucky Constitution as stating that the right to a jury trial shall

be “subject to such modifications as may be authorized by this constitution”).


306 See, e.g., Stevens v. Stevens, 647 P.2d 1346 (Kan. 1982); Yuma Cty. Attorney v. McGuire,

532 P.2d 157 (Ariz. 1975); Lewis v. Till, 395 So. 2d 737 (La. 1981).
307 See generally Linda J. Wharton, State Equal Rights Amendments Revisited: Evaluating their

Effectiveness in Advancing Protection Against Sex Discrimination, 36 RUTGERS L. J. 1201 (2005)


(discussing state mini ERAs); Paul Linton, State Equal Rights Amendments: Making a Difference
or Making a Statement?, 70 TEMP. L. REV. 907 (1997).
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502 New England Law Review [Vol. 51|3

movement was very successful at the state level and almost successful at
the federal level. Nevertheless, despite the reality of formal amendment on
this issue, a few state courts were active in overturning their own constitu-
tional precedent without deference to the possibility of a formal amend-
ment.
In Burns v. Burns, for example, the Supreme Court of Mississippi con-
sidered whether the doctrine of inter-spousal immunity violated the state’s
constitution. 308 The case involved a suit by a wife against her husband for
injuries from the husband’s physical abuse. 309 In rejecting the doctrine of
inter-spousal immunity, the court found that the doctrine was inconsistent
with the constitutional guarantee that “every person” have a remedy “for
an injury done.” 310 The court explained that “when the Constitution . . .
emancipated women from the disability of coverture, [it] necessarily made
her a legal person . . . capable of attending to her own affairs.” 311 The court
concluded: “This section does not merely place the wife on an equality
with her husband, but it places her on an equality with a single woman,
and gives her all the rights that she would have had under the same facts if
she were single instead of married.” 312
Similarly, in Flagg v. Loy, the Kansas Supreme Court rejected inter-
spousal immunity as offending state constitutional rights protecting wom-
en against gender discrimination. 313 The court explained that the rule was
unconstitutional because it was “based upon the concept that, upon mar-
riage, the wife’s identity was merged into that of her husband and she was,
for all legal purposes, a chattel of her husband. The wife could not sue or
be sued without the joinder of her husband.” 314 Because the Kansas Consti-
tution had abolished coverture, the court reasoned that it was improper to
deny a wife a claim against her husband. 315
The rulings in these cases are somewhat striking because they parallel
the sentiment and substance of the contemporaneous Equal Rights
Amendment movement. They provide compelling examples of state courts
remaining active in the evolution of constitutional law notwithstanding
that formal amendment was possible (and even likely). 316 More specifically,

308 518 So.2d 1205 (Miss. 1988).


309 See id. at 1206.
310 See id. 1209–10 (quoting MISS. CONST. art. 3, § 24).

311 Id. at 1210.

312 Id. It is interesting that Mississippi did not adopt an ERA to its state constitution nor did

it ratify the federal ERA.


313 734 P.2d 1183, 1186 (Kansas 1987).

314 Id.

315 See id. Kansas ratified the federal ERA, but it did not adopt an ERA to its own state con-

stitution.
316 See Wharton, supra note 307, at 1201–03 (explaining that 19 states adopted ERAs and that

other states considered ERAs).


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2017] State Constitutional Change 503

they challenge the prevailing notion that courts engage with constitutional
change only when other avenues of change are blocked. The context of
these opinions suggest that courts felt compelled to change constitutional
rules regardless of the possibility of formal amendment.
Second, a few states reformed their equal protection jurisprudence to
address economic regulation by state legislatures. 317 Although these cases
might seem unconventional as civil rights cases, they powerfully illustrate
how state courts took an active role in updating constitutional rules to ac-
count for social and economic developments. They also demonstrate how
state courts can act in concert with other branches of government to effec-
tuate informal amendment.
Del Rio by Del Rio v. Crake provides an especially interesting example of
how state courts participate in informal constitutional change. 318 The case
involved a car accident caused by the defendant running a stop sign and
colliding with the plaintiff’s car. 319 The plaintiff was uninsured and sued
the defendant for health care expenses related to her injuries. 320 The de-
fendant raised as a defense Hawaii’s no-fault automobile insurance statute,
which precluded persons injured in car accidents from bringing negligence
claims. 321 The plaintiff claimed that the statute was unconstitutional based
on two rulings from the Hawaii Supreme Court sixteen years earlier. 322
Those opinions held that relevant portions of the statute violated the state’s
equal protection guarantee by discriminating against the poor, who could
not afford insurance and under the statute were foreclosed from brining
tort claims. 323

317 See, e.g., Del Rio by Del Rio v. Crake, 955 P.2d 90 (Haw. 1998) (no-fault automobile insur-

ance). Several courts reformed their state’s equal protection and “open courts” guarantees to
invalidate statutes that limited personal injury liability through “guest statutes.” See, e.g.,
Manistee Bank & Tr. Co. v. McGowan, 232 N.W.2d 636 (Mich. 1975); Henry v. Bauder, 518
P.2d 362 (Kan. 1974); Bierkamp v. Rogers, 293 N.W.2d 577 (Iowa 1980); McGeehan v. Bunch,
540 P.2d 238 (N.M. 1975). Guest statutes were first adopted in the 1920s and 30s and they gen-
erally limited an automobile driver’s liability for injuries to a non-paying passenger. See gener-
ally Jonathan M. Hoffman, By the Course of the Law: The Origins of the Open Courts Clause of State
Constitutions, 74 OR. L. REV. 1279, 1279 (1995) (initially upholding these statutes as constitu-
tional, as many state courts did; However, when faced with a renewed series of challenges,
several courts reversed direction and invalidated the statutes). What is striking about these
cases is that although the courts mention a few changed circumstances that might justify a
change in outcome, courts generally focus on the inherent irrationality of the statutes’ classifi-
cations.
318 955 P.2d 90 (Haw. 1998).

319 See id. at 92.

320 See id.

321 See id. at 91–92.

322 See id. at 92 (citing Joshua v. MTL, Inc., 656 P.2d 736 (Haw. 1982) and McAulton v.

Goldstrin, 656 P.2d 96 (Haw. 1982)).


323 See id.
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504 New England Law Review [Vol. 51|3

The defendant responded that notwithstanding those rulings, the stat-


ute was now constitutional because the Hawaii legislature had subsequent-
ly issued reports and adopted statements that clarified its intentions and
justifications for originally passing the no-fault statute. 324 Those legislative
pronouncements were remarkable. In addition to restating the logic and
policy of no-fault insurance regulation, 325 they also claimed that the Hawaii
Supreme Court’s rulings had “eroded one of the most important elements
of our no-fault system” and “may well be the first step in what could lead
ultimately to the destruction of the no-fault system.” 326 The legislature
characterized the rulings as “flying in the face of justice and public policy”
and overstepping the court’s role. 327
The Hawaii Supreme Court soundly rejected the defendant’s argument
that the legislature could save an unconstitutional statute with an after-the-
fact declaration regarding the statute’s constitutionality or intended pur-
pose. 328 According to the court, the statute remained “substantially identi-
cal” to the unconstitutional statute reviewed sixteen years earlier, and thus,
“as of this moment,” the statute was unconstitutional. 329 However, the
court found that its prior rulings were wrong because they “misapplied the
rational basis test.” 330 The court then upheld the statute as satisfying ra-
tional basis review for substantially the same reasons articulated by the
legislature in its statements of purpose. 331
Hawaii’s experience is illuminating because it seems to track closely
with several theories of informal amendment developed under the Federal
Constitution. The legislature’s adoption of the no-fault system was a mas-
sive re-organization of civil liability, private business, and individual enti-
tlements. It pushed the boundaries of existing constitutional norms and
doctrine. However, even after the Hawaii Supreme Court declared crucial
portions of the scheme unconstitutional, subsequent legislatures retained
(for almost two decades) a popular mandate to pursue no-fault solutions.
This mandate was apparently so strong that the legislature was able to
publicly challenge the court, and ultimately get the court to change its rul-
ings. This process consolidated an informal constitutional change in much
the same way that informal change occurs under the Federal Constitution.
This is remarkable in light of the fact that Hawaii’s Constitution can be
amended by legislative proposal and is amended relatively frequently. In-

324 See Del Rio, 955 P.2d 90, 94–96 (Haw. 1998).
325 See id. at 96.
326 See id.
327 See id.
328 See id. at 97.
329 See id.
330 See Del Rio, 955 P.2d 90, 97 (Haw. 1998).
331 See id. at 99–100 (summarizing reasoning by quoting HRS report).
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deed, it was amended twenty-one times during the sixteen years between
the court’s two opinions regarding no-fault insurance. 332 Hawaii’s experi-
ence with no-fault insurance illustrates the fact that protracted processes of
informal constitutional change can occur even when formal amendment is
a viable alternative. They also illustrate how state courts can take an active
role in updating constitutional rules to account for new social needs even
when formal amendment is available.
Aside from the cases addressing gender equality and economic regula-
tion, state courts participated in reform of a wide range of individual rights
issues. Some courts reformed their state’s eminent domain law to ensure
greater protections for property owners by allowing more flexible valua-
tion of saleable minerals on condemned property, 333 enhancing “public
purpose” requirements for condemnation, 334 and broadening the constitu-
tional definition of property for purposes of eminent domain. 335 Other
courts revived their “privileges and immunities” provisions to uphold
greater protections for the elderly. 336 Courts also reformed free-speech, 337
free-exercise, and establishment jurisprudence in important ways. 338 This
list vastly understates the variety of rights issues reformed by state courts.

2. The Judicial Branch

The second largest category of cases involving informal amendment by


state courts related to provisions governing the judicial branch. There were

332 The court’s earlier opinions striking portions of the no-fault statute were decided in 1982.

The court overruled those cases in 1998. See Albert L. Strum, State Constitutions—State Consti-
tutions and Constitutional Revision, 1980-81, in BOOK OF THE STATES, at Table 1 (1982) (showing
that the Hawaii Constitution was amended 74 times as of December 31, 1981); Albert L.
Strum, State Constitutions—State Constitutions and Constitutional Revision, 1997-98, in BOOK OF
THE STATES, at Table 1.1 (1999) (showing that the Hawaii Constitution was amended ninety-
five times as of January 1, 1998).
333 See, e.g., West Virginia Dept. of Highways v. Berwind Land Co., 280 S.E.2d 609, 739 (W.

Va. 1981) (liberalizing the so-called “unit rule” of evaluation for valuation in eminent domain
cases).
334 See, e.g., County of Wayne v. Hathcock, 684 N.W.2d 765, 787 (Mich. 2004).

335 See, e.g., S. Cal. Edison Co. v. Bourgerie, 507 P.2d 964, 965 (Cal. 1973). Some courts re-

formed eminent domain law in ways that restricted property owner rights. See, e.g., Johnson v.
Plymouth, 263 N.W.2d 603 (Minn. 1978).
336 See, e.g., In re Davis, 681 N.W.2d 452, 454 (S.D. 2004) (upholding homestead exemp-

tions).
337 See e.g., State v. Henry, 732 P.2d 9 (Or. 1987); Robins v. Pruneyard Shopping Ctr., 592

P.2d 341 (Cal. 1979).


338 See e.g., State v. Celmer, 404 A.2d 1 (N.J. 1979); Conrad v. City & Cnty. of Denver, 656

P.2d 662 (Colo. 1982); Callahan v. First Congregational Church of Haverhill, 808 N.E.2d 301
(Mass. 2004).
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506 New England Law Review [Vol. 51|3

approximately 125 cases in this category, which comprised almost 19% of


all informal amendments in my database.
This category of cases has slightly less variety than the rights cases. The
cases can be loosely organized around four core themes: (1) the jurisdiction
of the Supreme Court or certain lower courts to hear particular cases or is-
sues; 339 (2) the proper nature of the judiciary and its limits relative to the
executive and legislative branches; 340 (3) the court’s authority to regulate
lawyers and judges; 341 and (4) the court’s authority to abolish sovereign
immunity as a non-constitutional doctrine. 342 There were some outliers, but
these four categories generally capture the core themes.
In general, the cases suggest that courts are “comfortable” reforming
rules that govern the judiciary and bold in protecting against encroachment
on the courts. In Walker v. Arkansas Dep't of Human Services, for example,
the Arkansas Supreme Court considered whether the legislature could vest
jurisdiction over juvenile matters exclusively in the county courts. 343 Pur-
suant to the Constitution, county courts had limited jurisdiction and could
hear cases addressing “local concerns.” 344 Sixty-seven years earlier, the Ar-
kansas Supreme Court held that the legislation was constitutional because
juvenile matters were issues of “local concern.” 345 The court overruled that
decision, however, “in light of the changes that have taken place since” the
ruling. 346 The court noted that “the role of state and federal governments
has long since surpassed the county’s role in providing care for troubled
and homeless juveniles.” 347 The court recited myriad evidence in support of
the reduced role for counties and concluded that “the county’s involve-
ment is minor compared to that of the state.” 348 Based on these changed cir-
cumstances, the court held that county courts did not have constitutional
authority to hear juvenile cases. 349

339 See, e.g., Walker v. Ark. Dep't of Human Servs., 722 S.W.2d 558 (Ark. 1987); Tetter v.
State, 358 So. 2d 1046 (Ala. 1978).
340 See, e.g., Bailey v. McCuen, 884 S.W.2d 938 (Ark. 1994) (court has authority to review

sufficiency of ballot measures; overturning case suggesting that Attorney General had author-
ity); Wylie Corp. v. Mowrer, 726 P.2d 1381 (N.M. 1986); McIntyre v. Wick, 558 N.W.2d 347
(S.D. 1996).
341 See, e.g., In re Op. No. 26 of the Comm., 654 A.2d 1344 (N.J. 1995); Spruance v. Comm’n

on Judicial Qualifications, 532 P.2d 1209 (1975).


342 See, e.g., Ryan v. Hayes, 831 So. 2d 21 (Ala. 2002).

343 See generally 722 S.W.2d 558 (Ark. 1987).

344 See id. at 559.

345 See id. at 559–60.

346 See id. at 561.

347 See id.

348 See id. at 562.

349 See generally Walker, 722 S.W.2d 558 (Ark. 1987).


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2017] State Constitutional Change 507

In People v. Tenorio, a defendant was convicted of possession of mariju-


ana. 350 Although the conviction alone did not carry a minimum jail term,
the statute imposed a two year minimum term if the defendant had a prior
conviction and it prohibited the sentencing judge from sua sponte striking
an allegation of a prior conviction. 351 Eliminating a prior conviction for sen-
tencing purposes required the approval of the prosecutor. 352 Eight years
earlier, the court had ruled that the statute did not violate constitutional
provisions vesting judicial power exclusively in the courts. 353 Nevertheless,
the court (including at least one judge who decided the earlier opinion)
overruled that case and held that the statute intruded on the court’s consti-
tutional power. 354 The court emphasized that the judicial function had
changed since the constitution was adopted and that “the framers could
not have anticipated the drastic changes in the effects of prior convictions”
on criminal sentencing. 355
In sum, the cases suggest that courts are generally comfortable in re-
forming constitutional rules that govern courts.

a. Taxation & Finance, Voting, and Executive Power

The last grouping of cases I consider involves categories where courts


were relatively inactive. My data include relatively few cases regarding
taxation and finance (26 cases), suffrage and election (1 case), and executive
power (9 cases).
In examining these cases, a rather striking theme emerges: within these
categories, courts are most active regarding issues analytically similar to
constitutional rights. In the tax context, for example, several state courts re-
formed their jurisprudence regarding tax exemption for charities and reli-
gious organizations. 356 These cases are framed in terms of a private consti-
tutional protection against government action (taxation in this context).
In Barnes Hospital v. Leggett, for example, the Missouri Supreme Court
considered whether the Missouri Constitution allowed for tax exemption

350 See generally 473 P.2d 993 (Cal. 1970).


351 See id. at 993.
352 See id.

353 See id. at 994.

354 See id.

355 See id. at 995. See generally Wylie Corp. v. Mowrer, 726 P.2d 1381 (N.M. 1986) (holding

that workers’ compensation statute does not intrude on judiciary).


356 See, e.g., Gen. Conference of Church of God-7th Day v. Carper, 557 P.2d 832 (Colo. 1976);

Mingledorff v. Vaughan Reg’l Med. Ctr., 682 So. 2d 415 (Ala. 1996); Lutheran Home, Inc. v.
Bd. of Cty. Comm'rs, 505 P.2d 1118 (Kan. 1973); Crim v. Phipps, 601 So.2d 474 (Ala. 1992);
Children's Psychiatric Hosp., Inc. v. Revenue Cabinet, 989 S.W.2d 583 (Ky. 1999); McAllen v.
Evangelical Lutheran Good Samaritan Soc., 530 S.W.2d 806 (Tex. 1975); Loyal Order of Moose,
# 259 v. Cty. Bd. of Equalization, 657 P.2d 257 (Utah Sup.Ct. 1982).
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508 New England Law Review [Vol. 51|3

when only portions of a property were used for charitable purposes. 357 In
allowing for partial tax exemption, the court was persuaded by the idea
that “the passage of time does not of itself amend the constitution, but it
does amend the factual problems, human and physical, to which the consti-
tution applies.” 358 According to the court, “big buildings have become the
rule in the congested business areas of large cities where ground space is at
a premium,” and “a tax-exempt institution obviously should not be denied
the opportunity of acquiring an advantageous location in a congested
downtown area simply because it may not be able to occupy for its restrict-
ed purpose an entire building consisting of several floors.” 359 Thus, the
court announced that a “new sense of direction [should be] established”
that recognizes partial property exemptions. 360
Another common theme in the taxation cases was reform to “uniform
taxation” jurisprudence. 361 However, here again, there are similarities with
rights jurisprudence. Indeed, many states interpret their uniform taxation
provisions as co-extensive with equal protection analysis. In other words,
these cases essentially involve a right to uniform (equal) tax treatment.
Overall, by my rough count, approximately fourteen of the twenty-six
taxation and finance cases involved the right to charitable tax exemption or
the right to uniform tax treatment (54%). The one election case in my data-
base was also framed in terms of the constitutional right to vote in judicial
elections. 362
The cases addressing executive power are different. Those cases ad-
dressed issues such as the governor’s appointment power, 363 veto authority
(especially the power to make line-item vetoes), 364 and the scope of authori-
ty or qualifications for other constitutional executive offices, such as attor-
ney general and district attorney. 365 Although these cases touch on new is-

357 589 S.W.2d 241, 243 (Mo. 1979).


358 Id. at 244 (quoting favorably Christian Business Men's Committee v. State, 38 N.W.2d
803, 811 (Minn. 1949)).
359 Id.

360 Id. at 243–44.

361 See, e.g., Apache Gas Prods. Corp. v. Okla. Tax Comm'n, 509 P.2d 109 (Okla. 1973); Sim-

mons v. Idaho State Tax Comm'n, 723 P.2d 887 (Idaho 1986); T&T Chem. v. Priest, 95 S.W.3d
750 (Ark. 2003); Sch. Dist. v. Kent Cty. Tax Allocation Bd., 330 N.W.2d 7 (Mich. 1982); Burns-
ville v. Onischuk, 222 N.W.2d 523 (Minn. 1974); In re McCannel, 301 N.W.2d 910 (Minn. 1980).
362 See Mezvinsky v. Davis, 459 A.2d 307 (Pa. 1983). This case could probably be included

with the cases regarding the judicial branch because the provision relied on by the court
comes from the judicial article. Nevertheless, its subject is the right to vote in judicial elections.
363 See People ex rel. Lamm v. Banta, 542 P.2d 377 (Colo. 1975); State ex rel. Oberly v. Troise,

526 A.2d 898, 899 (Del. 1987).


364 See, e.g., Rants v. Vilsack, 684 N.W.2d 193 (Iowa 2004); Wash. Fed'n of State Emps., 682

P.2d 869 (Wash. 1984); Wash. State Motorcycle Dealers Ass'n v. State, 763 P.2d 442 (Wash.
1988).
365 Commonwealth v. Schab, 383 A.2d 819 (Pa. 1978) (attorney general); Curry v. Hosley,
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2017] State Constitutional Change 509

sues, the arguments in support of constitutional change from the bench are
reminiscent of the illustrations above.

V. Unanswered Questions and Some Possible Explanations

Overall, my data suggest that informal amendment by state courts is


more significant than prevailing scholarship indicates. To be sure, formal
amendment is the dominant method of constitutional change in the states
from an aggregate quantitative perspective, but informal processes play an
important role as well. If my findings are representative of state constitu-
tional change broadly, they raise several important questions. In this sec-
tion I focus on two especially obvious issues. It is not my purpose to fully
address these here. My more modest aim is to frame a few unanswered
questions and suggest hypotheses for further exploration.

A. Is there something special about rights and informal amendment by


courts?

Perhaps the most intriguing finding from my data is that the scope of
informal constitutional change by courts varies by subject. State courts are
clearly most active regarding rights and rights-like issues. In fact, informal
amendment by courts appears to be the dominant method of constitutional
change for rights in the states. But it is somewhat surprising that although
state constitutions are amended frequently, courts remain active in the evo-
lution of constitutional rights. Prevailing theories would suggest the oppo-
site. Both my quantitative and qualitative findings suggest, however, that
state courts play a significant role in this aspect of state constitutional
change despite frequent formal amendment. What might explain this?
This is surely a complicated question. There are many contextual and
institutional variables that likely work together to explain the phenomenon
captured in my data. Nevertheless, it is worth exploring what factors might
be in play. An obvious answer is that courts are most “comfortable” devel-
oping rights jurisprudence because it is an area that fits nicely into domi-
nant conceptions of the judicial role. If courts exist (at least in part) to en-
sure that government officials honor the limitations contained in the
constitution, then deciding cases predicated on constitutional rights strikes
at that core function. Courts might sense an obligation to ensure that rights
provisions remain relevant in constraining government, and, consequently,
courts may be more willing to update and develop constitutional rights
over time. In other words, if constructing and enforcing rights is an inher-
ently judicial function, then it is not surprising that courts are more willing

657 N.E.2d 1311 (1995) (qualifications of district attorney).


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510 New England Law Review [Vol. 51|3

to participate in the evolution of constitutional rights than, say, reforming


tax policy.
This hypothesis is interesting in light of research regarding formal
amendment to state bills of rights. Several scholars have found that alt-
hough legislatures and citizens react to unpopular court opinions with re-
sponsive formal amendments, voters generally support judicial enforce-
ment of rights protections, or at least wish to leave undisturbed judicial
rulings regarding rights. 366 There are obvious high-profile exceptions to
this generalization, but systematic evidence suggests that the institutions of
formal amendment generally defer to courts regarding rights (at least to
some degree). 367 Perhaps this reflects a notion in American political culture
that rights issues should not be resolved through democratic processes.
Thus, there may be a systematic institutional preference for courts to
change constitutional rules regarding rights issues.
A related explanation—suggested by Michael Besso in another con-
text—may be that rights provisions (unlike other portions of state constitu-
tions) often use vague and general language that requires construction to
resolve disputes. State constitutions are often criticized for being too de-
tailed and statute-like, but state rights provisions often center on broad
concepts like “due process” and “equal protection.” 368 These vague provi-
sions are more likely to result in litigation 369 and require courts to supply
more concrete constitutional meaning than provided in the text. 370 Informal
amendment may be more likely, therefore, when courts are applying a
vague provision because the open-endedness of the text gives courts more
discretion in constructing rules. 371
On this theory, my data may reflect something about the specificity
and generality of the underlying constitutional provisions. High rates of
informal amendment might indicate vague underlying constitutional pro-

366 See Janice C. May, Constitutional Amendment and Revision Revisited, 17 PUBLIUS 153, 171
(1987) (finding that “states bill of rights have not been changed [by formal amendment] a
great deal”); id. at 178 (finding that voters generally disfavor overruling court opinions re-
garding individual rights). See generally John J. Dinan, Court-Constraining Amendments and the
State Constitutional Tradition, 38 RUTGERS L. J. 983, 1021–25 (2007) (summarizing formal
amendments in response to judicial rulings regarding rights and other issues).
367 See May, supra note 366, at 178.

368 This is not always true. For example, as noted above, state jury trial provisions often con-

tain specifics regarding the number of jurors.


369 See Richard S. Kay, Construction, Originalist, Interpretation and the Complete Constitution,

19 J. CONT. L. 1, 16 (2017).
370 See Lawrence B. Solum, The Fixation Thesis: The Role of Historical Fact in Original Meaning,

91 NOTRE DAME L. REV. 1, 61 (2015).


371 See Besso, supra note 16, at 83 (“Constitutional text—substantive text as well as proce-

dural—certainly affects decision making regarding the paths of formal amendments and in-
formal constructions.”).
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2017] State Constitutional Change 511

visions, while high rates of formal amendment might suggest more de-
tailed constitutional language.
There are surely other relevant factors. The data could reflect historical
and contextual effects. The influence of the new judicial federalism, for ex-
ample, may have contributed to a surge in state court activism regarding
rights during the period of my study. These are questions for future inves-
tigation, but my data suggest that those inquires may be fruitful and help
advance our understanding of informal constitutional change.

B. What affects the interaction between formal and informal amendment?

The overall scope and substance of informal amendment by state


courts is surprising in view of the frequency of formal amendment in most
states. This suggests that the drivers of informal amendment are more
complicated than a simple hydraulics theory might suggest. Informal
amendment in the states seems fueled by more than barriers to formal
amendment. In fact, the data suggest that formal amendment and informal
amendment might somehow fuel each other under certain circumstances.
This is an important finding to explore further. Much constitutional
design literature is predicated on the expected interaction between formal
and informal methods of constitutional change. It is important, therefore,
that we work to understand the factors that influence the pathways of con-
stitutional change.
As noted above, my data suggest that certain subjects may gravitate
towards informal amendment processes more than others. If this is true in
a particular constitutional system, then informal amendment may domi-
nate change in certain areas even if formal amendment is relatively easy.
Subject-matter preferences might be hard to explain, but they may reflect
political culture. Just as some political cultures generally disfavor informal
amendment, other societies may favor informal amendment for certain
subjects while preferring formal amendment for other subjects. As ex-
plained above, there is at least some reason to believe that state voters pre-
fer to see changes regarding individual rights by the courts rather than
through formal amendment.
The interaction between formal and informal amendment might also
be impacted by separation-of-powers principles. In systems with strong
separation-of-powers ideals, courts and political institutions with the pow-
er to amend the constitution might find themselves dueling. If political in-
stitutions use formal amendment to reconfigure institutional power, courts
may use informal processes to push back. Conversely, if courts use infor-
mal amendment to encroach on the political branches, the political branch-
es might leverage formal amendment to fight back. The result could be an
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512 New England Law Review [Vol. 51|3

institutional tug-of-war that manifests in a multiplication of formal and in-


formal amendments. 372 This is an irrelevant dynamic under constitutions
that are difficult to formally amend, but it might explain how formal and
informal amendment can interact under flexible constitutions.
These explanations are surely underdeveloped and incomplete, but my
goal here is simply to suggest that there is a need for further inquiry into
how informal amendment operates under state constitutions.

CONCLUSION

Constitutional change is complex, but important. The aspiration of ef-


fective constitutional governance is dependent on processes of constitu-
tional change that retain legitimacy and transparency. It is imperative,
therefore, that scholarship investigate the complexities that characterize
constitutional change. An under-investigated issue is the nature of infor-
mal constitutional change under frequently amended state constitutions.
My modest goal in this article is to draw attention to the need for further
empirical investigation into how state constitutions change and to the les-
sons for constitutional theory and design that we might glean from the
state constitutional experience.

372 California’s experience with marriage equality might reflect this dynamic to some de-

gree. See In re Marriage Cases, 183 P.3d 384, 440 (Cal. 2008). See generally Frederick Mark Ged-
icks, Truth and Consequences: Mitt Romney, Proposition 8, and Public Reason, 61 ALA. L. REV. 337
(2010) (discussing Proposition 8).
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2017] State Constitutional Change 513

APPENDIX A
NUMBER OF FORMAL AMENDMENTS AND CONSTITUTIONAL OVERRULINGS BY
STATE HIGH COURTS, 1970-2004

State Formal Amendments High Court Changes

Alabama** 130 31
Alaska 26 11
Arizona 69 19
Arkansas 36 16
California 149 41
Colorado 73 19
Connecticut 29 2
Delaware 56 2
Florida 95 16
Georgia* 61 15
Hawaii 68 6
Idaho 34 8
Illinois* 11 9
Indiana 21 6
Iowa 22 6
Kansas 37 7
Kentucky 21 15
Louisiana* 124 19
Maine 56 6
Maryland 84 3
Massachusetts 29 7
Michigan 20 22
Minnesota 24 6
Mississippi 87 11
Missouri 84 13
Montana* 27 22
Nebraska 100 9
Nevada 72 7
New Hampshire 21 13
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514 New England Law Review [Vol. 51|3

New Jersey 41 8
New Mexico 75 15
New York 73 10
North Carolina* 31 5
North Dakota 58 4
Ohio 67 24
Oklahoma 87 30
Oregon 108 16
Pennsylvania 30 8
Rhode Island* 7 3
South Carolina*** 80 12
South Dakota 38 11
Tennessee 18 10
Texas 241 44
Utah 48 12
Vermont 9 1
Virginia* 38 5
Washington 41 19
West Virginia 33 24
Wisconsin 39 8
Wyoming 59 7
Totals 2,887 643

* Formal amendments only for constitution in effect in 2004


** This excludes local amendments, which are estimated by the Book of
the States to be roughly 70% of all amendments
*** This excludes local amendments, which are estimated by the Book of
the States to be roughly 80% of all reported amendments prior to 1981.
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2017] State Constitutional Change 515

APPENDIX B
TOTAL NUMBER OF FORMAL AMENDMENTS & CONSTITUTIONAL OVERRULINGS
BY SUBJECT, 1970-2004

Subject Formal Amendments Judicial


Changes
Bill of Rights 230 361
Suffrage & Elections (Voting) 170 1
Legislative Branch 412 41
Executive Branch 241 9
Judicial Branch 275 125
Local Government 157 22
Taxation & Finance 640 26
State & Local Debt 153 11
State Functions 314 16
Amendment & Revision 64 5
Misc. Provisions 199 26
Totals 2,855* 643

* There is a slight disparity in amendment data reported by the Book


of the States from year to year. The total number of formal amend-
ments reported by state from year to year (with adjustments for local
amendments) is 2,887 for my time period (see Appendix A). However,
the total number of amendments for the same period as reported by
subject matter is 2,855. The Book of the States does not provide insight
into this disparity, but it is likely the result of estimated adjustments
for local amendments in Alabama and South Carolina.
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516 New England Law Review [Vol. 51|3

APPENDIX C
CONSTITUTIONAL OVERRULINGS BY STATE HIGH COURTS BY SUBJECT, 1970-
2004

State BR SE LB EB JB LG TF DBT FUNC AMD MISC Total %


BR

AK 9 0 0 0 1 0 0 0 0 0 1 11 82%

AL 12 0 4 0 7 2 3 0 1 0 2 31 39%

AR 2 0 3 0 3 0 3 1 1 2 1 16 13%

AZ 10 0 0 0 4 0 1 0 4 0 0 19 53%

CA 29 0 0 0 11 0 0 0 0 0 1 41 71%

CO 10 0 2 1 0 3 1 0 0 1 1 19 53%

CT 2 0 0 0 0 0 0 0 0 0 0 2 100%

DE 0 0 0 1 1 0 0 0 0 0 0 2 0%

FL 11 0 0 0 3 1 0 0 0 0 1 16 69%

GA 6 0 0 0 7 1 0 0 1 0 0 15 40%

HI 6 0 0 0 0 0 0 0 0 0 0 6 100%

IA 4 0 1 1 0 0 0 0 0 0 0 6 67%

ID 2 0 1 0 2 1 1 0 0 0 1 8 25%

IL 4 0 1 0 4 0 0 0 0 0 0 9 44%

IN 5 0 0 0 0 1 0 0 0 0 0 6 83%

KS 2 0 1 0 0 1 1 0 0 0 2 7 29%

KY 9 0 2 0 1 1 1 0 0 0 1 15 60%

LA 11 0 1 0 5 0 0 0 1 0 1 19 58%

MA 5 0 2 0 0 0 0 0 0 0 0 7 71%

MD 3 0 0 0 0 0 0 0 0 0 0 3 100%

ME 4 0 0 0 2 0 0 0 0 0 0 6 67%

MI 13 0 2 0 4 0 1 0 1 0 1 22 59%

MN 3 0 0 0 1 0 2 0 0 0 0 6 50%

MO 3 0 0 1 6 0 2 1 0 0 0 13 23%

MS 4 0 1 0 6 0 0 0 0 0 0 11 36%

MT 14 0 1 0 2 3 1 0 0 1 0 22 64%

NC 4 0 0 0 1 0 0 0 0 0 0 5 80%

ND 3 0 0 0 0 0 0 0 0 0 1 4 75%

NE 4 0 2 0 1 0 0 0 0 0 2 9 44%
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2017] State Constitutional Change 517


NH 12 0 0 0 1 0 0 0 0 0 0 13 92%

NJ 4 0 0 0 3 0 0 1 0 0 0 8 50%

NM 6 0 0 0 6 1 0 0 0 0 2 15 40%

NV 1 0 1 0 3 0 0 1 0 0 1 7 14%

NY 7 0 0 1 1 0 1 0 0 0 0 10 70%

OH 8 0 6 0 3 3 0 3 1 0 0 24 33%

OK 20 0 2 0 4 0 2 0 1 1 0 30 67%

OR 9 0 0 0 4 2 0 0 0 0 1 16 56%

PA 4 1 0 1 1 1 0 0 0 0 0 8 50%

RI 3 0 0 0 0 0 0 0 0 0 0 3 100%

SC 8 0 1 0 1 1 1 0 0 0 0 12 67%

SD 6 0 2 0 1 0 1 0 1 0 0 11 55%

TN 8 0 0 0 2 0 0 0 0 0 0 10 80%

TX 27 0 1 1 11 0 2 0 0 0 2 44 61%

UT 9 0 0 0 0 0 1 1 0 0 1 12 75%

VA 4 0 1 0 0 0 0 0 0 0 0 5 80%

VT 0 0 0 0 1 0 0 0 0 0 0 1 0%

WA 10 0 1 2 1 0 1 0 3 0 1 19 53%

WI 6 0 0 0 2 0 0 0 0 0 0 8 75%

WV 9 0 2 0 7 0 0 3 1 0 2 24 38%

WY 6 0 0 0 1 0 0 0 0 0 0 7 86%