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State Constitutions Are Slippery:

A Reply to Professor Marshfield

JUSTIN R. LONG*

W
hile there has never been enough empiricism in state
constitutional studies (or constitutionalism generally, or even
more broadly in legal studies), our field always invites data-
crunching because of the fifty distinct petri dishes we
constantly stare at. The impulse to compare and quantify them is nearly
irresistible, which might partly explain how much more intertwined state
constitutionalists in the law schools are with state constitutionalists in the
political science departments than federal constitutional law scholars are
with their counterparts outside the law schools. 1 Jonathan Marshfield’s
important new work contributes to this empirical strand in our collective
intellectual history, and happily so.
After his Herculean effort to gather and analyze essentially all the
available data on state constitutional change, Professor Marshfield
concludes that the frequent changes by amendment have not slowed down
the courts from creating constitutional change by jurisprudence. 2 In other
words, as the economists might say, there is no evidence of a substitution

* Associate Professor of Law, Wayne State University. I thank Bob Ackerman, Lance Gable,
and Jon Weinstein for helpful comments on this response.
1 See, e.g., the prominence and participation in legal symposia and law reviews of political

scientists like G. Alan Tarr, John Dinan, Gerald Benjamin, and Susan Fino, among others.
2 See generally Jonathan L. Marshfield, Courts and Informal Constitutional Change in the States,

51 NEW ENG. L. REV. 453 (2018). Marshfield examines two kinds of constitutional change: formal
(change in the constitutional text through lawful amendment) and informal (change in
constitutional meaning through case law). But there is a third kind of change in state
constitutions. When the U.S. Supreme Court affects informal change at the federal level, it
simultaneously changes state constitutional law in those states that have (formally or
informally) adopted “lock-step” interpretation. Where state courts have identified state
constitutional civil rights protections as equivalent to federal protections, but then the U.S.
Supreme Court drops the floor, the state constitutional protection drops with it—without a
single state official or voter lifting a finger to enact the change. While common, this sort of
change does not implicate the theoretical problem Marshfield tackles in his article.

533
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effect. Instead of being confronted with scarcity in one area and shifting their
preferences to an alternative, it looks like activists for constitutional change
are enthusiastically embracing every possible approach (and naturally
settling on whatever happens to be most expedient in the particular political
and legal circumstances of their particular fight). The circumstances
Marshfield describes make it appear as if there were no resource scarcity
among the proponents of change, as if they were not making strategic
choices about whether to invest their energy into campaigns or into
litigation. Like so much of state constitutional practice, this is simply weird.
Marshfield is right to bring attention to this issue and has done a great
service by doing the hard work of actually finding the facts.
As Marshfield points out, one might think that judges who know how
“easy” it is to amend state constitutions would show more restraint than the
federal Justices, who must keep the Constitution relevant and revered
despite its near-total immunity to contemporary amendment. 3 We even have
a canon about it: the canon of constitutional avoidance teaches that judges
should prefer to base a decision on statutory rather than constitutional
analysis, at least partly on the ground that an “erroneous” statutory decision
can be corrected by democratic means while the constitutional decision
cannot. 4
Alternatively, of course, one might think that if state high court judges
know that an unpopular decision can be quickly superseded by popular
amendment, they might consider themselves unleashed to adopt more
experimental or far-reaching modes of constitutionalism. 5 After all, they
know that if they go too far, the polity has a reasonable opportunity to
correct them. Marshfield’s new work shows that this is, in fact, the more
descriptively accurate approach.
What remains to be established, though (as Marshfield emphasizes), is
why state high court judges behave this way. One obstacle to understanding
here is the near-universally unexamined assumption that state constitutions’
formal amendment processes are easier than federal constitutional
amendment. From one perspective, this is simply obvious: as Marshfield

3 See William N. Eskridge, Jr., Dynamic Statutory Interpretation, 135 U. PA. L. REV. 1479, 1479–

82 (1987) (describing the conventional view that statutes, unlike the federal Constitution, should
be interpreted “statically” because the Congress can react against a mistaken or out-of-date
statutory analysis).
4 See Robert W. Scheef, Temporal Dynamics in Statutory Interpretation: Courts, Congress, and the

Canon of Constitutional Avoidance, 64 U. Pitt. L. Rev. 529, 535 (2003) (describing one rationale for
the canon as respect for Congress’s democratic accountability).
5 See generally Helen Hershkoff, State Courts and the “Passive Virtues”: Rethinking the Judicial

Function, 114 HARV. L. REV. 1833 (2001) (arguing that state judges should use their greater
democratic accountability—through easier formal amendments, judicial elections, etc.—as a
justification for rejecting judicial passivity).
2017] Slippery Constitutions 535

reminds us, there have been more than 7,500 formal amendments to state
constitutions, and merely 27 formal federal amendments. 6 But the frequency
of an event is not the same thing as its difficulty: more people have children
than don’t, even though it is safe to assume that parenting is both cognitively
and physically more difficult than the childless life. 7 The differing rewards
that follow from differing endeavors can make even the hardest tasks
popular. In the constitutional context, it seems plausible that achieving
constitutional change by informal or formal means might make a difference
in how effectively the change takes hold in society; i.e., the rewards are
different. Returning to the economic metaphor, there may be no substitution
effect because the goods attained are not sufficiently interchangeable.
So there are really two points that must be considered before fully
rejecting the conventional wisdom about the cause of frequent informal
amendment (the “hydraulic” theory). First, are state constitutions really
easier to amend than the federal constitution? And second—a point that
Marshfield hones in on 8—even if they are, are state constitutions easier to
amend than the alternative methods of informal change, particularly
constitutional litigation? These questions matter because if formal change in
the state constitutions is actually more difficult than conventional wisdom
suggests, despite its frequency, then perhaps the hydraulic theory—that
difficulty of formal amendment pushes change into informal pathways—
still has vitality.
To determine the ease of amendment processes, we can look at the
mechanics of constitutional change from two perspectives: the national
activists and lobbyists who are located in and around Washington D.C. and
focus on the federal government, and the state activists and lobbyists who
are located in the state capitals and focus on their own state’s government.
Counter-intuitively, from both perspectives, the Federal Constitution is
easier to formally amend as a matter of law than state constitutions are. (The
pragmatic politics of change, which incorporate cultural constraints not
inherent in the constitutional texts, are a different story, as I discuss later.)
Comparing apples to apples: consider a lobbyist for a national trade
organization who wants a change in constitutional law across the whole
country. This is someone steeped in the gossip, arcana, relationships, and
rules of D.C. politics, but also possessing expertise in nationwide political
and/or marketing campaigns. To get the policy adopted nationwide, the
lobbyist can pursue a one-time-only two-thirds vote in Congress followed

6 Marshfield, supra note 2, at 466.


7 See Emma Gray, A Record Percentage of Women Don’t Have Kids. Here’s Why That Makes Sense,
HUFFPOST (Apr. 9, 2015), https://perma.cc/9LFV-ZE76 (showing that most women still do have
kids).
8 See Marshfield, supra note 2, at 478–81.
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by legislative ratification in thirty-eight states, for a federal constitutional


amendment. 9 Or, for the same result, the lobbyist must persuade all fifty
states to amend their own constitutions, which in all states but Delaware
requires a popular vote and in no state can be accomplished by a single
legislative vote alone.
Comparing oranges to oranges: consider a state-focused lobbyist who
would like to see her state adopt a particular constitutional change. To win
the state’s ratification of a proposed amendment put forward by Congress,
the state lobbyist need only persuade the legislature to affirm the
amendment by a simple majority, in a single vote. If enough other states
have taken the same step, she wins the change she sought. To get the same
proposal into the state constitution would require, depending on the state, a
massive signature-gathering campaign followed by a ratification ballot;
passage by two separate legislatures then followed by a popular vote; or a
super-majority in both the legislature and the popular vote.
One might concede that the state-level ratification of the federal
amendment is easier than the procedures for state constitutional
amendment, but still insist that the federal amendment process is trickier
because three-fourths of the states must agree. But, from the state activist’s
perspective, the federal ratification process is easier in each state. If it takes
“x” political capital to win a simple majority once in the state legislature, and
“x + n” political capital to win a super majority in the legislature followed
by success with the general electorate, then 38x is still less than 38(x+n), let
alone 50(x+n).
And what about that super-majority in Congress? How hard is it, just as
a matter of formal legislative procedure, to get Congress to propose a
Constitutional amendment to the states? Not just most, but a large majority
of bills passed into law receive “unanimous consent” procedure, which
means not a single legislator objected to passage. 10 In 2010, Politifact
identified fully eighty-one percent of substantive, binding bills passed this
way 11—which shows that the formal process is really no obstacle, if the topic
is right.
Would any issue-advocates actually constitutionalize a policy they
wanted to see implemented nationally by deliberately going through the
diverse and difficult state constitutional processes instead of the simpler and
more manageable federal process? Perhaps the right to education stands as
evidence that they would. Education is a constitutional right in all fifty

9 See U.S. Const. art. V (setting forth procedures for formal amendment).
10 See Assessing Congressional Productivity: Getting It Right, THE GOV’T AFF. INST. AT GEO. U.,
https://perma.cc/8Q4R-9PKA (last visited May 29, 2018).
11 See Louis Jacobson, DeMint Says 94 Percent of Bills are Passed Unanimously, POLITIFACT (June

17, 2010), https://perma.cc/8XVX-PA7W.


2017] Slippery Constitutions 537

states, yet advocates have never succeeded at getting a constitutional right


into the federal Constitution, formally or informally. Even so, this example
does not weaken the argument that state constitutions are a more difficult
way to amend constitutional law nationally, because the state education
clauses were never part of a single national political movement. Instead, they
were adopted for a variety of different reasons, over a long period of time,
by transient and diverse political movements. 12 Perhaps the movement for
marriage equality, which was marked by strategically fought state victories
followed by a nationwide victory, 13 makes state constitutional change look
easier than federal. But the state changes won by that movement were often
informal, and of course the federal amendment was also informal. 14 In sum,
then, if it seems unlikely that national policy reformers would rationally
pursue a state-by-state formal amendment process instead of a single
nationwide campaign, it reflects the logic that changing the American
constitutional order via the states is more difficult than formal federal
amendment, not easier, despite how frequently state constitutions are
actually amended.
To illustrate this point further, consider the horizontal variation among
the states in formal amendment rates. Marshfield tells us that Delaware,
which arguably has the easiest process because it does not require popular
ratification, had fifty-two formal amendments in the same time period that
Nebraska, which does require popular ratification, had 100. 15 Or compare
California, which requires a popularly originated amendment to win over
585,000 petition signatures to get on the ballot 16 but saw 149 amendments
within the same time frame as North Dakota ratified fewer than half that
number 17—even though the North Dakota Constitution 18 places a proposed
amendment on the ballot with the signatures of only 26,904 voters! 19 It

12 See generally ROBERT F. WILLIAMS & LAWRENCE FRIEDMAN, STATE CONSTITUTIONAL LAW:

CASES AND MATERIALS 1009–89 (5th ed. 2015).


13 I have written about this use of state constitutionalism to promote national change in

Guns, Gays, and Ganja. See generally Justin R. Long, Guns, Gays, and Ganja, 69 ARK. L. REV. 453
(2016).
14 See generally Obergefell v. Hodges, 135 S. Ct. 2584 (2015).
15 See Marshfield, supra note 2, at 517–18.
16 See Cal. Const. art. II, § 8(b) (requiring eight percent of the number of voters in the last

gubernatorial election to sign a petition proposing the amendment); Debra Bowen, Statement of
Vote: Nov. 14, 2014, https://perma.cc/V384-NXE5 (last visited Oct. 4, 2018) (indicating that the
2014 wining candidate for governor won 4,388,268 votes and the losing candidate won 2,929,213
votes). Eight percent of 7,317,481 is 585,399.
17 See Marshfield, supra note 2, at 517–18.

18 See N.D. Const. art. III, § 9 (specifying that a constitutional amendment may be initiated

with the signatures of four percent of the total population at the last census).
19 See U.S. Census, QUICKFACTS: NORTH DAKOTA, https://perma.cc/U55F-4DGA (last visited
538 New England Law Review [Vol. 51|3

cannot be easier to obtain over half a million signatures than it is to obtain


fewer than 50,000. So frequency does not necessarily correlate with ease.
But . . . we still see more frequent formal change in the states than we do
in the Federal Constitution! If state change is harder, what explains the
variation? The answer must be that the risks and rewards of each kind of
change must be different enough to justify formal amendment efforts in the
states but not at the federal level. Just as the benefits of amending the
California Constitution outweigh the costs more effectively than the benefits
of amending the North Dakota Constitution after accounting for the cost, the
benefits of formal amendment to the state constitutions minus their costs
must exceed the cost-benefit calculation for the federal constitution. This
certainly seems surprising. How could formal state change be more valuable
than federal change?
There are three possibilities. It could be that informal change at the
federal level is much easier than formal change, but that even if formal
change in the states is harder than it is at the federal level, informal change
in the states is even harder than formal change. If so, the hydraulic theory
would suggest that difficulty of informal change would push state reformers
toward formal change. Marshfield’s findings that informal change flourishes
even in states with high rates of formal change does not disprove this
explanation, because, as we have seen, frequency is independent of
difficulty. One reason informal change might be more difficult than formal
change in the states is if the state high courts are unwilling to adopt even
popular reforms. Another could be that victories in state court simply do not
yield results as effectively as formal change in the constitutional texts. Both
of those subsidiary explanations are consistent with state constitutional
scholarship like Helen Hershkoff’s. 20
It could also be that the benefits of state formal change are higher than
the benefits of federal formal change. This seems pretty unlikely. On the
other hand, it remains true that state-level government has a
disproportionate effect on citizens’ daily lives—issues like public education,
property regulation, family law, criminal justice, public transportation, and
public health are still primarily executed by state or local level officials. In
that light, perhaps state change really does matter more to more people on
the ground than federal change.
Finally, even if the benefits of federal change are greater than the
benefits of state change, perhaps the costs of formal federal change are much
higher than state change. This doesn’t make sense as a matter of black-letter
law, but seems more like the best explanation if we include in “costs” the

May 29, 2018) (showing the 2010 population was 672,591). 26,904 is four percent of 672,591.
20 See generally Hershkoff, supra note 5 (describing the unwillingness of state constitutional

courts to rigorously enforce their constitutional texts).


2017] Slippery Constitutions 539

effort needed to overcome extra-legal barriers protecting the federal


Constitution from amendment. Those extra-legal barriers could include
cultural factors that are not apparent from the face of the law. Indeed, we see
a nationwide reverence for the Federal Constitution, and accompanying
reluctance to change even its more dysfunctional features, 21 that is entirely
unmatched at the state level. State constitutions hold no sway over the
popular imagination, and have no place in our secular mythology. The
authors of state constitutional texts are never immortalized in hushed tones
as the Framers, Founders, or Fathers of their people. They tend to not show
up either in learned biographies or as the heroes of Broadway musicals.
One consequence of this lack of reverence for state constitutions relevant
to the payoff activists win from constitutional change is that they simply do
not inspire the level of compliance we take for granted at the federal level.
In that sense, Marshfield’s seemingly self-evident statement that
“constitutional change occurs most obviously when the constitution’s text is
altered” is overly optimistic. 22 Of course, by definition, a change in the text
is a change in the law on the books. But ample evidence from the history of
state constitutionalism shows that mere textual changes quite often result in
no change whatsoever in the law as applied in real life. Consider one of
Marshfield’s own examples, from the Iowa Supreme Court: “It
accomplished this [authorization of juvenile detention without jury trial] by
admittedly ‘disregarding’ the Constitution’s ‘literal language.’” 23 Courts
have found issues non-justiciable where the constitutional text explicitly
invites judicial review; have endorsed state debt where the constitution
explicitly prohibits it; and have treated state constitutional clauses with long
and hard-fought histories as superfluous. 24 States sometimes even delegate
their constitutionalism to federal officials: in the process derided as
“prospective lock-stepping,” state courts hold that their constitutional text
means whatever the federal Supreme Court says that the parallel federal
clause means, such that the state text’s meaning changes arbitrarily and
unalterably according to the whims of the federal Justices. As far back as
Justice Cooley, we find that foundational commentator opining that:
Sometimes the constitution in terms requires the legislature to
enact laws on a particular subject; and here it is obvious that the
requirement has only a moral force; the legislature ought to obey
it; but the right intended to be given is only assured when the

21 See generally SANFORD V. LEVINSON, OUR UNDEMOCRATIC CONSTITUTION: WHERE THE

CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT) (2006).
22 Marshfield, supra note 2, at 462.
23 Marshfield, supra note 2, at 503–04 (quoting In re Johnson, 257 N.W.2d 47, 50 (Iowa 1977)).
24 See infra notes 27–31.
540 New England Law Review [Vol. 51|3

legislation is voluntarily enacted. 25

My course in state constitutionalism is the only place where I feel the


need to teach my students the word “hortatory.” 26
Simply deciding cases contrary to the constitutional text is not the only
way that state constitutions fail to bind state officials. As Marshfield points
out, much of informal change under state constitutions is not “legal” in the
sense of re-interpretation by authorized institutional agents like judges, but
extra-constitutional: contravention of constitutional text by the political
actors it is meant to restrain, followed by passive acquiescence by the courts
and the populace. 27 In addition to the work by Michael Besso and James
Gardner cited by Marshfield, 28 I have described this phenomenon, 29 and so
have Robert Williams 30 and Richard Briffault 31 and Lawrence Friedman 32
and Sanford Levinson 33 and nearly every other state constitutional scholar
at one point or another. The significance of this sort of change can hardly be
overstated because it means that state constitutional text often does not
actually restrain state actors.
In that light, winning a formal constitutional amendment in a state
constitution is half the battle at best. The text might well be flatly ignored by
the relevant state officials, regardless of the legal change. It could be said that
states operate under unwritten constitutions, and when those constitutional
customs and practices conflict with constitutional text, political actors and

25 THOMAS COOLEY, CONSTITUTIONAL LIMITATIONS 165 (8th ed. 1927), quoted in

Commonwealth v. Nat’l Gettysburg Battlefield Tower, Inc., 311 A.2d 588 (Pa. 1973).
26 See WILLIAMS & FRIEDMAN, supra note 12, at 435–45 (describing cases finding state

constitutional text non-binding).


27 See Marshfield, supra note 2, at 480–81.

28 Marshfield, supra note 2, at 481–84.

29 See generally Justin R. Long, State Constitutional Études: Variations on the Theme of a

Contemporary State Constitutional Problem, 60 WAYNE L. REV. 69 (2014) (describing how courts
permit state legislatures to violate constitutional restrictions on legislative procedure).
30 See ROBERT F. WILLIAMS, THE LAW OF AMERICAN STATE CONSTITUTIONS 196–97 (2009)

(describing “unreflective” lockstepping, which allows state officials to undertake actions


permitted by the Federal Constitution but potentially forbidden by the text of the state
constitution).
31 See Richard M. Briffault, Foreword: The Disfavored Constitution: State Fiscal Limits and State

Constitutional Law, 34 RUTGERS L.J. 907, 909 (2003) (describing how state constitutional limits on
public debt have been ignored by courts and legislatures).
32 See generally Lawrence Friedman, Path Dependence and the External Constraints on

Independent State Constitutionalism, 115 PENN ST. L. REV. 783 (2011) (describing how state courts
systematically underenforce state constitutional text).
33 See SANFORD LEVINSON, FRAMED: AMERICA’S 51 CONSTITUTIONS AND THE CRISIS OF

GOVERNANCE 339 (2012).


2017] Slippery Constitutions 541

the public generally accept that the text must yield to the convention. 34
Under these circumstances, the reward for winning formal constitutional
change is much less than legal convention would suggest. This, in turn,
should drive advocates who care about durable results toward informal
change, at both the state and federal levels, since at least then there is a court
willing to endorse and enforce the change.
So why bother with formal state change, especially so frequently? The
answer might rest on two factors. First, there is so much ignorance and
misunderstanding about state constitutionalism generally that it remains
plausible that even dedicated reform advocates and savvy politicians might
seriously overestimate the rewards to be won from formal change. Second,
state constitutional text may be seen as an appropriate forum for symbolic
contestation. Rather than using state constitutions to craft more effective,
more efficient governmental institutions (remember California, which has a
self-contradictory constitution simultaneously prohibiting sufficient
taxation, 35 prohibiting sufficient spending growth, 36 requiring expensive
state programs, 37 and limiting debt 38), or even to protect individual rights,
constitutional reformers frequently use state constitutional text to advance
or resist cultural and normative positions. 39 In these sorts of battles, winning
a place in the constitutional text is itself a victory, albeit partial, because it
tells citizens that a particular normative position holds deep support. These
are claims of majoritarian constitutionalism; the question of enforcement is
ancillary because the textual victory acts like a super-strong poll,
demonstrating the political strength behind a particular point of view. That,
in turn, can persuade (but does not compel) political actors to behave
accordingly.
In sum, if formal constitutional change in the states is primarily about
symbols and political signaling, but (as Marshfield has found) informal
change is frequently about nuts-and-bolts issues that require actual
enforcement to be meaningful, such as criminal procedure and individual
rights, then it makes sense that both formal and informal change rates are
high in the states. Just as federal constitutional change is a different product
from state constitutional change, so formal and informal change within the

34 See, e.g., Bysiewicz v. Dinardo, 6 A.3d 726, 730 (Conn. 2010) (unanimously upholding a

statutory requirement that candidates for attorney general have ten years of legal experience in
the face of a constitutional clause expressly declaring that “[e]very elector who has attained the
age of eighteen years shall be eligible to any office in the state” because of state custom).
35 Cal. Const. art. XIII A.
36 Cal. Const. art. XIII B.
37 Cal. Const. art. IX.
38 Cal. Const. art. XVI.
39 See generally Justin R. Long, Intermittent State Constitutionalism, 34 PEPP. L. REV. 41 (2006).
542 New England Law Review [Vol. 51|3

states are actually different products. When the rewards from successful
change are so different, the relative frequency of change cannot reveal much
about the underlying costs. Even so, Marshfield’s careful documentation of
the nature of these changes and his invitation to reconsider the constitutional
verities that animate federal constitutionalism are more than welcome. I
hope his work produces a new conversation on these weird and essential
artifacts we call state constitutions.