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    Williams Final 3 PDF

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    New England Law Review

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    of 4

    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.

    543
    544 New England Law Review [Vol. 51|3

    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)

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