As part of our ongoing project on state constitutions, the Brennan Center will regularly feature new scholarship that may be of interest to judges, advocates, and scholars. To share a piece of scholarship with us, email firstname.lastname@example.org.
By many measures, state constitutions are closer to the people than the U.S. Constitution. They are far easier to amend: Across all 50 states, state constitutions have an average of 115 amendments, significantly more than the federal Constitution’s 27. In every state but Delaware, the state legislature can propose constitutional amendments that are voted on by the public. And in 18 states, voters can place constitutional amendments directly on the ballot through an initiative process. Throughout history, many states have also adopted entirely new constitutions through constitutional convention processes.
Two recent law review articles consider ways to deepen public involvement in the development of state constitutional law to better represent the will of the people. Glen Staszewski and Kevin Frazier each present opportunities for increased public participation in the creation and interpretation of state constitutions.
Interpreting Initiatives Sociologically, by Glen Staszewski, Wisconsin Law Review
When state constitutional amendments are passed through ballot initiatives, state courts are often charged with interpreting their legal meaning, a process that requires determining the intent of the voters who approved the amendment. Glen Staszewski argues that traditional legal interpretive methods are insufficient in a world where “voters do not have a meaningful, ascertainable intent on most of the interpretive questions presented in litigation.” Staszewski proposes a solution to this “interpretive dilemma”: courts should convene citizen juries to resolve disputes over the interpretation of ballot initiatives.
In 2004, for example, Michigan voters approved a ballot initiative that amended the state constitution to define marriage as the union of one man and one woman. During the campaign, opponents of the amendment voiced fears that it could be used to deny domestic partnership benefits to same-sex couples. Although advocates for the amendment repeatedly claimed that the amendment would have no effect on domestic partnership benefits, the Michigan Supreme Court later interpreted the amendment to find that it prohibited public employers from giving health benefits to their employees’ same-sex partners. In making this decision, justices used traditional methods of legal interpretation, focusing on the text of the initiative and looking past the public debate at the time the amendment was voted on.
As an alternative, Staszewski writes, courts could turn to the interpretive methods offered by sociological jurisprudence, a tool that recognizes that interpreting the meaning of ballot initiatives is a “continuation of the lawmaking process.” Under this approach, courts would decide cases “based on the relevant legal, ethical and sociological considerations, while taking responsibility for their policy choices, rather than falsely attributing their decisions to the enacting legislature, the original public meaning of a legal text, or some other mythical, abstract, and non-existent public will.”
States could institutionalize the use of sociological jurisprudence in the interpretation of ballot initiatives by establishing a system for deliberative citizen juries to resolve interpretive disputes. Jurors would be briefed on the legal, social, and ethical consequences of their choices, and after days of briefing and deliberations, they would be tasked with voting on a collective opinion in the case at hand. Staszewski, who challenges readers to imagine a new deliberative system, argues that this system would “substantially improve the democratic legitimacy of initiative interpretation in the states” by bringing court decisions on public policy “closer to the people.”
Crowdsourced State Constitutional Revisions Can Revive Our Democracy, by Kevin Frazier, Rutgers University Law Review
Since 1980, only one state has held a constitutional convention. But throughout U.S. history, state constitutional conventions have been a popular tool: eight states held conventions in the 1960s, and seven held conventions in the 1970s. Today, Kevin Frazier writes that our state constitutions fail to respond to modern problems and lack the public legitimacy they would hold if they were updated regularly through participatory conventions.
As they currently stand, Frazier writes, our state constitutions do not fulfill many conventional metrics of constitutional quality: they are often rendered incoherent with too many amendments, they are not designed to respond to current trends and problems, and they are too similar to one another, failing to represent state-specific values. Most state constitutional change occurs through ballot initiatives or judicial interpretation. Quality constitutional change, Frazier argues, requires intentional, inclusive, and comprehensive citizen deliberation.
In the 21st century, countries including Iceland and Ireland have provided models of what these constitutional revisions could look like, using participatory tools such as crowdsourcing and citizen assemblies to ensure public engagement throughout the process. These case studies provide lessons for future state constitutional conventions: organizers should be intentional about educating and consulting the public throughout the process, from topic selection to draft review. Frazier argues “the key to establishing constitutional legitimacy through participatory tools and processes hinges on moving from mere consultation of the public to active involvement, so that a sense of public ownership of the draft builds.”
Frazier concludes by encouraging his readers to explore the mechanisms for change built into their state constitutions and to begin working on creating a robust civic culture in which constitutional revision could become the norm.