Malleable Constitutions: Reflections on State Constitutional Reform

In this piece, Professors Bruce E. Cain and Roger G. Noll discuss the consequences of constitutional malleability. The U.S. Constitution is notoriously difficult to amend despite the fact that the Constitution itself provides two different mechanisms for amendment.  This is surely--to some extent--by design.  Constitutions are the top of our hierarchy of laws and embody some of our most fundamental legal principles. It is not surprising, then, that constitutional provisions are not as easy to change as those statutes and regulations lower on the legal food chain. By requiring supermajorities to approve amendments, we safeguard our most fundamental principles from the whims of temporary majorities. Similarly, by making amendment more difficult, we provide society with a particularly stable set of legal norms that they can trust will not be here today and gone tomorrow.

However, some constitutional malleability is arguably desirable. Thomas Jefferson thought the Constitution should sunset every nineteen years so that each new generation would have an opportunity to design the government best-suited for its needs. Furthermore, most state constitutions, despite being strikingly similar to the federal Constitution, are more easily amended. The result of greater malleability, unsurprisingly, is that most state constitutions are amended much more often and in some instances are even revised or replaced. In fact, most state constitutions have gone through more drastic changes, called revisions, and many have even been replaced multiple times.

This Article is broadly concerned with the consequences of constitutional malleability. Does a state with a more malleable constitution adapt to social and political changes more easily? Does it exhibit greater legal innovation or do the same legal changes occur only with some portion shifted from the statutory to the constitutional context?  What are the political consequences of greater malleability?  Does greater malleability lead to less corruption in government? Does it lead to greater efficiency or better policy outcomes? Does it lead to greater protection of rights?

Observing a trend in state constitutions toward more and more particularized constitutional amendment and a concomitant decline in the number of more drastic constitutional revisions, this Article concludes that revision is more vulnerable to political derailment than amendment. This can be attributed to the fact that revision’s greater breadth cements broader coalitions of opposition and because the contemporary revision process has more veto points and veto players. Amendments, by contrast, are more limited in scope and hence more politically feasible. As a result of this legislative quality, amendments have become expressions of interest-group and partisan contestation.  Furthermore, the trend toward more particularized amending results in declining political opposition to each amendment and a higher amendment rate. What might have been accomplished through several pieces of legislation or one large revision can now be accomplished through a few constitutional amendments. All of this results in decreasing constitutional coherence and flexibility and increasing constraint on legislative policy making.