Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
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
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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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/F4B7-KSZC.
4 See ROBERT J. DILGER, CONG. RESEARCH SERV., R40638, FEDERAL GRANTS TO STATE AND
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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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
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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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-
(“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.
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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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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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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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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A. Formal Amendment
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-
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).
48 See, e.g., CONST. OF NETHERLANDS, ch. 8, art. 137–38; DEL. CONST. art. XVI; see Bjørn
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
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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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)
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.
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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B. Informal Amendment
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.
80 See Fusaro & Oliver, supra note 35, at 427 (noting that one benefit of formal amendment
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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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-
(2001).
89 Id. at 1216, 1230; ESKRIDGE & FEREJOHN, supra note 15, at 26.
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).
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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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
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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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
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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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.
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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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).
125 Albert, supra note 13, at 1046 (“[L]et us recognize that the declining use of Article V is at-
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.
136 See Gerken, supra note 13, at 933 (“The simple point of my hydraulics argument is that
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
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.
7, 12.
148 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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154 See Londras & Morgan, supra note 152, at 179 (seeming to suggest that the legislature has
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,
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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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).
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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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-
II. What We Know (and Don’t Know) About Informal Amendment and
State Constitutions
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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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
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.
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.
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.
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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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
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.
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
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
III. Some New Data Relevant to Courts and Informal Amendment in the
States
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,
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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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
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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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.
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
A. Quantitative Findings
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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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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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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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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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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B. Qualitative Illustrations
1. Individual Rights
a. Criminal Procedure
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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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.
269 See id. at 227–28 (“We therefore adopt the same transaction test . . . and overrule Grim-
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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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).
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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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).
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
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
305 See id. at 830 (quoting Kentucky Constitution as stating that the right to a jury trial shall
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
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,
312 Id. It is interesting that Mississippi did not adopt an ERA to its state constitution nor did
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
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).
322 See id. at 92 (citing Joshua v. MTL, Inc., 656 P.2d 736 (Haw. 1982) and McAulton v.
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.
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 662 (Colo. 1982); Callahan v. First Congregational Church of Haverhill, 808 N.E.2d 301
(Mass. 2004).
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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
355 See id. at 995. See generally Wylie Corp. v. Mowrer, 726 P.2d 1381 (N.M. 1986) (holding
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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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-
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,
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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sues, the arguments in support of constitutional change from the bench are
reminiscent of the illustrations above.
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
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-
19 J. CONT. L. 1, 16 (2017).
370 See Lawrence B. Solum, The Fixation Thesis: The Role of Historical Fact in Original Meaning,
dural—certainly affects decision making regarding the paths of formal amendments and in-
formal constructions.”).
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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.
CONCLUSION
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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APPENDIX A
NUMBER OF FORMAL AMENDMENTS AND CONSTITUTIONAL OVERRULINGS BY
STATE HIGH COURTS, 1970-2004
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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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
APPENDIX B
TOTAL NUMBER OF FORMAL AMENDMENTS & CONSTITUTIONAL OVERRULINGS
BY SUBJECT, 1970-2004
APPENDIX C
CONSTITUTIONAL OVERRULINGS BY STATE HIGH COURTS BY SUBJECT, 1970-
2004
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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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%