—Jonathan Marshfield, University of Arkansas School of Law
On January 22, 2016, the Arkansas Law Review hosted a symposium on State Constitutional Change: Traditions, Trends, and Theory at the University of Arkansas School of Law in Fayetteville, Arkansas. I convened the symposium along with Richard Albert (Boston College). The aim of the symposium was to bring together leading scholars on constitutional change and state constitutional law, and draw attention to the unique nature and significance of state constitutional change. The event included three scholarly panels and a keynote address by Vikram Amar (Illinois). This report provides a brief summary of the papers, all of which will be published in a special issue of the Arkansas Law Review. Video recordings of the day’s events are available here.
Amar’s keynote address was titled Constitutional Change and Direct Democracy: Modern Challenges and Exciting Opportunities. The address focused on the interplay between state constitutional change and federal constitutional development. Amar argued that developments in state constitutional law have featured prominently in several major changes to federal constitutional structure. Specifically, Amar noted that the emergence of the populist federal presidency was largely the result of state constitutional innovation. The Seventeenth Amendment, according to Amar, was also largely driven by state innovation regarding Senate selection processes. After establishing the more general point that state constitutional change can impact and even direct federal constitutional change, Amar shifted to how contemporary state constitutional change might impact federal constitutional development in the future. On that question, Amar argued that direct democracy in the states could affect national change on important issues such as gerrymandering, campaign finance, and the movement for a truly national popular presidential vote. In each area, Amar identified challenges for change by direct democracy – especially resistance from elected state representatives – but also great potential. Amar ended with an important observation regarding the Supreme Court’s recent ruling in Arizona State Legislature v. AIRC, which effectively held that the term “legislature” as used in the Elections Clause of Article I includes lawmaking by initiative. Amar observed that the phrasing in Article II regarding selection of the president is very similar to the phrasing in Article I, which opens the possibility that the Court might allow states to adopt a national popular vote plan for presidential selection.
The first panel of the day was titled The Modalities of State Constitutional Change. It was moderated by Mark Killenbeck (Arkansas) and featured presentations by James Gardner (SUNY Buffalo), Mark Graber (Maryland), Justin Long (Wayne State), and Kate Shaw (Cardozo). As a whole, the panel explored the many different ways that state constitutional change occurs besides formal amendment, as well as the complicated relationship between state constitutional change and federal constitutional development. Gardner’s paper, Practice-Driven Changes to Constitutional Structures, considered the dramatic ways in which state officials bring about informal changes to constitutional structure. Gardner used various examples from New York (where state officials have operated in ways wholly different from the constitutional text) as a springboard for considering the more fundamental question of whether constitutional texts can effectively restrain officials in the first instance. Mark Graber’s paper, State Constitutions as National Constitutions, explored state constitutions during the revolutionary period, and explained that many state constitutions included declarations of independence inconsistent with the idea that they were subnational entities. Graber argued that those revolution-era state constitutions provide a fascinating look into the locus of sovereignty. Justin Long’s paper, Guns, Gays, and Ganja, looked at how groups with national policy agendas can enlist state constitutions to help drive change on controversial social issues. Specifically, Long explored how state constitutional reforms regarding gun control, same-sex marriage, and marijuana use have impacted national developments on those issues. Kate Shaw’s paper, State Administrative Constitutionalism, examined the role that state agencies might play in extra-judicial construction of constitutional meaning. Shaw examined how state agencies in various states have dealt with changing constitutional rules in campaign financing and implementation of the Affordable Care Act.
The second panel was titled (Re)Designing State Constitutional Amendment Processes. It was moderated by Robert Leflar (Arkansas) and featured presentations by John Dinan (Wake Forest), Robert Williams (Rutgers), and me. As a whole, the panel explored the design of state amendment processes, the political forces that drive state amendment practice, and how state amendment processes might be improved. John Dinan’s paper, 21st Century Debates and Developments Regarding the Design of State Amendment Processes, provided an empirical study of trends in reformation of state amendment rules and an assessment of the political interests driving 21st century state constitutional change. Dinan found that the 21st century has been characterized by efforts to make amendment more difficult, and, surprisingly, farm groups have joined business interests in advocating for more rigid amendment processes. Robert Williams’ paper, Evolving State Constitutional Processes of Adoption, Revision, and Amendment: The Path Ahead, provided a “broad brush” review of the evolving state constitutional techniques of adoption, revision, and amendment, and suggested that amendment rules should continue to evolve in the future. Williams concluded that our “best thinking” needs to be addressed not only to the substantive provisions of state constitutions, but also to the techniques and mechanisms of changing them. My own paper, Improving Amendment, suggested that the democratic quality of the citizen initiative might be improved if proposed amendments were ratified by locally elected county governing bodies rather than a statewide referendum. I argued that a county-ratification model might facilitate better citizen participation, improve public deliberation, and better manage the influence of special interests.
The third panel was titled State Constitutional Change in Comparative Context. It was moderated by Lisa Avalos (Arkansas) and featured Richard Albert, Lawrence Friedman (New England), and David Landau (Florida State). Overall, the panel explored state constitutional change in the broader context of global democratic constitutionalism. Albert’s paper, American Exceptionalism in Constitutional Amendment, explains that the practice and structure of formal amendment in the United States displays important contrasts and continuities with the rest of the democratic world. Amendment of the United States Constitution is characterized mostly by contrasts because it is difficult to amend, contains no unamendable provisions, and courts have not applied the doctrine of unconstitutional constitutional amendments. State constitutional amendment, however, shares significant similarities to national constitutions around the world in each of those areas. Friedman’s paper, The Potentially Unamendable Core of a State Constitution, considered whether there is any basis for a court to declare a procedurally perfect state constitutional amendment unconstitutional. Using a Massachusetts Supreme Court opinion as a lens, Friedman concluded that state constitutions might, in certain circumstances, contain a judicially enforceable unamendable core that centers on equality and due process. Finally, Landau’s paper, Selective Rigidity in Constitutional Design, described a hybrid model of constitutionalism where constitutional designers make certain core, framework provisions difficult to amend, but make other portions of a constitution easier to amend. Landau contrasted this practice as it has appeared in national constitutions around the world to state constitutional amended practice. He and concluded that although the approach has strong appeal to contemporary constitutional designers, there are many unanswered questions regarding its functionality and theoretical foundations.
All of these papers and the keynote address are forthcoming in a special symposium edition of the Arkansas Law Review.