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New Light on State Constitutional

Change

ROBERT F. WILLIAMS*

An informal constitutional change occurs where the enforceable meaning of the


constitution changes without altering the constitutional text. 1

I
n his important article 2 Professor Jonathan Marshfield (full
disclosure—a former student of mine) builds on his evolving
project, providing fresh analysis of the processes and effect of state
constitutional change. 3 Marshfield has emerged as among one of the most,
if not the most, important and prolific of the young scholars working on
both American state constitutionalism and comparative subnational
constitutionalism. 4 Marshfield’s project on American state constitutional

* Distinguished Professor of Law, Rutgers University School of Law; Director, Center for
State Constitutional Studies.
1 Richard Albert, How Unwritten Constitutional Norms Change Written Constitutions, 38

DUBLIN U. L.J. 387, 388–89 (2015) [hereinafter Norms]; see also Richard Albert, Constitutional
Disuse or Desuetude: The Case of Article V, 94 B.U. L. REV. 1029, 1063 (2014) [hereinafter Disuse]
(“An [i]nformal amendment occurs most frequently by judicial interpretation.”).
2 Jonathan L. Marshfield, Courts and Informal Constitutional Change in the States, 51 NEW

ENG. L. REV. 453 (2018).


3 See generally Jonathan L. Marshfield, Improving Amendment, 69 ARK. L. REV. 477 (2016)

(published in a symposium organized by Professors Marshfield and Richard Albert); Jonathan


L. Marshfield, The Amendment Effect, 98 B.U. L. REV. (forthcoming 2018); Jonathan L.
Marshfield, Decentralizing The Amendment Power, 19 LEWIS & CLARK L. REV. 963 (2015);
Jonathan L. Marshfield, Amendment Creep, 115 MICH. L. REV. 215 (2016).
4 In Courts and Informal Constitutional Change in the States, Jonathan L. Marshfield states:
Article V’s amendment process is an outlier when compared to other
constitutions around the world; even other long-lasting constitutions in
liberal democracies. It is also an incomplete representation of American
constitutionalism because it excludes state constitutions, which function
very differently than the Federal Constitution but are an essential part of
American public law.
Marshfield, supra note 2, at 475 (footnotes omitted). See generally Jonathan L. Marshfield,
Models of Subnational Constitutionalism, 115 PENN ST. L. REV. 1151 (2011); Jonathan L.

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amendment and change is not only descriptive, but also theoretical,


analytical, and suggestive of improvement.
American state constitutions are already “low-visibility” constitutions. 5
Marshfield’s focus is on the even lower-visibility informal—rather than
textual—change in state constitutions. As he notes, most analysis of state
constitutional change focuses on formal change through textual amendment
and revision. 6 For example, Dr. Alan Tarr and I have explored a wide
range of methods of state constitutional change, but we limited ourselves
to textual change. 7
Professor Marshfield cites the incidence of state high courts
overturning earlier authoritative precedents on the meaning of state
constitutions as one source, if not a major source, of informal change in
state constitutional law. 8 Marshfield acknowledges, as he must, that there
are a variety of other forms of informal state constitutional change in
addition to those brought about by judicial review that overturns

Marshfield, Dimensions of Constitutional Change, 43 RUTGERS L.J. 593 (2013); Jonathan


Marshfield, Authorizing Subnational Constitutions in Transitional Federal States: South Africa,
Democracy, and the KwaZulu-Natal Constitution, 41 VAND. J. TRANSNAT’L L. 585 (2008).
5 ROBERT F. WILLIAMS, THE LAW OF AMERICAN STATE CONSTITUTIONS 1 (2009).

6 Marshfield, supra note 2, at 480 (“There is a perception that because informal amendment

under the Federal Constitution is caused by Article V’s rigidity, frequent formal amendment
under state constitutions limits informal processes in the states. Consequently, although
scholars have filled volumes studying formal amendment processes in the states, there has
been very little study of other forms of state constitutional change.”(emphasis added)
(footnotes omitted)).
7 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
(2005). But see Norms, supra note 1, at 388–89; Disuse, supra note 1, at 1063.
8 Marshfield, supra note 2, at 484. Marshfield states:
Overruling decisions are a meaningful, but admittedly imperfect
measure, of informal constitutional change by courts. They are imperfect
in that they are likely under-inclusive of instances where courts
contributed to informal amendment. Courts can use judicial review to
bring about significant constitutional change without explicitly
overruling prior precedent.
Marshfield, supra note 2, at 485–86 (footnotes omitted). A leading example of this latter form
of informal state constitutional change through judicial review would be the limiting
interpretations of California’s Proposition 13. See, e.g., City and County of San Francisco v.
Farrell, 648 P.2d 935 (Cal. 1982); Richard Briffault, Foreword: The Disfavored Constitution: State
Fiscal Limits and State Constitutional Law, 34 RUTGERS L.J. 907 (2003).
Of course, sometimes these forms of informal state constitutional change through judicial
review are “overturned” by formal amendment. See WILLIAMS, supra note 5, at 128. See generally
John Dinan, Court Constraining Amendments and the State Constitutional Law Tradition, 38
RUTGERS L.J. 983 (2007).
2017] New Light on State Change 545

precedent. For example, he discusses Professor Jim Gardner’s description


of “practice-driven” informal state constitutional changes, noting “Gardner
explains that constitutional change can occur when officials perform their
duties in new ways that challenge existing constitutional norms. When this
occurs, official conduct drives constitutional change by altering what is
commonly understood as appropriate practice for officials.” 9
Marshfield also discusses Michael Besso’s important early article on
informal state constitutional change. 10 Still, he limits the focus of this
preliminary analysis to state high courts’ overturning of their earlier
authoritative precedents. The issue of state constitutional stare decisis is, in
itself, a very interesting and important area of consideration. Marshfield
notes that a number of state courts overturn their precedents without
acknowledging that state constitutions are much easier to amend than the
United States Constitution. He observes: “This relaxed approach to
constitutional precedent is usually associated with rigid constitutions
where formal amendment is not available to correct systemic and
prolonged constitutional errors by the courts.” 11 I have noted the fact that
the federal constitutional rationale for a relaxed doctrine of precedent
should not apply with the same force in state constitutional law, but other
reasons might account for a similarly flexible approach. 12
Marshfield has assembled an original data set of state constitutional
decisions:
To help advance our understanding of informal constitutional
change, I explore the extent to which state supreme courts may
contribute to informal amendment of state constitutions by
drawing on an original dataset of hand-coded state high court
opinions. My focus is both the quantity of informal amendment
by state high courts as well as the substantive areas in which state
high courts have participated. 13

He compares the numbers of formal amendments to state constitutions


with the informal “amendments” deriving from decisions overruling
precedent. He reaches an important and surprising conclusion: ”In short,
although formal amendments vastly outnumber informal amendments by

9 Marshfield, supra note 2, at 482 (citing James A. Gardner, Practice-Driven Changes to

Constitutional Structures of Governance, 69 ARK. L. REV. 333, 349–53 (2016)).


10 Marshfield, supra note 2, at 481–82 (discussing Michael Besso, Constitutional Amendment

Procedures and the Informal Political Construction of Constitutions, 67 J. POL. 69 (2005)).


11 Marshfield, supra note 2, at 502 (clearly noting that the rationale for a relaxed doctrine of

stare decisis in federal constitutional law because of the difficulty of amendment may not apply
in state constitutional law).
12 WILLIAMS, supra note 5, at 349–51.

13 Marshfield, supra note 2, at 486 (Marshfield’s other article drawing on this dataset is The

Amendment Effect, see Marshfield, supra note 3).


546 New England Law Review [Vol. 51|3

courts in the aggregate, informal amendment regarding individual rights


was more prevalent than formal amendment. This generally holds true
across states and across time; suggesting that there is something special
about the relationship between courts, informal amendment, and rights.” 14
He continues:
Under the dominant theories discussed above, we would expect
to find an inverse relationship between formal amendment
frequency and rates of informal amendment. In other words,
states with high formal amendment rates should experience less
informal amendment and vice versa. 15

Surprisingly, however, his data suggest the opposite. Marshfield notes


that “[v]arious states with high formal amendment rates also have some of
the highest rates of informal amendment by courts.” 16
Responding to his interesting finding about the higher rate of informal
amendment in individual rights cases, Marshfield suggests several factors
as explanation, including that “rights provisions (unlike other portions of
state constitutions) often use vague and general language that requires
construction to resolve disputes . . . . [S]tate rights provisions often center
on broad concepts like ‘due process’ and ‘equal protection.’ These vague
provisions are more likely to result in litigation and require courts to
supply more concrete constitutional meaning than provided in the text.” 17
This point raises Justice Oliver Wendell Holmes’ distinction between the
“great ordinances of the Constitution” and other “less exalted types” of
provisions. 18 As Professor James Pope has pointed out, the New Jersey
Supreme Court has relied on this distinction, 19 and that it is an important
point for state constitutional interpretation generally. 20
We can expect more very useful scholarship from Professor
Marshfield. There is much more to be learned about our state
constitutional tradition. In fact, maybe we have only begun to scratch the
surface of the field. 21

14 Marshfield, supra note 2, at 490.


15 Marshfield, supra note 2, at 491.
16 Marshfield, supra note 2, at 491.

17 Marshfield, supra note 2, at 514–15 (footnotes omitted).

18 Springer v. Philippine Islands, 277 U.S. 189, 209 (1928) (Holmes, J. dissenting).

19 See Vreeland v. Byrne, 370 A.2d 825, 831–32 (N.J. 1977).

20 See generally James Gray Pope, An Approach to State Constitutional Interpretation, 24

RUTGERS L.J. 985 (1993).


21 See generally John Dinan, State Constitutional Politics: Governing by Amendment in the

American States (2018)