Professional Documents
Culture Documents
JUSTIN R. LONG*
W
hile there has never been enough empiricism in state
constitutional studies (or constitutionalism generally, or even
more broadly in legal studies), our field always invites data-
crunching because of the fifty distinct petri dishes we
constantly stare at. The impulse to compare and quantify them is nearly
irresistible, which might partly explain how much more intertwined state
constitutionalists in the law schools are with state constitutionalists in the
political science departments than federal constitutional law scholars are
with their counterparts outside the law schools. 1 Jonathan Marshfield’s
important new work contributes to this empirical strand in our collective
intellectual history, and happily so.
After his Herculean effort to gather and analyze essentially all the
available data on state constitutional change, Professor Marshfield
concludes that the frequent changes by amendment have not slowed down
the courts from creating constitutional change by jurisprudence. 2 In other
words, as the economists might say, there is no evidence of a substitution
* Associate Professor of Law, Wayne State University. I thank Bob Ackerman, Lance Gable,
and Jon Weinstein for helpful comments on this response.
1 See, e.g., the prominence and participation in legal symposia and law reviews of political
scientists like G. Alan Tarr, John Dinan, Gerald Benjamin, and Susan Fino, among others.
2 See generally Jonathan L. Marshfield, Courts and Informal Constitutional Change in the States,
51 NEW ENG. L. REV. 453 (2018). Marshfield examines two kinds of constitutional change: formal
(change in the constitutional text through lawful amendment) and informal (change in
constitutional meaning through case law). But there is a third kind of change in state
constitutions. When the U.S. Supreme Court affects informal change at the federal level, it
simultaneously changes state constitutional law in those states that have (formally or
informally) adopted “lock-step” interpretation. Where state courts have identified state
constitutional civil rights protections as equivalent to federal protections, but then the U.S.
Supreme Court drops the floor, the state constitutional protection drops with it—without a
single state official or voter lifting a finger to enact the change. While common, this sort of
change does not implicate the theoretical problem Marshfield tackles in his article.
533
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effect. Instead of being confronted with scarcity in one area and shifting their
preferences to an alternative, it looks like activists for constitutional change
are enthusiastically embracing every possible approach (and naturally
settling on whatever happens to be most expedient in the particular political
and legal circumstances of their particular fight). The circumstances
Marshfield describes make it appear as if there were no resource scarcity
among the proponents of change, as if they were not making strategic
choices about whether to invest their energy into campaigns or into
litigation. Like so much of state constitutional practice, this is simply weird.
Marshfield is right to bring attention to this issue and has done a great
service by doing the hard work of actually finding the facts.
As Marshfield points out, one might think that judges who know how
“easy” it is to amend state constitutions would show more restraint than the
federal Justices, who must keep the Constitution relevant and revered
despite its near-total immunity to contemporary amendment. 3 We even have
a canon about it: the canon of constitutional avoidance teaches that judges
should prefer to base a decision on statutory rather than constitutional
analysis, at least partly on the ground that an “erroneous” statutory decision
can be corrected by democratic means while the constitutional decision
cannot. 4
Alternatively, of course, one might think that if state high court judges
know that an unpopular decision can be quickly superseded by popular
amendment, they might consider themselves unleashed to adopt more
experimental or far-reaching modes of constitutionalism. 5 After all, they
know that if they go too far, the polity has a reasonable opportunity to
correct them. Marshfield’s new work shows that this is, in fact, the more
descriptively accurate approach.
What remains to be established, though (as Marshfield emphasizes), is
why state high court judges behave this way. One obstacle to understanding
here is the near-universally unexamined assumption that state constitutions’
formal amendment processes are easier than federal constitutional
amendment. From one perspective, this is simply obvious: as Marshfield
3 See William N. Eskridge, Jr., Dynamic Statutory Interpretation, 135 U. PA. L. REV. 1479, 1479–
82 (1987) (describing the conventional view that statutes, unlike the federal Constitution, should
be interpreted “statically” because the Congress can react against a mistaken or out-of-date
statutory analysis).
4 See Robert W. Scheef, Temporal Dynamics in Statutory Interpretation: Courts, Congress, and the
Canon of Constitutional Avoidance, 64 U. Pitt. L. Rev. 529, 535 (2003) (describing one rationale for
the canon as respect for Congress’s democratic accountability).
5 See generally Helen Hershkoff, State Courts and the “Passive Virtues”: Rethinking the Judicial
Function, 114 HARV. L. REV. 1833 (2001) (arguing that state judges should use their greater
democratic accountability—through easier formal amendments, judicial elections, etc.—as a
justification for rejecting judicial passivity).
2017] Slippery Constitutions 535
reminds us, there have been more than 7,500 formal amendments to state
constitutions, and merely 27 formal federal amendments. 6 But the frequency
of an event is not the same thing as its difficulty: more people have children
than don’t, even though it is safe to assume that parenting is both cognitively
and physically more difficult than the childless life. 7 The differing rewards
that follow from differing endeavors can make even the hardest tasks
popular. In the constitutional context, it seems plausible that achieving
constitutional change by informal or formal means might make a difference
in how effectively the change takes hold in society; i.e., the rewards are
different. Returning to the economic metaphor, there may be no substitution
effect because the goods attained are not sufficiently interchangeable.
So there are really two points that must be considered before fully
rejecting the conventional wisdom about the cause of frequent informal
amendment (the “hydraulic” theory). First, are state constitutions really
easier to amend than the federal constitution? And second—a point that
Marshfield hones in on 8—even if they are, are state constitutions easier to
amend than the alternative methods of informal change, particularly
constitutional litigation? These questions matter because if formal change in
the state constitutions is actually more difficult than conventional wisdom
suggests, despite its frequency, then perhaps the hydraulic theory—that
difficulty of formal amendment pushes change into informal pathways—
still has vitality.
To determine the ease of amendment processes, we can look at the
mechanics of constitutional change from two perspectives: the national
activists and lobbyists who are located in and around Washington D.C. and
focus on the federal government, and the state activists and lobbyists who
are located in the state capitals and focus on their own state’s government.
Counter-intuitively, from both perspectives, the Federal Constitution is
easier to formally amend as a matter of law than state constitutions are. (The
pragmatic politics of change, which incorporate cultural constraints not
inherent in the constitutional texts, are a different story, as I discuss later.)
Comparing apples to apples: consider a lobbyist for a national trade
organization who wants a change in constitutional law across the whole
country. This is someone steeped in the gossip, arcana, relationships, and
rules of D.C. politics, but also possessing expertise in nationwide political
and/or marketing campaigns. To get the policy adopted nationwide, the
lobbyist can pursue a one-time-only two-thirds vote in Congress followed
9 See U.S. Const. art. V (setting forth procedures for formal amendment).
10 See Assessing Congressional Productivity: Getting It Right, THE GOV’T AFF. INST. AT GEO. U.,
https://perma.cc/8Q4R-9PKA (last visited May 29, 2018).
11 See Louis Jacobson, DeMint Says 94 Percent of Bills are Passed Unanimously, POLITIFACT (June
12 See generally ROBERT F. WILLIAMS & LAWRENCE FRIEDMAN, STATE CONSTITUTIONAL LAW:
Guns, Gays, and Ganja. See generally Justin R. Long, Guns, Gays, and Ganja, 69 ARK. L. REV. 453
(2016).
14 See generally Obergefell v. Hodges, 135 S. Ct. 2584 (2015).
15 See Marshfield, supra note 2, at 517–18.
16 See Cal. Const. art. II, § 8(b) (requiring eight percent of the number of voters in the last
gubernatorial election to sign a petition proposing the amendment); Debra Bowen, Statement of
Vote: Nov. 14, 2014, https://perma.cc/V384-NXE5 (last visited Oct. 4, 2018) (indicating that the
2014 wining candidate for governor won 4,388,268 votes and the losing candidate won 2,929,213
votes). Eight percent of 7,317,481 is 585,399.
17 See Marshfield, supra note 2, at 517–18.
18 See N.D. Const. art. III, § 9 (specifying that a constitutional amendment may be initiated
with the signatures of four percent of the total population at the last census).
19 See U.S. Census, QUICKFACTS: NORTH DAKOTA, https://perma.cc/U55F-4DGA (last visited
538 New England Law Review [Vol. 51|3
May 29, 2018) (showing the 2010 population was 672,591). 26,904 is four percent of 672,591.
20 See generally Hershkoff, supra note 5 (describing the unwillingness of state constitutional
CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT) (2006).
22 Marshfield, supra note 2, at 462.
23 Marshfield, supra note 2, at 503–04 (quoting In re Johnson, 257 N.W.2d 47, 50 (Iowa 1977)).
24 See infra notes 27–31.
540 New England Law Review [Vol. 51|3
Commonwealth v. Nat’l Gettysburg Battlefield Tower, Inc., 311 A.2d 588 (Pa. 1973).
26 See WILLIAMS & FRIEDMAN, supra note 12, at 435–45 (describing cases finding state
29 See generally Justin R. Long, State Constitutional Études: Variations on the Theme of a
Contemporary State Constitutional Problem, 60 WAYNE L. REV. 69 (2014) (describing how courts
permit state legislatures to violate constitutional restrictions on legislative procedure).
30 See ROBERT F. WILLIAMS, THE LAW OF AMERICAN STATE CONSTITUTIONS 196–97 (2009)
Constitutional Law, 34 RUTGERS L.J. 907, 909 (2003) (describing how state constitutional limits on
public debt have been ignored by courts and legislatures).
32 See generally Lawrence Friedman, Path Dependence and the External Constraints on
Independent State Constitutionalism, 115 PENN ST. L. REV. 783 (2011) (describing how state courts
systematically underenforce state constitutional text).
33 See SANFORD LEVINSON, FRAMED: AMERICA’S 51 CONSTITUTIONS AND THE CRISIS OF
the public generally accept that the text must yield to the convention. 34
Under these circumstances, the reward for winning formal constitutional
change is much less than legal convention would suggest. This, in turn,
should drive advocates who care about durable results toward informal
change, at both the state and federal levels, since at least then there is a court
willing to endorse and enforce the change.
So why bother with formal state change, especially so frequently? The
answer might rest on two factors. First, there is so much ignorance and
misunderstanding about state constitutionalism generally that it remains
plausible that even dedicated reform advocates and savvy politicians might
seriously overestimate the rewards to be won from formal change. Second,
state constitutional text may be seen as an appropriate forum for symbolic
contestation. Rather than using state constitutions to craft more effective,
more efficient governmental institutions (remember California, which has a
self-contradictory constitution simultaneously prohibiting sufficient
taxation, 35 prohibiting sufficient spending growth, 36 requiring expensive
state programs, 37 and limiting debt 38), or even to protect individual rights,
constitutional reformers frequently use state constitutional text to advance
or resist cultural and normative positions. 39 In these sorts of battles, winning
a place in the constitutional text is itself a victory, albeit partial, because it
tells citizens that a particular normative position holds deep support. These
are claims of majoritarian constitutionalism; the question of enforcement is
ancillary because the textual victory acts like a super-strong poll,
demonstrating the political strength behind a particular point of view. That,
in turn, can persuade (but does not compel) political actors to behave
accordingly.
In sum, if formal constitutional change in the states is primarily about
symbols and political signaling, but (as Marshfield has found) informal
change is frequently about nuts-and-bolts issues that require actual
enforcement to be meaningful, such as criminal procedure and individual
rights, then it makes sense that both formal and informal change rates are
high in the states. Just as federal constitutional change is a different product
from state constitutional change, so formal and informal change within the
34 See, e.g., Bysiewicz v. Dinardo, 6 A.3d 726, 730 (Conn. 2010) (unanimously upholding a
statutory requirement that candidates for attorney general have ten years of legal experience in
the face of a constitutional clause expressly declaring that “[e]very elector who has attained the
age of eighteen years shall be eligible to any office in the state” because of state custom).
35 Cal. Const. art. XIII A.
36 Cal. Const. art. XIII B.
37 Cal. Const. art. IX.
38 Cal. Const. art. XVI.
39 See generally Justin R. Long, Intermittent State Constitutionalism, 34 PEPP. L. REV. 41 (2006).
542 New England Law Review [Vol. 51|3
states are actually different products. When the rewards from successful
change are so different, the relative frequency of change cannot reveal much
about the underlying costs. Even so, Marshfield’s careful documentation of
the nature of these changes and his invitation to reconsider the constitutional
verities that animate federal constitutionalism are more than welcome. I
hope his work produces a new conversation on these weird and essential
artifacts we call state constitutions.