Malleable Constitutions: Reflections on State Constitutional Reform
Cain, Bruce E., Noll, Roger G., Texas Law Review
American federalism has produced curious and potentially significant differences in provisions for changing a constitution. Article V of the U.S. Constitution provides for only two procedures for amendment, both of which are difficult, and none for replacement.1 Most state constitutions offer a variety of easier paths for both. But what are the political consequences of greater constitutional malleability? Constitutions with lower thresholds for amendment and revision should change more often, of course, but the implications for the content of the constitution are unclear. Does constitutional malleability mean that states with more malleable constitutions are more innovative and adapt more quickly to changing political circumstances and needs, or that the scope of constitutions simply expands to include issues that otherwise would be addressed in statutes? And does malleability affect important indicators of the quality of governance, such as policy outcomes, government efficiency (including freedom from corruption), and effective protection of individual rights?
Constitutions occupy the highest position in a hierarchy of law that also includes statutes, court decisions, and administrative rules and regulations. Although constitutions do not exist everywhere, where they do exist they typically are more difficult to change than other forms of law that are lower in the hierarchy.2 Theoretically, the rationale for creating a hierarchy of laws in which laws at the top are more difficult to change has two elements. First is the idea that temporary majorities should not be able to pass amendments that weaken fundamental principles of governance, such as the existence of a democratic form of government or the basic rights of citizens.3 Second is the idea that society benefits if citizens can commit to and rely on stability in some aspects of governance, even if each citizen's independence of action is thereby limited.4 Both notions imply that constitutions should be made somewhat difficult to amend by requiring supermajorities, a deliberative process, a process with multiple veto gates, or a combination of these methods.
On the other side of the ledger, malleable constitutions more easily accommodate adjustment to changes in society. Examples of changes that might have implications for the content of a constitution are expansion of territory; population growth; economic restructuring; a new, external threat to sovereignty; and simple improvements in knowledge that have significant implications for designing governance institutions. The potential gains from periodic wholesale constitutional revisions motivated Jefferson's oft-cited view that constitutions should sunset every nineteen years to enable each generation to design the government that best suits its needs.5
The existence of state constitutions and, implicitly, a hierarchy of state law is problematic. Article IV, Section 4 of the Constitution stipulates that the federal government "shall guarantee to every State in this Union a Republican Form of Government," but it does not explicitly require that states adopt a constitution.6 Typically, Congress has required that a proposed state adopt a constitution prior to approval of statehood.7 Neither the U.S. Constitution nor Congress limits the scope of state constitutions except for the requirements that they must establish a democratic form of government and not explicitly override the U.S. Constitution.8
As a practical matter, all state constitutions establish the governance institutions in the state and the powers and duties of government officials. Indeed, all states have adopted a government structure that very closely resembles the structure of the federal government, including separation of powers among three branches and subsidiary governments.9 State constitutions also contain provisions establishing the rights of citizens, including repetition and sometimes elaboration of rights in the U. …