State Constitutional Politics: Governing by Amendment in the American States

State Constitutional Politics

State Constitutional Politics

Governing by Amendment in the American States

JOHN DINAN

The University of Chicago Press

CHICAGO & LONDON

The University of Chicago Press, Chicago 60637

The University of Chicago Press, Ltd., London

© 2018 by The University of Chicago

All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission, except in the case of brief quotations in critical articles and reviews. For more information, contact the University of Chicago Press, 1427 East 60th Street, Chicago, IL 60637.

Published 2018

Printed in the United States of America

27 26 25 24 23 22 21 20 19 18    1 2 3 4 5

ISBN-13: 978-0-226-53278-3 (cloth)

ISBN-13: 978-0-226-53281-3 (paper)

ISBN-13: 978-0-226-53295-0 (e-book)

DOI: 10.7208/chicago/9780226532950.001.0001

Library of Congress Cataloging-in-Publication Data

Names: Dinan, John J., author.

Title: State constitutional politics : governing by amendment in the American states / John Dinan.

Description: Chicago ; London : The University of Chicago Press, 2018. | Includes bibliographical references and index.

Identifiers: LCCN 2017045684 | ISBN 9780226532783 (cloth : alk. paper) | ISBN 9780226532813 (pbk. : alk. paper) | ISBN 9780226532950 (e-book)

Subjects: LCSH: Constitutional amendments—United States—States. | State governments—United States.

Classification: LCC KF4555.A25 D56 2017 | DDC 342.7303/2—dc23

LC record available at https://lccn.loc.gov/2017045684

This paper meets the requirements of ANSI/NISO Z39.48-1992 (Permanence of Paper).

Contents

Introduction

PART I.  Amendments

CHAPTER 1.  State Constitutional Amendment Processes and Practices

PART II.  Institutions

CHAPTER 2.  Institutional-Authority Amendments

PART III.  Rights

CHAPTER 3.  Rights-Defining Amendments

CHAPTER 4.  Court-Responsive Amendments

PART IV.  Policies

CHAPTER 5.  Policy-Constraining Amendments

CHAPTER 6.  Policy-Authorizing Amendments

CHAPTER 7.  Policy-Enacting Amendments

PART V.  Evaluation

CHAPTER 8.  Consequences of Relying on Amendments as Instruments of Governance

Notes

Index

Introduction

The meaning and development of the national constitution is best traced through the many authoritative decisions made by the national supreme court in interpreting the constitution; but by contrast the interpretations given by state supreme courts of their respective constitutions are of far less permanent importance, since the real history of the constitutional development of the states can best be traced decade by decade in the many amendments and revisions made so as to satisfy popular demands for reforms in existing systems. . . . One might almost say that the romance, the poetry and even the drama of American politics are deeply embedded in the many state constitutions. . . . For in them are recorded the growth in the notion of rights, irrespective of race, sex or economic status; the rise of manhood suffrage, its extension to women and modern reactions against the principle of unrestricted voting; and the developing emphasis on morals in provisions about dueling, lotteries, divorce, polygamy and the prohibition of the manufacture and sale of liquor. One may cynically note the earlier belief that legislators were men of wisdom and virtue, followed by a conviction expressed in most constitutions that they are likely to be corrupt and incompetent and regularly prone to bribery. . . . Such and similar changes may be traced in the state constitutions, which unquestionably will in later years be considered as exponents of the conditions and demands of their times, and as among the most valued records of social, political, and constitutional history. — James Q. Dealey, Growth of American State Constitutions from 1776 to the End of the Year 1914

My purpose in this book is to show that American state constitutions are more easily and frequently amended than the US Constitution and that, as a consequence, state constitutional amendments have been a regular means of altering institutions, rights, and policies in a way that might be deemed in key respects preferable to the approach at the federal level, where these changes are invariably achieved through legislation or litigation.

Due to the rigidity of the US Constitution’s Article V amendment process and a reluctance to use the process, federal amendments play only a modest role in bringing about changes in governing authority. Federal amendments have occasionally adjusted the design of governing institutions by instituting direct election of senators and presidential term limits. The Bill of Rights and post–Civil War amendments were responsible for expanding protection of individual rights in notable ways. At times, federal amendments have authorized or enacted policies, as with an individual income tax and Prohibition. For the most part, though, groups seeking changes in institutions, rights, and policies do not focus on amending the US Constitution.¹ Rather, they work through the political process, by securing the election of sympathetic presidents and members of Congress and pressing for passage of statutes and issuance of administrative rules.² They also proceed through the judicial process, by securing appointment of favorably disposed Supreme Court justices and filing lawsuits intended to generate rulings updating conceptions of rights or legitimating or limiting expansion of federal authority.³

Consider the ways notable changes in governing authority have been achieved at the federal level. Some changes are undertaken in an informal fashion, through adjustments in the behavior of presidents and Congress members and with little resort to amendments, legislation, or litigation,⁴ as with the growth of presidential power in war making.⁵ Other changes are achieved via legislation,⁶ often with little involvement from the judiciary, as with congressional statutes supporting construction and improvement of roads, canals, and harbors in the nineteenth century.⁷ Sometimes, shifts in governing authority are achieved through legislation that is reviewed and sustained by the Supreme Court,⁸ as with the advent of federal responsibility for old-age insurance and an enhanced federal role for protecting civil rights in the twentieth century.⁹ In still other instances, the Supreme Court has initiated and assumed primary responsibility for changes,¹⁰ whether desegregating public schools, banning state-sponsored prayer in schools, recognizing abortion rights, or expanding various rights of criminal defendants. None of these changes was achieved through passage of constitutional amendments.¹¹

The situation is quite different in the fifty states, where amendment processes are more accessible and groups and officials are more willing to resort to these processes.¹² Admittedly, states vary in the flexibility of their amendment processes and their readiness to use them. Constitutions in some southern and western states are amended quite often, whereas some northeastern and midwestern constitutions are amended less often. Nevertheless, state amendment processes are in nearly all respects more accessible and are in every state relied on more frequently than the federal amendment process.

One of my purposes in this book is to show that state amendment processes are flexible enough to permit citizens, groups, and officials to pursue changes in governing authority on a regular basis by enacting amendments. In chapter 1, I trace the evolution and use of state amendment processes. I show that the regular passage of amendments, whether generated by legislatures, citizens, conventions, or commissions (with the first two mechanisms responsible for nearly all amendments in recent years), can be attributed to the flexibility of state amendment rules as well as a constitutional culture that tolerates and even encourages frequent amending.

My second goal is to show that the willingness to enact amendments has produced a distinctive form of constitutional politics in the states. To be sure, changes in state governing authority are often achieved through political and judicial processes, as at the federal level. Groups dissatisfied with the performance of governing institutions work through state electoral processes to elect a fresh set of representatives. Groups and movements seeking to bring about new understandings of rights take their case to state court and with occasional success. Groups and individuals striving for policy changes lobby state legislators and governors and persuade them to enact desired policies. However, the accessibility of state amendment processes offers an alternative means of pursuing these changes.

With the aim of setting out the distinctive form that constitutional politics takes in the states, I categorize and catalog the ways amendments have served as instruments of governance throughout American history. I identify the leading occasions when citizens, groups, and officials relied on amendments to change institutions, rights, and policies, and I explain why they proceeded through the amendment process rather than other mechanisms.

Focusing first on amendments that alter governing institutions, chapter 2 analyzes institutional-authority amendments that transfer authority among governing institutions. On various occasions, amendments have shifted the balance of power among institutions and officials, often by transferring authority from legislators to other officials, whether by instituting municipal home rule, establishing regulatory commissions and administrative agencies, creating executive-budget systems, or vesting control of redistricting in commissions.

Turning next to amendments that adjust understandings of rights, I distinguish between two types of rights-regarding amendments. Chapter 3 analyzes rights-defining amendments that update understandings of rights in advance of or independently of court decisions, whether regarding religious liberty, equal protection, privacy, victims’ rights, property rights, or the right to bear arms, among other rights. Chapter 4 analyzes court-responsive amendments enacted in reaction to state court decisions. On various occasions when state courts have issued rulings requiring stricter separation of church and state, expanding rights of criminal defendants, limiting use of the death penalty, or recognizing abortion rights, the flexibility of state amendment processes offered groups and officials who were dissatisfied with these rulings a path to overturning them or limiting their effect.

Turning to the prominent and varied role of amendments regarding public policy, I analyze three types of policy-related amendments. Chapter 5 focuses on policy-constraining amendments that limit legislators’ power to operate lotteries, charter corporations, borrow money, levy taxes, and perform various other functions. Chapter 6 explores policy-authorizing amendments that overcome constitutional constraints and permit passage of worker-protection measures, social welfare programs, income taxes, and legalization of various forms of gambling. Chapter 7 analyzes policy-enacting amendments that initiate policies unattainable or insecure in the political process, whether by prohibiting the sale of alcohol, adopting right-to-work policies, protecting animals, or regulating campaign finance, among other policies.

After chronicling the various changes achieved through passage of amendments, I turn to my third and final goal in the book: assessing the consequences of relying on amendments to bring about changes in governing authority. Drawing on the record of state amendments regarding rights, policies, and institutions, Chapter 8 takes stock of the advantages and disadvantages of undertaking change via amendment processes (a regular practice in the states) rather than judicial and political processes (the dominant practice at the federal level), with the aim of providing guidance to constitution makers about the merits of these competing approaches. Reasonable persons can differ on how to assess the balance of these advantages and disadvantages, particularly regarding the distinctive outcomes secured through these mechanisms. Compared with litigation or legislation, amendments provide heightened protection for certain rights and attenuated protection for other rights, while expressing a different understanding of how to protect still other rights. Similar conclusions can be advanced and debates engaged regarding the distinctive policies produced through amendments compared with other mechanisms. But in considering the form that constitutional politics takes in the states, and particularly the greater stability and perceived legitimacy for changes achieved through amendments compared with legislation or litigation, reliance on amendments has much in its favor and might be considered superior in key respects to the approach followed at the federal level.

This analysis might contribute, on one level, to debates among comparative constitutional scholars, by compiling a record of state constitutional amendments regarding rights, policies, and institutions, and thereby allowing conclusions to be drawn about the consequences of undertaking constitutional change via amendments. Recent years have seen a surge of scholarly interest in assessing the consequences of undertaking constitutional change through amendments or via other means.¹³ In studying the merits of competing institutional approaches, scholars have relied heavily on the experience with the US Constitution.¹⁴ Other scholars have drawn conclusions from other political systems around the world.¹⁵

In offering these evaluations, some scholars have taken note of the contrasting approaches at the state and federal level within the United States, but without undertaking a full comparison of the consequences of these approaches.¹⁶ In fact, in noting the lack of investigations along these lines, some scholars have recognized an opportunity for studies of state constitutionalism to contribute to an assessment of competing approaches to constitutional change and encouraged such analyses to be conducted.¹⁷ Mark A. Graber has written that state constitutionalism provides a potential laboratory for testing the vices and virtues of frequent constitutional alterations, given that most states have had multiple constitutions and have generated far more constitutional amendments than the Constitution of the United States.¹⁸

The principal benefit of this book is to take advantage of this opportunity and further our knowledge of the consequences of undertaking changes in governance via constitutional amendments. There are, to be sure, differences between national and subnational constitutions generally,¹⁹ and between the US Constitution and state constitutions in particular (for instance, the enumerated powers of the federal government versus the plenary power of state governments). Admittedly, these differences present challenges in drawing lessons from the American states that might be applicable to other political systems. Nevertheless, and allowing for differences in functions served by state and federal constitutions, there is much to be gained from studying the approach to constitutional change in the American states. Because the states have gone further than any other subnational or national polities around the world in relying on constitutional amendments as instruments of governance, they can yield particularly helpful conclusions about the consequences.

This analysis not only contributes to studies of comparative constitutionalism but can also shape the growing literature on state constitutions, by directing attention away from a predominant concern with state court decisions and toward a greater focus on state constitutional amendments. At one time, as is evident from this chapter’s epigraph from James Q. Dealey’s century-old study, scholars of state constitutions devoted much attention to analyzing constitutional amendments.²⁰ However, for the last four decades, particularly after US Supreme Court Justice William Brennan’s influential 1977 Harvard Law Review article State Constitutions and the Protection of Individual Rights, scholars have concentrated on state court decisions, understandably so in light of notable state court interpretations of state constitutional provisions. One benefit of this book is to highlight the importance of state constitutional amendments, alongside of state court decisions, for state constitutional development, with the aim of generating more sustained attention to this feature of state constitutionalism.²¹

This analysis might contribute, finally, to our understanding of state governance, by demonstrating the recurring ways that amendments shape state governance and politics and thereby yielding insight for scholars of state politics as well as state officials.²² Consider various amendments enacted in just the last several years that constrain state officials in the taxes they can levy and the ways they can spend money. Recent amendments have capped the rate of certain taxes, barred imposition of some taxes altogether, granted exemptions from various taxes, required all revenue generated from certain taxes to be used for designated purposes, and in some cases stipulated that a portion of the state budget be dedicated to particular programs. Other recent amendments have achieved outcomes viewed as unattainable or insecure in the legislature, by boosting the minimum wage and legalizing marijuana. Consider as well amendments passed in recent years that have secured outcomes in advance of, and at times contrary to, state court decisions, by strengthening right-to-bear-arms protections, limiting use of the eminent domain power, and insulating the death penalty from state court invalidation. In these and other instances, debates about and passage of amendments have placed state constitutions at the forefront of state politics.

In writing this book, I continue an investigation into state constitutions that resulted in a prior book, The American State Constitutional Tradition. In that book, I examined the debates and proceedings in the more than 230 state constitutional conventions held since 1776, with the aim of showing that participants in these conventions frequently reconsidered and challenged principles and institutions that emerged from the federal constitutional convention. Whether regarding separation of powers, bicameralism, representation, or the governmental role in forming citizen character, among other topics, delegates to state conventions engaged in spirited debate about the suitability of federal principles and institutional devices, occasionally displacing them and in other cases modifying them at the state level. Among other purposes, I sought in this earlier book to draw attention to the way that debates in state conventions have at times rivaled, and can at least be seen as complementing, debates in the federal convention, in their exploration of fundamental principles and institutions of governance.

In the decade since the publication of that book, during which time I have assumed responsibility for writing an annual review of state constitutional developments for The Book of the States, I have increasingly turned to analyzing the prominent reliance on state constitutional amendments and the varied purposes they serve. This investigation has led to the publication of several articles, including Court-Constraining Amendments and the State Constitutional Tradition (Rutgers Law Journal 38 [2007]: 983–1039), from which I have drawn in portions of chapters 4 and 6.

In carrying out this project on state constitutional politics, I benefited from the support of a number of persons, institutions, and resources. A Reynolds Leave from Wake Forest University gave me time to complete the research and writing. I received valuable feedback on several presentations, including lectures delivered at the Program on Constitutionalism and Democracy at the University of Virginia due to invitations from James Ceaser and a lecture at the Rutgers Law School–Camden courtesy of an invitation from Robert Williams. I also benefited from the opportunity to make presentations or participate in conferences on state constitutionalism at the Oklahoma City University School of Law, Penn State Law School, Wayne State University Law School, and University of Arkansas School of Law. My research was greatly facilitated by the online archive of the text of state constitutions and amendments assembled by the NBER/University of Maryland State Constitutions Project led by John Wallis, as well as books that trace the origin and development of state constitutions as part of the fifty-volume State Constitutions of the United States series edited by Alan Tarr. I am indebted to these and other scholars whose work on state constitutions I have drawn on in writing this book.

PART I

Amendments

CHAPTER ONE

State Constitutional Amendment Processes and Practices

To explain why state constitutional amendments play a prominent role in state politics and governance, I first turn to the design of state amendment processes. These processes have not always been as flexible as they are in the twenty-first century; they only gradually became more flexible over time. Nor are the amendment processes equally accessible in all states. Yet they are in nearly all respects more accessible than the federal process.

Due in part to the accessibility of state amendment processes, along with a willingness of citizens and public officials to make use of them, state constitutions are amended frequently. States vary in how frequently their constitutions are amended. Some state constitutions are amended once every few years, whereas in other states amendments are adopted several times each year. But every state constitution is amended more frequently than the US Constitution.

State Constitutional Amendment Processes

In contrast with the US Constitution, which can only be amended by a two-thirds vote in Congress or a convention called after a petition from two-thirds of the states, followed by ratification in three-fourths of the states, the fifty state constitutions can be amended in ways that render them more flexible. Every state constitution allows the legislature to generate amendments. It is also understood in every state that the legislature can call a convention with the power to undertake a wholesale constitutional revision or submit amendments in piecemeal fashion to voters for ratification. Conventions can also be called in fourteen states through referenda that appear on the ballot automatically at regular intervals. Eighteen states provide for citizen-initiated amendments in which voters place amendments on the ballot and approve them, generally without a role for the legislature. In a number of states, commissions have been established with the power to recommend amendments for the consideration of legislators or conventions; in one state, commissions can even submit amendments directly to voters for ratification.

Legislature-Generated Amendments

Although all states currently allow legislatures to generate amendments, this device only took its current form after wide-ranging experimentation in the late 1700s and early 1800s. Even today, rules for enacting legislature-generated amendments vary significantly, with some states setting low barriers to legislative approval and voter ratification and other states setting somewhat higher thresholds.

The inaugural Delaware and Maryland constitutions, drafted by conventions held in the summer and fall of 1776, midway through an initial wave of constitution making in 1776–77, were the first state constitutions to make explicit provision for legislature-generated amendments.¹ Constitutions framed earlier in 1776 either failed to make explicit provision for amendments, as in New Hampshire, South Carolina, Virginia, and New Jersey, or permitted a council of censors to recommend amendments for approval by a convention, as in Pennsylvania.² Delaware’s constitution, adopted in September 1776, was the first to set out an explicit process for legislature-generated amendments. Delaware relied on a supermajority vote requirement to distinguish between the process for amending the constitution and the process for passing a statute, by providing that amendments could be adopted with the support of five-sevenths of the members of the lower house and seven of the nine members of the upper house.³ The Maryland constitution that took effect two months later followed a different approach. The legislature had to approve an amendment and publish it at least three months prior to an election; then the newly elected legislature had to approve the amendment a second time before it could take effect.⁴ In designing amendment procedures over the next several decades, state constitution makers generally combined these two states’ approaches, by requiring amendments to be approved by a legislative supermajority in two sessions separated by an intervening election.⁵

Connecticut’s 1818 constitution was the first constitution to require legislature-crafted amendments to be submitted for voter ratification.⁶ In earlier years, constitution makers had sought to gauge public support for amendments in an indirect fashion. By requiring the legislature to approve amendments both before and after an intervening election, voters could register their displeasure and prevent final passage of an amendment by unseating legislators in the election. Constitution makers in Connecticut sought to obtain a more direct expression of public support. In what could be called a belt-and-suspenders approach, Connecticut’s constitution required legislative approval by a majority of the lower house in one session, then reapproval, after an intervening election, by a two-thirds majority of both houses, followed by ratification by a majority of voters.⁷ Drafters of Maine’s 1820 constitution dispensed with the indirect test of popular support in an intervening election. They simply provided for legislative approval of amendments by a two-thirds majority in both houses, followed by ratification by a majority of voters.⁸

In designing legislature-generated amendment processes during the nineteenth century, framers of state constitutions generally followed Connecticut’s approach, especially prior to the 1850s, or Maine’s approach, especially after the 1850s.⁹ Most states drafting or revising constitutions during the remainder of the nineteenth century required amendments to be approved by the legislature—generally by a supermajority vote and usually in consecutive sessions but occasionally in a single session—and ratified by voters.

In all fifty states the legislature can craft amendments; but states maintain a range of requirements for legislative approval, as shown in table 1.1 where states are arrayed according to the flexibility of their current legislative-approval rules.¹⁰

Table 1.1 Legislative-approval requirements for legislature-generated amendments

*Delaware requires a two-thirds vote of both houses in each of two sessions. South Carolina requires two-thirds support in both houses on first passage and a majority in both houses on second passage. Tennessee requires a majority in both houses on first passage and two-thirds support in both houses on second passage. Vermont requires two-thirds support in the senate and majority support in the house on first passage and majority support in both houses on second passage.

**Connecticut allows approval of amendments by a bare majority in two sessions or by a three-fourths majority in a single session; Hawaii and Pennsylvania (in the case of emergency amendments only) allow amendments by a bare majority in two sessions or a two-thirds majority in one session; and New Jersey allows amendments by a bare majority in two sessions or a three-fifths majority in one session.

Source: State Constitutional Developments in 2016, tbl. 1.2, Book of the States 2017 (Lexington, KY: Council of State Governments, 2017).

In terms of rules for ratifying legislature-generated amendments, most states currently require that amendments be ratified by a majority of votes cast on the amendment, with nine states deviating from this norm in some fashion.¹¹ Delaware is unique in not requiring voter ratification of amendments. Eight states, however, require ratification by more than a simple majority of votes on the amendment. Hawaii, Minnesota, Tennessee, and Wyoming require amendments to obtain support of a majority of voters participating in the election (or, in the case of Tennessee, casting ballots for governor). Voters casting ballots for other offices but not voting on the amendment question essentially count as no votes in these states. Illinois requires amendments to be ratified either by a majority of voters in the election or by three-fifths of votes cast on the amendment. In Colorado, most amendments must be approved by 55 percent of votes cast on the amendment¹² and in Florida by 60 percent of votes cast on the amendment.¹³ New Hampshire sets the highest bar: amendments must be ratified by two-thirds of persons voting on the amendment.

States have generally eased their voter-ratification rules over time,¹⁴ particularly by replacing majority-in-the-election rules once in place in a number of states with the now relatively standard majority-on-the-amendment rule;¹⁵ however, some states have moved in the other direction by increasing ratification thresholds,¹⁶ especially in the twenty-first century. Supermajority requirements in place in Colorado and Florida are the product of recent changes that were motivated largely by a desire to increase the difficulty of approving citizen-initiated amendments, but they were applied to ratification of legislature-generated amendments as well.¹⁷

In the contemporary era, legislature-generated amendment processes are in nearly all respects at least as accessible as the federal amendment process and generally a good deal more so. No states require that amendments obtain more than a two-thirds legislative vote.¹⁸ In thirty states amendments can be approved by less than a two-thirds legislative vote. Although it is difficult to compare the federal ratification rule requiring support of three-fourths of the states with state ratification rules regarding voter approval, only eight states require more than a simple popular majority, and none requires more than a two-thirds popular vote.

The main way that some state amendment processes could be considered more rigid than the federal process is the requirement that amendments be approved in two legislative sessions separated by an intervening election.¹⁹ In most states an amendment can be approved by the legislature in a single session and ratified shortly afterward, as is possible at the federal level. This has sometimes been accomplished in quick fashion, most recently with the Twenty-Sixth Amendment lowering the voting age to eighteen. However, this is not an option in eleven states that require amendments to be approved by the legislature in two sessions and do not provide an alternative means by which the legislature can approve amendments in a single session. In these states, approval of an amendment takes at least a year and usually longer.²⁰

Several states impose limitations with no counterpart at the federal level. Vermont allows consideration of amendments only once every four years, which actually represents a loosening of a rule in effect until 1974 limiting consideration of amendments to once every ten years. Arkansas, Kentucky, Kansas, Illinois, and Colorado limit the number or type of amendments that can be placed on the ballot in a given year.²¹

Citizen-Initiated Amendments

Eighteen states permit citizens to initiate constitutional amendments. Oregon was the first state to do so, when voters in 1902 approved a legislature-referred amendment establishing a constitutional initiative process along with a statutory initiative and referendum process. By that time, South Dakota and Utah already permitted citizen-initiated statutes; but Oregon was the first state to allow citizen-initiated amendments. As part of a broad push to adopt direct democratic institutions in the Progressive Era, thirteen states maintained a constitutional initiative process by 1920: Oregon (1902), Oklahoma (1907), Michigan (1908), Missouri (1908), Arkansas (1910), California (1911), Arizona (1912), Colorado (1912), Nebraska (1912), Nevada (1912), Ohio (1912), North Dakota (1914), and Massachusetts (1918).²² Mississippi also adopted the constitutional initiative process during this period, in 1914, only to see the procedure invalidated by the state supreme court before it could be used.²³ It took another seven decades for Mississippi to reinstate this process.²⁴

Another burst of constitution making in the late 1960s and early 1970s led to four more states adopting the constitutional initiative process, followed in the early 1990s by Mississippi’s reinstatement of the process. One difference between the earlier and later wave of adoptions is that every state adopting the constitutional initiative in the 1900s and 1910s also adopted the statutory initiative, but three states in the late 1960s and afterward adopted the constitutional initiative without adopting the statutory initiative. Florida (1968), Illinois (1971), and Mississippi (1992) adopted the constitutional initiative process but did not provide for a statutory initiative process.²⁵ Meanwhile, Montana (1972) and South Dakota (1972) adopted constitutional initiative processes, to go along with their long-standing statutory initiative processes.²⁶

The eighteen states currently permitting citizen-initiated amendments, listed in table 1.2, maintain a range of rules for placing amendments on the ballot. Constructing a ranking of states on this dimension is difficult, due to the different methods of calculating how many signatures must be collected in support of an initiative.²⁷ Some states require initiative-backers to obtain support from a percentage of the population²⁸ or a percentage of registered voters.²⁹ Most states base these signature requirements on votes cast in the most recent election, whether for president,³⁰ secretary of state,³¹ or governor. Focusing on states that base their requirements on votes cast for governor (the most common denominator) reveals broad differences in the accessibility of state processes. At one end of the spectrum, Massachusetts requires signatures equal to 3 percent of votes cast for governor in the most recent election. Four states maintain an 8 percent rule.³² Five states adhere to a 10 percent rule.³³ Mississippi, with a 12 percent rule, and Arizona and Oklahoma, with 15 percent rules, set the most stringent requirements. Meanwhile, ten states require signature-gatherers to satisfy geographic-distribution requirements, where signatures must be gathered from a range of counties or legislative districts in the state.³⁴ These geographic-distribution rules have been the subject of federal legal challenges but continue to be enforced.³⁵

Table 1.2 States that allow citizen-initiated amendments

In sixteen of the constitutional initiative states, amendments satisfying the signature requirement are placed directly on the ballot; but in another two states the legislature can block the amendment (in Massachusetts) or craft an amended or alternative measure (in Massachusetts and Mississippi).³⁶ Massachusetts requires initiated amendments to be approved by one-fourth of legislators (meeting in joint session) in two sessions, separated by an election, before they can be submitted for voter ratification. The Massachusetts legislature also has the option to craft a substitute amendment to be placed on the ballot alongside the original measure or, by a three-fourths vote, to amend the original measure before it appears on the ballot.³⁷ In Mississippi, the legislature cannot prevent a citizen-initiated amendment from appearing on the ballot, but it can place an amended or alternative measure on the ballot alongside the citizen-initiated amendment.³⁸

Although citizen-initiated amendments are generally subject to the same voter-ratification rules that apply to legislature-referred amendments, several states require initiated amendments to meet a higher bar.³⁹ In most states, initiated amendments need only obtain the support of a majority of votes cast on the measure. But several states that require more than a simple majority of voters to approve legislature-referred amendments apply these higher thresholds to citizen-initiated amendments, as in Illinois, Nebraska, Florida, and Colorado.⁴⁰ Several other states impose slightly higher ratification requirements for citizen-initiated amendments than for legislature-referred amendments, as in Massachusetts and Mississippi.⁴¹ In one of the more innovative ways of treating citizen-initiated amendments differently than legislature-referred amendments, Nevada requires citizen-initiated amendments to be ratified by voters in two successive general elections.⁴²

Mention should also be made of several limits on the subject matter of citizen-initiated amendments.⁴³ One approach, followed by Illinois, is to identify a limited set of constitutional provisions that can be addressed through citizen-initiated amendments.⁴⁴ Another approach is to designate certain subjects generally off limits to citizen-initiated amendments, as in Mississippi, Massachusetts, Missouri, Arizona, and Ohio.⁴⁵

Although the trend for much of the twentieth century was to make constitutional initiative processes more accessible (such as by reducing signature requirements), in the twenty-first century the changes made in these processes have generally rendered them less accessible.⁴⁶ Several states have recently instituted or tightened geographic-distribution requirements or set earlier deadlines for collecting signatures, in ways that make it more difficult to qualify amendments for the ballot.⁴⁷ Additional limits on the subject matter of citizen-initiated amendments have also been adopted in recent years.⁴⁸ These changes have in some cases been motivated by general concerns about the initiative process and with an eye to limiting both constitutional and statutory initiatives. However, in other states, especially Colorado, efforts to tighten the rules for citizen-initiated amendments are intended to increase the incentive for groups to proceed through the statutory initiative process rather than the constitutional initiative process.⁴⁹

Convention-Generated Amendments

Conventions have drafted inaugural state constitutions and undertaken wholesale constitutional revisions; they have also been a vehicle for amending constitutions. The practice of relying on conventions to draft constitutions emerged out of a process of wide-ranging experimentation in the 1770s.⁵⁰ Three of the conventions that drafted inaugural state constitutions in 1776, in South Carolina, Virginia, and New Jersey, were provincial congresses whose members were not elected for the express purpose of constitution making but nevertheless drafted and proclaimed constitutions. The remaining conventions in 1776 and 1777 were composed of delegates elected for the purpose of constitution writing, but, as was the practice with other early conventions, they adopted a constitution without submitting it to voters. Then, in 1778 and 1779, New Hampshire and Massachusetts took the next step of holding conventions whose delegates were elected for the express purpose of constitution writing and who submitted their work for popular ratification (or in some cases rejection).⁵¹ This approach pioneered by New Hampshire and Massachusetts gradually became the norm, even if some state conventions as late as the late nineteenth and early twentieth century, especially in the South, opted against submitting their work to voters.⁵²

In drafting constitutions in the late eighteenth century, convention delegates had occasion to consider the role of future conventions in revising and amending state constitutions. Pennsylvania’s 1776 constitution was the first to make explicit provision for future conventions, albeit in an unusual fashion that did not take hold elsewhere except in Vermont, whose 1777 constitution was modeled on the Pennsylvania constitution in many respects.⁵³ The inaugural Pennsylvania and Vermont constitutions called for the election every seven years of a council of censors with the power to review the constitution and, by a two-thirds vote, call a convention to consider amendments recommended by the council.⁵⁴ After a council in Pennsylvania met once and failed to call a convention, the institution was discontinued when a new Pennsylvania constitution was framed in 1790.⁵⁵ A council of censors had a more enduring role and influence in Vermont, meeting thirteen times before the device was eliminated in 1870. On ten of these occasions, the council recommended amendments that were considered by conventions and led in several instances to notable changes in the Vermont constitution.⁵⁶

Georgia’s 1777 constitution was the only other constitution in the initial 1776–77 wave to make explicit mention of a convention for achieving future constitutional changes. But the procedure set out in Georgia’s constitution, while somewhat closer in spirit to certain convention procedures that became prevalent in later centuries, was no more influential during this period than the Pennsylvania model. Georgia directed the legislature to call a convention upon receipt of petitions supporting a convention from a majority of counties signed by a majority of voters in each county.⁵⁷ No other state adopted this particular model of county-initiated conventions, although four states in the twentieth century would eventually make provision for citizen-initiated conventions.

Massachusetts’s 1780 constitution and New Hampshire’s 1784 constitution were the next to make explicit provisions for future conventions; but again, the particular models adopted on these occasions did not immediately take hold in other states. Massachusetts stipulated that on a one-time basis in 1795, a referendum on calling a convention should be held and a convention called if two-thirds of voters approved.⁵⁸ New Hampshire provided that a convention should be held seven years after adoption of the constitution.⁵⁹ Neither Massachusetts’s provision for a one-time automatic convention referendum nor New Hampshire’s provision for a one-time automatic convention took hold elsewhere, although in later years states came to embrace an automatic periodic convention referendum device that was added to New Hampshire’s constitution in 1792, whereby a referendum on calling a convention is held at regular intervals.⁶⁰

Credit for introducing the convention device that became widespread in the nineteenth and twentieth centuries, whereby legislatures can at their discretion submit convention referenda for voter approval, is best assigned to framers of several 1790s constitutions.⁶¹ Delaware’s 1792 constitution allowed the legislature at its discretion to submit to voters the question of calling a convention.⁶² Tennessee’s 1796 constitution took the additional step of requiring a legislative supermajority (a two-thirds vote) to approve a convention question before it was submitted to voters.⁶³ This basic procedure for calling a convention—legislative approval, generally by a supermajority vote, followed by voter approval—soon became a standard feature in state constitutions.⁶⁴

This general understanding of how conventions are called has taken hold even in states whose constitutions fail to make explicit provision for them. Currently, nine state constitutions do not include provisions for calling conventions.⁶⁵ Yet legislatures in these states have occasionally submitted convention referenda for voter approval, in the same way that legislatures called conventions in the eighteenth and nineteenth centuries prior to adoption of explicit constitutional provisions.⁶⁶

Fourteen states set out an alternative path for calling a convention that does not require legislative approval: the automatic periodic convention referendum. In these states, the question of whether to hold a convention is submitted to voters automatically at periodic intervals.⁶⁷ After this device was pioneered in the eighteenth century by New Hampshire in 1792,⁶⁸ it was adopted in the nineteenth century by New York (1846), Michigan (1850), Maryland (1851), Ohio (1851), and Iowa (1857).⁶⁹ Twentieth-century adoptions took place in Oklahoma (1907), Missouri (1920), Hawaii (1959), Alaska (1959), Connecticut (1965), Illinois (1971), Montana (1972), and Rhode Island (1973).⁷⁰

Eight of the fourteen states currently providing for automatic periodic convention referenda mandate a twenty-year interval between submissions, in keeping with Thomas Jefferson’s support for generational constitutional revision and based on his calculation that each generation lasts between nineteen and twenty years.⁷¹ Other states provide for intervals of sixteen years (in one state) or ten years (in five states).⁷²

Four states provide yet another legislature-bypassing mechanism for calling a convention, via the initiative process. This device traces its origins, at least in spirit, to the defunct provision in Georgia’s 1777 constitution calling for a convention when a majority of counties submitted petitions signed by a majority of county voters. Although no conventions have been called through the initiative process, Florida, Montana, North Dakota, and South Dakota set out a process for citizens to place a convention question on the ballot, generally following the same procedures for a citizen-initiated amendment.⁷³

Regarding limits on constitutional conventions and the changes they can recommend, scholars and litigants have engaged in extensive debate about whether legislatures can limit the work of conventions, but little guidance is found in the text of state constitutions, which are mostly silent on the question.⁷⁴ The few state constitutions that address the matter in an explicit fashion offer a mixed verdict on the legitimacy of limited conventions. Alaska’s constitution declares that no limits can be imposed on the subject matter of conventions.⁷⁵ In contrast, the Kansas, North Carolina, Tennessee, and Virginia constitutions make clear that the legislature can limit the range of topics a convention can address.⁷⁶

Commission-Generated Amendments

Commissions have played various roles in amending state constitutions, generally by recommending changes for consideration of legislators (advisory commissions), occasionally conducting studies to guide conventions (preparatory commissions), and in one state submitting amendments directly to voters for ratification (an automatic periodic commission).⁷⁷

Most commissions are advisory commissions established by legislatures for the purpose of proposing amendments or wholesale revisions that are then forwarded to the legislature for possible submission to voters. Advisory commissions originated in the 1850s, when the New Jersey legislature established a commission in 1852 and then another commission in 1854 and charged commission members with determining whether the constitution should be amended to provide for an elected judiciary.⁷⁸ Although no other constitutional commissions were established for another two decades, legislatures established advisory commissions in the 1870s in New Jersey, New York, Michigan, and Maine.⁷⁹ By the twentieth century, legislatures were establishing advisory commissions on a routine basis,⁸⁰ not only for the purpose of recommending amendments,⁸¹ but also sometimes writing new constitutions.⁸²

At various times, legislatures or governors have established preparatory commissions charged with undertaking research or making recommendations to assist voters in anticipation of a mandatory convention referendum or to guide delegates as they prepare for a convention. For the most part, these preparatory commissions are created at the discretion of the legislature or governor.⁸³ But Rhode Island’s constitution mandates that a preparatory commission be established prior to the state’s decennial convention referendum to provide guidance to voters on the convention question.⁸⁴

Although advisory and preparatory commissions are only permitted to make recommendations for the benefit of legislatures or conventions, Florida’s constitution authorizes commissions to submit amendments directly to voters. The 1968 Florida constitution pioneered the concept of an automatic periodic commission that is established every twenty years.⁸⁵ The members of Florida’s Constitution Revision Commission can submit constitutional amendments for voter ratification and have done so on several notable occasions.⁸⁶ A 1988 amendment to Florida’s constitution created a second automatic periodic commission, the Taxation and Budget Reform Commission, that is also established every twenty years (the two commissions are now staggered so that one of them is held every ten years).⁸⁷ Among other tasks, members of this second commission are empowered, upon a two-thirds vote, to