State Interpretation of and Resistance to American Constitutional Development
Sean Beienburg
Department of Politics
Princeton University
Abstract
Recent elections have seen amendments to state constitutions protesting actions by the
federal government. This paper argues that such amendments, far from being either a
recent innovation or reflection of dramatic periods of constitutional contestation (e.g.
“massive resistance”) are instead of part of a longstanding and somewhat routine tradition
of state efforts to influence constitutional interpretation. Using an original dataset of state
constitutional amendments from 1880-2010 and consideration of waves of constitutional
dialogue since 1950 —voting rights, desegregation, gun rights, term limits, and an
ongoing multi-issue wave—I will suggest a close interaction between state and federal
constitutional development. I formulate a theoretical argument that state constitutional
amendments, perhaps better than any other conceivable site, blend federalism and the call
for popular constitutionalism, while avoiding the complicated and at best indirect
attempts to discern a popular interpretation from other state actors. Amendments give the
clarity and elevation of higher lawmaking, without resorting to a once-in-a-generation
founding moment.
In November 2011, observers of American politics added a second ritual to their
usual squinting efforts to discern the future of a presidential election amidst the entrails of
off-year state races. Mississippi—not exactly Ohio as far as bellwethers go—garnered
attention this time, specifically for Proposition 26. This amendment to its state
constitution would have defined rights-bearing personhood to “include every human
being from the moment of fertilization, cloning, or the functional equivalent thereof”—a
direct challenge to Harry Blackmun’s observation that acceptance of such a legal
position would have made Roe v. Wade impossible.1 No such challenge resulted from this

Paper prepared for the 2012 annual meeting of the Western Political Science Association. This is a draft:
please do not cite or quote without author’s permission.

I thank Paul Frymer, Keith Whittington, Dirk Hartog, Herschel Nachlis, Phil Wallach, and the participants
in the Princeton American Politics Research Seminar for extremely helpful comments and conversation
about this project. Errors are my own.
election, as Proposition 26 failed. In the land of actual bellwethers, Ohio’s Issue 3 did
not. Thus, Article 1, Section 21 of the Ohio Constitution will now include a clause
holding that “No federal, state, or local law or rule shall compel, directly or indirectly,
any person, employer, or health care provider to participate in a health care system.”
Backers, including Attorney General Mike DeWine, concede that it would be symbolic
rather than functional in challenging President Obama’s recent health care.2 One merely
symbolic law, and another which would have created minimal policy consequences
(Mississippi has but a single abortion clinic)3—and yet these were perhaps the most
important votes that week, implicating states in efforts to control the constitutional
interpretation of abortion and health care in America.
Similarly, on the national scene, several Republican debates discussed longserving Texas governor and former presidential candidate Rick Perry’s Fed Up!, a
manifesto designed to use popular constitutionalism to “push back on Washington” and
elevate (or return) the role of the states to be the primary agent of American government.4
Perry and DeWine are far from the only calls for countervailing force against
federal constitutional development, nor indeed the only ones professing to look to the
political process rather than the courts as the avenue for support.5 Nor was 2011 the first
1
Nina Burleigh, “Mississippi’s Choice: Personhood and the Rights of Zygotes,” Time, Oct. 20, 2011.
Online, found at http://www.time.com/time/nation/article/0,8599,2097340,00.html. Roe v. Wade 410 U.S.
156 (1973).
2
Catherine Candisky, “Issue 3 Claims Go Too Far, Foes Say,” Columbus Dispatch Nov 5. 2011, online
http://www.dispatch.com/content/stories/local/2011/11/05/issue-3-claims-go-too-far-foes-say.html
3
http://www.bbc.co.uk/news/mobile/world-us-canada-15642138
4
Rick Perry, Fed Up! Our Fight to Save America from Washington (New York: Little, Brown, and
Company, 2010), 163-164, 178-180. The two classic works on popular constitutionalism are of course
Larry Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford
University Press, 2005) and Mark Tushnet, Taking the Constitution Away from the Courts (Princeton:
Princeton University Press, 2000).
5
A decidedly non-exhaustive, merely illustrative bibliography suggests such ideas are increasingly
circulating among popular writers and legal academics. See, e.g. Thomas E. Woods, Jr., Nullification: How
to Resist Federal Tyranny in the 21st Century (Washington: Regnery, 2010); Sean Wilentz, “States of
time such amendments have been embedded in state constitutions- similar amendments
appeared, for example, in the 2010 election. Several related questions thus emerge: how
widespread has this form of extrajudicial constitutional interpretation been in American
constitutional development?6 When states do modify their constitutions alongside federal
development, is it in concert with or resistant to such change? Is such resistance simply a
rarity that recurs in particularly wrenching moments, or a fairly normal part of
constitutional development?
To answer these questions, this paper will proceed in two parts. The first will
survey debates from early American history to establish the theoretical underpinnings of
state constitutional interpretation before the Civil War, when conventional
understandings hold the national government transcended antebellum notions of state
sovereignty and assumed the dominant role in constitutional development. The second
will proceed more empirically, using state constitutional evolution as one possible site of
constitutional discourse, and particularly discourse designed to protest or evade federal
development. Descriptive statistics of amendments made between 1880-2010 will offer
tentative conclusions about trends and relative frequency, and several brief cases will
illustrate this in practice. In short, while state voters do not make such protest
amendments equally and across all times, they are clearly not just embodiments of
southern “massive resistance” to national integration efforts but a longstanding part of the
American political tradition. One thing is clear, however: amendments designed to
Anarchy: America’s Long, Sordid Affair with Nullification,” The New Republic April 29, 2010, 5,
http://www.proquest.com/ (accessed March 13, 2011); David Weigel, “The States That Can Say No,” Slate
December 6, 2010, http://www.slate.com/id/2276913/
6
Keith Whittington, “Extrajudicial Constitutional Interpretation: Three Objections and Responses,” North
Carolina Law Review 80 (2001), 773-851.
protest or evade federal developments are growing increasingly common in the last 15
years, a trend that shows no sign of abating.
Part I: Precedents
Assertions of state interpretive authority have a long and storied role in American
history—not surprising if "federalism lies at the heart of the United States
Constitution," as Donald Lutz contends.7
It is hard to contest Lutz’s assessment. As part of the system of providing an
energetic but limited government, Publius contended that states would play key roles in
checking the growth of federal power.8 Federalist 46, which proposes that states will
mobilize one another to fight back against any usurpation at the federal level, is the key
exposition of this concept but far from the only one. In Federalist 44 Madison assuages
concerns about the elastic nature of the necessary and proper clause by insisting that the
best defense against an overbroad interpretation will be the states. Indeed, he laments that
states, while generally limited somewhat by their own separation of powers, lack
comparable vertical points of resistance to provide the double check that operates against
the federal government; counties and towns lack the sovereign authority to mobilize
against tyrannical states. So secure was Publius in this belief that his greater worry,
expressed in Federalist 17, was that this mechanism would be too effective and constrain
the federal government from operating on its clear and enumerated powers. Thus, the role
7
Donald S. Lutz, The Origins of American Constitutionalism (Baton Rogue: Louisiana State
University Press, 1988), 153.
8
Gardner builds his constitutional theory on this notion of competitive federalism on behalf of liberty,
while Thomas argues that such schemes of interlocking power are the key to the logic of the “Madisonian
Constitution.” James Gardner, Interpreting State Constitutions (Chicago: University of Chicago Press,
2005); George Thomas, The Madisonian Constitution (Baltimore: Johns Hopkins University Press, 2008),
26.
of states in interpreting and guarding the Constitution was not only clearly envisioned but
(publicly at least) hailed as a particular selling point in procuring ratification.9
While disagreeing precisely on what the authors intended, scholars agree that the
most influential such assertions of state interpretive authority were the 1798 Kentucky
and Virginia resolutions embodying the role anticipated in the Federalist. These
legislative decrees served as the means by which the then-anonymous Thomas Jefferson
and James Madison pressed for state interposition in opposing the Federalist Party’s
notorious Alien and Sedition Acts as violations of the First Amendment and beyond the
enumerated powers of the Constitution. They also bring with them an ambiguous legacyor perhaps an outright contradictory one.
“It is to the "Principles of '98" that localists in American politics have turned ever
since,”10 and thus both sides of the tariff nullification crisis of 1832 claimed the legacy of
the “Spirit of ’98.” On the one hand, Andrew Jackson, cloaking himself in that mantle,
had ridden to the presidency and vetoed the hated bank bill, arguing for a rather limited
federal government operating on states-rights principles. But, he contended, states
ultimately had to defer to federal authority, and he prepared to mobilize that power to
force military compliance if South Carolina did not acknowledge the authority of the
government to enforce a legislatively enacted tariff.11 Jackson had to marshal the
9
Those Federalist papers are not the only ones that discuss states asserting authority to interpret the
Constitution and check federal power, merely the most thorough. The notion of competition on behalf of
liberty is of course deeply embedded in the most famous Federalist papers, 10 and 51.
10
Kevin Gutzman, “A Troublesome Legacy: James Madison and “The Principles of ‘98”, Journal of
American History 15 (1995), 571.
11
Richard Ellis, Aggressive Nationalism: McCulloch v. Maryland and the Foundation of Federal Authority
in the Young Republic (Oxford: Oxford University Press, 2007; Richard Ellis, The Union at Risk:
Jacksonian Democracy, States’ Rights, and the Nullification Crisis (Oxford: Oxford University Press,
1987), 5, 46-48, 76-77, 86-88. Jackson did get in trouble with his states rights allies when imbibing in
excessively nationalist rhetoric, which he had thought more politically expedient than the more
conventional states-rights doctrine he generally subscribed to. Van Buren was left to clean up the mess and
explain the consistent states rights position between nationalism and state-sovereignty (86-88, 152-179);
American military precisely because his former Vice President, then Senator John C.
Calhoun, had similarly invoked the legacy of 1798 in arguing for a compact theory of
sovereignty and a corollary authorizing states to nullify—and oppose by force if
necessary—actions deviating from the Constitution they had agreed to join.12 A
combination of prudence and pay-off convinced South Carolina to back down in the face
of Jackson’s Force Bill and a reduction in the tariff, postponing but not solving the
theoretical issues that nearly produced an early Fort Sumter.
How could two groups, both largely claiming the legacy of Jefferson and
Madison, nearly come to a civil war? The answer is that, parsed carefully, the so-called
Spirit of ’98 instead appears to be Spirits, and the Kentucky and Virginia Resolutions,
almost always spoken of in tandem like the Alien and Sedition Acts they opposed,
instead outline distinguishable, even distinct, visions of interpretive authority, akin to the
different types of constitutional pushback proposed above.13
Kentucky, in passing Jefferson’s ghost-written resolution, asserted that
where powers are assumed which have not been delegated, a nullification of the
act is the rightful remedy: that every State has a natural right in cases not within
the compact, (casus non fœderis) to nullify of their own authority all assumptions
Keith Whittington, “The Political Constitution of Federalism in Antebellum America: The Nullification
Debate as an Illustration of Informal Means of Constitutional Change,” Publius 26 (1996): 14.
12
Whittington, “Political Constitution of Federalism,” 8 ; Ellis, Union at Risk, passim.
13
Early interpreters including John Quincy Adams saw a distinction between the two. See Ralph L.
Ketcham and John Quincy Adams, “Jefferson and Madison and the Doctrines of Interposition and
Nullification: A Letter of John Quincy Adams”, The Virginia Magazine of History and Biography 66
(1958): 178-182.
Gordon Wood concurs, arguing that “Madison seems to have thought of his resolutions as protests
rather than acts of nullification,” interpreting Madison’s letters to Jefferson as theoretical critiques of pure
state sovereignty. That being said, however, there is a debate within the literature whether Virginia itself
agreed with that temperate interpretation, or was in fact arming for possible military confrontation. Empire
of Liberty: A History of the Early Republic, 1789-1815 (New York: Oxford University Press, 2009), 269270.
For the argument that Madison’s Virginia Resolution was largely indistinguishable from the
Kentucky Resolution, nullification, and state sovereignty (and moreover was merely tactical), see Kevin R.
Gutzman, “A Troublesome Legacy: James Madison and “The Principles of ‘98”, Journal of American
History 15 (1995): 581. “Madison's recantation and subsequent protests notwithstanding, the radical
southern states' rights tradition is firmly based on his and Jefferson's writings. (571).
of power by others within their limits: that without this right, they would be under
the dominion, absolute and unlimited, of whosoever might exercise this right of
judgment for them….
But what form would this nullification take? Jefferson’s language is vague but ominous
in its implications.
That this commonwealth does therefore call on its co-States for an expression of
their sentiments on the acts concerning aliens and for the punishment of certain
crimes ….. plainly declaring whether these acts are or are not authorized by the
federal compact. …. the co-States, recurring to their natural right in cases not
made federal, will concur in declaring these acts void, and of no force, and will
each take measures of its own for providing that neither these acts, nor any others
of the General Government not plainly and intentionally authorized by the
Constitution, shalt be exercised within their respective territories.14
States thus signal one another for the need to resist federal legislation in order to
coordinate and proselytize, but the means for translating that interpretation are decidedly
internal—“within their respective boundaries”— and implemented by whatever nebulous
“measures” the individual state sees fit. For 1832 South Carolina, then, such measures
meant armed resistance.
As one might expect from the more legalistic Madison, the Virginia Resolution of
1798 outlined a way for states to resist particular interpretations and federal polices while
remaining entirely within the formal institutions of the Constitution he created. In that
document, the General Assembly of Virginia “doth particularly protest” the federal
government’s expansion beyond the limited powers agreed upon, and thus
the General Assembly doth solemnly appeal to the like dispositions of the other
states, in confidence that they will concur with this commonwealth in declaring,
as it does hereby declare, that the acts aforesaid, are unconstitutional; and that the
necessary and proper measures will be taken by each, for co-operating with this
state, in maintaining the Authorities, Rights, and Liberties, referred to the States
respectively, or to the people.”
14
Kentucky Resolution http://www.constitution.org/cons/kent1798.htm
The phrase “necessary and proper” here is key, as Madison’s mechanism for
implementing the concurring protest of the states is through regular politics: “the
Governor ... transmit a copy of the foregoing Resolutions to the executive authority of
each of the other states, with a request that the same may be communicated to the
Legislature thereof; and that a copy be furnished to each of the Senators and
Representatives representing this state in the Congress of the United States.” That is to
say, Madison asserts that states retain interpretive authority to consider constitutionality,
but expects that such authority, declared by the legislators of the state, will be enforced
through its representatives at the federal level.15 Nor was this mere theory. Madison later
argued that interposition proved successful: issue salience increased, citizens responded,
and Thomas Jefferson’s Republicans successfully campaigned on behalf of a repeal
program. Thus, the sage of Monticello could crow over his “triumph over the obnoxious
acts, and [the] apparent abandonment of them forever.”16
The Civil War is generally considered to have settled the legitimacy of
nullification and established federal supremacy to enforce laws.17 But for a minor
15
Virginia Resolution, found at http://www.constitution.org/cons/virg1798.htm.
Christian Fritz, American Sovereigns: The People and America’s Constitutional Tradition Before the
Civil War (New York: Cambridge University Press, 2008), 210; Stuart Leibiger, “James Madison and
Amendments to the Constitution, 1787-1789: “Parchment Barriers,” Journal of Southern History 59
(1993):468. Against claims that this vision proved a failure in its own time since no other state endorsed the
Virginia and Kentucky Resolutions, Fritz argues that measuring by other states’ backing is the wrong
standard. Instead, he notes, the North Carolina state house passed a strong endorsement that killed by
Federalists in the state Senate, and support in other states is undercounted due to protesting abstentions by
other Republicans. (202) Better evidence of their success might be the enthusiasm with which the defeated
Federalists adopted and cited the Kentucky and Virginia Resolutions during their own calls for
interposition at the Hartford Convention (Fritz 213-218). Calhoun’s similar invocation suggests still further
evidence of their political strength (223-226), which he also claimed proved successful (Fritz 232).
17
For example, Christian Fritz suggests that stronger ideas of sovereign control over constitutional meaning
eroded before or during the Civil War (3-4, 296-301.) But this trendline preceded the conflict as well: Fritz
argues that Madison and Andrew Jackson, who had voiced support and theoretical justification for this
moderate interposition, backed off from it for instrumental reasons in the 1830s for fear of the union’s
collapse. Others backed down as pre-civil war discourse tended to emphasize the perpetual nature of the
16
resurgence following Brown v. Board of Education,18 the Jeffersonian wing of the “Spirit
of ’98” supposedly met its end. Did it, or did it simply move toward a less openly
provocative version, a middle level of resistance? And what of the other half of the Spirit
of ‘98, Madison’s more moderate formulation, calling for an independent state
interpretation which would be enacted through what we might see as the proper channels
and still deferential to the supremacy and legitimacy of federal power? 19 That is, what of
the states’ “sentinel” role, to use the 19th century political science equivalent of our “fire
alarm” metaphor? 20 Might it- and perhaps even nullification- perhaps go on anyway,
now shorn of the underlying theoretical justification? That is, might we see a situation
analogous to what Jacob Hacker dubs policy “drift,” in which formal structures and
practices remain the same even if underlying conditions and theories have changed?21
Several mechanisms for the effective translation of state interpretive claims have
been theorized and studied throughout history, but even this process is usually considered
union as a value even more important than abstract notions of sovereignty. Fritz 234. See also Richard
Bensel, Yankee Leviathan: The Origins of Central State Authority, 1859-1877 (New York: Cambridge
University Press, 1990), 2-4.
18
George Thomas suggests that state resistance to Brown triggered a wider national discussion about race
and the Constitution, leading Americans to reformulate the constitutional meaning of Brown beyond simply
Warren’s narrow analysis of child psychology and into a broader acceptance of Harlan’s principle of the
unacceptability of segregation. This, he argues, is evidence against judicial supremacy, as the various
elements of the “Madisonian Constitution,” with its division of powers both horizontally [federalism] and
vertically [separation of powers], all contributed to a synthesis more developed than the Court’s initially
thin offering. Thomas, 162-3.
19
The core of both Ellis’s Union at Risk and Aggressive Nationalism is to show that this philosophy, which
he frames as states-rights majoritarianism, represented the predominant thread in American thought.
Whittington, who refers to this position as “centrist federalism,” argues its very place in the middle made it
not a strong unifying force but one extremely vulnerable to splintering (“Political Constitution” 14-17).
20
Mathew D. McCubbins and Thomas Schwartz, “Congressional Oversight Overlooked: Police Patrols
versus Fire Alarms,” AJPS 28 (1984): 165-179.
“[W]hat Madison and his contemporaries meant by “interposition” seemed to come from its classic sense.
As used in astronomical and scientific texts of the period, it described the movement of something between
two other things in a relationship, so as to interrupt and bring attention to the essence of this relationship.”
(Fritz 193-94). Fritz argues that Madison’s theory remained distinct from Calhoun’s insofar as Madisonian
interposition did not arise from a sovereign power but merely was an avenue for calling attention- in effect,
a fire alarm.
21
Jacob Hacker, “Privatizing Risk without Privatizing the Welfare State: The Hidden Politics of Social
Retrenchment in the United States,” APSR 98 (2004): 248.
in the past tense. Sidney Milkis, Charles Kesler, and Gerald Leonard rediscover the logic
of Martin Van Buren’s defense of political parties, which had itself been aimed at
legitimating the Jeffersonian/Madisonian vision of state interpretation used in opposing
the Alien and Sedition Acts. Thus, in their account, parties served as the primary
enforcers of constitutional vision both before and after the Civil War, helping bridge the
people of the states on behalf of what was perceived as the proper constitutional vision of
limited government, at least until this system was broken in the early twentieth century
sometime between the Progressive era and the New Deal.22
A related and somewhat overlapping mechanism (and one that emerged,
ironically, in spite of Madison’s proposed Virginia Plan) was the initial selection of
United States Senators by state legislatures. Its success as a serious, sustained mechanism
for state interpretation is unanimously doubted in the present day, with many scholars
suggesting that it had never worked historically either.23
22
Sidney Milkis, The President and the Parties (Oxford: Oxford University Press, 1993) and Political
Parties and Constitutional Government (Baltimore: Johns Hopkins University Press, 1999); Charles Kesler,
“Political Parties, the Constitution, and the Future of American Politics,” in American Political Parties and
Constitutional Government, ed. Peter W. Schramm and Bradford Wilson (Lanham: Rowman and Littlefield
Publishing, 1993); Gerald Leonard, The Invention of Party Politics: Federalism Popular Sovereignty, and
Constitutional Development in Jacksonian Illinois (Chapel Hill: University of North Carolina Press, 2002),
esp. p. 18-50 outlining Van Buren’s doctrines. See also Howard Gillman, “How Political Parties Can Use
the Courts to Advance Their Agendas: Federal Courts in the United States, 1875–1891” APSR 96 (2002):
511, and John Gerring, Party Ideologies in America, 1828-1996 (Cambridge: Cambridge University Press,
1998).
23
Ralph Rossum suggests that the 17th Amendment put an end to any effect state control of senators did
have (Federalism, the Supreme Court, and the Seventeenth Amendment (Lanham: Lexington Books, 2001).
For similar accounts defending the efficacy of states in exercising at least some control over senators, see,
C.H. Hoebeke, The Road to Mass Democracy: Original Intent and the Seventeenth Amendment (New
Brunswick: Transaction Press, 1995); and Todd Zywicki, “ Beyond the Shell and Husk of History: The
History of the Seventeenth Amendment and its Implications for Current Reform Proposals,” Cleveland
State Law Review 45 (1997):165-234
The more common position—that such efforts had failed long before the 17th Amendment, if they ever
worked at all—is developed most comprehensively by William Riker. William Riker, “The Senate and
American Federalism,” APSR 49 (1955): 452-469; see also Martha Derthick, Keeping the Compound
Republic: Essays on Federalism (Washington: D.C: Brookings, 2001), 11; and Richard B. Bernstein and
Jerome Agel, Amending America: If We Love the Constitution So Much, Why Do We Keep Trying to
Change It? (University of Kansas Press, 1995), 126-28
In short, several of the avenues by which states could contribute to constitutional
discourse as envisioned in the Federalist and Virginia Resolution have disappeared.
Recent elections, then, have provided us with another possible venue in looking to
constitutional discourse: state constitutional amendments. What form does this discourse
take, and when does it happen?
Part II: Amendments as Interpretation
Why State Constitutional Amendments?
Functionally speaking, “a constitutional amendment is the most powerful legal
statement that a state can make about the issue”; as “amendments are constitutional by
definition” state judges are largely powerless against them.24 They also serve as
theoretically compelling embodiments of deliberation: at the most obvious, somewhat
circular level, enshrining a provision in a state constitution gives it any added moral and
political authority and signaling strength that we might attribute to placing it among a
state’s highest law.25
A cursory analysis may value state constitutions insofar as we might consider them the
closest approximation of a state: that is, the constitution is the closest we come to the
states qua states in constitutional dialogue. In other words, one reason we might prefer to
look to state constitutional texts is their comparatively clear tie to their states, particularly
in a polarized climate in which we might think that senators and parties are beholden to
24
Arthur Lupia, Yanna Krupnikov, Adam Seth Levine, Spencer Piston, Alexander Von Hagen-Jamar,
“Why State Constitutions Differ in their Treatment of Same-Sex Marriage,” JOP 72 (2010): 1222. This
obviously neglects federal claims and the supremacy clause, which I will return to and which make up a
key part of my argument.
25
Edward Corwin, “The Constitution as Instrument and Symbol,” APSR 30 (1936):1075-77; Charles
McIlwain, Constiutionalism: Ancient and Modern (Ithaca: Cornell University Press, 1947), 14-21.
one another and to interest groups as much or more than they are to a particular state
identity.26
However, drawing such a sharply artificial line between amendments as products
of states and as products of national forces is unsatisfying both empirically and
theoretically. As Smith and Tolbert show, the national parties freely use state referenda,
including constitutional amendments, for their own ends, regardless of what their populist
creators had anticipated.27 Offensive as that may to be Progressive-era aspirations, such
an interplay of hierarchical politics is precisely what the constitutional framers expected,
who, while arguing for a split in allocating powers between different layers, nonetheless
expected this to occur through integrated politics. Madisonian thought embraces this
ambiguity- of a government both federal and national, and with citizens similarly
straddling each realm.28 Thus state constitutions, like political parties and interposing
resolutions,29 can serve as dialogue with the broader polity.
The advantage of looking to state constitutions and amendments in particular is
that they offer a relatively clear signal of the intent of the electorate. Taking a page from
the popular constitutionalists’ elevation of the ballot-- and looking to elected state
officials and their elections as signals—would offer the closest update to Madison’s
original formulation in the Virginia Resolution, but it brings with it a sharp challenge.
One then encounters the problems Bruce Ackerman faces in holding the New Deal to be
26
Larry Bartels, Unequal Democracy (Princeton: Princeton University Press, 2008), 257-59; Keith T. Poole
and Howard Rosenthal, “The Polarization of American Politics,” Journal of Politics 46 (1984): 1072;
However, as McCarty, Poole, and Rosenthal argue, polarization can also help provide clarifying cues,
thereby making it easier for geographic constituencies to select representative officials. Nolan McCarty,
Keith Poole, and Howard Rosenthal, Polarized America (Cambridge: MIT Press, 2006), 32-34.
27
Daniel A. Smith and Caroline J. Tolbert, Educated by Initiative: The Effects of Direct Democracy on
Citizens and Political Organizations in the American States (Ann Arbor: University of Michigan Press,
2004), 14-25, 120-134.
28
E.g. Federalist 39.
a constitutional moment: were voters assenting to constitutional arguments in selecting a
candidate, or merely voting for a candidate on pocketbook, valence, or other issues in the
elections surrounding 1936?30 Disentangling these becomes difficult, if not impossible.31
Several disadvantages in looking to state constitutions ought to be dealt with
before proceeding. The first, a fear that such provisions are inherently destabilizing, can
be dismissed fairly quickly. Even in the case of amendments that directly and rather
unambiguously challenge federal law, the procedure is the same as for a similar statute:
either voluntary non-enforcement by the state’s own actors or a decision by a federal
judge blocking its implementation. A provision of a state constitution conflicting with the
federal document has no more force than an equally conflicting state statute; Article VI
supremacy renders it equally inoperative if acted upon.32 Indeed, Hamilton anticipated
such inoperative and advisory provisions in the Federalist, finding them fairly
innocuous.33
The other somewhat interrelated critiques suggest a contrary concern: not that
state constitutions may have powerful destabilizing effects, as with nullification, but that
29
See notes 13-22.
Bruce Ackerman, We the People: Foundations (Cambridge: Belknap Press of Harvard University Press,
1991. For the critiques of Ackerman’s thesis, see William Leuchtenberg, “When the People Spoke, What
Did They Say? The Election of 1936 and the Ackerman Thesis,” Yale Law Journal 108 (1999); Keith
Whittington, Political Foundations of Judicial Supremacy (Princeton: Princeton University Press, 2007),
48. On the general problem of discerning intent from candidate elections, see
Robert Dahl, “Myth of the Presidential Mandate,” in Politicians and Party Politics, ed. John Geer
(Baltimore: Johns Hopkins, 1998): 239-258; and Stanley Kelley, Interpreting Elections (Princeton:
Princeton University Press, 1983).
31
This same dilemma appears in other possible sites of state interpretation. Ostensibly one could look to
state Attorneys General and arguments before courts or their filing of amicus briefs, but this too seems
problematic: since they are elected in many cases, they might have the same cross-cutting problems as
noted above; if appointed, they have even more pressing career incentives shaping their legal postures
(namely, not being fired).
32
Robert Nagel contends that “interposition, however, does not necessarily require outright defiance
[but]…simply…registering official disagreement with constitutional claims made by the national
government.” Robert Nagel, Implosion of American Federalism (New York: Oxford University Press,
2001), 65.
33
Federalist 25.
30
they are irrelevant and not even meaningfully constitutional at all. Thus, we find that they
often involve inane things, are oddly specific and statutory, and that they are so easily
changed and frequently modified that they are closer to statutory politics. Stated another
way, state constitutions lack the virtues we tend to associate with higher law-making:
concern for fundamental values, deliberation, and even elevated thresholds such as
supermajorities.
This position, most closely associated with James Gardner, suggests futility in
discerning any fundamental meaning in state constitutional provisions; instead, he
suggests, we find inanity and parochiality. His particularly illustrative target is Article 14,
Section 1, of the New York Constitution which, among many other detailed conservation
provisions, precisely specifies the width of ski trails. An exasperated Gardner concludes
that
If we are to take seriously the notion that the state constitution reveals the
character of the people, we may be forced to the unappetizing conclusion that the
people of New York, or California, or Texas are simply a frivolous people who
are unable to distinguish between things that are truly important and things that
are not.34
A full refutation of Garner’s position is beyond the scope of this paper, but there are
reasons to doubt his account. For instance, we ought to be careful to so quickly conflate
specificity with inanity. Using the particular case of the ski trails provision, Emily Zackin
carefully situates its history in New York’s state constitutional development,
demonstrating that, although the product of pluralistic compromise (which makes it
unworthy of constitutionalism in Gardner’s account), the ski trail provision did implicate
34
James A. Gardner "The Failed Discourse of State Constitutionalism." Michigan
Law Review 90 (1992):819-820.
fundamental principles.35 Similar exegesis can rehabilitate even Alabama’s widely
mocked constitution, with its 800 amendments.
In its own way, it too reflects constitutional values, admittedly particularistic, for
Alabama seems in some ways untouched by a positive rights tradition. Instead, the
notorious Alabama constitution of 1901 operates according to a jealous desire to limit
power and particularly where it could intersect with corporate control. 36 Section 35
inverts the usual notion of enumerated federal powers and plenary state powers by
holding that laws which do more than protect life, liberty, and property are “usurpation
and oppression.”37 As a result, each new problem the state faces requires the ratification
of an amendment, most of which continue to be written extremely narrowly.
Thus, provisions such as those enabling boll weevil subsidies, trophies for
children, and other seemingly petty concerns do, in a strange way, reinforce a
constitutional value; every time the state seeks a new power, it must go to the people for
permission. Counterintuitive? Yes. Inefficient? Most surely. Inane? Not necessarily. It is
simply the cluttered result of a commitment to fundamental anti-statism, the mirror of
what Zackin found in considering the positive rights tradition in the case of New York
wilderness.
That aside suggests that even Gardner’s strongest cases ought not to be
disqualifying; moreover, his critique seems inapplicable to more typical cases of
35
Emily Zackin, “Positive Constitutional Rights in the United States,” (PhD diss., Princeton University,
2010.), 12-16
36
Its other primary feature, which will be considered in more detail, is white supremacy. Thus I am not
contending that Alabama’s core constitutional values are admirable but simply, pace Gardner, that they are
significant and clearly discernable.
37
As William Stewart notes, this has actually been judicially enforced, and this provision, coupled with the
Jacksonian restrictions on appropriating state funds in Sections 93 and 94 as modified in 1946, has been the
source of the constitution’s innumerable amendments. William H. Stewart, The Alabama State Constitution
(New York: Oxford University Press, 2011), 43, 69-70, 164, 224.
occasional change which occur with far less frequency and on more pressing matters.38
This is particularly true when one concentrates on rights provisions, as my subsequent
analysis will do.
Specifically, I am interested in rights-based or rights-implicating provisions,
which will plausibly speak to the same concerns of the federal Constitution, rather than
procedural questions of tax policy or geographic organization of judiciaries- issues that
are more likely to speak of mere governance and logistics and not necessarily translate to
the federal level or constitutional meaning and values more broadly.39 (This also helps
deal with the “Alabama problem” of constitutionalizing municipal powers, to the extent
we still may worry about that.)
I have compiled an admittedly rough database of such right-implicating
amendments,40 thereby giving me a sense of how often such changes are made in toto- in
effect, a rough control for a state’s propensity to amend.41
38
Obviously efforts to modify tax provisions are hard to reconcile, but it seems facile to equate bond and
tax code tweaks with provisions implicating major controversies in the public consciousness.
39
I allow the ‘rights-implicating’ expansion simply because I think the strict, dichotomous division does
not make sense and there is little reason to artificially force one. Thus, while Hawaii’s state constitutional
amendment authorizing the legislature to set policy on gay marriage might bear a more superficial
resemblance to a powers-based provision on taxing agencies, it clearly is closer, in terms of discourse and
process, to analysis about the breadth of a right to bear arms
40
Somewhat surprisingly, state constitutional texts as amended are quite difficult to procure.(This is not
true of current texts, which are freely available, but amendments are usually unmarked, unlike the federal
Constitution with which we are more familiar.) I have thus had to cobble them together from a variety of
sources, including those few states that have posted or digitized their constitutions online, the (incomplete)
Wallis state constitutional database at http://www.stateconstitutions.umd.edu/index.aspx, the Swindler
Sources and Documents of United States Constitutions volumes, the Greenwood/Oxford commentaries on
state constitutions, and older print editions put out by state governments and constitutional conventions
where available.
Nonetheless, some fairly significant missing data problems remain. As of now Georgia, Louisiana, Oregon,
South Carolina, and Virginia are omitted from this analysis entirely, as are Delaware 1880-1896, Kentucky
1880-1891, Michigan 1880-1907, Missouri 1880-1945, and New York 1880-1937.
Thus this analysis is tentative, though I believe the missing data would bias against my results, as most of
the missing states are southern states where we would expect resistance to be stronger—whether on civil
rights issues or conservative backlash against Kelo v. New London or the health care mandate. The final
results will likely show a higher proportion of constitutional resistance in the South than do the current
findings, but that is of course what our prior expectations would have anticipated. The novel finding is that
Inquiry will be confined to the period beginning in 1880 and ending in 2010.
There are several reasons to begin there and generally avoid the complications of
Reconstruction. First, it does not make sense to speak of a state or state officials
interpreting the Constitution at bayonet point: federal officials dictating to state officials
how they ought to interpret the federal constitution is almost tautological. Second, the
post Civil War federal government had a vastly increased state capacity- the military
resistance that had implicitly backed nullification is much less credible in the wake of the
“Yankee Leviathan” mustered to suppress such aspirations.
Questions of autonomous agency aside, Reconstruction produced a wave of shaky
government and unstable constitutions hastily and rapidly ratified and amended,
suggesting little weight should be invested in them- indeed, some were never put before
voters. Setting a start point at 1880, a few years after the withdrawal of federal troops and
allowing elections in between, thus seems a reasonable date in which states and state
officials are able to act in the manner in which I am interested, and which is cognizant of
the sea change in the federal-state relationship brought by the Civil War.42
I have classified the results in one of four categories based on their interactions
with federal developments: procedural/internal, reinforcing and ratifying, and resisting.
such resistance is not exclusively in the South but instead has been widespread and occurs even in places
we usually think move in lockstep with national trends.
41
I have also treated adoption of new constitutions or revisions. Separate, unlinked provisions are counted
as separate observations, but those which are clearly part of a single act (e.g. an enforcement provision as
the next section) are treated as a single observation.
42
One should not suggest a total discontinuity though. After all, as Richard Bensel observes, the north
rapidly demobilized so quickly as to make Reconstruction, even in the immediate aftermath of the war,
unsuccessful, and the North, particularly the more fiscally conservative financial branch of the Republican
coalition, had relatively little stomach to continue combat, and thus retrenchment followed.
Bensel, 381-393
Moreover, we should also remember that those in power often did not want to exercise that enhanced
federal capacity and instead viewed themselves as guarantors conserving state prerogative in a federal
system. Michael Les Benedict, “Preserving the Constitution: The Conservative Basis of Radical
Reconstruction,” JAH 61 (1974): 65-90.
Internal amendments, the bulk of those even within the subset of rights-implicating
provisions, are those for which I have been unable to find evidence of federal interaction,
and thus are of little interest for the paper beyond showing propensity to amend.
Concurrent amendments are those which operate in tandem with federal development,
within a four year period. Ratifying amendments are those which validate or build off of
past federal developments, suggesting their approval or at least acceptance. (The
distinction between these concurrent and ratifying is somewhat thin, so readers may find
it more useful to treat them as a single category.) Finally, of perhaps greatest interest, are
resisting amendments, those which assert, more or less directly, independent state
understandings or resist federal policy whether directly or through efforts to minimize the
effects of federal decisions.43
Results
Several trends are immediately apparent from figure 1 and the more sweeping overview
of state constitutional development. First, the “New Federalists” were correct in
bemoaning the indifference to state constitutions in the middle of the century, as little
activity of any kind occurred.44 Second, the number of resistant amendments during that
43
This last category is admittedly blunt, potentially covering everything from nullification, evasion, to
wholly symbolic protest. However, other than a handful of interposition amendments meant merely to
evade federal action rather than explicitly nullify it (e.g. by ending public schools rather than explicitly
defy integration), I found no examples of resistance as forceful as in antebellum America.
44
For a historical overview of the “new federalism” movement and its consequences, see James Gardner
Interpreting State Constitutions (Chicago: University of Chicago Press, 2005), 23-52. The classic
exposition of that movement’s effort to reinvigorate attention to state judges is William Brennan, Jr., “The
Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights,” NYU
Law Review 61 (1986): 535.
This is a marked change from the early part of the 20th century, when scholars, and political scientists in
particular, wrote a great deal about state constitutions. Walter Dodd, The Revision and Amendment of State
Constitutions (Baltimore: Johns Hopkins, 1910), and James Quayle Dealey, The Growth of American State
Constitutions from 1776 to the End of the Year 1914 (Boston: Ginn and Company, 1915) represent book
length treatments. A JSTOR search for articles on state constitutions turns up innumerable pieces from the
time period is negligible, and indeed, what few amendments there were in general seem
almost totally detached from federal politics. An early cluster of them does exist in the
first few decades; nearly all of these are on racial issues, most notoriously the effort by
Alabama to enact a constitution dedicated to white supremacy.45
SEE FIGURE 1
Confining our inquiry to the period since 1950 reveals some patterns very much in line
with our intuitive understandings of the later part of the twentieth century, while others
prove surprising. Extensive constitutional revisions in the 60s and early 70s produced a
high volume of change. The chart’s most visually shocking feature is the extreme
concentration of concurrent and ratifying amendments in the 1965-1979 period, making
up well over half such amendments between 1950-2010. Nearly all of these reflect the
efforts of states to align themselves with Warren Court decisions and federal expansions
of the franchise, and thus are disproportionately concentrated in the issue areas of
apportionment and voting. The other surprise is that the most recent period, 19952010—the era of U.S. v. Lopez, not Brown—is when efforts to assert an independent
interpretive authority are most pronounced.
FIGURE 2
1910s and especially 1920s, and then a pronounced dry spell for decades. APSR continued to offer fairly
consistent updates on state constitutional amendments until the 1940 issue, and then sporadic updates on
major constitutional revision thereafter.
Moving from the level of content free aggregation blurring together potentially
disparate issues, I now look at five particular waves46 of interrelated constitutional
discourse in which states amend their constitutions alongside federal development. The
first, and somewhat loosest, is the expansion of the franchise beginning in the 1950s; this
ratifying trend continues in fits and starts to the present day. The other four waves are
better thought of as resistance: desegregation in the 1950s, the right to keep and bear
arms in the 1970s through 1990s, term limits in the late 1990s, and finally a current wave,
beginning in 2006, that clusters several issues. (Amendments will be cited
parenthetically, with 5.2 representing the second specifically numbered subsection of
Article or Section 5 of a state’s constitution.)
Toward a Universal Franchise
The first such state wave, that of expanding the franchise in voting for president
and vice president, serves as the fulfilment of one constitutional movement and perhaps
part of a lead-in to another. As Alexander Keyssar describes, the 1950s through the early
1970s marked “an extraordinary burst of activity [in which] Congress, the Supreme
Court, and state legislatures took a rapid-fire series of steps to expand the franchise along
several different axes,” motivated by Cold War paeans to democracy and in particular to
45
Harvey H. Jackson III, “White Supremacy Triumphant: Democracy Undone” in A Century of
Controversy: Constitutional Reform in Alabama, ed. Bailey Thomson (Tuscaloosa: University of Alabama
Press, 2002.)
46
Jon Elster, “Forces and Mechanisms in the Constitution-Making Process,” Duke Law Journal 45
(1995):368. See also Zachary Elkins, Tom Ginsburg, and James Melton, The Endurance of National
Constitutions (New York: Cambridge University Press, 2009), 112.
removing racial barriers.47 In the wake of Brown v. Board of Education, anxieties about
civil rights, and particularly black suffrage, grew in Congress: the Twenty-Third
Amendment establishing electoral college votes for D.C. was one result (although a
combination of political concerns, namely minimizing the hostility of Southern
Democratic committee chairs, and constitutional anxieties caused Emmanuel Cellar to
compromise with merely presidential voting, a decision which garnered criticism in the
coming decade).48
While Wisconsin was the first state to statutorily reduce residence for presidential
voting,49 Ohio passed the first such constitutional provision in 1957 (Section 5.1),
reducing the residence period required for citizens to vote for those offices representing
all Americans, regardless of their particular state. 1961 marked the ratification of the 23rd
Amendment, guaranteeing the right to vote for president and vice president to Americans
in the District of Columbia- who remained ineligible to vote for other federal offices.
After that amendment’s ratification, some twenty-five unsuccessful constitutional
amendments prohibiting state residence requirements were proposed in Congress.50 In
1961, Senator Estes Kefauver proposed an amendment parallel to the 23rd, capping state
residence requirements for President and Vice President.51 States continued to pass
similar provisions, retaining their otherwise stiff residence restrictions (usually a year,
sometimes six months) to vote for most offices but easing suffrage for the two high
47
Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States (New
York: Basic Books, 2009), 217.
48
David E. Kyvig, Explicit and Authentic Acts: Amending the U.S. Constitution 1776-1995 (Lawrence:
University Press of Kansas, 1996), 352-5, 420.
49
“Residence Requirements for Voting in Presidential Elections.” The University of Chicago Law Review.
Vol. 37, No. 2 (Winter, 1970), 363.
50
“Residence Requirements,” 383
51
John R Schmidhauser, “Requirements for Voting and the Tensions of a Mobile Society,” Michigan Law
Review 61 (1963): 834.
offices: Arizona (1962 7.2), Idaho (1962 6.2), Michigan (1963 constitutional revision,
2.3), New York (1963 2.9), Washington (1966 6.1a), Delaware (1967 5.2a-b) Maryland
(1970, 1.1), and Utah (1970 4.2).
By the time these last states passed their provision, several Supreme Court
holdings had dismissed residence requirements: Shapiro v. Thompson, decided in 1969,
and Dunn v. Blumstein in 1972.52 The first prohibited conditioning state benefits on
residence periods, arguing it violated the constitutional right to travel; the second more
directly suppressed such requirements as a condition of voting. Between 1970 and 1976
many states amended their constitutions to comply, dropping the residence period to a
registration period of 30 days (with some others following federal standards but leaving
the inert language until revision periods sometime later).
The evolution of residence requirements give us an example of what we might
think of as the normal story of federal supremacy, one in which developments at the
federal and state constitutional levels reinforce one another, codifying an implicit norm of
national, and increasingly universal suffrage.
While we might think of reduced residence in state voting for president and vice
president, limited suffrage for Washington D.C., and increased interest in enfranchising
the poor as separable issues, they nonetheless reflect a common nexus. Commentators
have noted the link between mobility and economic insecurity, and in particular, its
disproportionately disenfranchising effect on black Americans with residence
requirements.53 Similar arguments connecting D.C. disenfranchisement and a racial
52
394 U.S.; 405 U.S. 330 (1972). In 1970, Congress amended the Voting Rights Act to prohibit residence
requirements exceeding 30 days, which was upheld by the Supreme Court in Oregon v. Mitchell 400 U.S.
122 (1970); Keyssar 223-24.
53
“Residence Requirements,” 360-361; Schmidhauser 837-38.
agenda have been made in seeking expansion of the vote to residents of D.C. first
provided with the 23rd amendment.54 As far as I know, the literature does not view the
enfranchisement of voters in the nation’s capital as linked to the movement to reduce
residence requirements at the state level, which seems an error: both disentangle voting
from economic power and stability. The architect of the amendment, Senator Kenneth
Keating, did explicitly link it to the effort to eliminate the poll tax, contending that
granting presidential suffrage to D.C. residents would enfranchise even more citizens.55
Although taking slightly different forms—the 23rd Amendment, efforts to reduce
residence first for presidential elections and then for all voters, the poll tax—state and
federal constitutional development moved in tandem, reinforcing the development of a
more universalized suffrage less influenced by race, poverty, and geography. 56
Desegregation
As one might expect, “massive resistance” to Brown provoked a flurry of
resistant constitutional activity: Mississippi passed four amendments (to sections
201.2/201.5, 241a, 250, and 244a) between 1960 and 1966 as part of its efforts to defy
the federal assault on Jim Crow, closing public schools, adding nebulous “moral
character” or even “additional qualifications” for voting and running. Arkansas passed an
54
Kyvig 420; Eleanor Holmes Norton, “Will America Allow the Senate to Filibuster the D.C. Voting
Rights Bill? Afro-American Red Star 116, September 1, 2007, http://www.proquest.com/ (accessed
February 12, 2011); Walter Fauntroy, Norton’s predecessor as D.C.’s non-voting delegate, insisted an
amendment to give D.C. congressional reputation failed on the grounds the district was “too urban, too
liberal, too Democratic, and too black” (Keyssar 230). The district’s reputation among southerners as
predominantly black had made southern support for the eventual 23 rd amendment a “lost cause.” Clement
Vose, “When District of Columbia Representation Collides with the Constitutional Amendment Institution,
Publius 9 (1987): 117; Alan P. Grimes, Democracy and the Amendments to the Constitution (Lexington:
Lexington Book,s 1978), 127.
55
Grimes, 127. The two were clearly linked as a political and strategic matter- see Kevin J. McMahon,
Reconsidering Roosevelt on Race (Chicago: University of Chicago Press, 2004), 121.
interposition amendment (1956, Amendment 44).57 Alabama’s Amendment 111 was
perhaps the most comprehensive: terminating public education as a right, using the poll
tax to pay for schools, and drastically undercutting the power of the Mobile school board
(on which blacks exercised a relatively high amount of political power.) This story of
southern resistance is well-told elsewhere, perhaps its own literature, and represents the
most extreme case.58 Less well known is that several decidedly, even quintessentially
non-southern states employed their constitutions to resist more proactive desegregation.
Colorado (1974 9.8), California (1978 1.7), and Massachusetts (1978, Amendment 111)
passed what Dinan dubs “court-constraining amendments” in their efforts to block
bussing or reassignment of school children to achieve racial balance.59
The Colorado provision is fairly unambiguous in holding no pupil “shall….be
assigned or transported to any public educational institution for the purpose of achieving
racial balance.” Massachusetts is more opaque but ends with the same result: “No student
shall be assigned to or denied admittance to a public school on the basis of race, color,
national origin or creed.”
California’s provision is worth examining in detail, as it blends elements of
ratifying and resisting interpretation.
[N]o court of this state may impose upon the State of California or any public
entity, board, or official any obligation or responsibility with respect to the use of
pupil school assignment or pupil transportation, (1) except to remedy a specific
violation by such party that would also constitute a violation of the Equal
Protection Clause of the 14th Amendment to the United States Constitution, and
56
One could plausibly argue that the 26th Amendment and the concurrent state movements to reduce the
voting age proved a peripheral part of this constitutional evolution.
57
This is far from a comprehensive list and meant merely for illustration, since, as I note, this is a story told
elsewhere.
58
Richard Kluger, Simple Justice (New York: Alfred Knopf, 2004); Gerald N. Rosenberg, The Hollow
Hope: Can Courts Bring About Social Change? 2nd. Ed. (Chicago: University of Chicago Press, 2008).
59
John Dinan, “Court-Constraining Amendments and the State Constitutional Tradition,” Rutgers Law
Journal 38 (2007):1005-1006.
(2) unless a federal court would be permitted under federal decisional law to
impose that obligation or responsibility upon such party to remedy the specific
violation of the Equal Protection Clause.
At first blush, this would seem to be a resisting amendment like Colorado and
Massachusetts, blocking a technique (busing) approved by the Supreme Court’s 1971
desegregation decision in Swann v. Charlotte-Mecklenburg.60 Nonetheless it ratifies the
specific holding of a later case, Miliken v. Bradley that held busing invalid in cases of de
facto, not de jure segregation,61 as had been established to be the case in California.62 In
effect, with a finding of mere de facto segregation in hand, the state’s voters prohibited
its legal system from enforcing desegregation with the federally designed technique.
Thus, California effectively blocked its own state courts from using the federally
designed remedy of bussing by latching onto what it expected would be narrower
applications of federal decisions. We can only speculate what its drafters—presumably
more devoted to ending busing than to federal supremacy—might have done had Miliken
v. Bradley been decided the other way, but California’s 1978 Proposition 1 alterations to
Article 9.8 of its constitution suggest an extremely direct responsiveness to federal
constitutional development- in effect, using more recent federal decisions against the
state’s own judges applying older federal precedents. 63
The question is this: is the constitutional evasion or even soft-nullification
constitutionally unique as a reflection of desegregation’s singular importance in 20th
century American politics? Other cases provide evidence that states not only have
60
Crawford v. Los Angeles Board of Educ., 458 U.S. 527-529 (1982); Swann v. Charlotte-Mecklenburg
402 U.S. 1 (1971)
61
Miliken v. Bradley 418 U.S. 717 (1974).
62
Crawford, 533.
63
This binding of federal interpretation on the (ostensibly more liberal) California Supreme Court would
also be used to restore the death penalty in 1990 (CA Constitution 1.24).
occasionally issued an odd resisting amendment here and there, but have in fact been part
of several episodes of constitutional dialogue between the states and the federal
government.
Right to Keep and Bear Arms:
The right to keep and bear arms has seen an almost uninterrupted constant trend
of expansion, at the state constitutional level, with amendment occurring during periods
in which gun control was politically salient, but largely independent of the direction of
change ultimately adopted at the federal level. That is to say that states have continued to
liberalize gun control amendments whenever guns become contested. Immediately after
the 1968 Gun Control Act, New Mexico passed a constitutional amendment (1971, 1.6)
asserting that the right to bear arms was both individual and covered not only defense and
hunting but even recreation.64 The convention revising the Constitution of Illinois in 1972
asserted an explicitly individual right, but one that was subject to a state’s police power.65
In 1978, a gun registration proposal- first floated by Lyndon Johnson but removed in the
final version of the bill ten years earlier- received a renewed push by Jimmy Carter,
serious enough to trigger a House vote to prohibit funding for any such registration.66
Idaho passed an amendment reinforcing the right to keep and bear arms (1978, 1.11), but
with registration blunted little textual change followed until another federal decision
provoked strong backlash.
64
Charles Smith. The New Mexico State Constitution: A Reference Guide (Westport: Greenwood Press,
1996), 34-35.
65
1.22.
66
David Kopel, “The Right to Arms in the Living Constitution,” Cardozo Law Review De Novo (2010):
121; S.C. Patterson and K.R. Eakin, “Congress and Gun Control,” in Changing Politics of Gun Control,
eds. John M. Bruce and Clyde Wilcox (Lanham: Rowman and Littlefield, 1998), 50-51.
In 1981, a federal court upheld a municipal ban on handguns, which was affirmed
by the 7th Circuit the following year; the Supreme Court declined to grant certiorari—
possibly condoning such legislation. 67 Four states immediately reacted with
constitutional amendments: Nevada (1982, 1.11), New Hampshire (1982 1.2a), North
Dakota (1984, 1.1), and Utah (1984, 1.6), while a 1982 Senate Judiciary Committee panel
found gun rights insufficiently protected by the current federal status quo.68 Thus, a new
policy climate emerged, and 1986 brought a sharp change in gun control policy, with
some regulation of closing loopholes offered as a compromise for a general strengthening
of gunowners’ rights in the Firearms Owners Protection Act of 1986, also known as
McClure-Volkmer.69 A flurry of state amendments implicitly ratifying the federal profirearms legislation followed in the coming years: West Virginia (1986 3.22), Maine
(1987, 1.16), Delaware (1987 1.20), and Nebraska (1988, 1.2) all added or strengthened
constitutional protections for firearms. Preventing the possibility of its own Morton
Grove, New Mexico strengthened its amendment by banning any state subdivisions from
firearms regulation (1986, 1.6).
Florida’s 1990 adoption of a three day waiting period for pistols (3.22) marks an
aberrational restriction on gun rights, but one that narrows a sharp liberalization of
ownership laws three years earlier when Florida had controversially made the concealedcarrying of handguns a presumptive right in the wake of McClure-Volkmer and with
67
Quilici v Morton Grove 695 F2D 261 (7th circuit 1982); Gregg Lee Carter, Gun Control in the United
States: A Reference Handbook (Santa Barbara: ABC-CLIO, 2006), 207.
68
Stephen Halbrook, “Congress Interprets the Second Amendment: Declarations by a Co-Equal Branch on
the Individual Right to Keep and Bear Arms,” 62 Tennessee Law Review (1995): 632 fn 239.
69
Patterson and Eakins, 52-55.
heavy NRA lobbying.70 Nonetheless, it marked a continuation of the movement for
waiting periods and/or background checks culminating in the adoption of 1993 Brady
Bill.71 The Brady Bill, in turn, provoked immediate protest from Alaska’s 1994 passage
(1.19) of a strong firearms amendment, with a provision akin to New Mexico’s
preventing subdivisions from regulating firearms. Largely in response to internal debates
on handgun bans, Wisconsin added a provision in 1998 (1.25).72 Firearms amendments
then became relatively dormant until the most recent election, when Kansas passed an
amendment asserting an individual right to bear arms for defense, hunting, and recreation
(2010 1.4), ratifying D.C. v. Heller and McDonald v. Chicago.
Thus, we see two spurs to change, an initial backlash against federal
developments, almost exclusively among Western states, while states from the Northeast
and Midwest followed liberalizing trends at the national level and amended their
constitutions in tandem. One could advance much more robust versions of this claim,
holding that state constitutional development represents evolutionary living
constitutionalism or a constitutional moment akin to, and indeed even stronger than,
Ackerman’s New Deal transformation.73 Regardless of what one considers the
jurisprudential ramifications to be, state constitutional provisions on the right to keep and
bear arms appear to have a strong link to political activities at the federal level.
70
Myra MacPherson. "Pistol-Packin' Populace: Florida Up in Arms; Gun Sales Soar Under the State's New
Liberalized Law." Washington Post (pre-1997 Fulltext), October 22, 1987,
http://www.proquest.com/ (accessed February 12, 2011).
71
Patterson and Eakins, 55-57; Diane Alters, and Gazette Telegraph. "Brady cheers Florida's vote on gun
control/ Ex-presidential aide hopes it's a trend." Colorado Springs Gazette - Telegraph,
November 12, 1990, B1 http://www.proquest.com/ (accessed February 12, 2011).
72
Nicholas C. Johnson, “A Second Amendment Moment: The Constitutional Politics of Gun Control,” 71
Brooklyn Law Review (2005):726
73
Johnson, passim, esp. 723-725; Kopel.
Term Limits
One of the most pronounced constitutional waves between 1950 and 2010 proved
to be the early 1990s mania for congressional term limits.74 Rivaled only by their
frequency of adoption of gay marriage bans and victims rights provisions, many states,
backed by an aggressive lobby and interest group, enacted such provisions both at the
constitutional and statutory levels between 1990 and 1994.75 Whether the number of
states with term limits would have continued expanding is an open question, as U.S. Term
Limits v. Thornton held such provisions to be unconstitutional, with Anthony Kennedy
joining the Court’s left bloc over a federalist dissent from Clarence Thomas.76 Most states
accepted that 1995 case, although the provisions sometimes linger in their constitutions
as memorials of that populist wave. Several states, however, did not accept Thornton and
instead continued to wage a running debate with the courts, using their constitutions as
the platform. Undeterred, Arkansas (1996 Amendment 76), Missouri (1996 9.15-22), and
Nebraska (1996 18) all passed provisions trying to evade Thornton or call for an
amendment overturning it. Colorado, however, proved the most resistant. Like the
aforementioned states, it too passed an amendment (18.12) in 1996, ordering its federal
representatives to push for an amendment and requiring that the states’ election ballots
print the candidates’ views on term limits. When the state Supreme Court found that
unconstitutional, Coloradans went a step further and ratified another amendment in 1998,
this one requesting (but not requiring) that candidates declare their position on term limits
74
Term limits are an admittedly marginal case for rights based amendments. Several states stick their term
limits provisions in their Declarations/Bills of Rights—a common enough tactic so not dispositive in and of
itself—but I think it also has bearing insofar as a plausible case could be made that term limits are a means
for state citizens to control federal constitutional meaning.
75
John David Rasuch, Jr,. “The Politics of Term Limitations”, in Constitutional Politics in the States, ed.
G. Alan Tarr (Westport: Greenwood Press, 1996), 98-127.
76
514 U.S. 779 (1995)
and ordering the secretary of state to print such information on the ballot if the candidate
requested it.77
No constitutional amendment has passed, nor have the federalist dissenters
overturned Thornton, but the controversy over term limits nonetheless marks a point
when the states, goaded by a fairly well organized lobby group, aggressively, though
unsuccessfully, resisted federal constitutional holdings on even a relatively mundane
issue.
After 2006
The previous three elections have seen a relatively sharp increase in state
constitutional amendments resisting federal developments. What makes these elections
somewhat different is not the presence of aggressive state resistance but its widespread
nature: that is to say that multiple issues are being resisted nearly simultaneously.
Grutter v. Bollinger,78 the 2003 Supreme Court case which accepted the
constitutionality—at least for the time being—of affirmative action, prompted the first
wave of constitutionally resisting amendments. In 2006, the citizens of Michigan, lobbied
by Ward Connerly’s organization, sought to override the claims of the University of
Michigan, adding section 26 to their Declaration of Rights effectively blocking
affirmative action. In successive elections, two other states have passed equivalent
amendments: Nebraska (2008 1.30), Arizona (2010 2.36), while California had passed its
provision (1.31) in 1996.
77
Dale Oesterle and Richard Collins The Colorado State Constitution: A Reference Guide (Westport:
Greenwood Press, 2002), 365.
78
539 U.S. 306 (2003)
The second and most frequent, source of such constitutional pushback has been
the question of eminent domain.79 The Supreme Court’s 5-4 decision to accept claims of
economic development as a public use prompted a firestorm of reaction. Many states took
up Justice John Paul Stevens’s invitation to prevent such a decision in the future by
forbidding such reasoning- both statutorily and constitutionally, particularly in states
backed by strong property-rights interest group lobbying and marked by nonprofessionalized legislatures.80 In addition to a handful of states which already had such
provisions, Michigan (2006 10.2), New Hampshire (2006 1.12a), North Dakota (2006,
1.16) South Carolina (2007 1.13), Texas (2007 1.17), California (2008 1.19), and
Nevada (2008 1.22) amended their constitutions to forbid any Kelos within their own
borders.
Finally, the most recent election saw two issues in which states passed
amendments protesting federal legislation. The first issue concerned a proposed pro-labor
bill, the Employee Free Choice Act (dubbed “card check”), which would have eased
unionization efforts; Arizona (2010 2.37) and South Dakota (2010 6.28) each passed
amendments insisting on workers’ rights to secret ballots when deciding whether to
unionize. More significant, however, was the Patient Protection and Affordable Health
Care Act, which contains the controversial provision requiring all individuals to purchase
health insurance as part of its comprehensive effort to increase health care coverage. Two
states, Arizona (2010 27.2) and Oklahoma (2010 2.37), passed provisions denying the
79
545 U.S. 469 (2005)
Elaine B. Sharp and Donald Haider-Markel, “At the Invitation of the Court: Eminent Domain Reform in
State Legislatures in the Wake of the Kelo Decision,” Publius: The Journal of Federalism 38 (2008), 568569. Sharp and Heider-Merkel find mixed to absent evidence of a partisan influence on likelihood to
respond to Kelo, instead arguing that eminent domain, like abortion, reflects a populist axis (569-570).
80
applicability of such a provision in their state, insisting it among a citizen’s rights to
refuse to participate in the health care market.
Conclusion
If, as John Dinan argues, state constitutional conventions serve as complementary,
if not superior expositions of the meaning and the principles of American political and
constitutional thought,81 then the amendments enacted into constitutions serve a less
fleshed out but more assertive venue. In James Gardner’s theory, state constitutions
should be interpreted according to a theory of competitive federalism, fulfilling
Madison’s theory by pushing for different branches and levels to maximize liberty.82 In
the account proposed in this paper, state constitutional amendments serve a comparable
role, offering another outlet to experiment, interpret, and even resist federal constitutional
principles, competing not only with one another but with the supremacy of the federal
constitution and its usual interpreters
Although the waves amendments discussed above are the starkest examples of
state rejection of federal constitutional understandings, they are by no means the only
ones. Even independent of these waves, other states used their constitutions in more
isolated protests: West Virginia’s 1984 amendment to Article 3, section 22 of its
Constitution, guaranteeing a period of ‘voluntary contemplation, meditation, or prayer’ in
schools, or a 1998 Alabama Amendment (#622) rejecting Boerne v. Flores and insisting
on stronger accommodation for religious freedom.
81
John Dinan, The American State Constitutional Tradition. (Lawrence: University Press of Kansas, 2006),
277.
Thus, it appears that not only are federal and state constitutional development
linked—an unsurprising fact—but that states use their constitutional text not only to
ratify and comply with changes at the federal level but also to protest and resist them.
This development is neither wholly new nor simply a one-time reaction to the wrenching
process of desegregation- we can rule out the hypothesis that such resistance is an
infrequently exercised, last-ditch effort to resist major change (e.g. ‘massive resistance’
to Brown) but otherwise proves aberrational.
What makes a state more likely to resist or ratify federal understandings? A few
tentative observations can be made. First, the frequency of resisting amendments has
increased in the last fifteen years, with multiple issues being considered simultaneously.
Which way the causal arrow goes with the Court’s federalism jurisprudence (Lopez,
Morrison, etc.) is beyond the scope of the paper, but states are clearly more comfortable
bucking federal developments in recent years. Second, nearly all of the resistant
amendments in the period considered can be classified as conservative; even left-leaning
states such as California and Massachusetts appear to resist from the right, not the left.
(Alabama’s anti-Boerne amendment stands as perhaps a lone exception, though the leftright axis doesn’t work particularly well for it.) Finally, whether fulfilling the role
Tocqueville predicted, namely that political parties and organizations offer a reservoir of
moral support in bucking majority rule, or simply providing the organizational heft and
leadership to respond,83 interest group and lobbying support appears to correlate with
state resistance. Term limits, property rights, firearms, health care deregulation, hostility
82
Gardner, Interpreting State Constitutions, 223-227.
Alexis de Tocqueville, Democracy in America, ed. Harvey Mansfield and Delba Winthrop (Chicago:
University of Chicago Press, 2000), 490-492; Lee Epstein and Joseph Kobylka, The Supreme Court and
Legal Change (Chapel Hill: UNC Press, 1992), 207, 300-307.
83
to affirmative action, and even, to a lesser extent, D.C. suffrage have each received
significant aid from enduring lobby groups.
Further research will consider other equally intriguing questions: does the state’s
amendment process influence its likelihood of ratifying or resisting federal development?
Conservatism or liberalism or party allegiance, at least in relation to the dominant party at
the federal (and especially presidential) level? Regional patterns suggesting differences
in political cultures? All of these offer obvious directions for subsequent projects, both
specifically looking at amendments but also to legislation, resolutions, and other avenues.
State constitutions remain a woefully understudied element of the American
constitutional tradition. Law professors have expressed a growing interest in them in
recent decades, but historians and especially political scientists have been slower to
consider them, especially strange in light of the recent turn toward thinking about nonjudicial interpreters and expositors of constitutional meaning. This is a mistake,
particularly if the frequency of such resistance is increasing, and even more controversial
statutory and amendment initiatives will likely make state ballots in 2012 and 2014.
If, as noted above, fairly prominent political actors are increasingly counseling
defiance, non-compliance, and evasion of federal constitutional development, and states
are making frequent recourse to their own amendments as protest documents, it seems
worth knowing more about this interaction between our two tiers of federalism.
Figure 1
Number of Rights-Based Amendments
200
150
Internal
Concurrent
Ratifying
Resistant
100
50
0
1880- 1902- 1924- 1946- 1968- 19901901 1923 1945 1967 1989 2010
Figure 2
Number of Rights-Based Amendments
120
100
80
Internal
Concurrent
Ratifying
Resistant
60
40
20
0
1950-1964 1965-1979 1980-1994 1995-2010