State Constitutional Amendments and Individual Rights in the Twenty-First Century

Article excerpt

Protecting rights is generally viewed as the responsibility of the U.S. Supreme Court and seen as taking place primarily through decisions interpreting the U.S. Constitution. Scholars have occasionally taken note of the role of Congress in deliberating about rights by passing laws giving effect to constitutional provisions or responding to judicial construction of statutes. (1) Also at times scholars have taken note of occasions when the federal constitutional amendment process has served as a vehicle for securing rights, such as through the passage of the Bill of Rights and the Civil War Amendments. (2) But the rigidity of the Article V amendment process ensures that amendments are enacted infrequently, such that deliberation about rights, at least at the federal level, takes place primarily in Supreme Court decisions and only rarely through passage of constitutional amendments. (3)

The renaissance of state court interpretation of state constitutions in the 1970s led scholars to broaden their studies to attend not only to the federal level but also to the state level, and to view state courts as well as federal courts as agents of rights protection. Encouraged by Supreme Court Justice William Brennan's 1977 call for state courts to rediscover state bills of rights, (4) state judges turned more frequently to interpret state constitutions in order to secure more protection of rights than is guaranteed by Supreme Court rulings. (5) As a consequence, the last four decades have brought an outpouring of scholarship focused on state court rulings regarding individual rights. (6)

In contrast with the situation at the federal level, however, the flexibility of state constitutions affords ample opportunity for state constitutional amendment processes, alongside state judicial processes, to serve as forums for deliberating about rights. The U.S. Constitution can only be amended with approval of two-thirds of both houses of Congress or upon a petition for a convention by two-thirds of state legislatures and, in either case, upon ratification by three-fourths of the states. (7) Although state constitutions vary in the difficulty of their amendment procedures, no constitution is more difficult to amend than the U.S. Constitution. Many states permit amendments to be proposed by a bare legislative majority, although some require approval by a three-fifths or two-thirds supermajority, and some require approval in consecutive legislative sessions. (8) All but a handful of states permit ratification of amendments by a bare popular majority. (9) Slightly over one-third of the states also provide for citizen-initiated amendments. (10) In part as a consequence, the U.S. Constitution has been amended twenty-seven times, whereas state constitutions have been revised and amended periodically so that as of 2012, the fifty current state constitutions have been amended 7378 times, for an average of about 147 amendments per state. (11)

Scholars have paid some attention to the reliance on state constitutional amendment processes to determine the scope and limits of individual rights. In the early 1980s, after amendments were approved in Florida and California in response to expansive state court interpretations of criminal procedure rights, (12) Donald Wilkes and James Fischer highlighted the ways state amendment processes can be used to restrict rights. (13)

In the late 1980s, Janice May, a long-time chronicler of state constitutional developments for The Book of the States, conducted a comprehensive review of rights-related amendments enacted in the decade-and-a-half from 1970 to 1985. (14) She found that "the bill of rights is the target of fewer changes than the other substantive provisions [of state constitutions, and as a result] state bills of rights have not been changed a great deal [during this period]." (15)

Regarding the general effect of rights-related amendments during this time period, May concluded "that the scales are tipped toward restriction rather than expansion. …