April 01, 2014

"Amendomania" and Individual Rights

by Jonathan L. Marshfield

Perhaps the most striking feature of state constitutions is that they are frequently amended. In 2012 alone, there were 135 proposed state constitutional amendments in 35 different states, with voters in 28 states approving 92 amendments. Although amendment rates vary, even the most static state constitution (Vermont) is amended on average at least once every four years. When compared to the Constitution of the United States, which has been amended only 27 times since 1788, it is fair to say that contemporary state constitutionalism is characterized by a degree of “amendomania.”

But what does this “amendomania” mean for the protection of individual rights? The traditional view is one of caution and even alarm. Critics of state constitutionalism emphasize that constitutional rights are effective only if they are entrenched beyond the reach of majoritarian politics. These critics conclude that state constitutions are fundamentally defective because they are dominated by “populist and majoritarian impulses.” As James Madison famously warned, the greatest danger to individual rights is “not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the constituents.”

This criticism is not unfounded. There are many frightening examples of state constitutional amendments that mistreated minorities. Prior to the Civil War, for example, some states entering the Union held separate referenda solely to adopt constitutional provisions that denied African Americans the right to vote. Similarly, in the 1940s and ’50s, many states adopted provisions constitutionalizing school segregation. More recently, some states have adopted so-called English-only amendments that effectively deny individuals the right to receive government services in any language other than English.

However, the relationship between state constitutional amendment and individual rights is more complicated than these examples alone suggest. As a matter of black-letter law, state constitutions can provide more expansive rights protections than the minimum protections contained in the Constitution of the United States. This principle is often cited in support of more expansive judicial interpretation of state rights provisions, but it applies equally to state communities that wish to adopt expansive rights protections.

Significantly, state constitutional history and contemporary practice show that state communities often amend their constitutions to expand and add constitutional protections. For example, while some antebellum states amended their constitutions to deny African Americans the right to vote, other states adopted amendments expressly enfranchising African Americans. Similarly, when the federal Constitution was amended in 1920 to prohibit denial of the franchise based on sex, 28 states had already adopted constitutional amendments granting women the right to vote. States have also amended their constitutions to include progressive positive rights with no analogs in the federal Constitution, such as the right to a well-funded education, a living wage, and a healthy environment.

State communities have also amended their constitutions to intervene when the U.S. Supreme Court has issued rulings that undermine individual rights. The Supreme Court’s 2005 ruling in Kelo v. City of New London provides a recent example. In Kelo, the Court held that the City of New London did not violate the Fifth Amendment when it used its eminent-domain power to take private property for the purpose of selling it to another private party for redevelopment. In response to Kelo, many states sought to provide greater protections for private property owners, and 11 states amended their constitutions to provide more expansive property rights protections.

It is important that practitioners, advocates, and policymakers appreciate that state constitutional “amendomania” can both threaten and advance individual rights. History and practice show that popular involvement in state constitutional politics does not necessarily mean that states will use their constitutions in a discriminatory manner. To be sure, abusive majorities can use state constitutions to undermine important rights protections. But it is equally true that conscientious state communities can augment deficient federal protections with robust state constitutional rights. To borrow from Justice Louis Brandeis, it is another “happy incident” of our federal system that when national institutions with limited political accountability decline to advance individual rights, a “single courageous State” can easily and quickly amend its constitution to provide important protections.

Jonathan L. Marshfield

Jonathan L. Marshfield is assistant professor of law at the University of Arkansas School of Law. His research focuses on state constitutional law, federalism, and comparative subnational constitutional law.