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“The Earth Belongs Always to the Living Generation”: The Development of State Constitutional Amendment and Revision Procedures

Published online by Cambridge University Press:  05 August 2009

John Dinan
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Extract

Although the relatively flexible state constitutional amendment and revision procedures are generally considered to be inferior to the corresponding procedures in the U.S. Constitution, there have been few efforts to explain why state constitution-makers adopted these procedures, and as a result we have not been in a position to assess adequately the merits of the state approach. This article undertakes to explain the development of state constitutional amendment and revision procedures by examining the state convention debates that have been conducted throughout American history. The adoption of these procedures can be attributed, in part, to a different theoretical understanding of constitutionalism than prevailed at the national level, and, in part, to a desire to overcome various problems of governance at the state level, including the need to overcome entrenched geographic interests in the nineteenth century, and the need to overcome powerful special interests, as well as intransigent judges, in the twentieth century.

Type
Research Article
Information
The Review of Politics , Volume 62 , Issue 4 , Fall 2000 , pp. 645 - 674
Copyright
Copyright © University of Notre Dame 2000

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References

1 For a typical discussion of the negative consequences that are associated with the state practice of amendment and revision, see Colantuono, Michael G., “The Revision of American State Constitutions: Legislative Power, Popular Sovereignty, and Constitutional Change,” California Law Review 75 (1987): 1509–10CrossRefGoogle Scholar. For additional comments to this effect, see the quotations contained in Galie, Peter J. and Bopst, Christopher, “Changing State Constitutions: Dual Constitutionalism and the Amending Process,” Hofstra Law and Policy Symposium 1 (1996): 29Google Scholar. For a comprehensive discussion (as well as critique) of the prevailing view, see Fritz, Christian G., “The American Constitutional Tradition Revisited: Preliminary Observations on State Constitution-Making in the Nineteenth-Century West,” Rutgers Law Journal 25 (1994): 957–60Google Scholar. These negative assessments are, admittedly, not universally held. Dissentìng judgments are found in Lutz, Donald S., “Toward a Theory of Constitutional Amendment,” in Responding to Imperfection: The Theory and Practice of Constitutional Amendment, ed. Levinson, Sanford (Princeton: Princeton University Press, 1995), pp. 251, 265Google Scholar; Stephen Holmes and Cass R. Sunstein, “The Politics of Constitutional Revision in Eastern Europe,” in ibid., pp. 275–306; and Scalia, Laura J., America's Jeffersonian Experiment: Remaking State Constitutions, 1820–1850 (Dekalb: Northern Illinois University Press, 1999), pp. 156–67.Google Scholar

2 This type of explanation parallels G. Alan Tarr's discussion of the role of “ordinary politics” in state constitutional development. See Tarr, , Understanding State Constitutions (Princeton: Princeton University Press, 1998), pp. 57–58.Google Scholar

3 Hurst, James Willard, The Growth of American Law: The Law Makers (Boston: Little, Brown, 1950), p. 204.Google Scholar

4 ibid., p. 224.

5 ibid., p. 237.

6 Griffin, Stephen M., American Constitutionalism: From Theory to Politics (Princeton: Princeton University Press, 1996), p. 35.Google Scholar

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8 On the periodic call for constitutional conventions, see Martineau, Robert J., “The Mandatory Referendum on Calling a State Constitutional Convention: Enforcing the People's Right to Reform their Government,” Ohio State Law Journal 31 (1970): 421–55Google Scholar. On the constitutional revision commission, see Williams, Robert F., “Are State Constitutional Conventions Things of the Past? The Increasing Role of the Constitutional Commission in State Constitutional Change” Hofstra Law and Policy Symposium 1 (1996): 1–26Google Scholar. On the approach to constitutional revision in the late eighteenth century see Fritz, Christian G., “Alternative Visions of American Constitutionalism: Popular Sovereignty and the Early American Constitutional Debate,” Hastings Constitutional Law Quarterly 24 (1997): 287–357Google Scholar; Kruman, Marc W., Between Authority and Liberty: State Constitution Making in Revolutionary America (Chapel Hill: University of North Carolina Press, 1997), pp. 53–59Google Scholar. On constitutional revision in the western states, see Fritz, “The American Constitutional Tradition Revisited.”

9 The leading nineteenth-century account (which does make extensive use of convention debates) is Jameson, John A., A Treatise on Constitutional Conventions, 4th ed. (1887; repr. Da Capo Press, 1972)Google Scholar. Another exhaustive account is Dodd, Walter F., The Revision and Amendment of State Constitutions (Baltimore: Johns Hopkins University Press, 1910)Google Scholar. See also Oberholtzer, Ellis Paxson, The Referendum in America (New York: Charles Scribner's Sons, 1900), pp. 128–72Google Scholar; Dealey, James Q., The Growth of American State Constitutions (Boston: Ginn and Co., 1915), pp. 139–49Google Scholar. Twentieth-century developments are taken into account in Bartley, Ernest R., “Methods of Constitutional Change,” in Major Problems in State Constitutional Revision, ed. Graves, W. Brooke (Chicago: Public Administration Service, 1960), pp. 21–37Google Scholar; Wheeler, John P., “Changing the Fundamental Law,” in Salient Issues of Constitutional Revision, ed. Wheeler, John P. (New York: National Municipal League, 1961), pp. 49–62Google Scholar. Recent accounts include May, Janice C., “Constitutional Amendment and Revision Revisited,” Publius 17 (Winter 1987): 153–79Google Scholar; and Galie and Bopst, “Changing State Constitutions.”

10 There are, admittedly, certain difficulties in speaking of a constitutional tradition that is common to the fifty states. As one would expect, the states vary, occasionally in significant ways, in the procedures by which they amend and revise their constitutions. A number of these differences have now been eliminated. For instance, Pennsylvania (until 1790) and Vermont (until 1870) each permitted a council of censors to recommend amendments. In addition, in Rhode Island (until 1935) the lack of a specific constitutional provision was interpreted to prohibit the calling of a convention, and the only means of changing the constitution was through legislative-initiated amendments. On the other hand, in New Hampshire (until 1964) the legislature was unable to submit amendments to the people for ratification, and the only way to change the constitution was through a convention. Several other important differences are still in effect. For instance, Delaware remains the only state in which the legislature may amend the constitution without submitting the matter for popular ratification. And Florida is the only state that empowers a revision commission to draft and submit amendments directly to the people. This having been said, state amendment and revision procedures are sufficiently similar, and the general outlines of the development of these procedures have enough in common, that it becomes possible to speak of a state constitutional tradition. Currently, the typical state provides for an amendment procedure, whereby the legislature may propose an amendment (usually by a super-majority vote of one legislature or a majority vote of consecutive legislatures, but occasionally by a majority vote of a single legislature), which is then approved by the voters (usually by a majority of the voters on that particular question, but in several instances by a majority of voters participating in the entire election). The vast majority of states also make explicit provision for a revision procedure, whereby the legislature may approve a call for a convention (with the states evenly divided over whether to require a majority or a super-majority vote in the legislature), which in most cases must be approved by the voters (usually by a majority of the voters on that particular question, but occasionally by a majority of voters in the entire election), and whose proposals must then be approved by the voters (usually by a majority of voters on each proposal, but occasionally by a supermajority of voters on each proposal or by a majority of voters in the election). In addition, fourteen states permit the people to vote, at periodic intervals, on whether to call a convention. Finally, eighteen states permit the people to initiate and ratify amendments. For a current listing of the various procedures, see The Book of the States: 1998–99 Edition (Lexington, KY: Council of State Governments, 1998), pp. 5–9.Google Scholar

11 Altogether there have been over 230 state constitutional conventions, but the records of the debates have been retained for only a portion of these proceedings. I have located the debates for 108 conventions, including Alabama (1861,1901), Alaska (1955–56), Arizona (1910), Arkansas (1868), California (1849, 1878–79), Connecticut (1965), Delaware (1831, 1853, 1897), Georgia (1877), Hawaii (1950, 1968, 1978), Idaho (1889), Illinois (1847, 1869–70, 1920–22, 1969–70), Indiana (1850–51), Iowa (1844, 1846, 1857), Kansas (1859), Kentucky (1849–50, 1890–91), Louisiana (1845, 1864, 1973–74), Maine (1819), Maryland (1850–51, 1864, 1867, 1967–68), Massachusetts (1820, 1853, 1917–19), Michigan (1835, 1850, 1867, 1907–08, 1961–62), Minnesota (1857), Mississippi (1865), Missouri (1861–63, 1875), Montana (1889, 1971–72), Nebraska (1871, 1919–20), Nevada (1864), New Hampshire (1850–51, 1876, 1889, 1902, 1912, 1918–23, 1930, 1938–41, 1948, 1956–59, 1964), New Jersey (1844, 1947), New York (1821, 1846, 1867, 1894, 1915, 1938, 1967), North Carolina (1835), North Dakota (1889, 1971–72), Ohio (1850–51, 1873–74, 1912), Oregon (1857), Pennsylvania (1837–38, 1872–73, 1967–68), Rhode Island (1944, 1951, 1964–69, 1973), South Carolina (1868), South Dakota (1885, 1889), Tennessee (1953, 1959, 1965, 1971, 1977), Texas (1845, 1876, 1974), Utah (1895), Virginia (1829–30, 1850–51, 1861, 1867–68, 1901–02, 1945, 1956), West Virginia (1861–63), Wisconsin (1847–48), Wyoming (1889).

12 See Dodd, , Revision and Amendment of State Constitutions, pp. 26–29Google Scholar; Kruman, , Between Authority and Liberty, pp. 53–59Google Scholar; Adams, Willi Paul, The First American Constitutions: Republican Ideology and the Making of Constitutions in the Revolutionary Era (Chapel Hill: University of North Carolina Press, 1980), pp. 139–44.Google Scholar

13 For further discussions of these arguments about the relative merits of progress and stability, see Schmidt, Gregory, “Republican Visions: Constitutional Thought and Constitutional Revision in the Eastern States, 1815–1830” (Ph.D. diss., University of Illinois, 1981), pp. 54–63Google Scholar; Fritz, , “The American Constitutional Tradition Revisited,” pp. 973–75Google Scholar. For a discussion of the way in which these two positions were frequently associated with the Democratic and Whig parties, respectively, during the antebellum period, see Rodgers, Daniel T., Contested Truths: Keywords in American Politics Since Independence (1987; repr. Cambridge, MA: Harvard University Press, 1998), pp. 88–111.Google Scholar

14 “Letter to James Madison,” (6 September 1789), in The Life and Selected Writings of Thomas Jefferson, ed. Koch, Adrienne and Peden, William (New York: Modern Library, 1944), p. 491Google Scholar. See also his “Letter to Samuel Kercheval,” (12 July 1816), in ibid., pp. 673–76. For additional treatments of the Jeffersonian approach to constitutional revision, see Vile, John R., The Constitutional Amending Process in American Political Thought (New York: Praeger, 1992), pp. 59–78Google Scholar; Mayer, David N., The Constitutional Thought of Thomas Jefferson (Charlottesville: University Press of Virginia, 1994), pp. 295–319.Google Scholar

15 Proceedings and Debate of the Convention of Louisiana, 1845 (New Orleans: Besancon, Ferguson, and Co., 1845), p. 415.Google Scholar

16 Report of the Debate and Proceedings of the Convention for the Revision of the Constitution of the State of Indiana, 1850 (Indianapolis: A. H. Brown, 1850), p. 1917.Google Scholar

17 Official Report of the Proceedings and Debates of the Third Constitutional Convention of Ohio, 1873 (Cleveland: W. S. Robison, 1873–1874), 2:2847.Google Scholar

18 Proceedings and Debates of the Convention of the Commonwealth of Pennsylvania, 1837 (Harrisburg: Packer, Barrett, and Parke, 1837–1839), 12:231.Google Scholar

19 Proceedings of the New Jersey State Constitutional Convention of 1844 (Trenton, NJ: New Jersey State Historical Society, 1942), p. 58.Google Scholar

20 Madison's views are contained in his “Letter to Jefferson” (4 February 1790), in The Mind of the Founder: Sources of the Political Thought of James Madison, ed. Meyers, Marvin, rev. ed. (Hanover, NH: University Press of New England, 1981), pp. 176–79Google Scholar, and Federalist, No. 49, in The Federalist Papers, ed. Rossiter, Clinton (New York: Mentor, 1961), pp. 281–85.Google Scholar

21 Pennsylvania Constitutional Convention, 1837–1838, 12:236–37.Google Scholar

22 Debates and Proceedings of the Maryland Reform Convention to Revise the State Constitution [1850] (Annapolis: W. M'Neir, 1851), p. 364.Google Scholar

23 For a review of the literature on the relationship between the distribution of geographic power and constitutional revision, see Fritz, , “Alternative Visions of American Constitutionalism,” p. 355Google Scholar. See, for instance, Green, Fletcher M., Constitutional Development in the South Atlantic States, 1776–1860: A Study in the Evolution of Democracy (Chapel Hill: University of North Carolina Press, 1930), esp. pp. 142–70Google Scholar; Parkinson, George P. Jr, “Antebellum State Constitution-Making: Retention, Circumvention, Revision” (Ph.D. diss., University of Wisconsin, 1972), esp. pp. 35–42, 51–56, 66–72, 99–102, 133–43Google Scholar; Henretta, James A., “Foreword: Rethinking the State Constitutional Tradition,” Rutgers Law Journal 22 (1991): 819, pp. 826–29Google Scholar; and Tarr, , Understanding State Constitutions, pp. 102–105.Google Scholar

24 New Jersey Constitutional Convention, 1844, p. 74.

25 Proceedings and Debates of the Convention of North Carolina, 1835 (Raleigh: Joseph Gales and Son, 1836), p. 372.Google Scholar

26 ibid., pp. 348–49.

27 Maryland Constitutional Convention, 1850, p. 363.

28 ibid., p. 364.

29 New Jersey Constitutional Convention, 1844, p. 60.

30 ibid., p. 64.

31 ibid., p. 60.

32 Journal of Debates and Proceedings in the Convention of Delegates, Chosen to Revise the Constitution of Massachusetts, 1820–21 (Boston: Daily Advertiser, 1853), p. 405.Google Scholar

33 ibid., p. 404.

34 On the extent to which nineteenth-century constitution-makers drew on compilations of existing constitutions, as well as the constitutional experiences of neighboring states, see Fritz, , “The American Constitutional Tradition Revisited,” pp. 975–83.Google Scholar

35 Indiana Constitutional Convention, 1850–51, p. 1258.

36 Proceedings and Debates of the Virginia State Convention of 1829–30 (Richmond: Ritchie and Cook, 1830), p. 789.Google Scholar

37 See Dodd, , Revision and Amendment of State Constitutions, pp. 120–36Google Scholar; Dealey, , Growth of American State Constitutions, pp. 139–42.Google Scholar

38 Official Report of the Debates and Proceedings in the Constitutional Convention of the State of Nevada, 1864 (San Francisco, Calif.: F. Eastman, 1866), p. 528.Google Scholar

39 A Stenographic Report of the Proceedings of the Constitutional Convention held in Atlanta, Georgia, 1877 (Atlanta: Georgia Publishing Co., 1877), p. 430.Google Scholar

40 Report of the Debates in the Convention of California on the Formation of the State Constitution, 1849 (Washington, D.C.: J. T. Towers, 1850), p. 357.Google Scholar

41 Debates and Proceedings of the First Constitutional Convention of West Virginia, 1861–1863 (Huntington: Gentry Bros., 1939), p. 105.Google Scholar

42 Dodd, , Revision and Amendment of State Constitutions, pp. 130–32.Google Scholar

43 Martineau, , “The Mandatory Referendum on Calling a State Constitutional Convention,” p. 424.Google Scholar

44 Maryland Constitutional Convention, 1850, p. 373.

45 Debates and Journal of the Constitutional Convention of the State of Maine, 1819–20 (Augusta: Maine Farmers' Almanac Press, 1894), p. 346.Google Scholar

46 Report of the Debates and Proceedings of the Convention for the Revision of the Constitution of the State of Ohio, 1850–51 (Columbus: S. Medary, 1851), 2: 430.Google Scholar

47 Debates of the Missouri Constitutional Convention of 1875 (Columbia: State Historical Society of Missouri, 1930–1944), 11: 393–94.Google Scholar

48 On the issues that surfaced in the course of twentieth-century constitution-making, see Tarr, , Understanding State Constitutions, pp. 136–72Google Scholar; Sturm, Albert L., Thirty Years of State Constitution Making, 1938–1968 (New York: National Municipal League, 1970)Google Scholar. On the decline of interest in state constitutionalism over the course of the century, see Henretta, , “Rethinking the State Constitutional Tradition,” pp. 836–37Google Scholar. On the relative lack of interest in reforming state constitutional amendment and revision procedures during the latter half of the century, see Sturm, , “The Development of American State Constitutions,” Publius 12 (Winter 1982): 57, p. 95.CrossRefGoogle Scholar

49 General treatments of state constitution-making in the Progressive era include Tarr, , Understanding State Constitutions, pp. 150–53Google Scholar; Rodgers, , Contested Truths, pp. 176–97Google Scholar; Hoebeke, C. H., The Road to Mass Democracy: Original Intent and the Seventeenth Amendment (New Brunswick, NJ: Transaction Publishers, 1995), pp. 66–79Google Scholar. Treatments of constitution-making in selected states include Dinan, John J., Keeping the People's Liberties: Legislators, Citizens, and Judges as Guardians of Rights (Lawrence: University Press of Kansas, 1998), pp. 60–79Google Scholar; and Dinan, , “Framing a ‘People's Government’: State Constitution-Making in the Progressive Era,” Rutgers Law Journal 30 (1999): 933–85Google Scholar, the argument of which I have drawn on, in part, in this section.

50 There were, to be sure, other issues that surfaced during the remainder of the twentieth century. In a number of states, the chief concern was, once again, with the need to reapportion legislative districts in a timely fashion (see Sturm, , Thirty Years of State Constitution Making, p. 61)Google Scholar. In other states, individuals were concerned with effecting a general modernization of governing institutions (see ibid., p. 82). As a result of these two problems, which stemmed, at bottom, from legislative inertia or intransigence, constitution-makers in several states considered, and in one state adopted, proposals to establish a constitutional revision commission with independent power to submit amendments to the people for ratification. In addition, six states chose, for the first time, to adopt periodic referendums on whether to call a convention. In the end, though, these mid-twentieth-century debates did not produce the same type of fundamental changes in the amendment and revision process that took place throughout the nineteenth and early twentieth centuries.

51 See, for instance, the comments of MrSutherland, , a delegate to the Michigan Convention of 1907–08, in Proceedings and Debates of the Constitutional Convention of the State of Michigan, 1907 (Lansing, MI: Wynkoop, Hallenbeck, Crawford Co., 1908), p. 566.Google Scholar

52 ibid., p. 615.

53 See, for instance, the comments of MrHinman, in the New York Convention of 1915, in Record of the Constitutional Convention of the State of New York, 1915 (Albany: J. B. Lyon, Co., 1915), pp. 3135–36.Google Scholar

54 Michigan Constitutional Convention, 1907–08, p. 556.

55 These reform measures are detailed in Goodnow, Frank J., Social Reform and the Constitution (New York: Macmillan, 1911), pp. 242–328Google Scholar; Duncan-Clark, S. J., The Progressive Movement: Its Principles and Its Programme (Boston: Small, Maynard, and Co., 1913), pp. 109–67Google Scholar; and De Witt, Benjamin Parke, The Progressive Movement: A Non-partisan, Comprehensive Discussion of Current Tendencies in American Politics (New York: Macmillan, 1915), pp. 244–73.Google Scholar

56 For a comprehensive discussion, see Reinsch, Paul S., American Legislatures and Legislative Methods (New York: The Century Co., 1907), pp. 228–74.Google Scholar

57 Convention to Revise the [New Hampshire] Constitution, 1912 (Manchester: John B. Clarke Co., 1912), p. 183.Google Scholar

58 Michigan Constitutional Convention, 1907–08, p. 592.

59 Debates in the Massachusetts Constitutional Convention, 1917–1919 (Boston: Wright and Potter, 1919), 2:175.Google Scholar

60 Massachusetts Constitutional Convention, 1917–1919, 2:739.Google Scholar

61 Proceedings and Debates of the Constitutional Convention of the State of Ohio, 1912 (Columbus: F. J. Heer Printing Co., 1912), 2: 1304Google Scholar. For contemporaneous critiques of these state court rulings, which were seen as resulting from the application of out-dated constitutional provisions and precedents, as well as from an adherence to out-dated political and economic theories, see Ransom, William L., Majority Rule and the Judiciary: An Examination of Current Proposals for Constitutional Change Affecting the Relation of Courts to Legislatures (New York: Scribner's Sons, 1912)Google Scholar; Roe, Gilbert E., Our Judicial Oligarchy (New York: B. W. Huebsch, 1912).Google Scholar

62 On the strategy of adopting piecemeal amendments, see White, WilliamAllen, The Old Order Changeth: A View of American Democracy (New York: Macmillan, 1912), pp. 54–56Google Scholar; Merriam, Charles E., American Political Ideas: Studies in the Development of American Political Thought, 1865–1917 (New York: Macmillan, 1920), p. 190.Google Scholar

63 On the various efforts to rein in the legislature, see Beard, Charles A. and Schultz, Birl E., Documents on the State-Wide Initiative, Referendum, and Recall (New York: Macmillan, 1912)Google Scholar; Munro, William Bennett, ed., The Initiative, Referendum, and Recall (New York: D. Appleton and Co., 1912)Google Scholar. On the various efforts to rein in the judiciary, see Ross, William G., A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890–1937 (Princeton, NJ: Princeton University Press, 1994)Google Scholar; White, J. Patrick, “Progressivism and the Judiciary: A Study of the Movement for Judicial Reform, 1901–1917” (Ph.D. diss., University of Michigan, 1957).Google Scholar

64 New York Constitutional Convention, 1915, p. 3163. For contemporaneous discussions of this move toward reforming the amendment procedures, see Oberholtzer, , The Referendum in America, p. 156Google Scholar; Merriam, , American Political Ideas, p. 225.Google Scholar

65 Michigan Constitutional Convention, 1907–08, p. 652.

66 ibid., p. 599.

67 ibid., p. 580.

68 Journal of the Nebraska Constitutional Convention, 1919 (Lincoln: Kline Publishing Co., 1921), p. 667.Google Scholar

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70 New Hampshire Constitutional Convention, 1912, p. 173.

71 Michigan Constitutional Convention, 1907–08, p. 560.

72 On the dates of enactment, see May, Janice C., “The Constitutional Initiative: A Threat to Rights?” in Human Rights in the States: New Directions in Policymaking, ed. Friedelbaum, Stanley H. (Westport, CT: Greenwood Press, 1988), p. 164.Google Scholar