State Constitutional Politics: Governing by Amendment in the American States 9780226532950

Citation preview

State Constitutional Politics

State Constitutional Politics Governing by Amendment in the American States

john dinan

the universit y of chicago press

chicago and london

The University of Chicago Press, Chicago 60637 The University of Chicago Press, Ltd., London © 2018 by The University of Chicago All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission, except in the case of brief quotations in critical articles and reviews. For more information, contact the University of Chicago Press, 1427 East 60th Street, Chicago, IL 60637. Published 2018 Printed in the United States of America 27 26 25 24 23 22 21 20 19 18

1 2 3 4 5

isbn-13: 978- 0-226-53278- 3 (cloth) isbn-13: 978- 0-226-53281- 3 (paper) isbn-13: 978- 0-226-53295- 0 (e-book) doi: 10.7208/chicago/9780226532950.001.0001 Library of Congress Cataloging-in-Publication Data Names: Dinan, John J., author. Title: State constitutional politics : governing by amendment in the American states / John Dinan. Description: Chicago ; London : The University of Chicago Press, 2018. | Includes bibliographical references and index. Identifiers: lccn 2017045684 | isbn 9780226532783 (cloth : alk. paper) | isbn 9780226532813 (pbk. : alk. paper) | isbn 9780226532950 (e-book) Subjects: lcsh: Constitutional amendments—United States—States. | State governments—United States. Classification: lcc kf4555.a25 d56 2017 | ddc 342.7303/2—dc23 lc record available at https://lccn.loc.gov/2017045684 This paper meets the requirements of ansi/niso z39.48-1992 (Permanence of Paper).

Contents Introduction 1 PA RT I .

Amendments

chapter 1. State Constitutional Amendment Processes and Practices 11 PA RT I I .

Institutions

chapter 2. Institutional-Authority Amendments 37 PA RT I I I .

Rights

chapter 3. Rights-Defi ning Amendments 73 chapter 4. Court-Responsive Amendments PA RT I V.

109

Policies

chapter 5. Policy- Constraining Amendments 153 chapter 6. Policy-Authorizing Amendments 187 chapter 7. Policy-Enacting Amendments 235 PA RT V.

Evaluation

chapter 8. Consequences of Relying on Amendments as Instruments of Governance 265 Notes

281

Index

381

Introduction The meaning and development of the national constitution is best traced through the many authoritative decisions made by the national supreme court in interpreting the constitution; but by contrast the interpretations given by state supreme courts of their respective constitutions are of far less permanent importance, since the real history of the constitutional development of the states can best be traced decade by decade in the many amendments and revisions made so as to satisfy popular demands for reforms in existing systems.  .  .  . One might almost say that the romance, the poetry and even the drama of American politics are deeply embedded in the many state constitutions. . . . For in them are recorded the growth in the notion of rights, irrespective of race, sex or economic status; the rise of manhood suffrage, its extension to women and modern reactions against the principle of unrestricted voting; and the developing emphasis on morals in provisions about dueling, lotteries, divorce, polygamy and the prohibition of the manufacture and sale of liquor. One may cynically note the earlier belief that legislators were men of “wisdom and virtue,” followed by a conviction expressed in most constitutions that they are likely to be corrupt and incompetent and regularly prone to bribery. . . . Such and similar changes may be traced in the state constitutions, which unquestionably will in later years be considered as exponents of the conditions and demands of their times, and as among the most valued records of social, political, and constitutional history. — James Q. Dealey, Growth of American State Constitutions from 1776 to the End of the Year 1914

M

y purpose in this book is to show that American state constitutions are more easily and frequently amended than the US Constitution and that, as a consequence, state constitutional amendments have been a regular means of altering institutions, rights, and policies in a way that might be deemed in key respects preferable to the approach at the federal level, where these changes are invariably achieved through legislation or litigation. Due to the rigidity of the US Constitution’s Article V amendment process and a reluctance to use the process, federal amendments play only a modest role in bringing about changes in governing authority.

2

Introduction

Federal amendments have occasionally adjusted the design of governing institutions by instituting direct election of senators and presidential term limits. The Bill of Rights and post– Civil War amendments were responsible for expanding protection of individual rights in notable ways. At times, federal amendments have authorized or enacted policies, as with an individual income tax and Prohibition. For the most part, though, groups seeking changes in institutions, rights, and policies do not focus on amending the US Constitution.1 Rather, they work through the political process, by securing the election of sympathetic presidents and members of Congress and pressing for passage of statutes and issuance of administrative rules. 2 They also proceed through the judicial process, by securing appointment of favorably disposed Supreme Court justices and fi ling lawsuits intended to generate rulings updating conceptions of rights or legitimating or limiting expansion of federal authority. 3 Consider the ways notable changes in governing authority have been achieved at the federal level. Some changes are undertaken in an informal fashion, through adjustments in the behavior of presidents and Congress members and with little resort to amendments, legislation, or litigation,4 as with the growth of presidential power in war making. 5 Other changes are achieved via legislation,6 often with little involvement from the judiciary, as with congressional statutes supporting construction and improvement of roads, canals, and harbors in the nineteenth century.7 Sometimes, shifts in governing authority are achieved through legislation that is reviewed and sustained by the Supreme Court, 8 as with the advent of federal responsibility for old-age insurance and an enhanced federal role for protecting civil rights in the twentieth century.9 In still other instances, the Supreme Court has initiated and assumed primary responsibility for changes,10 whether desegregating public schools, banning state-sponsored prayer in schools, recognizing abortion rights, or expanding various rights of criminal defendants. None of these changes was achieved through passage of constitutional amendments.11 The situation is quite different in the fi fty states, where amendment processes are more accessible and groups and officials are more willing to resort to these processes.12 Admittedly, states vary in the flexibility of their amendment processes and their readiness to use them. Constitutions in some southern and western states are amended quite often, whereas some northeastern and midwestern constitutions are amended less often. Nevertheless, state amendment processes are in nearly all re-

Introduction

3

spects more accessible and are in every state relied on more frequently than the federal amendment process. One of my purposes in this book is to show that state amendment processes are flexible enough to permit citizens, groups, and officials to pursue changes in governing authority on a regular basis by enacting amendments. In chapter 1, I trace the evolution and use of state amendment processes. I show that the regular passage of amendments, whether generated by legislatures, citizens, conventions, or commissions (with the fi rst two mechanisms responsible for nearly all amendments in recent years), can be attributed to the flexibility of state amendment rules as well as a constitutional culture that tolerates and even encourages frequent amending. My second goal is to show that the willingness to enact amendments has produced a distinctive form of constitutional politics in the states. To be sure, changes in state governing authority are often achieved through political and judicial processes, as at the federal level. Groups dissatisfied with the performance of governing institutions work through state electoral processes to elect a fresh set of representatives. Groups and movements seeking to bring about new understandings of rights take their case to state court and with occasional success. Groups and individuals striving for policy changes lobby state legislators and governors and persuade them to enact desired policies. However, the accessibility of state amendment processes offers an alternative means of pursuing these changes. With the aim of setting out the distinctive form that constitutional politics takes in the states, I categorize and catalog the ways amendments have served as instruments of governance throughout American history. I identify the leading occasions when citizens, groups, and officials relied on amendments to change institutions, rights, and policies, and I explain why they proceeded through the amendment process rather than other mechanisms. Focusing fi rst on amendments that alter governing institutions, chapter 2 analyzes institutional- authority amendments that transfer authority among governing institutions. On various occasions, amendments have shifted the balance of power among institutions and officials, often by transferring authority from legislators to other officials, whether by instituting municipal home rule, establishing regulatory commissions and administrative agencies, creating executive-budget systems, or vesting control of redistricting in commissions.

4

Introduction

Turning next to amendments that adjust understandings of rights, I distinguish between two types of rights-regarding amendments. Chapter 3 analyzes rights- defi ning amendments that update understandings of rights in advance of or independently of court decisions, whether regarding religious liberty, equal protection, privacy, victims’ rights, property rights, or the right to bear arms, among other rights. Chapter 4 analyzes court-responsive amendments enacted in reaction to state court decisions. On various occasions when state courts have issued rulings requiring stricter separation of church and state, expanding rights of criminal defendants, limiting use of the death penalty, or recognizing abortion rights, the flexibility of state amendment processes offered groups and officials who were dissatisfied with these rulings a path to overturning them or limiting their effect. Turning to the prominent and varied role of amendments regarding public policy, I analyze three types of policy-related amendments. Chapter 5 focuses on policy- constraining amendments that limit legislators’ power to operate lotteries, charter corporations, borrow money, levy taxes, and perform various other functions. Chapter 6 explores policyauthorizing amendments that overcome constitutional constraints and permit passage of worker-protection measures, social welfare programs, income taxes, and legalization of various forms of gambling. Chapter 7 analyzes policy- enacting amendments that initiate policies unattainable or insecure in the political process, whether by prohibiting the sale of alcohol, adopting right-to-work policies, protecting animals, or regulating campaign fi nance, among other policies. After chronicling the various changes achieved through passage of amendments, I turn to my third and fi nal goal in the book: assessing the consequences of relying on amendments to bring about changes in governing authority. Drawing on the record of state amendments regarding rights, policies, and institutions, Chapter 8 takes stock of the advantages and disadvantages of undertaking change via amendment processes (a regular practice in the states) rather than judicial and political processes (the dominant practice at the federal level), with the aim of providing guidance to constitution makers about the merits of these competing approaches. Reasonable persons can differ on how to assess the balance of these advantages and disadvantages, particularly regarding the distinctive outcomes secured through these mechanisms. Compared with litigation or legislation, amendments provide heightened protection for certain rights and attenuated protection for other rights, while express-

Introduction

5

ing a different understanding of how to protect still other rights. Similar conclusions can be advanced and debates engaged regarding the distinctive policies produced through amendments compared with other mechanisms. But in considering the form that constitutional politics takes in the states, and particularly the greater stability and perceived legitimacy for changes achieved through amendments compared with legislation or litigation, reliance on amendments has much in its favor and might be considered superior in key respects to the approach followed at the federal level. This analysis might contribute, on one level, to debates among comparative constitutional scholars, by compiling a record of state constitutional amendments regarding rights, policies, and institutions, and thereby allowing conclusions to be drawn about the consequences of undertaking constitutional change via amendments. Recent years have seen a surge of scholarly interest in assessing the consequences of undertaking constitutional change through amendments or via other means.13 In studying the merits of competing institutional approaches, scholars have relied heavily on the experience with the US Constitution.14 Other scholars have drawn conclusions from other political systems around the world.15 In offering these evaluations, some scholars have taken note of the contrasting approaches at the state and federal level within the United States, but without undertaking a full comparison of the consequences of these approaches.16 In fact, in noting the lack of investigations along these lines, some scholars have recognized an opportunity for studies of state constitutionalism to contribute to an assessment of competing approaches to constitutional change and encouraged such analyses to be conducted.17 Mark A. Graber has written that “state constitutionalism provides a potential laboratory for testing the vices and virtues of frequent constitutional alterations,” given that “most states have had multiple constitutions” and “have generated far more constitutional amendments than the Constitution of the United States.”18 The principal benefit of this book is to take advantage of this opportunity and further our knowledge of the consequences of undertaking changes in governance via constitutional amendments. There are, to be sure, differences between national and subnational constitutions generally,19 and between the US Constitution and state constitutions in particular (for instance, the enumerated powers of the federal government versus the plenary power of state governments). Admittedly, these dif-

6

Introduction

ferences present challenges in drawing lessons from the American states that might be applicable to other political systems. Nevertheless, and allowing for differences in functions served by state and federal constitutions, there is much to be gained from studying the approach to constitutional change in the American states. Because the states have gone further than any other subnational or national polities around the world in relying on constitutional amendments as instruments of governance, they can yield particularly helpful conclusions about the consequences. This analysis not only contributes to studies of comparative constitutionalism but can also shape the growing literature on state constitutions, by directing attention away from a predominant concern with state court decisions and toward a greater focus on state constitutional amendments. At one time, as is evident from this chapter’s epigraph from James Q. Dealey’s century- old study, scholars of state constitutions devoted much attention to analyzing constitutional amendments. 20 However, for the last four decades, particularly after US Supreme Court Justice William Brennan’s influential 1977 Harvard Law Review article “State Constitutions and the Protection of Individual Rights,” scholars have concentrated on state court decisions, understandably so in light of notable state court interpretations of state constitutional provisions. One benefit of this book is to highlight the importance of state constitutional amendments, alongside of state court decisions, for state constitutional development, with the aim of generating more sustained attention to this feature of state constitutionalism. 21 This analysis might contribute, fi nally, to our understanding of state governance, by demonstrating the recurring ways that amendments shape state governance and politics and thereby yielding insight for scholars of state politics as well as state officials. 22 Consider various amendments enacted in just the last several years that constrain state officials in the taxes they can levy and the ways they can spend money. Recent amendments have capped the rate of certain taxes, barred imposition of some taxes altogether, granted exemptions from various taxes, required all revenue generated from certain taxes to be used for designated purposes, and in some cases stipulated that a portion of the state budget be dedicated to particular programs. Other recent amendments have achieved outcomes viewed as unattainable or insecure in the legislature, by boosting the minimum wage and legalizing marijuana. Consider as well amendments passed in recent years that have secured outcomes in advance of, and at times contrary to, state court decisions, by

Introduction

7

strengthening right-to-bear-arms protections, limiting use of the eminent domain power, and insulating the death penalty from state court invalidation. In these and other instances, debates about and passage of amendments have placed state constitutions at the forefront of state politics. In writing this book, I continue an investigation into state constitutions that resulted in a prior book, The American State Constitutional Tradition. In that book, I examined the debates and proceedings in the more than 230 state constitutional conventions held since 1776, with the aim of showing that participants in these conventions frequently reconsidered and challenged principles and institutions that emerged from the federal constitutional convention. Whether regarding separation of powers, bicameralism, representation, or the governmental role in forming citizen character, among other topics, delegates to state conventions engaged in spirited debate about the suitability of federal principles and institutional devices, occasionally displacing them and in other cases modifying them at the state level. Among other purposes, I sought in this earlier book to draw attention to the way that debates in state conventions have at times rivaled, and can at least be seen as complementing, debates in the federal convention, in their exploration of fundamental principles and institutions of governance. In the decade since the publication of that book, during which time I have assumed responsibility for writing an annual review of state constitutional developments for The Book of the States, I have increasingly turned to analyzing the prominent reliance on state constitutional amendments and the varied purposes they serve. This investigation has led to the publication of several articles, including “Court- Constraining Amendments and the State Constitutional Tradition” (Rutgers Law Journal 38 [2007]: 983–1039), from which I have drawn in portions of chapters 4 and 6. In carrying out this project on state constitutional politics, I benefited from the support of a number of persons, institutions, and resources. A Reynolds Leave from Wake Forest University gave me time to complete the research and writing. I received valuable feedback on several presentations, including lectures delivered at the Program on Constitutionalism and Democracy at the University of Virginia due to invitations from James Ceaser and a lecture at the Rutgers Law School– Camden courtesy of an invitation from Robert Williams. I also benefited from the

8

Introduction

opportunity to make presentations or participate in conferences on state constitutionalism at the Oklahoma City University School of Law, Penn State Law School, Wayne State University Law School, and University of Arkansas School of Law. My research was greatly facilitated by the online archive of the text of state constitutions and amendments assembled by the NBER/University of Maryland State Constitutions Project led by John Wallis, as well as books that trace the origin and development of state constitutions as part of the fi fty-volume State Constitutions of the United States series edited by Alan Tarr. I am indebted to these and other scholars whose work on state constitutions I have drawn on in writing this book.

part i Amendments

Chapter One

State Constitutional Amendment Processes and Practices

T

o explain why state constitutional amendments play a prominent role in state politics and governance, I fi rst turn to the design of state amendment processes. These processes have not always been as flexible as they are in the twenty-fi rst century; they only gradually became more flexible over time. Nor are the amendment processes equally accessible in all states. Yet they are in nearly all respects more accessible than the federal process. Due in part to the accessibility of state amendment processes, along with a willingness of citizens and public officials to make use of them, state constitutions are amended frequently. States vary in how frequently their constitutions are amended. Some state constitutions are amended once every few years, whereas in other states amendments are adopted several times each year. But every state constitution is amended more frequently than the US Constitution.

State Constitutional Amendment Processes In contrast with the US Constitution, which can only be amended by a two-thirds vote in Congress or a convention called after a petition from two-thirds of the states, followed by ratification in three-fourths of the states, the fi fty state constitutions can be amended in ways that render them more flexible. Every state constitution allows the legislature to generate amendments. It is also understood in every state that the legislature can call a convention with the power to undertake a wholesale con-

12

Chapter One

stitutional revision or submit amendments in piecemeal fashion to voters for ratification. Conventions can also be called in fourteen states through referenda that appear on the ballot automatically at regular intervals. Eighteen states provide for citizen-initiated amendments in which voters place amendments on the ballot and approve them, generally without a role for the legislature. In a number of states, commissions have been established with the power to recommend amendments for the consideration of legislators or conventions; in one state, commissions can even submit amendments directly to voters for ratification. Legislature- Generated Amendments Although all states currently allow legislatures to generate amendments, this device only took its current form after wide-ranging experimentation in the late 1700s and early 1800s. Even today, rules for enacting legislature-generated amendments vary significantly, with some states setting low barriers to legislative approval and voter ratification and other states setting somewhat higher thresholds. The inaugural Delaware and Maryland constitutions, drafted by conventions held in the summer and fall of 1776, midway through an initial wave of constitution making in 1776– 77, were the fi rst state constitutions to make explicit provision for legislature-generated amendments.1 Constitutions framed earlier in 1776 either failed to make explicit provision for amendments, as in New Hampshire, South Carolina, Virginia, and New Jersey, or permitted a council of censors to recommend amendments for approval by a convention, as in Pennsylvania. 2 Delaware’s constitution, adopted in September 1776, was the fi rst to set out an explicit process for legislature-generated amendments. Delaware relied on a supermajority vote requirement to distinguish between the process for amending the constitution and the process for passing a statute, by providing that amendments could be adopted with the support of five-sevenths of the members of the lower house and seven of the nine members of the upper house. 3 The Maryland constitution that took effect two months later followed a different approach. The legislature had to approve an amendment and publish it at least three months prior to an election; then the newly elected legislature had to approve the amendment a second time before it could take effect.4 In designing amendment procedures over the next several decades, state constitution makers generally combined these two states’ approaches, by requiring amendments

State Constitutional Amendment Processes and Practices

13

to be approved by a legislative supermajority in two sessions separated by an intervening election. 5 Connecticut’s 1818 constitution was the fi rst constitution to require legislature- crafted amendments to be submitted for voter ratification.6 In earlier years, constitution makers had sought to gauge public support for amendments in an indirect fashion. By requiring the legislature to approve amendments both before and after an intervening election, voters could register their displeasure and prevent fi nal passage of an amendment by unseating legislators in the election. Constitution makers in Connecticut sought to obtain a more direct expression of public support. In what could be called a belt-and-suspenders approach, Connecticut’s constitution required legislative approval by a majority of the lower house in one session, then reapproval, after an intervening election, by a two-thirds majority of both houses, followed by ratification by a majority of voters.7 Drafters of Maine’s 1820 constitution dispensed with the indirect test of popular support in an intervening election. They simply provided for legislative approval of amendments by a two-thirds majority in both houses, followed by ratification by a majority of voters.8 In designing legislature-generated amendment processes during the nineteenth century, framers of state constitutions generally followed Connecticut’s approach, especially prior to the 1850s, or Maine’s approach, especially after the 1850s.9 Most states drafting or revising constitutions during the remainder of the nineteenth century required amendments to be approved by the legislature—generally by a supermajority vote and usually in consecutive sessions but occasionally in a single session—and ratified by voters. In all fi fty states the legislature can craft amendments; but states maintain a range of requirements for legislative approval, as shown in table 1.1 where states are arrayed according to the flexibility of their current legislative-approval rules.10 In terms of rules for ratifying legislature-generated amendments, most states currently require that amendments be ratified by a majority of votes cast on the amendment, with nine states deviating from this norm in some fashion.11 Delaware is unique in not requiring voter ratification of amendments. Eight states, however, require ratification by more than a simple majority of votes on the amendment. Hawaii, Minnesota, Tennessee, and Wyoming require amendments to obtain support of a majority of voters participating in the election (or, in the case of Tennessee, casting ballots for governor). Voters casting ballots for other

Table 1.1 Legislative- approval requirements for legislature- generated amendments Two-thirds legislative approval in at least one house and approval in two sessions (4 states)* Delaware Tennessee South Carolina Vermont Two-thirds legislative approval in one session (16 states) Alaska California Colorado Georgia Idaho Kansas Louisiana Maine

Michigan Mississippi Montana Texas Utah Washington West Virginia Wyoming

Three-fi fths legislative approval in one session (9 states) Alabama Florida Illinois Kentucky Maryland

Nebraska New Hampshire North Carolina Ohio

Majority legislative approval in two sessions (11 states) Connecticut** Hawaii** Indiana Iowa Massachusetts Nevada

New Jersey** New York Pennsylvania** Virginia Wisconsin

Majority legislative approval in one session (10 states) Arizona Arkansas Minnesota Missouri New Mexico

North Dakota Oklahoma Oregon Rhode Island South Dakota

*Delaware requires a two-thirds vote of both houses in each of two sessions. South Carolina requires twothirds support in both houses on fi rst passage and a majority in both houses on second passage. Tennessee requires a majority in both houses on fi rst passage and two-thirds support in both houses on second passage. Vermont requires two-thirds support in the senate and majority support in the house on fi rst passage and majority support in both houses on second passage. **Connecticut allows approval of amendments by a bare majority in two sessions or by a three-fourths majority in a single session; Hawaii and Pennsylvania (in the case of emergency amendments only) allow amendments by a bare majority in two sessions or a two-thirds majority in one session; and New Jersey allows amendments by a bare majority in two sessions or a three- fi fths majority in one session. Source: “State Constitutional Developments in 2016,” tbl. 1.2, Book of the States 2017 (Lexington, KY: Council of State Governments, 2017).

State Constitutional Amendment Processes and Practices

15

offices but not voting on the amendment question essentially count as no votes in these states. Illinois requires amendments to be ratified either by a majority of voters in the election or by three-fi fths of votes cast on the amendment. In Colorado, most amendments must be approved by 55 percent of votes cast on the amendment12 and in Florida by 60 percent of votes cast on the amendment.13 New Hampshire sets the highest bar: amendments must be ratified by two-thirds of persons voting on the amendment. States have generally eased their voter-ratification rules over time,14 particularly by replacing majority-in-the- election rules once in place in a number of states with the now relatively standard majority- on-theamendment rule;15 however, some states have moved in the other direction by increasing ratification thresholds,16 especially in the twenty-fi rst century. Supermajority requirements in place in Colorado and Florida are the product of recent changes that were motivated largely by a desire to increase the difficulty of approving citizen-initiated amendments, but they were applied to ratification of legislature-generated amendments as well.17 In the contemporary era, legislature-generated amendment processes are in nearly all respects at least as accessible as the federal amendment process and generally a good deal more so. No states require that amendments obtain more than a two-thirds legislative vote.18 In thirty states amendments can be approved by less than a two-thirds legislative vote. Although it is difficult to compare the federal ratification rule requiring support of three-fourths of the states with state ratification rules regarding voter approval, only eight states require more than a simple popular majority, and none requires more than a two-thirds popular vote. The main way that some state amendment processes could be considered more rigid than the federal process is the requirement that amendments be approved in two legislative sessions separated by an intervening election.19 In most states an amendment can be approved by the legislature in a single session and ratified shortly afterward, as is possible at the federal level. This has sometimes been accomplished in quick fashion, most recently with the Twenty- Sixth Amendment lowering the voting age to eighteen. However, this is not an option in eleven states that require amendments to be approved by the legislature in two sessions and do not provide an alternative means by which the legislature can approve amendments in a single session. In these states, approval of an amendment takes at least a year and usually longer. 20

16

Chapter One

Several states impose limitations with no counterpart at the federal level. Vermont allows consideration of amendments only once every four years, which actually represents a loosening of a rule in effect until 1974 limiting consideration of amendments to once every ten years. Arkansas, Kentucky, Kansas, Illinois, and Colorado limit the number or type of amendments that can be placed on the ballot in a given year. 21 Citizen- Initiated Amendments Eighteen states permit citizens to initiate constitutional amendments. Oregon was the fi rst state to do so, when voters in 1902 approved a legislature-referred amendment establishing a constitutional initiative process along with a statutory initiative and referendum process. By that time, South Dakota and Utah already permitted citizen-initiated statutes; but Oregon was the fi rst state to allow citizen-initiated amendments. As part of a broad push to adopt direct democratic institutions in the Progressive Era, thirteen states maintained a constitutional initiative process by 1920: Oregon (1902), Oklahoma (1907), Michigan (1908), Missouri (1908), Arkansas (1910), California (1911), Arizona (1912), Colorado (1912), Nebraska (1912), Nevada (1912), Ohio (1912), North Dakota (1914), and Massachusetts (1918). 22 Mississippi also adopted the constitutional initiative process during this period, in 1914, only to see the procedure invalidated by the state supreme court before it could be used. 23 It took another seven decades for Mississippi to reinstate this process. 24 Another burst of constitution making in the late 1960s and early 1970s led to four more states adopting the constitutional initiative process, followed in the early 1990s by Mississippi’s reinstatement of the process. One difference between the earlier and later wave of adoptions is that every state adopting the constitutional initiative in the 1900s and 1910s also adopted the statutory initiative, but three states in the late 1960s and afterward adopted the constitutional initiative without adopting the statutory initiative. Florida (1968), Illinois (1971), and Mississippi (1992) adopted the constitutional initiative process but did not provide for a statutory initiative process. 25 Meanwhile, Montana (1972) and South Dakota (1972) adopted constitutional initiative processes, to go along with their long-standing statutory initiative processes. 26 The eighteen states currently permitting citizen-initiated amendments, listed in table 1.2, maintain a range of rules for placing amend-

State Constitutional Amendment Processes and Practices

17

Table 1.2 States that allow citizen- initiated amendments Arizona Arkansas California Colorado Florida Illinois Massachusetts Michigan Mississippi

Missouri Montana Nebraska Nevada North Dakota Ohio Oklahoma Oregon South Dakota

ments on the ballot. Constructing a ranking of states on this dimension is difficult, due to the different methods of calculating how many signatures must be collected in support of an initiative.27 Some states require initiative-backers to obtain support from a percentage of the population 28 or a percentage of registered voters. 29 Most states base these signature requirements on votes cast in the most recent election, whether for president, 30 secretary of state, 31 or governor. Focusing on states that base their requirements on votes cast for governor (the most common denominator) reveals broad differences in the accessibility of state processes. At one end of the spectrum, Massachusetts requires signatures equal to 3 percent of votes cast for governor in the most recent election. Four states maintain an 8 percent rule. 32 Five states adhere to a 10 percent rule. 33 Mississippi, with a 12 percent rule, and Arizona and Oklahoma, with 15 percent rules, set the most stringent requirements. Meanwhile, ten states require signature-gatherers to satisfy geographic- distribution requirements, where signatures must be gathered from a range of counties or legislative districts in the state. 34 These geographic- distribution rules have been the subject of federal legal challenges but continue to be enforced. 35 In sixteen of the constitutional initiative states, amendments satisfying the signature requirement are placed directly on the ballot; but in another two states the legislature can block the amendment (in Massachusetts) or craft an amended or alternative measure (in Massachusetts and Mississippi). 36 Massachusetts requires initiated amendments to be approved by one-fourth of legislators (meeting in joint session) in two sessions, separated by an election, before they can be submitted for voter ratification. The Massachusetts legislature also has the option to craft a substitute amendment to be placed on the ballot alongside the original

18

Chapter One

measure or, by a three-fourths vote, to amend the original measure before it appears on the ballot. 37 In Mississippi, the legislature cannot prevent a citizen-initiated amendment from appearing on the ballot, but it can place an amended or alternative measure on the ballot alongside the citizen-initiated amendment. 38 Although citizen-initiated amendments are generally subject to the same voter-ratification rules that apply to legislature-referred amendments, several states require initiated amendments to meet a higher bar. 39 In most states, initiated amendments need only obtain the support of a majority of votes cast on the measure. But several states that require more than a simple majority of voters to approve legislaturereferred amendments apply these higher thresholds to citizen-initiated amendments, as in Illinois, Nebraska, Florida, and Colorado.40 Several other states impose slightly higher ratification requirements for citizeninitiated amendments than for legislature-referred amendments, as in Massachusetts and Mississippi.41 In one of the more innovative ways of treating citizen-initiated amendments differently than legislaturereferred amendments, Nevada requires citizen-initiated amendments to be ratified by voters in two successive general elections.42 Mention should also be made of several limits on the subject matter of citizen-initiated amendments.43 One approach, followed by Illinois, is to identify a limited set of constitutional provisions that can be addressed through citizen-initiated amendments.44 Another approach is to designate certain subjects generally off limits to citizen-initiated amendments, as in Mississippi, Massachusetts, Missouri, Arizona, and Ohio.45 Although the trend for much of the twentieth century was to make constitutional initiative processes more accessible (such as by reducing signature requirements), in the twenty-fi rst century the changes made in these processes have generally rendered them less accessible.46 Several states have recently instituted or tightened geographic- distribution requirements or set earlier deadlines for collecting signatures, in ways that make it more difficult to qualify amendments for the ballot.47 Additional limits on the subject matter of citizen-initiated amendments have also been adopted in recent years.48 These changes have in some cases been motivated by general concerns about the initiative process and with an eye to limiting both constitutional and statutory initiatives. However, in other states, especially Colorado, efforts to tighten the rules for citizeninitiated amendments are intended to increase the incentive for groups

State Constitutional Amendment Processes and Practices

19

to proceed through the statutory initiative process rather than the constitutional initiative process.49 Convention- Generated Amendments Conventions have drafted inaugural state constitutions and undertaken wholesale constitutional revisions; they have also been a vehicle for amending constitutions. The practice of relying on conventions to draft constitutions emerged out of a process of wide-ranging experimentation in the 1770s. 50 Three of the conventions that drafted inaugural state constitutions in 1776, in South Carolina, Virginia, and New Jersey, were provincial congresses whose members were not elected for the express purpose of constitution making but nevertheless drafted and proclaimed constitutions. The remaining conventions in 1776 and 1777 were composed of delegates elected for the purpose of constitution writing, but, as was the practice with other early conventions, they adopted a constitution without submitting it to voters. Then, in 1778 and 1779, New Hampshire and Massachusetts took the next step of holding conventions whose delegates were elected for the express purpose of constitution writing and who submitted their work for popular ratification (or in some cases rejection). 51 This approach pioneered by New Hampshire and Massachusetts gradually became the norm, even if some state conventions as late as the late nineteenth and early twentieth century, especially in the South, opted against submitting their work to voters. 52 In drafting constitutions in the late eighteenth century, convention delegates had occasion to consider the role of future conventions in revising and amending state constitutions. Pennsylvania’s 1776 constitution was the fi rst to make explicit provision for future conventions, albeit in an unusual fashion that did not take hold elsewhere except in Vermont, whose 1777 constitution was modeled on the Pennsylvania constitution in many respects. 53 The inaugural Pennsylvania and Vermont constitutions called for the election every seven years of a council of censors with the power to review the constitution and, by a two-thirds vote, call a convention to consider amendments recommended by the council. 54 After a council in Pennsylvania met once and failed to call a convention, the institution was discontinued when a new Pennsylvania constitution was framed in 1790. 55 A council of censors had a more enduring role and influence in Vermont, meeting thirteen times before the device was elim-

20

Chapter One

inated in 1870. On ten of these occasions, the council recommended amendments that were considered by conventions and led in several instances to notable changes in the Vermont constitution. 56 Georgia’s 1777 constitution was the only other constitution in the initial 1776– 77 wave to make explicit mention of a convention for achieving future constitutional changes. But the procedure set out in Georgia’s constitution, while somewhat closer in spirit to certain convention procedures that became prevalent in later centuries, was no more influential during this period than the Pennsylvania model. Georgia directed the legislature to call a convention upon receipt of petitions supporting a convention from a majority of counties signed by a majority of voters in each county. 57 No other state adopted this particular model of county-initiated conventions, although four states in the twentieth century would eventually make provision for citizen-initiated conventions. Massachusetts’s 1780 constitution and New Hampshire’s 1784 constitution were the next to make explicit provisions for future conventions; but again, the particular models adopted on these occasions did not immediately take hold in other states. Massachusetts stipulated that on a one-time basis in 1795, a referendum on calling a convention should be held and a convention called if two-thirds of voters approved. 58 New Hampshire provided that a convention should be held seven years after adoption of the constitution. 59 Neither Massachusetts’s provision for a one-time automatic convention referendum nor New Hampshire’s provision for a one-time automatic convention took hold elsewhere, although in later years states came to embrace an automatic periodic convention referendum device that was added to New Hampshire’s constitution in 1792, whereby a referendum on calling a convention is held at regular intervals.60 Credit for introducing the convention device that became widespread in the nineteenth and twentieth centuries, whereby legislatures can at their discretion submit convention referenda for voter approval, is best assigned to framers of several 1790s constitutions.61 Delaware’s 1792 constitution allowed the legislature at its discretion to submit to voters the question of calling a convention.62 Tennessee’s 1796 constitution took the additional step of requiring a legislative supermajority (a twothirds vote) to approve a convention question before it was submitted to voters.63 This basic procedure for calling a convention—legislative approval, generally by a supermajority vote, followed by voter approval— soon became a standard feature in state constitutions.64

State Constitutional Amendment Processes and Practices

21

This general understanding of how conventions are called has taken hold even in states whose constitutions fail to make explicit provision for them. Currently, nine state constitutions do not include provisions for calling conventions.65 Yet legislatures in these states have occasionally submitted convention referenda for voter approval, in the same way that legislatures called conventions in the eighteenth and nineteenth centuries prior to adoption of explicit constitutional provisions.66 Fourteen states set out an alternative path for calling a convention that does not require legislative approval: the automatic periodic convention referendum. In these states, the question of whether to hold a convention is submitted to voters automatically at periodic intervals.67 After this device was pioneered in the eighteenth century by New Hampshire in 1792,68 it was adopted in the nineteenth century by New York (1846), Michigan (1850), Maryland (1851), Ohio (1851), and Iowa (1857).69 Twentieth- century adoptions took place in Oklahoma (1907), Missouri (1920), Hawaii (1959), Alaska (1959), Connecticut (1965), Illinois (1971), Montana (1972), and Rhode Island (1973).70 Eight of the fourteen states currently providing for automatic periodic convention referenda mandate a twenty-year interval between submissions, in keeping with Thomas Jefferson’s support for generational constitutional revision and based on his calculation that each generation lasts between nineteen and twenty years.71 Other states provide for intervals of sixteen years (in one state) or ten years (in five states).72 Four states provide yet another legislature-bypassing mechanism for calling a convention, via the initiative process. This device traces its origins, at least in spirit, to the defunct provision in Georgia’s 1777 constitution calling for a convention when a majority of counties submitted petitions signed by a majority of county voters. Although no conventions have been called through the initiative process, Florida, Montana, North Dakota, and South Dakota set out a process for citizens to place a convention question on the ballot, generally following the same procedures for a citizen-initiated amendment.73 Regarding limits on constitutional conventions and the changes they can recommend, scholars and litigants have engaged in extensive debate about whether legislatures can limit the work of conventions, but little guidance is found in the text of state constitutions, which are mostly silent on the question.74 The few state constitutions that address the matter in an explicit fashion offer a mixed verdict on the legitimacy of limited conventions. Alaska’s constitution declares that no limits can be

22

Chapter One

imposed on the subject matter of conventions.75 In contrast, the Kansas, North Carolina, Tennessee, and Virginia constitutions make clear that the legislature can limit the range of topics a convention can address.76 Commission- Generated Amendments Commissions have played various roles in amending state constitutions, generally by recommending changes for consideration of legislators (advisory commissions), occasionally conducting studies to guide conventions (preparatory commissions), and in one state submitting amendments directly to voters for ratification (an automatic periodic commission).77 Most commissions are advisory commissions established by legislatures for the purpose of proposing amendments or wholesale revisions that are then forwarded to the legislature for possible submission to voters. Advisory commissions originated in the 1850s, when the New Jersey legislature established a commission in 1852 and then another commission in 1854 and charged commission members with determining whether the constitution should be amended to provide for an elected judiciary.78 Although no other constitutional commissions were established for another two decades, legislatures established advisory commissions in the 1870s in New Jersey, New York, Michigan, and Maine.79 By the twentieth century, legislatures were establishing advisory commissions on a routine basis, 80 not only for the purpose of recommending amendments, 81 but also sometimes writing new constitutions.82 At various times, legislatures or governors have established preparatory commissions charged with undertaking research or making recommendations to assist voters in anticipation of a mandatory convention referendum or to guide delegates as they prepare for a convention. For the most part, these preparatory commissions are created at the discretion of the legislature or governor.83 But Rhode Island’s constitution mandates that a preparatory commission be established prior to the state’s decennial convention referendum to provide guidance to voters on the convention question.84 Although advisory and preparatory commissions are only permitted to make recommendations for the benefit of legislatures or conventions, Florida’s constitution authorizes commissions to submit amendments directly to voters. The 1968 Florida constitution pioneered the concept of an automatic periodic commission that is established every

State Constitutional Amendment Processes and Practices

23

twenty years.85 The members of Florida’s Constitution Revision Commission can submit constitutional amendments for voter ratification and have done so on several notable occasions.86 A 1988 amendment to Florida’s constitution created a second automatic periodic commission, the Taxation and Budget Reform Commission, that is also established every twenty years (the two commissions are now staggered so that one of them is held every ten years).87 Among other tasks, members of this second commission are empowered, upon a two-thirds vote, to submit for voter approval constitutional amendments dealing with taxation and budget matters. These are the only commissions in the country that can place constitutional amendments directly on the ballot.88

State Constitutional Amendment Practices The flexibility of state amendment processes, combined with officials’ and voters’ willingness to make use of them, has led to state constitutions being amended more frequently than the US Constitution. Since taking effect in 1789, the US Constitution has been amended twentyseven times, for a rate of 0.12 amendments per year. This actually overstates the frequency of change, because the fi rst ten amendments were adopted in 1791. The US Constitution has been amended only seventeen times since then, for a post-1791 rate of 0.07 amendments per year. By contrast, states have drafted 144 constitutions since 1776, an average of almost three per state.89 The current state constitutions range widely in their date of origin. Massachusetts’s 1780 constitution is the oldest continuously operating state constitution (and also the oldest in the world). Other long- enduring constitutions include New Hampshire’s 1784 constitution and Vermont’s 1793 constitution. Georgia’s 1983 constitution and Rhode Island’s 1986 constitution are the newest state constitutions. As of the start of 2017, the current state constitutions have been amended 7,586 times, an average of just over 150 amendments per state.90 Taking account of the dates of enactment of the current constitutions, it is possible to calculate an annual amendment rate for each state as well as an annual amendment rate for all the states together.91 The amendment rate for the fi fty states taken together (1.3 amendments per year) is more than ten times the federal amendment rate and nearly twenty times the post-1791 federal amendment rate.92

24

Chapter One

Variation among States Although states have framed an average of three constitutions and amended their current constitutions on average just over 150 times, this masks a good deal of variation. Nineteen states have been governed by the same constitution since statehood. On the other hand, six states, all in the South, have operated under at least six constitutions—Alabama (six), Florida (six), Virginia (six), South Carolina (seven), Georgia (ten), and Louisiana (eleven)—due in part to the replacement of southern constitutions at the start of the Civil War and during various phases of Reconstruction.93 States vary even more dramatically in the number and frequency of amendments to their current constitutions, as shown in table 1.3. The wide variation in state amendment rates has given rise to periodic efforts to explain why some state constitutions are amended regularly and others are amended less often.94 Scholars disagree about the role and weight of some factors. However, several explanations have figured prominently in the literature and are supported in one or more recent studies. Some state constitutions are amended frequently because of an unusual practice permitted in several states, and still prevalent in Alabama, whereby amendments can make changes applicable to a single county. These local amendments are often considered and approved only by residents of the affected county but are nevertheless added to the state constitution. In fact, for many years local amendments made up a considerable portion of amendments to several southern state constitutions, as in Alabama, Georgia, and South Carolina.95 Although discontinued in other states, local amendments are still permitted in Alabama and go a long way toward accounting for Alabama’s highest-in-the-nation amendment rate. Alabama would still boast a high amendment rate even if local amendments were excluded and the focus were placed solely on amendments of statewide applicability. However, any explanation for some states’ exceptionally high amendment rates must take account of the reliance on local amendments, nowhere more than in Alabama. Other amendment rules can also explain some of the variation in state amendment rates; but studies have raised questions about the influence of these rules and their importance relative to other factors. Donald Lutz in a 1994 study made the strongest case for a connection between

Table 1.3 State amendment rates (amendments adopted per year as of January 1, 2017) Year current constitution took effect

Years current constitution in effect

Amendments to current constitution

Amendment rate for current constitution

Alabama Louisiana South Carolina California Texas Florida Georgia Hawaii New York Oklahoma

1901 1975 1896 1879 1876 1969 1983 1959 1895 1907

115 41 120 137 140 47 33 57 121 109

926 187 500 535 491 126 78 114 227 198

8.05 4.56 4.17 3.91 3.51 2.68 2.36 2.00 1.88 1.82

Missouri Oregon New Mexico Nebraska Maryland Arizona North Dakota Delaware Colorado Virginia

1945 1859 1912 1875 1867 1912 1889 1897 1876 1971

71 157 104 141 149 104 127 119 140 45

123 257 170 230 231 154 159 146 160 50

1.73 1.64 1.63 1.63 1.55 1.48 1.25 1.23 1.14 1.11

Ohio New Jersey Utah Mississippi Idaho South Dakota Nevada Maine Wisconsin Washington

1851 1948 1896 1890 1890 1889 1864 1820 1848 1889

165 68 120 126 126 127 152 196 168 127

175 71 120 126 126 120 138 172 147 107

1.06 1.04 1.00 1.00 1.00 0.94 0.91 0.88 0.88 0.84

North Carolina Wyoming Minnesota Arkansas Montana Pennsylvania New Hampshire Kansas Connecticut Michigan

1971 1890 1858 1874 1973 1968 1784 1861 1965 1964

45 126 158 142 43 48 232 155 51 52

37 101 121 106 32 32 145 98 31 30

0.82 0.80 0.77 0.75 0.74 0.67 0.63 0.63 0.61 0.58

State

(continued)

Chapter One

26 Table 1.3 (continued )

State Massachusetts Alaska West Virginia Rhode Island Iowa Kentucky Illinois Tennessee Indiana Vermont

Year current constitution took effect

Years current constitution in effect

Amendments to current constitution

Amendment rate for current constitution

1780 1959 1872 1986 1857 1891 1971 1870 1851 1793

236 57 144 30 159 125 45 146 165 223

120 29 72 12 54 42 15 43 48 54

0.51 0.51 0.50 0.40 0.34 0.34 0.33 0.29 0.29 0.24

Source: Effective dates of current constitutions and number of amendments are drawn from “State Constitutional Developments in 2016,” tbl. 1.1, Book of the States 2017 (Lexington, KY: Council of State Governments, 2017). This chart and all references in the book rely on the year a state constitution took effect, which occasionally differs from the year a constitution was approved by voters (some commentators refer to constitutions by the approval date rather than the effective date).

the flexibility of amendment rules and frequency of amendments. Lutz focused on two rules regarding legislature-referred amendments: (1) requiring a legislative majority versus a supermajority, and (2) requiring legislative approval in one versus two sessions. Both rules influence state amendment rates, Lutz concluded, although the effect of the former rule is straightforward, whereas the effect of the latter is more complicated. Regarding the size of the legislative-vote requirement, he concluded that the effect is just as one would expect, in that “the larger the legislative majority required for initiation . . . the lower the amendment rate.” As for the effect of a second-session requirement, he found that as long as a bare legislative majority is all that is needed, “requiring a legislature to pass a proposal twice does not significantly increase the difficulty of the amendment process”; but the amendment rate declines significantly when a state opts to “require the approval of two consecutive legislatures using a two-thirds majority each time.” 96 Other studies are more equivocal about the effect of these rules. Rosalind Dixon and Richard Holden reported mixed results in a 2012 study. They found that the “presence of a double-passage requirement” did not have “a statistically significant effect on the overall rate of amendment.”97 Meanwhile, depending on the specifications of their various models, the effect of supermajority legislative-vote requirements on

State Constitutional Amendment Processes and Practices

27

amendment rates was in some models “clearly statistically significant” but in other models was “no longer statistically significant.”98 Still other scholars have found no correlation between these particular rules and state amendment rates. After reviewing the rate of adoption of legislature-referred amendments in a sample of states, Bruce Cain and his coauthors found in a 1995 study that variation in state amendment rates cannot be attributed “to the rules that govern how the legislature places amendments onto the ballot.”99 They found that states requiring approval of amendments by a legislative supermajority did not record lower amendment rates than states permitting approval by a legislative majority; therefore, they concluded: “There is no linear relationship one way or the other.”100 John Ferejohn in a 1997 study concluded, similarly, that “states that require special majorities in their legislatures or majorities in two successive legislatures do not exhibit lower amendment rates than the others (indeed, if anything there is a weak relationship running in the opposite direction).”101 When scholars have turned away from examining the rules for legislature-referred amendments and considered whether the design of other amendment processes (such as constitutional initiatives) can explain variation in state amendment rates, they have reached similarly mixed results. Dixon and Holden found that in certain of their models, states permitting citizen-initiated amendments and maintaining a high signature-gathering threshold had a higher amendment rate than other states.102 However, Cain and his coauthors found in their sample of states that “the constitutional amendment rate cannot be traced to the availability of the initiative option.”103 Likewise, Ferejohn did not fi nd evidence that states with a constitutional initiative process boasted a higher amendment rate. He concluded, “In fact, states with initiative procedures actually exhibited slightly lower amendment rates than others.”104 In considering lessons to be drawn from these mixed scholarly conclusions, it is worth distinguishing several possible claims. If we want to know whether making amendment rules more flexible or rigid is likely to affect a state’s amendment rate, there are strong reasons for concluding that these changes do have an influence. As Alan Tarr has noted, prior studies have not always conceived of the research question in this way; that is, examining “the effect of changes in constitutional requirements for amendment on amendment rates within individual states.”105 Yet the historical record yields several cases where a state’s amendment rules were made more flexible and resulted in passage of amendments that

28

Chapter One

were previously unsuccessful.106 Conversely, several state amendment rules have recently been made more rigid, resulting in fewer amendments being approved.107 To the extent that we are interested in framing the question differently and considering whether variation in amendment rates across the fi fty states can be explained by differences among state amendment rules, the verdict is more mixed. Holding other factors constant, the rigidity of state amendment rules would seem to play some part in accounting for infrequent adoption of amendments in certain states. Scholars who have examined pairs of states have concluded that differences in amendment rules play a role in explaining different rates of amendment in these states.108 At the same time, the mixed results of statistical analyses of the influence of amendment rules in the fi fty states suggest the need to consider other explanations in place of, or at least alongside of, amendment rules.109 One alternative explanation that has been found to be consistently significant in accounting for variation in state amendment rates focuses on the length and detail of state constitutions. In some ways, of course, this raises questions concerning the direction of causality. After all, higher amendment rates can be expected to produce longer and more detailed constitutions. Nevertheless, scholars who have studied this relationship have worked to overcome this concern by measuring the length of a constitution at the time of its adoption, as a way of determining whether longer constitutions beget more amendments. The results are clear. Every major study has concluded that longer and more detailed state constitutions are amended more frequently than short and spare constitutions. “The relationship between the length of a constitution and its amendment rate is the strongest and most consistent one found in the analysis of data drawn from the American states,” Lutz wrote.110 Other scholars, while differing with Lutz about some of his other conclusions, have found strong support for this claim regarding the influence of the length of constitutions.111 In specifying why long and detailed constitutions generate frequent amendments, some scholars focus on the length of the documents, whereas others highlight the level of detail. Both factors can be seen as contributing to higher amendment rates. As Cain and his coauthors wrote, “State constitutions vary significantly in the topics that they cover and the degree of specificity devoted to each area.”112 After comparing California, which boasts the nation’s fourth-highest amendment rate,

State Constitutional Amendment Processes and Practices

29

with several other states, Cain and his coauthors concluded that “California’s constitution changes as frequently as it does because it has so much in it that invites changing.”113 A fi nal explanation for variation in amendment rates that has received increasing attention focuses on cultural attitudes toward constitutions.114 Scholars of comparative constitutionalism face similar challenges as scholars in other disciplines in measuring and operationalizing cultural attitudes. As Tom Ginsburg and James Melton have written, “Amendment culture is also a tricky concept to measure. To our knowledge, there have been no attempts to develop a cross-national measure of amendment culture. Ideally, one would have micro-level data (e.g., from a survey) on individual attitudes towards constitutional change.”115 Despite these measurement challenges and the lack of survey data that would ideally be brought to bear on this question, scholars have perceived clear differences in the views of residents of various states toward constitutions in a way that would appear to explain why some constitutions are amended more often than others.116 Scholars have taken note of various indications of enduring cultural attitudes toward constitutional change. For instance, even after some states changed their amendment rules in an effort to limit use of these processes, these states continued to adopt amendments at a high rate, presumably because residents are prone to view amendments as an appropriate means of bringing about changes in governance. As Tarr noted, although Georgia adopted a streamlined constitution in 1983 that put an end to local amendments, Georgia’s constitution continues to be amended at a higher rate than constitutions in all but six other states.117 Meanwhile, various scholars have pointed to distinctive features of Louisiana politics that account for a long-standing tendency to resort to the amendment and revision process. Alden L. Powell, writing a decade and a half after enactment of Louisiana’s 1921 constitution, concluded that “ease of amendment in Louisiana is not due to the language of the [amendment] article itself, but rather results from extraneous factors not found in the written document.  .  .  . In fact, it seems probable that the amending clause of any American state constitution . . . would not be a barrier to amendment in Louisiana at the present time.”118 A half decade after Louisiana’s current 1974 constitution took effect, Mark Carleton observed that constitutional change was still “sufficiently continuous to justify including it with Mardi Gras, football, and corruption, as one of the premier components of the state culture.”119

30

Chapter One

Acceptance of regular resort to amendments is particularly evident in southern states but is not an exclusively southern phenomenon. In explaining California’s high amendment rate, Cain and his coauthors conclude that this is in part attributable to the constitution’s scope and complexity but is also a product of popular attitudes, in that “Californians have come to expect everything but the kitchen sink to be in it.”120 Although there is more work to be done in measuring constitutional culture and weighing its influence alongside other explanations such as the design of amendment processes, it is important not to lose sight of the key point to emerge from this analysis. Every state constitution is amended more frequently than the US Constitution, and in a way that produces different forms of constitutional politics at the federal and state levels. Yet variation in amendment rates among the fi fty states makes clear that state constitutional politics takes different forms. In certain states, especially in parts of the South, Southwest, and West, constitutional amendments are a routine feature of state politics. The situation is different in other states, particularly in parts of New England, the Midwest, and the Border South, where amendments figure less prominently. Trends in State Amendment Practices State constitutional amendment practices vary not only among the fi fty states but also over time. Legislature-referred amendments have been a constant feature of state constitutional politics, albeit with an ebb and flow in the number of amendments adopted in any given biennium and with an emphasis on ebbing in the 2010s. Citizen-initiated amendments, which fi rst became an option at the start of the twentieth century, were especially prevalent in the 1910s and then again from the mid1970s through the early 2000s, but they have declined in the 2010s as part of a recent trend in lower use of direct democratic processes across the board.121 The most significant change in recent years is the dramatic decline in convention-generated amendments. In prior eras conventions figured prominently in state constitutional politics. But it has now been three decades since voters approved a convention-generated amendment.122 The decline of convention-generated amendments is especially apparent when we consider the regular reliance on conventions in earlier periods. An initial wave of conventions was called in the 1770s and 1780s to draft inaugural constitutions and in some cases revise them during a

State Constitutional Amendment Processes and Practices

31

period of experimentation with constitution making. Another wave of conventions was held in the Jacksonian Era to democratize governing institutions and extend the suffrage. The Civil War and Reconstruction led to another burst of convention activity, mainly in the South, as states held conventions to secede from the union, then rejoin the union, and then revise or repeal some provisions adopted as a condition of reentry. The Progressive Era brought another round of conventions, as state constitutions were revised to provide for direct democracy, facilitate regulation of railroads and other corporations, and protect workers. The US Supreme Court’s reapportionment decisions in the early 1960s launched another burst of convention activity from the mid-1960s through the mid-1970s, as states were forced to revise their legislative articles to comply with the Court’s one-person/one-vote requirement and were led, in the process, to change other provisions.123 All told, states held more than 230 conventions from the 1770s to the 1980s.124 From the 1980s to the present, states have held only two full-scale conventions, both triggered by automatic convention referenda. New Hampshire voters in 1982 approved an automatic convention referendum that led to a 1984 convention and resulted in voters approving six convention-generated amendments. In Rhode Island, voters approved a 1984 automatic convention referendum that triggered a 1986 convention that ultimately led to voters approving eight wide-ranging amendments understood as establishing a new Rhode Island constitution. No fullscale convention has been held since this Rhode Island convention. In Louisiana in 1992, legislators organized as a limited convention to deal with spending and taxing issues and proposed an amendment that voters defeated.125 Aside from this ill-fated episode, legislatures have not approved any convention calls from the 1980s to the present. On one level, legislatures’ reluctance to support conventions is unsurprising. Legislatures have long viewed conventions as competitors, as Albert Sturm argued, because of “the potential threat that a new or revised constitution poses to the existing power structure.”126 Prior to the 1960s, malapportioned legislatures opposed calling conventions, primarily out of a fear that convention delegates might approve a more equitable apportionment plan or propose other changes that diverged from legislators’ preferences.127 Even after US Supreme Court decisions in the 1960s required a population-based apportionment and thereby removed this source of opposition to conventions, legislatures continue to be reluctant to authorize them.

Chapter One

32

Legislatures’ continuing opposition to authorizing conventions stems from various sources. As a prior study concluded: In part, this is because constitutional reforms adopted by state conventions have tended, over time, to reduce the power of the legislature relative to other institutions. Moreover, legislators are reluctant to cede control over the political agenda to convention delegates, especially given that conventions have often provided valuable training and opportunities for the emergence of political talented individuals who might be seen as rivals to legislative leaders. Dominant-party legislators are particularly wary of allowing members of the out- of-power party to place their preferred policy issues on the political agenda and possibly secure their passage, as is possible in an unlimited convention.128

As Sturm and James B. Craig Jr. concluded, given that “legislatures are jealous of their constitutional amendment and revision prerogative” and prefer to rely on other amendment mechanisms where they can maintain more control over the proceedings, legislators are inclined to authorize conventions only under certain conditions, such as “where general public interest is relatively high, and where there is heavy pressure from powerful interest groups—conditions that commonly result only from some major emergency.”129 In prior eras, broad popular interest and influential groups’ support for constitutional reform were occasionally capable of putting enough pressure on legislators to overcome their inherent opposition to conventions and lead them to approve convention calls. Such was the case during the Jacksonian Era and Progressive Era. Additionally, although there was not a strong popular movement for constitutional reform in the 1960s, the US Supreme Court’s reapportionment decisions provided a catalyst for legislatures to approve conventions. Since the 1980s, popular movements for state constitutional reform have been largely absent, in part because public attention has increasingly focused on the federal government more so than state governments.130 On some occasions, governors have tried to mobilize popular support for a convention, as in Mississippi in the 1980s, but with limited success in building sufficient “broad-based, active public interest and support for constitutional reform to pressure the legislature into approving a convention call.”131 On a few recent occasions, grassroots move-

State Constitutional Amendment Processes and Practices

33

ments for constitutional revision have attracted strong support, most notably in Alabama in the early 2000s.132 But these are exceptional cases. On rare occasions when movements have attracted broad popular support and elevated the profi le of constitutional reform efforts, they have had to contend not only with legislators’ long-standing reluctance to support convention calls but also with opposition from powerful interest groups. Groups allied with the dominant party in the legislature have an interest in preventing a convention that might place issues on the policy agenda that have been kept off the agenda by their allies in the legislature.133 Other groups fear that gains secured in prior waves of constitution making might be put at risk in a convention.134 When convention questions have been submitted to voters during the last three decades via automatic convention referenda, they have been uniformly rejected.135 On two occasions, convention referenda secured the support of a majority of votes cast on the convention question: in Hawaii in 1996 and Maryland in 2010. But in neither instance did support for a convention amount to a majority of voters participating in the entire election, as required by voter-approval rules in both states.136 Voter rejection of automatic convention referenda since the mid1980s represents a change from prior eras. In previous years, voters were inclined, more often than not, to defeat these referenda; but they were willing in some cases to approve them. In fact, New Hampshire’s 1984 convention and Rhode Island’s 1986 convention are the twenty-fourth and twenty-fi fth conventions held in the United States as a result of voter approval of automatic convention referenda. To be sure, thirteen of these conventions have been called in New Hampshire alone. And all but two of these New Hampshire conventions were held at a time when convention-generated amendments were the only way to propose changes to that state’s constitution; legislature-referred amendments were not an option until 1964. But conventions were also called in other states via voter approval of automatic convention referenda, including three times in New York, twice in Michigan, twice in Ohio, twice in Missouri, and once in Hawaii.137 In short, voters in prior years were prepared on a number of occasions to approve automatic convention referenda. Voters’ consistent opposition to convention referenda in recent decades, in contrast with their occasional support in prior eras, can be explained in part by declining trust in governing institutions and a view that constitutional conventions are entitled to no more trust than other

34

Chapter One

institutions.138 But commentators have also noted the increasing prominence and potency of arguments that a convention would open a Pandora’s box and would not be confi ned to addressing pressing matters but rather would take up tangential issues and reopen questions and issues thought to be long settled.139 Certainly, voters’ fears of a runaway convention play a role in the rejection of recent convention referenda; but these defeats are also a product of voters’ indifference to and ignorance about state constitutions. As various scholars have noted, citizen knowledge about state constitutions and constitutional reform is severely lacking.140 “Citizen indifference to state constitutional reform makes it difficult to secure passage of mandatory convention referendums because voters who are not knowledgeable or not confident in their knowledge about ballot measures are apt to vote against them.”141 Public ignorance regarding state constitutions also renders voters susceptible to interest-group critiques of convention referenda, as seen in recent instances where convention referenda were shown in polling to be on track for success, only to be defeated after a late barrage of opposition ads.142 Regardless of the cause of the decline of conventions, whether due to legislative resistance, interest-group opposition, or voter indifference, the consequences are clear. Amendments have been adopted during the last three decades entirely through procedures other than conventiongenerated amendments.143 Legislature-referred amendments make up the vast majority of recent amendments, generally about 90 percent of all amendments in each election cycle.144 Citizen-initiated amendments in the eighteen states allowing such amendments account for around 10 percent of successful amendments.145 Automatic periodic commissions held once per decade in Florida account for the remaining amendments.146

Part II Institutions

Chapter Two

Institutional-Authority Amendments

A

mendments transferring authority among governing institutions are approved on a regular basis in states, in a use of the amendment process with little parallel at the federal level. Amendments to the US Constitution have revised the structure of governing institutions in mostly minor but occasionally significant ways: a tweak to the Electoral College via the Twelfth Amendment (1804), popular election of senators via the Seventeenth Amendment (1913), a condensed congressional and presidential lame- duck period via the Twentieth Amendment (1933), a two-term limit on presidents via the Twenty- Second Amendment (1951), and a presidential succession plan via the Twenty-Fifth Amendment (1967). Yet when it comes to shifting authority among institutions, as opposed to revising their structure, federal amendments have been scarce. The Fourteenth Amendment (1868) is the only federal amendment to play a key role, in this case a critically important role in strengthening federal authority relative to states. The dearth of federal institutional-authority amendments does not reflect stability in the balance of power among federal institutions. To the contrary. Among other developments, during the twentieth century, the president took an increased role in budgeting and assumed the predominant role in deciding whether to intervene in military confl icts. One would also have to take account of the growth of federal administrative agencies from the late nineteenth century onward. These and other shifts in governing authority have generally been achieved without needing to resort to the federal amendment process.1 Changes have come about at times through passage of congressional statutes, such as the Interstate Commerce Act of 1887, which created the fi rst of many regulatory commissions, and the Budget and Accounting

38

Chapter Two

Act of 1921, which gave the president a formal role in preparing a federal budget. Other changes have come about primarily through adjustments in behavior of federal officials, as with the growth of presidential power in foreign policy from the twentieth century onward. 2 In states, by contrast, shifts in institutional authority have frequently been achieved through passage of constitutional amendments. 3 There are, to be sure, other uses to which state amendment processes have been put in redesigning governing institutions that are not discussed in this chapter, such as changing the way offices are structured and officials selected.4 Amendments have restructured judicial selection processes, by adopting popular election of judges during the second half of the 1800s and instituting merit selection coupled with retention elections in the second half of the 1900s. 5 Amendments were approved in the mid1800s expanding the number of popularly elected executive officials and then, in the 1900s, returning to a system whereby many of these department heads are appointed.6 Amendments also established the popular initiative, referendum, and recall, particularly in the 1900s and 1910s.7 Most recently, as part of a term-limits movement in the 1990s, voters in nearly one-third of the states approved amendments limiting the number of terms legislators can serve.8 In each of these cases, amendments altered methods of fi lling or arranging offices and in ways that virtually required that changes be made in the constitutional text. I leave these changes aside for present purposes,9 focusing here on shifts in institutional authority that could have been undertaken and in some instances were achieved through the political process, but were enacted in a number of other cases via amendments.10 In this chapter I identify the major shifts in governing authority achieved through passage of state constitutional amendments, the reasons why groups and officials pressed for these changes, and the advantages they perceived in proceeding through the amendment process rather than the political or judicial process. To preview the main conclusions, institutional-authority amendments have been adopted on a range of topics from the late nineteenth century to the present. One group of amendments dating from the 1870s altered the balance of power between state and local governments, invariably by increasing the authority of cities and occasionally counties. A second set of amendments, also originating in the 1870s, established regulatory agencies, initially by creating railroad commissions and then launching commissions to regulate a number of other entities. The 1910s

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brought amendments establishing executive-budget systems that transferred some power over budgeting from the legislature to the executive. Amendments have also been adopted, especially since the 1960s, transferring responsibility for redistricting to independent commissions. These amendments have been adopted for various reasons; but a central purpose has been transferring authority from legislatures to other institutions in cases when legislators have been deemed ill suited to carry out certain functions effectively. In some cases, legislators are overburdened by certain tasks thought to be better undertaken by other officials. In other cases, legislators are deemed to be susceptible to influence from corporations or other groups and thereby incapable of acting in the public interest. In still other cases, legislators’ pursuit of their own interests is viewed as limiting their ability to carry out specific functions. In considering why groups and officials opt to pass amendments rather than work through the political process, several conclusions emerge. Amendments have been deemed necessary in part because legislators are reluctant to relinquish authority; the most effective means of transferring power to other institutions in these cases has been to proceed via convention-generated or citizen-initiated amendments. Another advantage of resorting to the amendment process—and this applies even in cases when legislators are on board with making these changes—is to guard against reversal of the desired changes. One generation of legislators might agree to support legislation ceding power to other officials; but a later generation might try to reclaim this power by repealing this legislation. Shifts in governing authority undertaken through statutes are also vulnerable to legal challenges rooted in separation- of-powers claims; placing these arrangements in the constitution insulates them against state court invalidation. A fi nal benefit of passing amendments, especially when adopting new institutional arrangements, is to register and signal in a public fashion the importance of the changes being undertaken.

Relations between State and Local Governments Amendments have been adopted on numerous occasions to alter the relationship between state and local governments, invariably by strengthening local authority. An initial wave of mid-nineteenth- century amendments prevented legislatures from passing local laws. The late nineteenth

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century brought the fi rst of many amendments empowering cities to draft their own charters. In the late twentieth century, voters approved amendments limiting legislatures’ ability to impose mandates on cities, towns, and counties unless they provide adequate funding. Passing amendments has not been the only means of achieving these goals; but this has been a particularly effective way to overcome legislative and judicial resistance. Legislators have occasionally enacted statutes granting relief to municipalities but have generally resisted relinquishing power in this area, as in many other areas. Meanwhile, judges have sometimes issued decisions favoring local governments, but relief via litigation has not been forthcoming in many other cases. Unable to count on relief from legislators or judges, groups and officials resorted to the amendment process to limit legislative power over local governments and entrench these limits in state constitutions. Local Legislation An initial wave of constitutional amendments dating from the 1850s barred legislatures from passing special or local laws. A Michigan convention approved the fi rst such provision, a measure included in the state’s 1850 constitution that focused specifically on roads and barred the legislature from vacating “any road laid out by commissioners of highways or any street in any city or village.”11 But it fell to Indiana convention delegates to craft the fi rst wide-ranging ban on special and local laws, a provision included in Indiana’s 1851 constitution preventing the legislature from passing “local or special laws” on a list of topics including regulation of “county and township business.”12 Conventions drafting constitutions in other states in the 1850s and 1860s approved similar bans, often drawing up lengthy lists of prohibited subjects in what soon became standard features of state constitutions.13 The impetus for bans on local legislation was best expressed by delegates at Illinois’s 1869– 70 convention, which adopted the fi rst constitutional provision clearly designed to extend “a degree of protection to the cities of the state against legislative encroachment.”14 John Tincher complained in this convention, “The thousand and one little charters that are asked for at the sitting of every Legislature, have become one of the nuisances of legislation.” He thought it important to approve a constitutional provision “to cut off that” and provide “that the General Assembly may pass general laws applicable” to cities above a certain population.15

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The resulting provision in Illinois’s 1870 constitution barred enactment of local or special laws on a range of subjects and specifically barred local legislation “incorporating cities, towns, or villages, or changing or amending the charter of any town, city, or village.”16 The early 1870s brought passage of another set of constitutional provisions that prohibited passage of “ripper” laws that remove certain tasks from cities and transfer them to state-appointed officials or commissions.17 Pennsylvania’s 1872– 73 convention approved the fi rst antiripper provision, largely in response to an 1870 Pennsylvania law that David O. Porter deemed in his study of this practice to be “a particularly abusive act [that] created the Philadelphia Building Commission.” As Porter explained, “This self-perpetuating commission could require the city council to provide an unlimited sum of money for the construction of public buildings” and generated “great agitation” about the commission’s “alleged extravagance, mismanagement, and dishonesty.”18 In response, convention delegates approved a provision in Pennsylvania’s 1873 constitution barring the general assembly from delegating to “any special commission, private corporation, or association, any power to make, supervise, or interfere with any municipal improvement, money, property or effects, whether held in trust or otherwise, or levy taxes or perform any municipal function whatsoever.”19 Anti-ripper provisions were also added to the constitutions of New Jersey, Colorado, and California in the 1870s and in Montana, South Dakota, and Wyoming in the 1880s, and Utah in the 1890s. 20 Home Rule Constitutional provisions adopted prior to the mid-1870s invariably focused on limiting interference with municipal governance; but from this point onward, according to Michael Libonati, “debate and deliberation in the states began to shift from placing restraints on their legislatures to empowering local citizens with the ability to articulate their preferences over institutional forms and functional powers within their local communities.”21 Missouri’s 1875 convention crafted the country’s fi rst home-rule provision, which declared, “Any city having a population of more than one hundred thousand inhabitants may frame a charter for its own government, consistent with and subject to the Constitution and laws of this State.” 22 California’s 1878– 79 convention approved a provision modeled on Missouri’s provision. 23 Two other home-rule provisions

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were adopted in the nineteenth century: as part of an inaugural 1889 Washington constitution 24 and via a legislature-referred amendment approved by Minnesota voters in 1896. 25 The vast majority of municipal home-rule provisions were adopted in the twentieth century. Many were adopted in the early part of the century. 26 Voters in nine states approved constitutional provisions of this sort during the 1900s and 1910s alone. 27 Municipal home-rule amendments were approved in another four states in the 1920s, 28 and in two more states in the 1930s. 29 After several decades without passage of any major home-rule amendments, the 1950s brought a surge of additional amendments, spurred in part by the release of a 1953 report of the American Municipal Association (AMA), later renamed the National League of Cities (NLC). 30 From the 1950s through the 1970s, voters in seventeen states approved home-rule amendments or new constitutions containing home-rule provisions. 31 Home-rule amendments were intended in part to reduce burdens on legislators who otherwise had to devote significant time to drafting and reviewing city charters. Transferring this responsibility to local officials enabled legislators to focus on matters of statewide concern. 32 George Bradfield spoke for many public officials when he argued, in Missouri’s 1875 convention, “If there is any one thing I would wish to keep out of the Legislature, it is legislation upon St. Louis affairs. It has created more confusion & trouble in the Legislature & has done more to prolong the session than anything else & I am in favor of giving as far as possible to the people of St. Louis the regulation of their whole internal affairs.”33 Another benefit of municipal home rule was boosting the prospects that city charters would be drafted in the interests of city residents rather than according to the preferences of party bosses, corporations, or other influential persons. As historian Jon C. Teaford has shown, when legislatures were responsible for crafting city charters, legislators frequently deferred to members of the local delegation to carry out this task. 34 These local delegations sometimes acted in accord with the broad interests of their municipality; but they were often influenced by persons intent on securing outcomes redounding to their personal benefit. 35 Convention delegates pointed to numerous instances when legislatures proved more responsive to particular interests than to the broad interests of city residents. 36 In characterizing the motivations of homerule backers in Missouri’s 1875 convention, delegate John B. Hale explained that the “principal object in getting up a scheme of this sort of

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organizing a charter in this manner, is to prevent the repeated attempts that have been heretofore made by parties who did not represent fairly the true interests of the city—to make changes in the charter and organization of that city, which were not endorsed by the people of the city or the property holders of the city.”37 Some delegates drew on personal experience. Louis Gottschalk, a state senator and delegate to Missouri’s 1875 convention, was prepared to cite instances where charters of the city of St. Louis have been amended & passed in one day through both houses of the General Assembly & approved by the Governor & there were only three men in the city & county of St. Louis or State that knew what was in those charters & I was one of these three. . . . I have known measures to be passed here which went so far as to oust the whole city council of the city of St. Louis & they never knew it until it was passed, & I was one of the men who were ousted. I did not know I was ousted until two or three days after the bill was approved. 38

These problems were not unique to Missouri and St. Louis. In California’s 1878– 79 convention, delegates expressed similar concerns, arguing that the general assembly had frequently been responsive to special interests when revising charters for San Francisco and Los Angeles. James S. Reynolds complained that the current charter of San Francisco was 319 pages. “Originally it was thirty- one pages, but there have been one hundred supplemental Acts passed, and that comprises the charter to- day. No man on earth knows what is in it, and they do not pay any attention to it, either. They ride roughshod over it. Dozens of these Acts have been passed in the interest of a single individual. Some contractor, or some officer would want to get a supplemental Act passed, and he would slide up to the Legislature and get it through.”39 Volney Howard argued, in the same convention, “It is notorious that every job is gotten up by a clique who have an axe to grind at home, and they send it to the Legislature and get it adopted, and the Legislature saddles it upon the people in the cities and towns.” He spoke “advisedly in this matter. In the City of Los Angeles about half a dozen fellows, with an axe to grind, got up a charter and sent it up here for ratification, unbeknownst to the people of the city, and they got it adopted too.”40 Clitus Barbour argued in the same convention that lobbyists were the main beneficiaries of long-standing arrangements whereby city charters were drafted, reviewed, and amended by legislators: “When you propose that the charter

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shall be subject to the action of the Legislature, you leave it at the mercy of a hungry lobby. The charter comes up and it gathers the lobby around again. If an amendment is adopted at any time to the charter, it must go to the Legislature, and you gather the lobby around again. No, sir, it will never do. It will place us at the mercy of gas and water corporations, who will wield a powerful lobby to defeat any reform measures which we may adopt.”41 Still another benefit of municipal home rule was promoting selfgovernance. Robert Crosser argued in Ohio’s 1912 convention that “the cities merely ask that the principle of self-government be extended to them. . . . In order to have real self-government all those, and only those, who are appreciably affected by governmental activities should have a voice as to what that government should be.”42 Without home rule, he argued, “the people of the cities are left in a position where they have absolutely no control over their own destinies, and they are blamed for not taking an interest in the city government and for lacking in civic patriotism and righteousness. . . . In order to stir up civic pride and political activity must there not be placed some feeling of responsibility upon the people of the municipalities?”43 Home-rule supporters occasionally achieved their goals by securing favorable state court rulings or home-rule statutes and without a need to enact amendments. State courts occasionally limited legislative interference in municipal affairs,44 most notably when Michigan Supreme Court Judge Thomas Cooley issued an 1871 opinion recognizing an inherent right to local self-government.45 But judges were more prone to follow the rule set out by Iowa Supreme Court Judge John Dillon in an 1868 opinion, holding that local governments are creatures of the state and only exercise powers that are explicitly or necessarily granted to them.46 As Howard Lee McBain wrote in 1916 in taking stock of the influence of Cooley’s doctrine, “It has been applied by the courts of very few states. Moreover, even in these states its application has been limited.”47 Meanwhile, state legislatures occasionally enacted statutes permitting municipalities to draft their own charters, especially during the twentieth century;48 but as Kenneth Vanlandingham concluded in a 1975 study, “The state legislature, jealous of its legislative prerogatives, seldom has been an ardent advocate of home rule.”49 As a result, homerule supporters frequently turned to legislature-bypassing mechanisms to adopt home-rule provisions. Conventions or commissions were responsible for framing municipal home-rule provisions in fi fteen states,

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beginning with Missouri’s 1875 constitution and including the two most recent convention-framed provisions in Illinois in 1971 and Montana in 1972. 50 Meanwhile, the constitutional initiative process was the vehicle for adopting home rule in Oregon in 1906 and expanding it in Colorado in 1912. 51 Amendments were not only an effective way of securing home rule; they were also touted as a necessary means of protecting these arrangements against reversal. As long as home-rule measures rested on statutory grounds, they were vulnerable to invalidation by state courts. In Michigan, Wisconsin, and Georgia, 52 home-rule supporters resorted to the amendment process because legislation providing some measure of local government autonomy had been invalidated by state courts on the grounds that it improperly delegated legislative power. 53 In other cases, supporters of home rule took the amendment route out of a concern that power granted by one legislature could just as easily be reversed by a future legislature. 54 Albert Todd argued along these lines in Missouri’s 1875 convention, when he maintained that the benefit of establishing home rule “in the Constitution is stability. It is for the purpose of establishing one local government upon a rock & not upon quicksand as it has been for the last twenty years, to be blown over by every wind & flood of bummerism, high fraud & rascally speculators. That is why we are before you with this plan to get ourselves placed in the Constitution,” so that “we should have protection so that it should not be altered except as the Constitution may be altered.”55 Unfunded Mandates By the late twentieth century, local officials grew increasingly concerned about mandates unaccompanied by adequate funding. The 1970s brought a surge of complaints about mandates issued at times by state governments and other times by the federal government. In a study published at the end of the decade, Catherine Lovell and Charles Tobin concluded that “both state and federal mandates which affect local governments are numerous and are expanding rapidly in quantity, range, and scope, and that the practice of mandating has reached the point where the parameters of choice for local governments have been significantly constrained.”56 Although local officials often had a capacious understanding of mandates (in that they often treated as mandates measures that were actually conditions on grants-in-aid) and expressed various con-

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cerns about them, “the principal objection to mandates is the failure of the state government to reimburse local governments fully for additional costs,” as Joseph Zimmerman wrote mid- decade. 57 From the late 1970s through the late 1990s, voters in fifteen states approved constitutional amendments barring state legislatures from imposing unfunded mandates or requiring the state to pay a portion of the costs. 58 A half dozen provisions, including many of the earliest measures adopted between 1978 and 1980, were enacted as part of or alongside wide-ranging tax-and- expenditure limitation amendments. 59 Other mandate-relief amendments were stand-alone measures, as in nine states where amendments were approved from the early 1980s to the mid-1990s.60 These mandate-relief amendments take various forms. A 1978 Tennessee amendment, the fi rst of this kind of amendment to be approved, simply requires, “No law of general application shall impose increased expenditure requirements on cities or counties unless the General Assembly shall provide that the state share in the cost.”61 Other amendments are more specific, such as a 1992 Maine amendment providing that “the State may not require a local unit of government to expand or modify that unit’s activities so as to necessitate additional expenditures from local revenues unless the State provides annually 90% of the funding for these expenditures from State funds not previously appropriated to that local unit of government.”62 Still other amendments bar the state from mandating any new or expanded programs or responsibilities “unless such programs or responsibilities are fully funded by the state,” as in a 1984 New Hampshire amendment.63 A 1992 Colorado amendment is particularly strict in stating that “except for public education through grade 12 or as required of a local district by federal law, a local district may reduce or end its subsidy to any program delegated to it by the general assembly for administration.”64 In limiting unfunded mandates through constitutional amendments rather than through legislation, an alternative path taken in another fi fteen states and followed at the federal level with passage of the 1995 Unfunded Mandates Reform Act,65 amendment supporters were often motivated by a concern that unsympathetic legislators were unwilling to adopt these limits on their own. In over half of the states adopting mandate-relief amendments, these measures were advanced by conventions, as in Tennessee, Hawaii, and New Hampshire; or by citizens acting through the initiative process, as in Michigan, California, Missouri, and

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Colorado; or by legislatures acting in anticipation of a citizen-initiated amendment, as in Florida.66 Constitutional provisions were also viewed as more effective than statutes in achieving the desired goal of preventing cost shifting. Studies have reached mixed judgments about the overall effectiveness of various statutory and constitutional limits; but on balance, Zimmerman concluded, “statutory provisions tend to offer less protection than constitutional provisions.”67 With this in mind, officials in a few states initially approved anti-mandate laws but then determined that they provided insufficient protection and eventually opted to pass constitutional amendments. Such was the case in Florida, which for two decades relied on statutory provisions limiting imposition of mandates before voters approved a mandate-relief amendment after groups and officials concluded, in the words of a 1990 report of the US Advisory Commission on Intergovernmental Relations, that statutory provisions “have not been enough. The legislature will be bound only by the state constitution. When considering the enactment of general law intended to limit unfunded state mandates, constitutional provisions are necessary.”68

Regulatory Commissions and Administrative Agencies Amendments have been a regular means of creating and controlling the commissions and agencies responsible for much of the governance that takes place in the contemporary era. An initial series of late nineteenthand early twentieth- century amendments established commissions to regulate railroads and eventually other corporations. Amendments from the mid-twentieth century onward created a range of agencies with responsibility for conserving natural resources and building and repairing roads, among other functions. The late twentieth century brought passage of a quite different set of amendments that empowered legislators to repeal regulations promulgated by administrative agencies. Although amendments are not the only path to establishing and controlling the work of commissions and agencies, they are seen as holding advantages over alternative approaches, including the predominant approach at the federal level where agencies are created by statute and held accountable by Congress, the president, and federal courts. At the state level, relying on amendments to establish, empower, and regulate commissions has been seen as the best way of insulating commissions from

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political interference, ensuring their legitimacy in the face of separationof-powers challenges, and placing them on a solid foundation alongside other branches already entrenched in constitutions. Corporation Commissions A key challenge prompting passage of a wave of late nineteenth- century amendments was the need to regulate railroad rates at a time when legislatures were seen as ill suited for the task. Beginning with Illinois’s 1869– 70 convention,69 and continuing with adoption of seven other state constitutions in the mid-1870s, conventions enacted constitutional provisions barring railroads from engaging in discriminatory rate-setting and in some cases directing the legislature to address this practice.70 However, convention delegates, along with other officials, soon determined that there was a need to go further and establish commissions to carry out these tasks. California’s 1878– 79 convention crafted the fi rst constitutional provision creating a railroad commission. During the next three decades, amendments creating commissions to regulate railroads, and sometimes other corporations, were approved in another dozen states.71 Amendments establishing or authorizing railroad commissions were motivated by long-standing concerns that intensified in the late 1860s and early 1870s.72 As historian Solon Buck explained in an analysis of the Granger movement, whose followers were particularly active in pressing for railroad regulation at this time, farmers and other groups were concerned that “railroad rates in general were too high and that gross discrimination was practised in fi xing them.” 73 Railroads were known for “giving better terms to certain favored individuals or fi rms than were enjoyed by the general public.” 74 They were also accused of engaging in “discrimination between places, or charging higher rates at intermediate points than at points where competition in the shape of other roads or water routes prevailed.” 75 Although railroads maintained that rates were set in response to competitive forces, “competitive forces did not operate with equal intensity” in various places, as George H. Miller wrote in an analysis of this period.76 As convention delegates and other officials from the 1870s onward grappled with how to regulate railroad rates in an effective fashion, they considered whether to entrust this task to legislatures or rely instead on  commissions. Railroad commissions had some precedent by this time. In a move followed by other New England states in the antebellum

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era, the Rhode Island legislature in 1839 created the fi rst commission charged with regulating railroad safety.77 The Massachusetts legislature in 1869  then established the fi rst railroad commission with a broader, though ultimately limited, charge. Chaired by Charles Francis Adams Jr., the Massachusetts commission exercised “supervisory, advisory, and recommendatory” functions such as inspecting the books of railroad corporations, arbitrating disputes between railroads and the public, and preparing reports for the legislature.78 In statutes passed in 1871 and 1873, the Illinois legislature then took the next step, in a path soon taken by several other legislatures, of creating a railroad and warehouse commission authorized to set rates for transporting persons and freight.79 Delegates in conventions held from the late 1870s through the 1910s argued that commissions were ideally suited for regulating railroad rates.80 In California’s 1878– 79 convention, held a year after the US Supreme Court sustained rate-setting laws in Illinois and other states in deciding the Granger cases (1877), delegate Volney Howard argued that a commission was “the only body that can, by possibility, have the necessary knowledge” to set railroad rates. Howard reasoned, Is there any one in the Legislature, or any number of Legislatures, who could form a suitable tariff of rates of freights and fares in the time of an ordinary session? It requires time; it requires investigation; it requires, where abuses are alleged, the going upon the ground; it requires the devoting to it of special care. No Legislature, and no part of any Legislature, can have sufficient time and opportunity to effect it. They cannot acquire the knowledge, even if they were sufficiently intelligent, and came with sufficient information. Then, I maintain, sir, that the Commission is the true if not the only remedy. 81

Another virtue of relying on commissions to regulate railroads was that the public could hold commissioners accountable in a way that legislators had not been held to account. John Wickes argued in the same California convention that the legislature’s “intervention hitherto in railroad matters has been farcical,” due to “the facilities presented for the corrupting of that body—responsibility being too much distributed to secure the rigid scrutiny of the public.” He complained that California legislators had acted as an “obsequious tool” of the Central Pacific Railroad Company. “The most servile and abject of the parliaments of France never bent in more complete submission to the will of a Bourbon monarch than did those bodies to the behests of the railroad kings.”

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Wickes favored creation of a three-member commission with regulatory and rate-setting powers “because responsibility is so localized in this triumvirate that the light of public scrutiny can be concentrated upon it in an intense form.”82 If the case for creating railroad commissions proved persuasive in a majority of states by the early twentieth century, 83 convention delegates faced the additional question of whether to establish commissions via constitutional provisions or let legislators set them up by statutes. Some delegates saw no need to adopt constitutional provisions. These delegates were persuaded of the benefits of commissions but maintained that legislators had shown a willingness to create commissions via statutes and in a way that permitted them to be improved based on lessons gleaned from experience. Samuel Wilson argued along these lines in California’s 1878– 79 convention, in an unsuccessful bid to prevent passage of the nation’s first constitutionally mandated railroad commission. Stressing the innovative nature of the commission under consideration, he argued that “not one State of the Union contains such provisions as are proposed here” and maintained that “a Constitution is a bad place in which to try experiments, for should the experiment fail, the process of change is very slow, and of extreme difficulty; whilst an experiment tried through the ordinary channels of legislation is easily managed. If partially successful, and more legislation is needed, it is easily obtained; if the experiment fails, the law is easily repealed, and that which experience proves to be better can be substituted.”84 Wilson maintained that the benefits of establishing commissions by statute rather than via constitutional amendment were on full display when considering experiences of other states. He asked, Why not leave it to the Legislature? Other States have Commissions created by the Legislature, and they have worked well. The much-lauded Commission of Massachusetts did not originate in, and is not mentioned in, the Constitution of that State. It originated in the Legislature, and all its merit is due to the Legislature. It has been a successful experiment as there managed. Had it been of constitutional creation, it would have been a failure, because it has from time to time been altered by the Legislature, and its present perfection is the result of repeated statutes. It has been a growth, and as experience demonstrated the usefulness of a new and additional provision, it has been adopted.

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Wilson therefore touted the “superiority of a legislative discretion over an inflexible constitutional rule.”85 The wisdom of regulating railroads by legislation rather than by constitutional provisions was illustrated by failed statutes no less than successful ones, in the view of Wilson and other delegates. Whereas Massachusetts’s railroad commission proved successful and was improved through subsequent legislation, approaches in other states proved unsuccessful and, because they rested on a statutory basis, were repealed rather quickly. Focusing especially on Wisconsin, Wilson argued, “In various other States during the Granger excitements (as they were called) legislation of a crude and experimental character was enacted on this subject; but repeals, alterations, and amendments have since been the order of the day. Had the legislation, at first deemed proper, been put in the form of constitutional law, the injuries to the community would have been incalculable.” The lesson he drew from these experiences was that “Whatever is done should be done through the Legislature.”86 Arguments along these lines by amendment skeptics were advanced and occasionally prevailed in turn- of-the-twentieth- century conventions; but counterarguments in favor of placing commissions on a constitutional basis proved persuasive in other cases, as in California’s 1878– 79 convention, which established the fi rst constitutional railroad commission, and Virginia’s 1901– 2 convention, which created a corporation commission that served as a model for other states in the early 1900s. A majority of delegates at these two conventions and several others held during this period were convinced that creation of a commission should not be left to the legislature. Experience had shown, these delegates argued, that legislators were not inclined to give commissioners enough power to carry out their task effectively. Eli Blackmer reminded delegates in California’s 1878– 79 convention, “Three years ago the people had a Commission appointed for this very purpose. They were able, honest, and earnest in the work they did, but they failed, because they had not power enough. And they came to the Legislature with their report” and “asked the Legislature to grant them the necessary power. But, sir, when their report came before the Legislature, they were quickly snuffed out of existence. That has been the history of almost every effort that has been made to control these corporations.”87 In response to claims that leaving the task of creating a commission to legislators would allow for improvement over time, these delegates

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argued, to the contrary, that legislators displayed more of a disposition to undermine than to strengthen railroad regulations, especially when these regulations threatened the interests of railroads that wielded great influence in electing and lobbying legislators. N. G. Wyatt argued in California’s 1878– 79 convention that he wanted a “Commission planted on such a foundation as that it is not liable to be overturned every Legislature that meets. For we are well aware that the railroads have to elect very few members to the Legislature in order to control the Legislature. . . . I, then, want the Commission above the Legislature, practically speaking. I want the Commission so that they can act responsive to the behests of the people, and not the Legislature.”88 Another reason for placing commissions on a constitutional foundation was to insulate them from legal challenges. Supporters and critics of commissions agreed on one point: These commissions wielded an unprecedented mix of legislative, executive, and judicial powers, especially in the form they took after adoption of Virginia’s 1902 constitution. Critics emphasized the novelty of these institutions with an eye toward painting them as radical and unwise departures from prior institutional arrangements.89 But supporters were fully prepared to acknowledge that these commissions were unprecedented and vulnerable to separation- ofpowers challenges. This was precisely why they needed to be entrenched in the constitution, supporters argued: to guard against their reversal by state courts. In Virginia’s 1901– 2 convention, Allen Caperton Braxton, chair of the corporations committee and chief defender of a corporation commission, set out some of the legal challenges a commission would likely face and the need to head them off: Some one says we ought not to go into the Constitution to fi x this matter. It is essential, gentlemen, if we want to have a perfect department to accomplish what we want, that it should be constitutional, and for this reason; we want to give this tribunal the power to enforce its own judgment, which is absolutely essential if it is to be effectual, subject, as I have told you, to appeal; and it takes a constitutional provision to give it the powers of a court. If we wish to give them the right to prescribe rates and to make rules and regulations, subject to the restraints and safeguards I have mentioned, it might be held—I do not say it certainly would be—that it was an invasion of the legislative department of the government which the General Assembly could not delegate. . . . To prevent the possibility of such a question arising, we have put

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into the Constitution the provision that the commission shall have legislative powers so far as fi xing rates and prescribing rules and regulations are concerned, and that it shall have judicial power so far as enforcing its own judgements is concerned; and that, in reference to both of these powers, it shall have both the courts and the General Assembly to guard it in the way of an appeal, and as superior and paramount throughout.90

Still another argument for placing corporation commissions on a constitutional basis, also expressed by Braxton in the Virginia convention, was that these commissions were practically a fourth branch of government and deserved to be placed in the constitution alongside other departments. Braxton explained, I say we should put it in the Constitution because it is one of the most important branches of our government, if it is to be established. I say it is just as important a thing, as far-reaching in its effect, as essential for the well being of the State, and is therefore just as much entitled to a provision in the Constitution as many of the things that are in the Constitution of Virginia. We could have left the establishment of an educational department, of an agricultural department, of the creation of the Office of Secretary of the Commonwealth and of the Board of Public Works and the prescribing of a homestead exemption, all to the Legislature; but the men who framed our former Constitutions regarded them as of sufficient importance to place them in the fundamental construction of our government; and I say that a corporation commission, if we are going to make it at all, is just as important as any of those, and infi nitely more important than many of them. . . . I say, therefore, that the importance of the subject entitles it to a position in the Constitution.91

On the strength of these arguments, conventions crafted amendments in the late nineteenth century and early twentieth century establishing or authorizing commissions to regulate railroads and in some cases other transportation and communication companies.92 In drafting new or revised constitutions from the late 1870s to the early 1910s, conventions approved provisions establishing corporation commissions in California, Kentucky, South Carolina, Louisiana, Virginia, Oklahoma, Arizona, and New Mexico.93 Additionally, the convention that framed North Dakota’s inaugural constitution codified the process of selecting members of an existing railroad commission.94 Meanwhile,

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the convention that drafted Washington’s inaugural constitution considered establishing a commission; but after such a motion was voted down under pressure from railroad companies, delegates instead approved a provision authorizing the legislature to create such a commission, which it eventually did nearly two decades later.95 A Michigan convention approved a similar provision authorizing the legislature to create a commission to regulate railroad rates.96 On a few occasions, legislatures were responsible for advancing amendments, whether authorizing creation of a railroad commission, as in Texas, or actually establishing a commission, as in Nebraska.97 Conservation Commissions Amendments have been a vehicle for establishing other kinds of commissions, often with the aim of insulating commissioners from undue political interference. Voters in a number of states have approved constitutional provisions creating equalization or taxation boards responsible for classifying and valuing property.98 Highway and transportation commissions have been established in some states via amendments.99 Still other amendments have established commissions tasked with regulating alcoholic beverages100 or home health care.101 Amendments creating fish and game commissions (also labeled conservation commissions in some states) proved especially popular. Delegates to Louisiana’s 1921 convention approved the nation’s fi rst constitutional provision establishing or entrenching a conservation commission.102 The 1930s and 1940s brought a handful of amendments, spurred by issuance of a Model Fish and Game Commission drawn up in 1934 by the International Association of Game, Fish, and Wildlife Conservation.103 During a decade-long period from the mid-1930s to the mid-1940s, amendments were approved in Missouri, California, Florida, Georgia, and Arkansas, in some cases at the instigation of legislatures and other times via the initiative process.104 In passing fish and game commission amendments, supporters were seeking in part to empower these bodies to promulgate regulations in the face of separation- of-powers challenges; but they were primarily concerned with insulating commissioners from political interference. In most of these states, the legislature had already established a fish and game commission. However, hunting and fishing groups felt that these “laws often served the very interests that were responsible for despoiling

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wildlife resources,” as one historian of these amendments explained.105 The problem was that commission members were usually selected for reasons unrelated to their expertise and were susceptible to political influence once they took office. The solution was to restructure the commissions with an eye to increasing members’ expertise and enabling them to exercise more independence from powerful interests.106 As two legislative supporters of a 1940 California amendment argued in that year’s ballot guide, “This proposition will remove the Fish and Game Commission from political influence.”107 In crafting these amendments, a number of steps were taken to afford commissioners the independence necessary to carry out their task effectively.108 One approach, followed by a conservation group in drafting a Missouri amendment, was to create an even number of commissioners and require that no more than half of them could be affi liated with one political party.109 Another approach was to give commissioners a long term of office, ideally longer than the governor’s term.110 Additional steps to this end, as backers of a California amendment explained in the ballot guide, were to appoint commissioners for “staggered terms so that no one administration can dominate the commission” and to require senate confi rmation of gubernatorial appointments so as to “nullify poor appointments.”111 Commissioners were also generally limited to serving a single term, as a way to “promote individual and political independence from the governor and the legislature,” as a scholar of the Arkansas constitution later explained.112 In resorting to amendments to achieve these aims, conservation groups were seeking to overcome legislative resistance to forming and strengthening these commissions and also guard against legislative reversal of these arrangements. Such was the view of E. Sydney Stephens, who was president of the Restoration and Conservation Federation of Missouri, the drafter of the pioneering Missouri amendment, and later a member of the commission created by the amendment. When Conservation Federation members gathered in 1935 to discuss their dissatisfaction with management of Missouri’s wildlife and forests and to consider strategies for strengthening the current commission, “the group had at fi rst been willing to make one more legislative attempt to improve wildlife conditions,” according to one participant, “but Stephens had urged a constitutional amendment.”113 Stephens explained at the meeting, “If you get a law passed, what have you got? The next legislature could repeal or amend it, and the politicians take over. By the same token, if you

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attempt to get a constitutional amendment through the legislature, you won’t recognize it when it comes out. But if you write the basic authority exactly as you want it, put it on the ballot through the initiative and let the people vote it into the constitution, then you’ve got something permanent.”114 Missouri voters approved the amendment the following year, by the largest margin of any initiated amendment approved in the state up to that time.115 Judicial Review of Agency Rulings The proliferation of commissions and agencies, established in some cases through constitutional provisions and in other cases by statutes, prompted much discussion in the early twentieth century about how to provide adequate oversight of agency rulings and regulations. Convention delegates and other public officials, along with members of the state bar, debated the procedures that agencies should follow in issuing rulings and the institutions that should oversee them. These debates were generally resolved by passing state administrative procedure acts that followed the outlines of the federal Administrative Procedure Act; but officials occasionally resorted to the constitutional amendment process to try to increase judicial review of agency decision-making. Voters in New York in 1938 and in California in 1940 and 1942 ultimately rejected amendments that would have increased judicial oversight of agencies. As legal historian Daniel R. Ernst has shown in his analysis of the emergence of the administrative state, delegates at New York’s 1938 convention engaged in lengthy debate about a proposed amendment to provide for judicial review of the law and facts of any quasi-judicial actions of administrative agencies.116 Arthur E. Sutherland, a chief supporter, argued, “I recognize very clearly the necessity for administrative bodies in a modern state. I welcome their presence, but it is my thought that this Convention has a duty, in kindness to them and to the people whom they serve, to see that when they decide that the barn is red instead of white, or that the automobile is traveling 50 miles an hour instead of 25, there ought to be some way to correct any mistakes that they make.”117 In Sutherland’s view, “as is true in most of our activities today, a judge has got to say whether we are acting rightly or wrongly, and the question is, is that ultimate opinion going to be left up to a judge or an administrator. And the general proposition which I support is that I would rather leave it up to a judge.”118 Ernest Leet argued

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along similar lines in this convention: “The administrative board now has none of those safeguards erected about the judiciary to secure to the litigant the cold indifference of an impartial judge. By providing judicial scrutiny, we will be taking a long step forward towards the development in the administrative tribunal of some sort of judicial temperament, traditions, and fairness that have been characteristic of our courts.”119 Although amendment supporters prevailed in New York’s 1938 convention, which approved an amendment for submission to voters, critics prevailed at the polls, defeating the amendment by an overwhelming margin.120 Robert F. Wagner, a US senator, convention delegate, and chief amendment critic, argued his case at some length in the convention, at one point reading into the record a letter from New York governor Herbert H. Lehman warning of the dangers of the proposed amendment. Governor Lehman argued that it was unwise to burden judges with reviewing administrative decisions in all of the respects envisioned by the amendment. But to the extent that additional review of agency rulings might be necessary, this could and should come through legislative action rather than through a constitutional amendment, given that “the quasi-judicial powers vested in the Public Service Commission and the similar powers vested in other bodies have in all instances been granted by the Legislature,” and “the Legislature may, at any time, broaden the scope of the courts’ power to review the fi ndings of such bodies. It has frequently done so. This power should continue in the hands of the Legislature.”121 Lehman was “fi rmly convinced that it is extremely dangerous and unwise to divest the Legislature of this power by freezing this rigid proposal into the State Constitution.”122 Two similarly intentioned California amendments drawn up by legislators in consultation with the state bar association came closer to approval by voters but were also defeated.123 These amendments were prompted by several recent California Supreme Court decisions. As explained by legislative supporters of a 1940 California amendment, which preceded a slightly different but equally unsuccessful 1942 amendment, “Until recently it was thought the courts had a right to review any orders or rulings of these State boards and commissions but the last decisions of the Supreme Court have caused confusion in the law on this subject.” These legislative supporters touted the proposed amendment as a “remedy of the existing confusion,” in that it would “grant to the Legislature power to provide for a review by the courts of the acts of these State administrative agencies. Under the decisions of the Supreme Court it is

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evident that it is only by a constitutional amendment that the problem can be solved.”124 Legislative Veto Another way of providing for the review of the work of agencies—and this approach enjoyed more success—is to authorize legislators to overturn agency regulations. Beginning with passage of a Kansas statute in 1939, legislators in a number of states enacted statutes allowing the legislature to nullify agency regulations by passing a joint resolution.125 By the time the US Supreme Court held unconstitutional the congressional veto in a 1983 decision, INS v. Chadha, nearly a dozen states employed similar devices whereby state legislatures could veto agency rules. Still other states permitted a joint legislative committee to suspend regulations in preparation for subsequent invalidation by statute.126 When state legislative-veto devices were challenged in state court, however, they nearly always encountered the same fate the congressional veto suffered at the hands of the US Supreme Court. No fewer than a dozen state courts have held that a state legislative veto violates state constitutional presentment and bicameralism requirements, among other separation- of-powers principles.127 To be sure, not every state supreme court has sided with challengers to the legislative veto. The Idaho Supreme Court is unusual in issuing a 1990 decision upholding the practice.128 Meanwhile, in a number of other states, legislative vetoes have gone unchallenged and continue to be utilized.129 Nevertheless, state courts have routinely invalidated the legislative veto, thereby prompting supporters to resort to the amendment process to legitimate the practice. Amendments authorizing state legislative-veto devices have been defeated more often than they were approved.130 Voters defeated such amendments in Florida in 1976 and in Texas in 1979.131 In other states, voters turned back multiple amendments. Legislative-veto amendments were defeated three times in Alaska (in 1980, 1984, and 1986)132 and twice each in Missouri (in 1976 and 1982)133 and Michigan (in 1984 and 1986).134 Other amendments enjoyed more success. In approving a new Michigan constitution in 1963 and a legislature- crafted amendment in South Dakota in 1980, voters in these two states explicitly authorized a joint legislative review committee to temporarily suspend regulations promul-

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gated by agencies while the legislature is not in session.135 Amendments approved in six states from the early 1980s through the mid-2010s—in Connecticut, Iowa, New Jersey, Nevada, Arkansas, and Idaho—go further and empower the legislature to nullify agency regulations.136 A number of these legislative-veto amendments were advanced in direct response to court decisions or attorney general opinions. After a Connecticut trial court held the legislative veto unconstitutional in a 1980 ruling and the Connecticut Supreme Court disposed of the case without reaching the merits, the Connecticut legislature sought to resolve any remaining doubt. Connecticut legislators crafted and voters approved a 1982 amendment explicitly authorizing the legislative veto.137 In New Jersey in 1982, the state supreme court was more defi nitive in striking down the legislative veto. Although the fi rst effort to respond to this decision failed when New Jersey voters rejected an amendment that would have reinstated the practice, legislators tried again, and voters eventually approved a 1992 amendment explicitly providing for the legislative veto.138 In another instance, Iowa voters in 1984 approved an amendment authorizing the legislative veto in response to a longstanding attorney general opinion that advised that the practice was unconstitutional.139 An amendment approved by voters in Idaho in 2016, meanwhile, sought to guard the legislative-veto device against the possibility of judicial reversal. Although the Idaho Supreme Court is the one state supreme court that clearly upheld the legitimacy of the legislative veto, the case was decided by the narrowest of margins. With an eye toward placing the legislative veto on a more solid constitutional foundation, supporters crafted an amendment authorizing the device. Initially defeated by voters in 2014, the amendment was resubmitted and ratified two years later.140 Legislative-veto amendments take various forms, with all of them authorizing the legislature by joint resolution to overturn agency regulations and some permitting a joint legislative committee to perform this role. Idaho’s 2016 amendment is typical, in declaring that the legislature “may review any administrative rule” and “approve or reject, in whole or in part, any rule as provided by law.”141 A 2014 Arkansas amendment goes so far as to stipulate that “administrative rules promulgated by a state agency shall not become effective until reviewed and approved by the legislative committee charged by law with the review of administrative rules.”142

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Budgeting Amendments have altered state budget processes in various ways other than by establishing the executive-budget systems that are the focus of this section. As discussed in later chapters, amendments have also limited legislatures’ ability to borrow money and levy taxes. Voters in several states have also approved amendments that impose legislative supermajority requirements on passing budgets.143 Other notable changes achieved through the amendment process and discussed elsewhere include adoption of the line-item veto (in forty-four states) and reduction veto (in ten states), whereby the governor can eliminate or reduce the amount of appropriations items.144 Of particular interest for this chapter, however, are executive-budget systems that were implemented on a statutory basis at the federal level and also in many states but were enacted through constitutional amendments in some states beginning in the 1910s. The fi rst executive-budget systems, whereby the executive prepares and initiates a budget that is reviewed, amended, and approved by the legislature, were adopted at the municipal level, particularly in New York City.145 The concept then received a major boost when President William Howard Taft’s Commission on Economy and Efficiency urged adoption of a federal budget in a 1913 report and then Taft submitted a budget message to Congress in his last year in office, eight years before the practice was institutionalized via passage of the Budget and Accounting Act of 1921.146 No development was more important in spreading the executivebudget concept to the states than an unsuccessful 1915 effort to revise New York’s constitution. In what Charles Beard lauded as “a new epoch in the history of budgetary procedure in the United States” in an article written after adjournment of New York’s 1915 convention but before voters passed judgment on the convention’s recommendations, convention delegates engaged in extensive debate about an executivebudget system and eventually approved such a provision as part of a new constitution submitted to voters.147 Although voters rejected the new constitution in its entirety, the convention debate about an executive-budget system attracted wide scholarly and public attention. State legislatures had considered and occasionally adopted some form of an executive budget on a statutory basis as early as 1911.148 But the New York convention’s endorsement of such a system inspired many other

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states to act, mostly on a statutory basis but in seven cases via constitutional amendments.149 Executive-budget amendments were advanced at times by conventions or commissions, at other times by initiatives, and in a few states by legislatures, as in Maryland, where voters in 1916 ratified the nation’s fi rst executive-budget amendment.150 Voters approved two other executive-budget amendments in 1918: a legislature-referred amendment in West Virginia and a convention-referred amendment in Massachusetts.151 The 1920s brought adoption of two more executive-budget amendments: a 1922 citizen-initiated California amendment approved four years after the defeat of a similar amendment in that state and a 1927 legislature-referred New York amendment adopted a dozen years after the failure of that state’s constitutional revision.152 Missouri voters initiated and approved an amendment in 1932.153 Georgia voters approved an executive-budget provision as part of a commission-framed constitution in 1945.154 Supporters of an executive budget pointed to various problems with the traditional system whereby legislators, and in practice legislative committees, were responsible for drafting appropriations items. In introducing the recommendations of the 1915 New York convention’s committee on state fi nances, committee chair Henry Stimson pointed to the “rapidly increasing cost per capita of government,” due to “the fact that government has greatly extended its activities” and in a way that has brought about “a corresponding and increasing need for sound fi nancial methods in conducting the business of government.”155 The starting point for developing a better method, he argued, was to acknowledge the deficiencies of the current legislature- dominated system, where “no fi nancial plan is presented to our Legislature in public each year  .  .  .  ; instead, our appropriation and revenue bills are made up in the comparative secrecy of legislative committees and rushed through in the hurry of the fi nal days of a legislative session.”156 The traditional system suffered from numerous flaws that were set out in a committee report prepared for New York’s 1915 convention and summarized in the report’s key “conclusion that the legislature is not the proper branch of the government to initiate such a program of annual expenditures, and that in attempting to do so it labors under . . . insuperable disadvantages.”157 The legislature lacks “administrative control or authority over the bureaus and departments through which the moneys of the state are expended,” whether for the purpose of gaining neces-

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sary information or reducing various inefficiencies.158 Moreover, legislators, “instead of being responsible to the state as a whole, are each responsible to and dependent upon a single district,” in a way that “necessarily tends to that process of give and take which has become so common in America as to be stigmatized by the terms ‘log-rolling’ and ‘pork barrel.’”159 The committee report also complained that “nowhere, either in the legislature or outside, is there now ever formulated or made public a really complete fi nancial plan or budget” that might take stock of the full set of projected annual expenditures, current revenues and liabilities, and any proposed new taxes to make up shortfalls.160 This case for an executive-budget system was sufficiently compelling that much of the debate in early twentieth- century conventions centered primarily on working out the details. One question that surfaced in some states was whether to entrust preparation of the budget to a board or solely to the governor. In some cases, this task was given to a board, as in West Virginia’s 1918 amendment, which called for a budget to be prepared by a “board of public works” consisting of “the governor, secretary of state, auditor, treasurer, attorney general, superintendent of free schools and commissioner of agriculture.”161 But most amendments entrusted this task to the governor, as in other amendments approved from the 1910s to the 1930s and, eventually, in West Virginia through a 1968 amendment that revised the state’s original system.162 Another decision that generated debate was whether to allow the legislature to increase appropriations items recommended in the executive budget or whether to limit the legislature to merely approving or reducing appropriations items.163 The pioneering 1916 Maryland amendment took the latter approach, stipulating that the general assembly, “except as hereinbefore specified, may not alter the said bill except to strike out or reduce items therein.”164 Other conventions considered adopting similar provisions, with Francis Balch in Massachusetts’s 1917–18 convention defending such a limit on the ground that “experience has shown that usually the chief executive, being more directly responsible to the people as a whole, is an instrument of economy, while the legislative branch, under enormous pressure from different parts of the Commonwealth for the expenditure of money, is apt to be the branch of government which results in the spending of a great deal of money.”165 After much debate, the Massachusetts convention, along with most other constitution writers, opted against imposing such a strict limit on legislative power regarding appropriations.166 In these states, legislatures re-

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tain the ability to  increase appropriations items in the governor’s budget, even if the governor can generally use his item-veto power to strike them out later. In addition to debating the structure and details of an executivebudget system, convention delegates grappled with whether to establish such a system via constitutional amendment or leave it to the legislature to set up a system by statute. Nathan Avery in the 1917–18 Massachusetts convention preferred the latter approach. He noted that “there are only a few States that have the thing in their Constitutions anyway,” and most states “leave it to the Legislature.”167 His colleague Charles Washburn took a similar position, maintaining, “I am in entire sympathy with the establishment of a budget system” that would increase “the responsibility of the Governor. . . . The doubt that I have in regard to this pending measure is whether it is a safe thing to engraft upon the Constitution what is practically a legislative enactment, dealing with details.”168 Washburn remarked that based on his experience, “however carefully drawn a plan may be for the administration of the fi nances of a corporation or a society, experience suggests many changes.” He feared that if an  executive-budget system was entrenched in the constitution, then “when it is in operation, changes of a desirable nature inevitably will be suggested and then the Legislature will be hampered by the rigid limitations of a constitutional amendment.”169 His colleague Samuel George also thought it best to “leave it to the Legislature” and objected to the “idea of putting this Commonwealth in a straight-jacket, so that if they want to change their system it will require two years to amend the Constitution.”170 George complained, “What you propose to do here is to put a system of bookkeeping into our Constitution; and if perchance three years from now we fi nd that some expert accountant has discovered that we need a new system of bookkeeping, then it will take two years to take the matter through the Legislature and before the people in order to change our system of bookkeeping.”171 Although the vast majority of states adopted executive-budget systems on a statutory basis,172 officials in some states saw a benefit in proceeding through the amendment process, partly because they lacked confidence that legislators would relinquish enough power to the governor to make such a system work. To be sure, as Allen Schick wrote in a history of the executive-budget movement, legislatures occasionally supported moving to an executive-budget system in cases where they “could not resist the tide of reform; they too wanted to do something about the

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incessant rise in public spending, and they were frustrated by the loose fi nancial arrangements that weakened their legal control over spending.”173 In the face of these pressures, legislatures were occasionally willing to advance amendments creating executive-budget systems. But when legislators were unwilling, convention delegates and sometimes voters acting through the initiative process took the lead in crafting amendments to implement a workable system. As Harold Hinman argued in New York’s 1915 convention, “From my own experience in the Legislature, in endeavoring to bring about such a situation and the provision for a legislative budget, I have concluded that it is hardly likely, if we adjourn without providing for some kind of a budget, that the Legislature will itself provide what the Chairman of the State Finance Committee has seen fit to call a self- denying ordinance.”174 Supporters of instituting executive-budget systems via constitutional amendments also maintained that there was no guarantee, in the event that legislators might choose to transfer budget authority to the governor via statute, that future legislators would permit such a system to survive. Supporters of relying on statutes touted the potential improvements legislators could make over time through the statutory process. But supporters of proceeding via amendments countered that if the system rested on a statutory basis, then legislators could just as easily weaken its key features. As Henry Parkman argued in the 1917–18 Massachusetts convention, “The reason for putting it into the Constitution is because the legislative enactment of a bill can be repealed at any minute.”175 His colleague Joseph Walker argued, similarly, that a statutory budget system “may be amended; killed, wiped out of the way whenever the Legislature changes its mind.”176

Redistricting A number of amendments have vested responsibility for drawing legislative districts in commissions, as a way of overcoming legislators’ interests in drawing districts to the benefit of themselves and their party. On some occasions, to be sure, groups have secured changes in redistricting processes via statutes and without need to make constitutional changes. On still other occasions, groups have prevailed upon legislators to advance constitutional amendments to this effect. However, in the absence of pressure from public-interest groups or court rulings, legislators have

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generally resisted calls to give up this power, thereby prompting groups to rely on conventions or the initiative process to advance amendments establishing redistricting commissions. Convention- crafted amendments have been responsible for a number of changes in redistricting processes. In some states in the nineteenth century, conventions were called primarily in response to pressure from residents of underrepresented regions who were seeking a more equitable legislative apportionment.177 Legislators from overrepresented regions were reluctant to call conventions, especially in cases where convention delegates might be selected on a different basis than legislators and therefore inclined to remedy legislative malapportionment. But public pressure eventually led them to acquiesce in calling conventions whose delegates proceeded to devise new apportionment plans.178 At times, nineteenth- century conventions went beyond simply drawing new apportionment maps and went so far as to devise institutional arrangements intended to produce more equitable maps in the future. For instance, Virginia’s 1850– 51 convention approved a complex policy permitting voters to determine the principle of reapportionment in the event that the legislature was unable to agree on a reapportionment plan after the release of each census.179 Virginia’s 1851 constitution provided for a referendum whereby voters would choose from among four possible reapportionment principles and that directed that the principle securing  the most popular votes would be implemented in case of a legislative deadlock.180 Meanwhile, in addition to entrenching reapportionment principles in Ohio’s 1851 constitution, delegates to Ohio’s 1850– 51 convention established the nation’s fi rst redistricting board, consisting of the governor, auditor, and secretary of state, and charged this board with applying the designated reapportionment principles after each census.181 The purpose of devising these arrangements was best expressed by Charles Reemelin, a delegate to Ohio’s 1850– 51 convention who introduced a resolution that limited legislative responsibility for redistricting and later came to include the redistricting board.182 Reemelin argued that “unfair and unequal apportionments have been the cause of much dissatisfaction and excitement” and said that this “dissatisfaction and disturbance will continue to exist so long as the Legislature shall retain the power of making these apportionments.”183 His object was to “settle the principles of apportionment, and make the basis of population irrevocable, and put the power of changing it, entirely out of the hands of the

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Legislature.”184 He maintained that his plan “places the power irrevocably with the people and no Legislature will hereafter, be able to control its successors and to frown down public sentiment. If they think proper to do so, the public sentiment of Ohio will have an opportunity to express its voice and it will make itself heard.”185 Conventions continued to grapple with devising alternative redistricting mechanisms in the twentieth century, especially after the US Supreme Court’s reapportionment decisions in the 1960s required districts to be drawn on an equal-population basis. Michigan’s 1961– 62 convention was one of a number of conventions,186 along with conventions in New Jersey, Pennsylvania, Hawaii, and Montana,187 to approve constitutional provisions establishing independent redistricting commissions in the 1960s and early 1970s. In explaining the benefits of transferring responsibility for redistricting to a commission, John Hannah, chairman of the legislative organization committee in Michigan’s 1961– 62 convention, reasoned, “It is totally unrealistic to expect a legislature to redistrict and reapportion seats in its own body. Redistricting inevitably involves the possible denial of seats to members of the existing legislature, and conceivably a fair and equitable redistricting could deprive the most able and respected members of the legislature of their seats. Wholly aside from the political implications involved, the personal relationships alone work to delay, subvert, or prevent prompt and equitable reapportionment of itself by the legislature.”188 Delegates in other conventions shared these concerns. John Schlitz, a delegate to Montana’s 1971– 72 convention, argued that “the Legislature is totally unable to reapportion itself. It has too many interests that are not necessarily in accord with the broad interests of the state, and this kind of a commission would do it.”189 The constitutional initiative process has also been a regular means of creating redistricting commissions or limiting legislative discretion in map drawing. To be sure, as legal scholar Nicholas Stephanopolous has shown, voters have rejected citizen-initiated redistricting-reform amendments more often than they have approved them. Voters turned back amendments in Oklahoma in 1960 and 1962, in North Dakota in 1973, in California in 1982, 1984, 1990, and 2005, in Ohio in 1981, 2005, and 2012, and in South Dakota in 2016, albeit occasionally approving similar amendments in later years.190 However, voters have approved seven major redistricting-reform amendments, often with backing from publicinterest groups such as Common Cause and the League of Women

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Voters and, as one would expect, with support from members of the minority party in each state.191 These successful initiatives were in one case intended to combat population gerrymandering but were mostly designed to limit incumbentprotection and partisan gerrymandering and thereby promote electoral competition. In 1936 Arkansas voters approved an amendment creating an independent apportionment board, at a time when the legislature had not redrawn district lines in nearly half a century, resulting in grossly malapportioned House and Senate districts.192 The other citizeninitiated amendments were all approved at some point after US Supreme Court rulings in the 1960s required congressional and state legislative districts to be drawn on the basis of population. Voters approved amendments creating independent redistricting commissions in Colorado in 1974 (for state legislative districts), Arizona in 2000 (for state legislative and congressional districts), California in 2008 (for state legislative districts), and California in 2010 (for congressional districts).193 Voters in Florida approved a pair of citizen-initiated amendments in 2010 that took a different approach, leaving the legislature in control of redistricting but barring consideration of incumbency or partisanship in drawing legislative and congressional districts.194 Convention-generated and citizen-initiated amendments have not been the sole vehicles for reforming redistricting policy. At times legislators concluded, whether on their own initiative or under pressure from public-interest groups or at the behest of court decisions, that redistricting would be better performed by an independent entity. Legislatures have occasionally adopted redistricting reforms on a statutory basis, as when Iowa’s legislature in 1980 entrusted the task of drawing district lines in the fi rst instance to a (since renamed and reconstituted) Legislative Service Bureau that continues to perform this role.195 In other cases, though, legislatures have framed redistricting-reform measures as constitutional amendments, as a way of protecting commissions against future legislative interference. Legislature-generated amendments establishing or expanding the work of redistricting commissions were approved at various times between the late 1940s and mid-2010s by voters in Texas, Missouri, Maine, Washington, Idaho, New Jersey, Alaska, New York, and Ohio.196 To be sure, in some cases the commissions created by these legislature-generated amendments serve merely as a backup if legislatures could not agree on a redistricting map, as in a 1948 Texas amendment. In other cases, these amendments created commissions

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with merely advisory powers, as in a 1975 Maine amendment and a 2014 New York amendment. But in most cases amendments entrusted commissions with primary responsibility for line drawing. Legislators were willing to advance these amendments for various reasons. Sometimes they were pressured to act in situations when groups had already proposed redistricting-reform measures through the statutory or constitutional initiative process or were prepared to proceed through the initiative process. By drafting amendments, legislators were able to head off these initiatives and maintain some control over the design of the process. A 1983 Washington amendment was adopted in such a context, when citizens’ groups were preparing a statutory initiative establishing an independent redistricting commission.197 Ohio legislators advanced a 2015 amendment in a similar situation, where citizen-initiated amendments appeared on the ballot twice in the prior decade and others were likely forthcoming.198 But legislature-generated amendments have occasionally been approved in states without an initiative process, as in New Jersey, where legislators crafted and voters in 1995 approved an amendment creating a commission to draw congressional districts.199

Conclusion In taking stock of the reliance on amendments to transfer authority among institutions, it becomes clear that groups and officials at both the state and federal levels encountered some of the same challenges and responded by adopting similar solutions. Officials in states, no less than at the federal level, have grappled with how much authority should be vested in different levels of government and tried to prevent officials at one level from interfering with the work of, or shifting costs to, another governmental level. Officials at both the state and federal levels have also seen a need to establish agencies to issue regulations that legislators are ill suited to promulgate; moreover, once these agencies have been established, officials at both levels have seen a need to permit the legislature to exercise oversight of their work. The determination has also been made in both the states and the federal government that effective budgeting requires that the executive branch prepare and submit a budget. In their respective approaches to addressing these challenges, however, officials at the state and federal levels have proceeded quite dif-

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ferently. At the federal level, changes have been undertaken entirely through political and judicial processes. In states, the same types of changes have often been achieved through amendment processes. Consider various changes that were achieved by enacting state constitutional amendments but were undertaken by enacting statutes at the federal level. Concerns about unfunded mandates led to congressional passage of the 1995 Unfunded Mandates Reform Act but resulted in voter approval of anti-mandate amendments in fi fteen states from the 1970s to the 1990s. Regulatory commissions were established by Congress via passage of the 1887 Interstate Commerce Act and other statutes in later decades; meanwhile, voters were approving an 1879 California constitution establishing a railway commission, followed by amendments in the next three decades establishing wide-ranging corporation commissions in other states. When it came time to providing for legislative review and repeal of agency rulings, although Congress has inserted legislative-veto devices in many statutes, the US Supreme Court invalidated Congress’s use of the legislative veto in a 1983 ruling. After state legislatures encountered similar state court rulings striking down the legislative-veto device, voters in a half dozen states approved amendments authorizing the practice. Finally, whereas Congress established an executive-budget system through passage of a 1921 Budget and Accounting Act, voters in a half dozen states from the 1910s to the 1930s approved amendments creating executive-budget systems. In considering whether to make these and other changes through amendments rather than via statutes, state officials were often led to consider the advantages of the competing approaches, with the arguments in favor of proceeding via statutes well represented in these debates. On various occasions, most notably during debates about establishing regulatory commissions and executive-budget systems, some officials could be found who supported the substance of these changes but objected to placing them in the constitution. On this view, it was better to create emerging institutional arrangements via statute, because legislators could more readily revise them in the light of experience and strengthen them as necessary or eliminate them if they proved a failure. It was not just the novelty of these institutions that warranted keeping them on a statutory basis. The level of detail involved in setting out the powers of commissions or the timing of the governor’s submission of a budget was good reason, on this view, for letting legislatures resolve these matters. Although these objections to proceeding through the amendment

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process occasionally proved persuasive, counterarguments in favor of passing amendments often prevailed. Given that many of the proposed changes involved transferring authority from the legislature to other institutions, groups and officials often doubted that legislators could be counted on to enact these measures on their own initiative or to relinquish enough power to create workable arrangements in cases where the primary goal was to minimize legislative interference. Even when legislators supported these changes, amendments were seen as holding advantages over statutes. Changes adopted via statutes could easily be weakened or even repealed by future legislators, as various groups warned during debates about home-rule provisions, railroad and conservation commissions, and executive-budget systems. Statutes were also vulnerable to reversal in state courts, which issued rulings invalidating home-rule laws and legislative-veto devices and considered separationof-powers challenges to regulatory commissions. Amendments were also seen as appropriate in view of the importance of the institutional changes that were contemplated, as when convention delegates argued that administrative agencies are practically a fourth branch of government and deserve to be placed in the constitution alongside other departments.

Part III Rights

Chapter Three

Rights-Defining Amendments

R

ights have been updated on a regular basis through passage of state constitutional amendments, something rarely accomplished through the federal amendment process. The post– Civil War amendments and amendments expanding the suffrage to women and eighteenyear- olds are the only federal rights- defi ning amendments, aside from the Bill of Rights. Other amendments of this kind failed to secure a two-thirds vote in Congress, as with the Blaine amendment in the 1870s barring public funding of religious schools and various victims’ rights amendments considered in the 1990s and 2000s. An Equal Rights Amendment secured congressional approval but fell three states shy of ratification in the 1970s and 1980s. For the most part, groups seeking to update understandings of rights at the federal level rely on mechanisms other than the Article V amendment process. Congressional statutes have occasionally extended rights, as with adoption of civil rights acts and voting rights acts. But most changes have taken place via US Supreme Court decisions, through rulings barring racially segregated schools, prohibiting imposition of the death penalty for certain offenses, recognizing a right to an abortion, and guaranteeing a right to same-sex marriage, among other decisions. At the state level, by contrast, groups turn frequently to state constitutional amendment processes to bring about changes in understandings of rights. To be sure, legislation has played an important role in expanding rights in states, no less than at the federal level.1 State supreme courts have also issued rights- expanding rulings, particularly from the 1970s onward, at the urging of US Supreme Court Justice William J. Brennan Jr., 2 in a development labeled the “new judicial federalism.”3 The key difference between the state and federal levels is that amendments are

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a viable option, alongside of statutes and court decisions, for updating rights in states. Reliance on state constitutional amendments to defi ne rights has received occasional scholarly attention, even as the role of state court rulings has attracted much more attention. Scholars such as Janice May have surveyed rights-regarding amendments in particular eras.4 Other scholars have examined amendments defi ning specific rights such as privacy, equal protection, and the right to keep and bear arms. 5 Still other scholars, such as Robert F. Williams, have examined amendments regarding a wide range of rights.6 In this chapter I analyze rights- defi ning state constitutional amendments, with the intent of identifying the rights secured through amendments, the motivations for adopting them, and the reasons for proceeding through the amendment process rather than in other ways. In focusing on amendments updating understandings of rights, I leave aside amendments that have already been the subject of book-length treatments. Alexander Keyssar published a comprehensive study of state constitutional provisions regarding voting rights.7 Meanwhile a recent book by Emily Zackin examined amendments recognizing positive rights, including education clauses and environmental rights provisions. 8 Moreover, I do not consider for present purposes—because it is treated as a distinct phenomenon in the next chapter—amendments that respond to state court decisions by counteracting them. To preview the principal conclusions, amendments have at times provided greater protection for rights than is guaranteed at the federal level and have at other times recognized rights with little counterpart at the federal level. In the former set of cases, federal amendments, statutes, or  court decisions establish a baseline level of protection for certain rights, and state amendments are a vehicle for exceeding federal requirements, especially regarding religious liberty, equal protection, privacy rights, the right to keep and bear arms, and property rights. In another set of cases, state constitutional amendments have recognized rights when federal constitutional provisions, statutes, and judicial decisions play a minimal role or are silent, as with victims’ rights and hunting and fishing rights. Conclusions can also be advanced about the impetus for passing these amendments. Sometimes the precipitating factor is an unsuccessful federal amendment that elevates the prominence of a particular right. At other times, amendments are enacted in the aftermath of US Supreme

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Court decisions that expand or decline to expand rights under the US Constitution and serve to boost the salience of a right in the public consciousness. State-level developments are another precipitating factor. On various occasions, groups have responded to state legislative threats to rights or have viewed state courts as providing insufficient protection for rights. Of course, to conclude that some amendments are prompted by state-level developments is not to discount the role of national interest groups, which often play a part in enactment and diffusion of amendments. A fi nal set of conclusions can be drawn about the reasons why groups rely on constitutional amendments rather than legislation or litigation for updating rights. In some cases, legislators and judges are not inclined to recognize certain rights and are even viewed as obstacles to securing protection for these rights. Even when legislators or judges are supportive of recognizing certain rights, amendments are at times deemed preferable to statutes or court decisions, in part because amendments better protect against erosion of rights at the hands of future legislators or judges.

Religious Liberty Amendments have been adopted from the mid-nineteenth century through the early twenty-fi rst century to update conceptions of religious liberty. Most of these amendments limit public support for religious schools and other institutions and to a greater extent than required by the federal Establishment clause. Meanwhile, on a few recent occasions, groups and officials have pressed for amendments requiring greater protection for free exercise of religion than is required pursuant to the federal Free Exercise clause. Religious Establishment The thirty- eight state constitutional provisions that explicitly prohibit public support for religious schools and institutions have been the subject of extensive political and scholarly debate. Generally (if imprecisely) characterized as Blaine amendments, on account of their kinship with a failed federal amendment proposed by congressman James G. Blaine in 1875, these state amendments have attracted attention in part because

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state courts have invoked them to prohibit practices otherwise permissible under the US Constitution. State courts have occasionally relied on them to overturn school voucher plans. In other states, courts have interpreted them as limiting other forms of public support for students attending religious schools, especially transportation and textbook assistance. Some state courts have interpreted these provisions as limiting the display of religious symbols on public property.9 State court rulings invoking these amendments have in turn generated much discussion about the origins of these provisions, particularly whether and to what extent they were animated by anti- Catholic sentiment. Some scholars maintain that these amendments were motivated by nativism and opposition to Catholicism.10 Other scholars have identified a range of other motivations and arguments leading to their adoption.11 It is not necessary for present purposes to resolve this particular debate about the dominant motivations for adopting each of these particular amendments. As legal historian Steven K. Green noted in the most extensive analysis to date, anti- Catholic motives were clearly influential in passage of some of these amendments, as in Massachusetts in 1855 and New York in 1894,12 even if other factors also played a role, and likely a greater role, in passing other amendments. In considering the range of motivations, Green pointed to several reinforcing objectives: an effort to limit competition for common schooling; a belief in the indispensable assimilating role of a common “public” education, which must take place under the control of public officials; a concern for ensuring education standards and public accountability; and a desire to avoid religious dissension, competition, and control over access to public money. Protestant antipathy toward the Catholic Church was, indisputably, a factor as well. Public school educators, themselves overwhelmingly Protestant, associated Protestantism with republican values and Catholics with authoritarianism. At times, this last basis for prohibiting funding of religious education overshadowed the other rationales.13

More important for the present purpose of tracing the development of these provisions is that nearly half of them were adopted prior to congressional consideration of a federal Blaine amendment in the 1870s and for reasons rooted in state-level developments, whereas slightly more than half were adopted after the federal amendment’s failure and partly due to the elevated profi le of the issue. Michigan’s 1835 constitution in-

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cluded the nation’s fi rst constitutional provision explicitly prohibiting use of public funds “for the benefit of religious societies, or theological or religious seminaries.”14 As with later provisions adopted in other states, convention debates surrounding passage of the Michigan provision reveal that participants were aware that these limits would press most directly on Catholics. William Woodbridge, a delegate to this Michigan convention, said that he “was opposed to such a provision.—Virtue and liberty were the only bonds which can keep society together, and he was unwilling to deprive it of any institution which might strengthen their bonds. If the Catholics for instance should establish a college here, as was proposed, should not the legislature have authority to replenish the Treasury of such an institution, if it was found conducive to the general good, as it assuredly would be? He was unwilling to deprive them of a single aid, even of a Theological seminary.”15 However, in keeping with a pattern seen in other states that enacted these provisions in the face of similar critiques, supporters ultimately prevailed, partly because they thought that explicit constitutional provisions would ensure “that no taxes should be laid upon the people, except for the common benefit,” in the words of delegate Edward D. Ellis.16 By the 1870s, when Congress considered amending the US Constitution to explicitly bar state government support of religious schools, seventeen states had already adopted constitutional provisions resembling and in some cases expanding on Michigan’s pioneering provision.17 Wisconsin, Oregon, Minnesota, and Kansas adopted provisions in their inaugural constitutions in the 1840s and 1850s. Other states, including Ohio and Indiana, enacted such provisions in the 1850s while undertaking wholesale revisions of their constitutions. In other states, as in Massachusetts, these provisions were adopted via legislature-referred amendments.18 Congressional consideration of federal amendments barring states from funding religious schools brought renewed attention to the issue. Two federal amendments were introduced in the Senate in 1871 and 1872.19 Then, in 1875, President Ulysses S. Grant urged passage of an amendment that was soon introduced by Rep. Blaine, a former House Speaker and presidential aspirant and the eventual Republican presidential nominee in 1884. The House easily approved an amendment in 1876; but after much debate in the Senate, a different version fell four votes shy of the support necessary to send the amendment to the states. 20 Whether and to what extent congressional consideration of the fed-

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eral Blaine amendment was responsible for passage of subsequent state amendments has been a matter of much scholarly debate. The legal historian Green summarized the challenges, as well as the possibilities, of drawing such a connection, when he wrote, “Few could doubt that the Blaine amendment inspired several state legislatures to adopt express no-funding provisions in their own constitutions. Less certain is whether the Blaine amendment caused or served as the primary model for these subsequent state measures.” 21 At a minimum, the influence of the federal Blaine amendment is evident in the passage of a handful of state amendments in the years immediately following the congressional debate. This includes conventiondrafted provisions included in Colorado’s inaugural 1876 constitution 22 and added to New Hampshire’s constitution in the same year. 23 In 1877, the Minnesota legislature drafted and voters approved an amendment strengthening existing religious-liberty provisions, 24 while the Nevada legislature gave the fi rst of two required approvals to a similar strengthening amendment that was eventually approved by voters three years later. 25 Beginning with the congressional Enabling Act of 1889 preparing for statehood for South Dakota, North Dakota, Montana, and Washington, Congress routinely required new states to adopt constitutional provisions barring use of public funds for schools under sectarian control. 26 In the years following the failure of the federal Blaine amendment, more than twenty additional states adopted constitutional provisions explicitly limiting public funding of religious schools, 27 eventually bringing to thirty- eight the number of state constitutions that currently contain provisions of this sort.28 During this time, other states strengthened long-standing provisions (at the same time as other states relaxed their provisions in response to state court decisions, as discussed in the following chapter). 29 State constitutional provisions explicitly limiting public support for religious institutions vary in their placement and phrasing. Some appear in education articles and are meant to limit state support of religious schools in particular, whereas in other states they appear in the Bill of Rights and apply to a broad range of ways that state governments might support various religious institutions. They also differ in whether they merely prohibit direct support or also limit indirect assistance, as in a provision included in Oklahoma’s 1907 constitution declaring, “No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect,

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church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.”30 Free Exercise of Religion Whereas amendments strengthening religious- establishment guarantees were enacted partly in response to state developments and partly on account of federal developments, amendments strengthening free- exercise guarantees emerged largely in response to federal developments. State religious freedom restoration amendments have been prompted in particular by a US Supreme Court decision in Employment Division of Oregon v. Smith (1990). 31 The aspect of the Smith ruling that attracted most attention, because it was widely viewed as a departure from prior rulings, was a declaration that the federal Free Exercise clause does not require officials to satisfy a “compelling government interest” test when enforcing generally applicable laws that incidentally burden someone’s exercise of religion. The Smith decision generated opposition from across the political spectrum and responses from both Congress and state legislatures. In 1993 Congress enacted the Religious Freedom Restoration Act (RFRA), which restored the “compelling government interest” test for adjudicating free- exercise challenges to federal and state laws. Under such a test, laws incidentally burdening free- exercise rights must further a compelling interest and must be framed in the least restrictive way. The increased public attention to free- exercise rights occasioned by the Smith decision and by passage of the federal RFRA also prompted some state legislatures to enact RFRAs in the early 1990s. 32 Then, in the late 1990s, support for adopting state RFRAs underwent another resurgence after the US Supreme Court in Boerne v. Flores (1997) invalidated the federal RFRA as it applied to state governments. 33 In the view of the US Supreme Court, Congress exceeded its power under the enforcement clause of the Fourteenth Amendment in requiring courts to employ a “compelling government interest” test in adjudicating challenges to state laws and practices. With the Supreme Court seen as no longer providing sufficient protection, and with congressional efforts to provide such protection via legislation struck down by the Court, state officials considered a range of responses intended to protect religious liberty. Twenty states enacted religious freedom restoration statutes from the

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1990s onward;34 but in some states supporters considered, and in one state enacted, such a measure via the constitutional amendment process. In 1998 Alabama voters approved an Alabama Religious Freedom Amendment (ARFA) that generally tracks the language of the federal RFRA, in an effort to “guarantee that the freedom of religion is not burdened by state and local law; and to provide a claim or defense to persons whose religious freedom is burdened by government.”35 Alabama’s 1998 amendment was prompted in part by the US Supreme Court’s Smith and Boerne decisions and in part by a concern that Alabama courts were not inclined to adopt the rigorous “compelling government interest” test when hearing challenges to cases on the state level. 36 In Smith’s aftermath, some state supreme courts interpreted the religious-liberty clauses in their state constitutions as requiring application of the “compelling government interest” test, and in such a way as to obviate the need for a state statute or constitutional amendment directing that this test be used. 37 But Alabama’s Supreme Court was not prepared to adopt such an approach, thereby leading Alabama legislators to draft an amendment, which was approved by voters in 1998, requiring the court to adopt such a test. North Dakota voters considered but rejected a similarly framed citizen-initiated constitutional amendment in 2012, 38 leaving the Alabama measure as the only amendment currently in effect. In opting to enact a religious freedom restoration measure on a constitutional rather than statutory basis, Alabama legislators were guided by several considerations. One advantage of adopting the “compelling government interest” test via an amendment, as Thomas C. Berg and Frank Myers wrote in an analysis of the amendment’s passage, was that it “would be immune from challenges based on the state constitution.” In particular, placing the measure in the constitution would immunize heightened protection for religious liberty from separation- of-powers challenges that might be advanced against a statute, which could be vulnerable to claims that it was “interfering with the courts’ power to interpret constitutional provisions.”39 These separation- of-powers challenges could not prevail if such a directive was written into the state constitution. Another reason for adopting a constitutional amendment was to ensure that heightened protection for religious liberty “could not be limited by ordinary legislation,” in the event that legislators might try to retreat from such protection at a later time.40

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Equal Protection State constitutional amendments have in many cases barred discrimination not prohibited explicitly in the US Constitution, even if some of these forms of discrimination have been banned through other measures, such as US Supreme Court rulings interpreting the federal Equal Protection clause or via congressional statutes. In some instances, as Robert F. Williams has noted, state anti- discrimination amendments have been framed in a general fashion, similar to the federal Equal Protection clause,41 and were, in J. Willard Hurst’s language, intended merely to “record” rather than “direct” the currents of political change.42 But in other instances, amendments have been adopted to provide greater protection against discrimination than is afforded at the federal level. Twenty-two states have adopted amendments explicitly barring discrimination based on sex. A half dozen states have enacted amendments limiting discrimination against disabled persons. Gender Equality Several states with constitutional provisions explicitly prohibiting gender discrimination adopted these requirements in response to state-level developments, long before a federal Equal Rights Amendment (ERA) gained momentum in the early 1970s.43 In fact, three of these provisions were adopted in the late nineteenth century. Delegates to California’s 1878– 79 convention framed and voters approved a new state constitution declaring in one section, “No person shall, on account of sex, be disqualified from entering upon or pursuing any lawful business, vocation, or profession.”44 Meanwhile, in framing inaugural constitutions for Wyoming in 1890 and Utah in 1896, convention delegates granted women the right to vote and also included provisions guaranteeing equal civil rights for women. As part of suffrage sections stipulating that the right “to vote and hold office shall not be denied or abridged on account of sex,” the Wyoming and Utah constitutions declared, “Both male and female citizens of the State shall equally enjoy all civil, political and religious rights and privileges.”45 Nearly all of the remaining gender- equity amendments were enacted in the 1970s, with voters ratifying three state ERAs even before Con-

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gress submitted a federal ERA for ratification. For instance, in framing a new 1971 Illinois constitution, a convention crafted and voters approved the fi rst of the modern state ERAs. The Illinois provision mandated, “The equal protection of the laws shall not be denied or abridged on account of sex by the State or its units of local government and school districts.”46 Meanwhile, in drafting a new Virginia constitution that also took effect in 1971, a commission recommended, in a move endorsed by legislators and voters, a wide-ranging provision barring discrimination based on gender and other characteristics.47 Also in 1971, voters in Pennsylvania approved an amendment focused specifically on guaranteeing equal rights without regard to sex.48 In considering the motivations for adopting these provisions in the early 1970s, a number of arguments figured prominently in the debates. Delegates to the 1969– 70 Illinois convention were aware that the specific constitutional language that they were considering had not yet been adopted by any other state. Odas Nicholson, a cosponsor of the proposal, argued, “You might be interested to note that Illinois will be the fi rst state which has given such broad protection to its female citizens in the event we pass this amendment.”49 But, in an indication that this provision and other early-1970s state gender- equity provisions were motivated in part by federal developments, Nicholson pointed out that the language in the proposed Illinois amendment was “substantially the same” as a proposed federal ERA 50 presented to Congress “for the last forty-seven years,” and that “just last week a subcommittee of the Judiciary Committee reported this bill out favorably.”51 Supporters such as Nicholson argued that an ERA should be added to the Illinois constitution in part because of continuing discrimination against women “as relates to jury service” and “in education, for instance,”52 and, most important, because the US Supreme Court was not applying a sufficiently rigorous test when adjudicating sex- discrimination claims. As Nicholson explained, “The highest court of the land has decided, in several instances, that a state may classify on the basis of sex, unless the classification is unduly unreasonable and it is up to the court on a case-by- case method.”53 In such a context, state constitutional provisions were needed to provide greater protection than afforded by US Supreme Court interpretations of the Equal Protection clause. In particular, state constitutional provisions could require sex to be treated as a suspect classification, thereby ensuring that classifications based on sex

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would receive the same strict scrutiny accorded to racial classifications. Paul Linton and Ryan Joslin concluded from their analysis of the Illinois convention debates that there is “no doubt that the central purpose [of the Illinois ERA] was to treat classifications based on a person’s sex in the same manner as classifications based on race; that is, constitutionally suspect and presumptively invalid.”54 The remaining state ERAs were all adopted after Congress approved the federal ERA on March 22, 1972. In fact, the vast majority of state ERAs were approved in a five-year window between 1972 and 1976 when all but one of the state legislative ratifications of the federal ERA also took place. Initially, it appeared that the federal ERA would be ratified easily. Twenty-two states ratified the federal ERA in 1972 alone, followed by eight states in 1973, three states in 1974, and another state in 1975. But only one other state signed on after that point, when Indiana ratified in 1977, leaving the federal ERA three states short of the thirtyeight needed to complete ratification. No other state went on to ratify the federal ERA, whether by 1979 (the initial expiration date for ratification) or 1982 (the revised date, after Congress approved a three-year extension). 55 The pattern of adoption of state ERAs generally paralleled the timing of state ratification of the federal ERA. 56 Eight states adopted state constitutional provisions barring sex discrimination in 1972: Montana (as part of a new constitution), Texas, Alaska, Hawaii, New Mexico, Maryland, Colorado, and Washington. Another three states adopted amendments in 1974—Louisiana (as part of a new constitution), New Hampshire, and Connecticut—followed by Massachusetts in 1976. Approval of state ERAs stalled in the mid-1970s, at the same time state legislative ratification of the federal ERA also stalled. Voters rejected a number of state ERAs that appeared on the ballot from the mid-1970s through the mid-1980s. For instance, voters in New Jersey and New York defeated state constitutional amendments banning sex discrimination in 1975, 57 as did voters in Florida in 1978, Iowa in 1980, Maine in 1984, and Vermont in 1986. 58 Only four states approved state ERAs from the 1980s to the present. Rhode Island voters in 1986 approved a convention-referred amendment. Voters in Iowa and Florida, after rejecting ERAs in prior years, eventually ratified gender- equity amendments in 1998, via legislaturereferred amendment in Iowa and a commission-referred amendment in

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Florida. 59 Oregon is the most recent state to add a sex- discrimination ban to its constitution, via the initiative process in 2014.60 The twenty-two state constitutional provisions banning sex discrimination vary in some respects.61 Most are similar to the federal ERA in focusing entirely on barring discrimination on account of sex.62 Maryland’s amendment is typical, in declaring, “Equality of rights under the law shall not be abridged or denied because of sex.”63 Other amendments prohibit discrimination on the basis of sex alongside of other characteristics, as typified by Connecticut’s amendment: “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin or sex.”64 Whereas most state ERAs are framed similarly to the federal ERA in applying to government action, a few state ERAs make explicit reference to nongovernmental actors.65 An equal rights provisions in the 1971 Illinois constitution declares, “All persons shall have the right to be free from discrimination on the basis of . . . sex in the hiring and promotion practices of any employer or in the sale or rental of property.”66 A Montana equal rights provision prohibits discriminatory action not only by “the state” but also by “any person, fi rm, corporation, or institution.”67 A Rhode Island amendment also applies to some private actors, insofar as it bars discrimination “by the state, its agents or any person or entity doing business with the state.”68 Discrimination on the Basis of Disability In the 1970s, at a time when a number of states were adopting amendments barring sex discrimination, in part due to the attention raised by the proposed federal ERA, states were also considering—and occasionally enacting—amendments barring discrimination against disabled persons,69 at a time when Congress was enacting statutes protecting such persons.70 During the 1970s and 1980s, six states adopted constitutional provisions that in some cases focus squarely on discrimination against the disabled and in other cases designate disability as one of multiple prohibited forms of discrimination. Illinois adopted the fi rst state constitutional provision explicitly targeting disability discrimination, when voters approved a 1971 constitution. Included in the new Illinois Bill of Rights, alongside of two other

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anti- discrimination provisions, was a provision declaring, “All persons with a physical or mental handicap shall be free from discrimination in the sale or rental of property and shall be free from discrimination unrelated to ability in the hiring and promotion practices of any employer.” 71 As is clear from debates in the 1969– 70 Illinois convention, delegates viewed this pioneering provision as a logical complement to other antidiscrimination provisions, especially gender- equity provisions. John Knuppel argued, “This body has seen fit to protect fish, birds, game, wildlife, the environment, ethnic groups, regional groups, and women. I cannot possibly see how or why they shouldn’t extend it to those persons who are struggling harder than anyone else, against their inhibitions, to overcome the same, and to become productive members of society.”72 The Illinois disability- discrimination provision was also intended, as delegate Elmer Gertz explained, to provide greater protection than courts had generally required when interpreting traditional equal protection guarantees. Gertz argued that “the due process and equal protection clause relates to state action; it does not relate to the private sector,” whereas this disability provision was broader in that it “relates to the private sector as well as the public sector.” 73 Of the five other state constitutional amendments banning discrimination against the disabled, two were adopted in the mid-1970s and three were adopted in the 1980s. In 1974, Florida voters approved an amendment adding “physical handicap” to an existing equality clause.74 In the same year, Louisiana voters approved a new constitution that included “physical condition” in a new equality clause that also barred discrimination on a number of other grounds.75 Voters approved amendments protecting disabled persons in Massachusetts in 1980, in Connecticut in 1984, and (via convention-generated amendment) in Rhode Island in 1986.76 These amendments vary in whether they focus solely on protecting disabled persons, as in Illinois and Massachusetts, or include disability in a list of other prohibited grounds of discrimination, as in the remaining states. They also differ in whether they protect mentally disabled as well as physically disabled persons. Some are explicit in protecting “physical or mental” disability, as in the case of the Illinois and Connecticut amendments. But the Louisiana and Florida provisions focus specifically on “physical” condition. The Massachusetts and Rhode Island amendments simply bar discrimination on the basis of “handicap.”

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Privacy Constitutional provisions explicitly protecting a right to privacy have been adopted in ten states, at fi rst on a scattered basis at the turn of the twentieth century and then on a broader basis in the 1960s and 1970s.77 In both periods, state officials were responding to contemporaneous US Supreme Court decisions that offered expansive interpretations of federal constitutional provisions and served to boost the salience of various threats to privacy, whether regarding search and seizure, informational privacy, or personal autonomy. As groups and public officials became increasingly aware of these various threats to privacy, they were led to add or revise state constitutional provisions with an eye to providing a stronger textual foundation for privacy protection and, in doing so, to take account of technological advances. Washington’s 1889 constitution included the nation’s fi rst explicit privacy provision. In place of the standard search-and-seizure guarantee found in the Fourth Amendment and most state bills of rights, delegates to Washington’s 1889 convention drafted a provision declaring, in its entirety, “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” 78 In crafting this provision, which was later borrowed and adopted verbatim by the convention that drafted Arizona’s inaugural constitution,79 Washington convention delegates were responding to a series of federal court rulings in the 1880s. As Charles W. Johnson and Scott P. Beetham have shown in an analysis of the convention journal and contemporary news reports, Washington’s pioneering privacy provision was drafted “in part, as a result of a salient issue before federal courts between 1881– 1897: whether, and to what extent, Congress may authorize a legislative or executive body to compel witnesses to testify, to produce documents, and to fi nd a party in contempt for failing to do so.”80 Of particular importance was U.S. v. Boyd (1886), where the US Supreme Court had occasion to interpret the Fourth Amendment guarantee of “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Court interpreted this language in an expansive fashion, holding that the federal searchand-seizure guarantee, which at that time only limited the federal government and was not binding on the states, applied not only to actual searches but also to requirements that individuals produce documents

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pursuant to legislative or executive investigations.81 One lesson that state convention delegates took from this case and other federal court decisions in the 1880s was the need to draft state constitutional provisions to encompass the broad range of ways that government actions and officials might “disturb[]” or “invade[]” a person’s affairs.82 In using the term “private affairs,” Washington convention delegates were also conscious of “rapid advances in technology and the public’s increasing concerns about privacy.”83 In view of technological advances that had already taken place, Johnson and Beetham concluded, the convention’s rights committee charged with drafting a bill of rights “likely realized that far more than residents’ ‘persons  .  .  . papers, and effects’ needed protection and therefore selected the broader phrase ‘private affairs.’”84 Moreover, and looking ahead, “the term ‘private affairs’ would encompass privacy interests threatened by future technological developments.”85 As Johnson and Beetham concluded, “While the federal courts were forced to give the Fourth Amendment’s language an expansive reading to encapsulate additional privacy interests, the Rights Committee selected a term . . . that would always provide broad textual support for the protection of an individual’s private affairs.”86 Eight more states adopted privacy provisions between 1968 and 1980 in response to US Supreme Court rulings, prompted at times by rulings recognizing a sphere of personal autonomy and at other times by rulings limiting eavesdropping and other electronic searches. As Ken Gormley and Rhonda G. Hartman have written, five of these states “added fundamental personal decision privacy language to their constitutions between the years of 1972 and 1980, directly in response to the national mood swing following Griswold and Roe.”87 In Griswold v. Connecticut (1965), the US Supreme Court recognized a right to privacy emanating from various provisions in the federal constitution and expansive enough to protect a married couple in procuring contraceptives.88 Then, in Roe v. Wade (1973), the Court held that the right to privacy was sufficiently broad to encompass the right to obtain an abortion.89 In this context, a handful of state privacy amendments were intended to provide an explicit textual basis for personal autonomy rights, at a time when the US Supreme Court was recognizing these rights via expansive interpretation of the US Constitution. This motivation is evident in the debates in Montana’s 1971– 72 convention, whose delegates were responsible for framing one of the fi rst privacy amendments adopted in the modern era. In making a case for adopting a clause declaring, “The

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right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest,” delegate Bob Campbell argued, The United States Supreme Court, in Griswold v. Connecticut, had to construe the right of privacy as an implied right.  .  .  . Now, we don’t know how the interpretations will go from there, what the Supreme Court will do. We feel, in the Montana Supreme Court, it has recognized the right of privacy, although it has not been expressly stated in the Montana Constitution. What this would do—by requiring that this area of privacy be protected unless there is a showing of a compelling state interest, it produces what I call a semipermeable wall of separation between individual and state.90

He acknowledged that “some may urge and argue that this is a legislative, not a constitutional issue”; but he responded, “We think the right of privacy is like a number of other inalienable rights; a carefully worded constitutional article reaffi rming this right is desirable.” 91 In addition to the privacy provision included in Montana’s 1972 constitution, two other privacy amendments were enacted in 1972, in Alaska and California. Similar amendments were adopted in 1978 in Hawaii and in 1980 in Florida. In California, “privacy” was added to an existing Bill of Rights provision in order to recognize that individuals “have inalienable rights” such as “pursuing and obtaining safety, happiness, and privacy.”92 The other states adopted wholly new privacy provisions. Some states followed Alaska’s approach in simply declaring, “The right of the people to privacy is recognized and shall not be infringed.”93 Others, including Hawaii, went further and, after recognizing a right to privacy, stipulated that the right “shall not be infringed without the showing of a compelling state interest.” 94 In the late 1960s and 1970s, other privacy clauses were inserted into state search-and-seizure guarantees in response to US Supreme Court decisions interpreting the federal search-and-seizure clause as limiting electronic intrusions in cases when persons have a “reasonable expectation of privacy.” By the 1960s, as a result of the US Supreme Court’s ruling in Mapp v. Ohio (1961), the federal search-and-seizure clause had been incorporated into the Fourteenth Amendment, so that US Supreme Court interpretations of the federal search-and-seizure clause were binding on state governments.95 Nevertheless, Court rulings in the 1960s boosted the salience of privacy concerns and prompted passage of a handful of state

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constitutional privacy amendments. Two provisions, in Hawaii and Florida, were adopted in 1968,96 the year after the Court ruled in Katz v. U.S. (1967) that  the  Fourth  Amendment provided  safeguards  against electronic eavesdropping, at least where persons had a reasonable expectation that their communications would be private. Illinois and South Carolina adopted similar provisions in 1971, followed by Louisiana in 1974.97 The motivation for these changes to state search-and-seizure provisions is evident in the debates in the Illinois 1969– 70 convention, whose delegates added protection against “invasions of privacy or interceptions of communications by eavesdropping or other means” to the state’s search-and-seizure guarantee.98 In presenting the committee proposal to add this language, convention delegate John Dvorak referenced recent US Supreme Court cases, especially the 1967 Katz case, which, he said, “held that governmental activities violated privacy upon which the defendant justifiably relied, resulting in a search and seizure within the meaning of the Fourth Amendment.” 99 Dvorak also took note of privacy concerns that had arisen in contexts other than US Supreme Court cases, such as “the concept of a general information bank whereby the state government or the federal government can take certain pertinent information about each and every one of us.”100 In summarizing the purposes of the revised Illinois search-and-seizure clause, and particularly the insertion of a privacy provision, Dvorak explained, The search and seizure provision on a federal basis has been made to include violations of interceptions of communications, thereby including, of course, the theories of eavesdropping, wire-tapping, and more generic concepts or more futuristic things that some inventor may come up with. And this [proposed state] search and seizure provision also goes on to include right of privacy, so the result then is that while the Federal Constitution has been made—or has been judicially interpreted—to include all of these concepts, we felt that we could be very progressive and very thorough and very proper if we would include all [these] theories into section 6 of our bill of rights.101

The Illinois provision was not without its critics, including delegate Helen Kinney, who argued that there was no need to draft state constitutional provisions in advance of US Supreme Court interpretations of the US Constitution. It was sufficient, she thought, to rely on the judiciary’s willingness to engage in expansive interpretation of Bill of Rights guarantees to guard against intrusive electronic searches. Kinney argued,

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I value privacy as much as anyone; but, again, I would remind the delegates that we do have a United States Constitution, and the Fourth Amendment of that Constitution has been expanded by the United States Supreme Court which bans unauthorized or warrantless electronic eavesdropping or bugging, or bugging authorized by insufficient wiretaps, as well as unauthorized wiretaps on telephone conversations. They said it for us, and the construing litigation has said it for us; and why are we going to get ourselves into a position of adopting specific language when we really don’t know what it means?102

Despite these critiques, five states added “privacy” language to their search-and-seizure provisions in the late 1960s and 1970s. For many amendment supporters, it was not enough to rely on the judiciary to update privacy protections through expansive interpretation of broadly phrased Bill of Rights provisions, especially when this goal could be achieved more effectively by rewriting constitutional provisions. Illinois delegate William Jaskula expressed this widely held view when he argued that “the committee’s proposal is a further protection against the violation of a person’s right. When our present constitution was written back in 1870, we did not have any electronic devices. Today we have them.”103 In advancing this argument, some supporters, such as Illinois delegate Anne Evans, also drew on an influential National Municipal League publication, the Model State Constitution. During the convention debate, Evans read from the Model State Constitution’s recommendations regarding the language of state search-and-seizure clauses: “The original search and seizure provisions were designed to deal with the only method of intrusion into the home then known, that of physical intrusion. Newer methods of intrusion through the use of electronic devices dispense with the need for the physical intruder, and it may well—it may be well to reflect contemporary threats to privacy in the constitutional document.”104 In focusing on the five states that amended their search-and-seizure clauses in the 1960s and 1970s to add specific mention of “invasions of privacy” as in Illinois, Hawaii, Louisiana, and South Carolina, or “private communications,” as in Florida, it should be noted that a few other states also passed amendments to achieve a similar goal of protecting against electronic searches, albeit without using the term “privacy.” A 1938 New York amendment that added a search-and-seizure clause for the fi rst time in that state’s constitution declared, “The right of the peo-

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ple to be secure against unreasonable interception of telephone and telegraph communications shall not be violated.”105 More recently, a legislature-referred amendment approved by Missouri voters in 2014 declared that persons should be secure against unreasonable searches and seizures in their “electronic communications and data,” along with the long-standing protection for “persons, papers, homes, and effects.”106

Right to Keep and Bear Arms State constitutional provisions guaranteeing a right to keep and bear arms have been added and amended on a regular basis since the founding era and with particular frequency since the 1960s.107 Amendments adopted from the 1960s onward have been prompted in part by statelevel developments, especially state legislative proposals to adopt guncontrol regulations and state court rulings viewed as insufficiently protective of gun rights. Some amendments have also been prompted by developments at the national level. In the 2010s, amendments were advanced after notable US Supreme Court decisions interpreting the Second Amendment. In District of Columbia v. Heller (2008), the Court considered whether the language in the Second Amendment, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed,” guaranteed an individual right or a collective right, and resolved the question in favor of an individual right.108 Two years later, in McDonald v. City of Chicago, the Court determined that the Second Amendment should be incorporated into the Fourteenth Amendment and therefore made binding on state governments.109 These cases, both resolved in favor of gunrights supporters, boosted the issue’s salience and prompted passage of amendments seeking to provide even stronger textual foundation for such rights at the state level. In taking stock of the various purposes of amendments enacted since the 1960s, nine states lacking explicit constitutional protection for the right to bear arms opted to add such guarantees, bringing the total number of states with such provisions to forty-four.110 For instance, Virginia’s Bill of Rights had always mentioned the benefit of “a well regulated militia” and the danger of “standing armies”; but in drafting a new 1971 Virginia constitution, a commission proposed and voters approved adding a clause stating, “Therefore, the right of the people to keep and bear arms

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shall not be infringed.”111 Other states either added gun-rights language to long-standing inalienable-rights clauses, as in North Dakota in 1984 and Nebraska in 1988, or adopted freestanding right-to-bear-arms provisions for the fi rst time, as in Illinois in 1971, Nevada and New Hampshire in 1982, West Virginia in 1986, Delaware in 1987, and Wisconsin in 1998.112 A number of other post-1960s amendments revised long-standing language regarding the right to bear arms and to various ends—generally, but not exclusively, to increase protection for gun rights. Some amendments made clear that this is an individual right and not merely a collective right of the citizenry. For instance, a 1994 Alaska amendment retained a long-standing clause referring to “the right of the people” but added a sentence referring to “the individual right to keep and bear arms.”113 Meanwhile, in making various changes to a long-standing Utah gun-rights provision, a 1984 amendment replaced original language declaring that “the people have the right to bear arms” with new language guaranteeing “the individual right of the people to keep and bear arms.”114 This same Utah amendment illustrates another change achieved in recent years via amendments: making clear that individuals have the right not only to bear arms but also to keep them. Utah was not alone during this period in replacing its original guarantee of the right “to bear arms” with the right “to keep and bear arms.” Similar changes were made through amendments in Michigan in 1963, Florida in 1968, New Mexico in 1971, and Kansas in 2010.115 Still other amendments have altered the justification for the right to keep and bear arms, with an eye to broadening the legitimate purposes for possessing guns and thereby influencing state court adjudication of challenges to gun regulations. Although the Second Amendment is not explicit in identifying the purposes served by guaranteeing the right to keep and bear arms, the “well regulated Militia” clause has been taken by some jurists as providing the sole justification and thereby limiting the reach of the federal guarantee by tethering the right to militia service and national defense. Since the founding era, though, state right-tobear-arms clauses have in many cases been explicit in offering additional justifications beyond national defense, starting with Pennsylvania’s 1776 constitution, which declared “that the people have a right to bear arms for the defense of themselves and the state.”116 Recent amendments altering the purposes for which guns can be

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used follow two main approaches. On one occasion, in Maine in 1987, an amendment deleted long-standing language indicating that persons have a right to keep and bear arms “for the common defence.” In a ruling handed down the prior year, Maine’s Supreme Judicial Court interpreted this “common defence” language as stating the sole purpose for which the right could be exercised.117 To make clear that guns can be kept and used for additional purposes, the Maine legislature approved and voters ratified an amendment removing this qualifying language,118 so that Maine’s constitution now declares, without qualification, “Every citizen has a right to keep and bear arms; and this right shall never be questioned.”119 Most of the recently enacted amendments tweaking the justifications for keeping and bearing arms have taken a different approach, by listing additional purposes for exercising the right. Prior to passage of a wide-ranging 1994 Utah amendment, the right to bear arms in that state could be exercised simply for “security and defense”; after passage of this amendment, the right can be exercised “for security and defense of self, family, others, property, or the state, as well as for other lawful purposes.”120 A 2010 Kansas amendment was similarly expansive. In place of long-standing language referring only to “security and defense,” the Kansas amendment guarantees the right to keep and bear arms “for the defense of self, family, home and state, for lawful hunting and recreational use, and for any other lawful purpose.”121 A few recent amendments aim to influence state court decisionmaking in another way, by directing that any restrictions on the right are subject to “strict scrutiny.” This language first appeared in a 2012 Louisiana amendment that rewrote the state’s gun-rights guarantee by stipulating, “The right of each citizen to keep and bear arms is fundamental and shall not be infringed. Any restriction on this right shall be subject to strict scrutiny.”122 Amendments approved by voters in Alabama and Missouri in 2014 took a similar approach, declaring that any restriction on the right to keep and bear arms “shall be subject to strict scrutiny.”123 A fi nal purpose of recent right-to-keep-and-bear-arms amendments has been to detail in a specific fashion which gun regulations are and are not permissible. Although this strategy has been especially prevalent in recent decades, there is nothing new about inserting specific guidance in these clauses. Amendments have long been a vehicle for making clear that certain gun regulations are not allowed—and in other cases making clear that they are allowed. When a 1978 Idaho amendment stipulated

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that the right to bear arms “shall not prevent the passage of laws to govern the carrying of weapons concealed on the person,”124 this exception had its roots in similar provisions inserted in gun-rights guarantees in nine state constitutions in the late nineteenth century.125 In this context, a 1990 amendment to Florida’s right-to-keep-and-bear-arms clause mandating that the legislature impose a three- day waiting period between purchase and delivery of handguns is in one sense unique;126 but it can be viewed from another perspective as the latest in a string of amendments permitting and occasionally requiring specific gun regulations. For the most part, recent amendments specifying the content of permissible gun regulations have been concerned with disallowing particular regulations. For instance, the same 1978 Idaho amendment that specified certain allowable gun regulations such as concealed- carry restrictions also prohibited certain regulations; in particular, “No law shall impose licensure, registration or special taxation on the ownership or possession of fi rearms or ammunition. Nor shall any law permit the confiscation of fi rearms, except those actually used in the commission of a felony.”127 Meanwhile, a 2014 Missouri amendment makes clear that the right to keep and bear arms encompasses “ammunition, and accessories typical to the normal function of such arms.”128

Property Rights Amendments have frequently altered state constitutional provisions affecting property rights. Although provisions barring taking or damaging of private property without just compensation have generated much of the amendment activity in this area, other provisions bound up with property rights have also given rise to amendments through the years. In the mid-nineteenth century, for instance, some states adopted constitutional provisions guaranteeing property rights of married women, at times entrenching protections already achieved through legislative statutes, but at other times granting such protections for the fi rst time, as in Reconstruction- era constitutions in Georgia, North Carolina, and South Carolina.129 Although these married women’s property rights provisions were generally inserted in fi nance articles or other substantive articles of state constitutions, they were occasionally placed in the state bill of rights, as in Mississippi, which adopted the nation’s fi rst married women’s property statute in 1839 and then included in its 1869 constitu-

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tion a provision declaring, “The rights of married women shall be protected by law in property owned previous to marriage; and also in all property acquired in good faith by purchase, gift, devise, or bequest, after marriage.”130 Meanwhile, and on a subject that has attracted much interest in recent decades, constitutional amendments were adopted twice in Oregon in the early twenty-fi rst century changing the procedures governing civil asset forfeiture, whereby state or local governments can seize property used in a crime.131 State takings clauses have generated most of the amendment activity in this area. Amendments to takings clauses were adopted for various purposes in the nineteenth and twentieth centuries, as when a number of states in the late nineteenth century began to require compensation not only for taking of property, which is all that is required by the language of the Fifth Amendment to the US Constitution, but also for damage to property.132 Still other amendments in these earlier periods sought to defi ne which sorts of takings would and would not constitute public use.133 However, the most sustained period of amendment activity took place in the decade after the US Supreme Court in Kelo v. City of New London (2005) ruled that the federal Takings clause does not bar condemnation of private property for economic development purposes. Kelo generated a wave of state constitutional amendments, not so much because the ruling departed from Supreme Court precedent, but rather because it highlighted for the public the implications of the Court’s long-standing deference to government officials when they exercised the eminent domain power. The Supreme Court had issued rulings since the 1950s declining to interpret the federal Takings clause as barring government condemnation of private property.134 In this context, the Kelo decision could reasonably be viewed as more in keeping with, than a departure from, prior Court rulings, insofar as the five-justice majority held that economic development qualified as a permissible “public use” and declined to prohibit condemnation of private property for economic development purposes, as the City of New London had done in the instant case.135 However, the public was less concerned with whether the ruling was consistent with prior Court doctrine than with the outcome, which was roundly panned. As legal scholar Ilya Somin has written, the ruling “generated more public attention than all but a handful of other Supreme Court rulings. And the overwhelming majority of that attention was hostile.”136 In Kelo’s aftermath, groups and officials considered various ways

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they might secure greater protection for property rights than was guaranteed by the federal Takings clause. In fact, Justice John Paul Stevens set out some options for responding to the ruling in his opinion for the Court, where he wrote, “We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose ‘public use’ requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law, while others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be exercised.”137 On several occasions, relief was supplied by state supreme court rulings interpreting state constitutional provisions to ban takings for economic development purposes. In noting in his Kelo opinion that a few states had established rigorous “public use” requirements “as a matter of constitutional law,” Justice Stevens referred in a footnote to a Michigan Supreme Court decision that reached such a conclusion the year before Kelo was decided.138 In the year after Kelo was decided, the Ohio and Oklahoma supreme courts issued similar rulings interpreting state constitutional provisions as disallowing economic development takings.139 For the most part, heightened protection for property rights in the aftermath of Kelo has not come from state court decisions interpreting state constitutions in an expansive fashion but rather through passage of legislation and constitutional amendments.140 In response to the postKelo public clamor for reform, and drawing at times on model legislation circulated by the Institute for Justice’s Castle Coalition, many state legislatures tweaked or undertook wholesale revisions of eminent domain statutes.141 All told, thirty-seven state legislatures adopted statutory reforms to eminent domain policies and procedures in the decade after Kelo.142 But in some states, legislators were not content with passing statutory reforms. They approved and submitted to voters constitutional amendments placing these reforms on a more permanent footing, partly in an effort, as in Virginia, to “entrench these protections for property owners against future legislative erosion,” as Somin explained in his study of post-Kelo developments.143 Meanwhile, in states where legislators were unwilling to approve eminent domain reforms, as in Mississippi, or not prepared to act quickly enough, as in North Dakota, or aggressively enough, as in Nevada, relief was secured through the initiative process and occasionally through the constitutional initiative process.144 Altogether, twelve state constitutional amendments were adopted in

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the decade following Kelo, whether as legislature-referred or citizeninitiated amendments.145 Seven amendments were approved in 2006 alone: in Florida, Georgia, Louisiana, Michigan, New Hampshire, and South Carolina, and (via the initiative process) in North Dakota.146 In 2008, Nevada voters gave the second of two required approvals to a citizen-initiated amendment (per the distinctive rules of Nevada’s constitutional initiative process).147 Also in 2008 California voters approved a citizen-initiated amendment that made modest reforms to eminent domain rules, at the same time that they voted down a competing amendment that would have achieved much more significant protection for property rights.148 Amendments were also approved in 2009 in Texas, in 2011 in Mississippi (via the initiative process), and in 2012 in Virginia.149 These amendments vary in their form, purpose, and effectiveness.150 Some, as in California and Georgia, make modest changes, whether because they apply only to certain types of property or because they make minor procedural changes in how elected officials can exercise the eminent domain power.151 Other amendments are more significant, in that they disallow or place significant hurdles in the way of condemning property for economic development purposes. For instance, Virginia’s amendment declares that “a taking or damaging of private property is not for public use if the primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development, except for the elimination of a public nuisance existing on the property.”152 North Dakota’s amendment goes even further in stating unequivocally that “a public use or a public purpose does not include public benefits of economic development, including an increase in tax base, tax revenues, employment, or general economic health.”153 Still other amendments, such as in Florida, require a supermajority legislative vote to allow any condemnation that involves a transfer of property from one private entity to another.154 Mississippi’s amendment stipulates that, with some exceptions, property acquired by the eminent domain power cannot be transferred to another person, corporation, or other private entity for at least ten years.155

Victims’ Rights Although supporters of victims’ rights have not obtained the necessary support in Congress to pass an amendment to the US Constitution, vot-

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ers in thirty-five states have approved state victims’ rights amendments, with most of the adoptions coming in the 1980s and 1990s. State victims’ rights amendments were adopted in part as a result of the publicity sparked by debate in Congress about a proposed federal amendment. Adoption of state victims’ rights amendments can also be attributed to the rigidity of the federal amendment process. Recognizing the high barriers to enacting a federal amendment, the victims’ rights movement chose to target state amendment processes, which were seen as offering a more viable path to securing protection for victims’ rights as well as a means of building support for an eventual federal amendment. Groups and officials began urging greater protection for victims’ rights as early as the 1960s and 1970s;156 but it was only in the 1980s that the movement gained significant support, largely due to President Ronald Reagan’s April 1982 executive order creating a Task Force on Victims of Crime.157 In its fi nal report issued in December 1982, the task force offered sixty- eight recommendations, including adding a clause to the Sixth Amendment stipulating, “Likewise, the victim, in every criminal prosecution shall have the right to be present and to be heard at all critical stages of judicial proceedings.”158 The task force recommendations eventually led to a national conference of victims’ rights advocates and the formation in 1986 of a National Victims’ Constitutional Amendment Network (NVCAN), which had as one of its goals the enactment of a federal amendment, albeit phrased somewhat differently than the version recommended by the presidential task force.159 Victims’ rights advocates persuaded congressional supporters to introduce a federal amendment in the House and Senate on a number of occasions from the mid-1990s to the present. The Senate Judiciary Committee voted in favor of an amendment during the 105th Congress (1997– 98) and 106th Congress (1999– 2000) and then again during the 108th Congress (2003–4).160 Such an amendment, which underwent some changes in wording in these various congressional sessions, was debated on the Senate floor on several of these occasions. But it was not at any time brought to a floor vote in either chamber. On the few occasions when the amendment was debated in the Senate, it was eventually withdrawn in anticipation of a fi libuster.161 Congress occasionally passed statutes designed to aid victims of crime during this period.162 However, backers fell well short of what was needed to advance a constitutional amendment out of Congress. Even as victims’ rights groups were encountering setbacks in their bid

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for a federal amendment, they were enjoying significant success at the state level. NVCAN members recognized at the organization’s inception in the mid-1980s that the barriers to adopting a federal amendment were so high that it made sense, at least as an initial matter, to press for adoption of state victims’ rights amendments.163 This was viewed as the most promising way of securing protection for such rights, given the rigidity of the Article V amendment process. Enacting state amendments would also build and demonstrate support for future passage of a federal amendment.164 California adopted the fi rst victims’ rights amendment, via the initiative process, in a June 1982 vote.165 In contrast with virtually all other state victims’ rights amendments, the wide-ranging California amendment, while it included several provisions securing victims’ rights, also made a number of changes to the rights of criminal defendants, especially regarding admissibility of evidence and testimony, and in a way intended to reverse state supreme court decisions. In fact, the California amendment was motivated primarily by concerns about recent state court rulings seen as overly solicitous of the rights of criminal defendants. It was drawn up well before President Reagan focused attention on victims’ rights at the national level, even if its passage came on the heels of his creation of a victims’ rights task force.166 Nearly all of the other state victims’ rights amendments focus entirely on guaranteeing rights of crime victims. Voters in five states adopted victims’ rights amendments in the late 1980s.167 Twenty-six amendments were approved in the 1990s. In fact, the pace of enactment was so steady during the 1990s that only two years during this decade—1995 and 1997—did not feature adoption of at least one victims’ rights amendment.168 Then, after a period of nearly two decades, in 2016 voters in three more states approved amendments adding victim’s rights provisions to their state constitutions.169 Victims’ rights amendments vary in their specific guarantees.170 At a minimum, most of them grant victims and their families a right to be informed about and participate in legal proceedings, as in a 1998 Florida amendment that stipulates, “Victims of crime or their lawful representatives, including the next of kin of homicide victims, are entitled to the right to be informed, to be present, and to be heard when relevant, at all crucial stages of criminal proceedings, to the extent that these rights do not interfere with the constitutional rights of the accused.”171 Many amendments also require restitution, as provided in a 1986 Rhode Island

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amendment declaring, in part, that victims “shall be entitled to receive, from the perpetrator of the crime, fi nancial compensation for any injury or loss caused by the perpetrator of the crime”172 Some amendments are comprehensive in specifying various protections, as when a 1993 Wisconsin amendment ensures that victims are entitled to “timely disposition of the case; the opportunity to attend court proceedings unless the trial court fi nds sequestration is necessary to a fair trial for the defendant; reasonable protection from the accused throughout the criminal justice process; notification of court proceedings; the opportunity to confer with the prosecution; the opportunity to make a statement to the court at disposition; restitution; compensation; and information about the outcome of the case and the release of the accused.”173 In some instances, especially in the twenty-fi rst century, amendments have revised existing victims’ rights provisions, invariably with an eye to strengthening protection for victims. A pair of Oregon amendments approved by voters in 2008 was motivated by a concern that victims were unable to enforce rights guaranteed under a victims’ rights provision adopted nearly a decade earlier. The purpose of these subsequent Oregon amendments was to “empower victims individually to seek remedies for violations” of their guaranteed rights,174 in part by providing that all victims “shall have remedy by due course of law for violation” of their rights set out in the state’s victims’ rights provisions.175 A 2008 California amendment, which is known as Marsy’s Law and has prompted consideration of similar strengthening amendments in other states, added a number of specific protections to the state’s original victims’ rights amendment approved a quarter century earlier.176 A 2014 Illinois amendment, adopted over two decades after passage of the state’s inaugural victims’ rights guarantee, had a similar aim of adding to the original list of specific guarantees for crime victims, by recognizing a right “to be free from harassment, intimidation, and abuse” throughout the criminal justice process, a right to “timely” notification of court proceedings, and a right “to have the safety of the victim and the victim’s family considered in denying or fi xing the amount of bail, determining whether to release the defendant, and setting conditions of release after arrest and conviction.” The Illinois amendment also guarantees that “the victim has standing to assert the rights enumerated in [this provision] in any court exercising jurisdiction over the case.”177

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Right to Know Constitutional amendments have been responsible in five states since the 1970s for guaranteeing a right to know, thereby protecting the right of citizens to gain access to public records and deliberations.178 Although access to federal records is protected through the Freedom of Information Act and guaranteed on the state level through passage of similar statutes, groups and officials have supplemented these provisions by adopting state constitutional amendments. Unlike a number of rightsdefi ning amendments that were prompted at least in part by federal developments, right-to-know amendments were adopted almost entirely in response to state-level developments, amid concerns from the 1970s onward about whether state legislators could be trusted to ensure adequate access to public records and proceedings. In some cases, as with a pioneering provision in Montana’s 1972 constitution, state right-to-know amendments were intended to provide greater protection than currently guaranteed by state statutes.179 When the issue was debated in Montana’s 1971– 72 convention, delegate Dorothy Eck argued that the convention’s bill of rights committee sought to ensure “by this provision that the deliberations and resolutions of all public matters must be subject to strict scrutiny” and that “this is especially the case in a democratic society wherein the resolution of increasingly complex questions leads to the establishment of a complex and bureaucratic system of administrative agencies.”180 She acknowledged that Montana already had an Open Meeting Act: “We do commend this particular bit of legislation, but we think that probably it is not enough and that this provision does go considerably farther and, as our government continues to grow, will provide a better basis than one that is purely statutory.”181 The provision approved by convention delegates for inclusion in Montana’s constitution declares, “No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.”182 In other states, including New Hampshire, where voters in 1976 approved a convention-referred amendment, groups and officials sought to place the right to know on a constitutional foundation rather than continuing to leave it on a statutory basis, primarily to guard against

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legislative backsliding. To be sure, several delegates to the 1974 New Hampshire convention that crafted this amendment saw no need to add a constitutional provision, given that the state already had on the books a “Right to Know Law which is pretty comprehensive,” as Neal Seavey argued.183 However, in making a successful case for adopting an amendment declaring in part that “the public’s right of access to governmental proceedings and records shall not be unreasonably restricted,”184 delegate John Michels contended that a constitutional provision would provide more security for this right. He acknowledged that the current statute “is generally a good law. I have no disagreement with that.” But he argued that his great fear is an erosion of this doctrine of accessibility and openness. Currently the way matters stand in the State of New Hampshire, a majority vote can do away with the right to know. And it is quite possible that it can be done away with gradually. You can have footnotes to budgets, you can have a whole slew of ways you can gradually take away slowly but surely this right to know. If we put it in the Constitution, as I propose, we will, for all time, have set our right to know what is going on with the government. The Constitution requires a two-thirds vote to change something. If we put this in the Constitution, it is two-thirds needed to change it.185

Michels’s support for a constitutional amendment was grounded in part in his fear that “legislation can be picked at piecemeal,” through statutory adjustments and restrictions that might go undetected by the public. He also pointed out that “you can get a very emotional issue going on in the Legislature—whether it be between a Governor and a Legislature or what have you and they could one day just abolish the right to know.”186 Voters in Florida in 1992 and California in 2004 adopted legislaturegenerated amendments that were even more specific than amendments approved in the 1970s in Montana and New Hampshire as well as Louisiana (as part of a new constitution approved in 1974).187 Florida’s 1992 right-to-know amendment, which was in turn strengthened by a 2002 amendment, contained a long list of government bodies covered by a new “Access to public records and meetings” provision.188 Although the original Florida amendment allowed the legislature by a majority vote to exempt certain records and meetings, in approving a legislature-referred public-access amendment a decade later, voters made it more difficult to pass such exemptions, by requiring a two-thirds legislative vote to do

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so.189 California’s amendment, in addition to guaranteeing that “the people have the right of access to information concerning the conduct of the people’s business,”190 contains detailed guidance for the judiciary when interpreting a statute or rule bearing on the topic, declaring that it “shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access.”191

Right to Hunt and Fish State constitutional amendments have been a regular means of guaranteeing a right to hunt and fish, mainly from the 1990s through the 2010s in response to concerns about regulations viewed as threatening these pursuits. In contrast with a number of other rights- defi ning state amendments that were prompted largely by federal developments or have some parallel at the federal level, hunting and fishing rights amendments have no federal counterpart. They have been adopted entirely in response to state-level developments, at fi rst in a piecemeal fashion in a few states in the 1770s and then in some other states in the nineteenth and early twentieth centuries, before a wave of adoptions around the turn of the twenty-fi rst century. As Jeffrey Omar Usman has written in a comprehensive analysis of these amendments, hunting and fishing rights appeared in the inaugural constitutions of Pennsylvania and Vermont in the 1770s but can be traced back even further to colonial charters in the 1600s.192 In crafting these framework documents in the 1600s, colonists were drawing on concerns of Englishmen about restrictions on hunting imposed by the king and various efforts to push back against these restrictions in England.193 Guarantees of hunting and/or fishing rights were included in the 1641 Massachusetts Body of Liberties, 1662 Connecticut Royal Charter, 1663 Royal Charter of Rhode Island and Providence Plantations, and the 1683 and 1696 Frames of Government of the Province of Pennsylvania.194 Framers of Pennsylvania’s 1776 constitution were therefore demonstrating continuity with colonial documents when they drafted a provision declaring, “The inhabitants of this state shall have liberty to fowl and hunt in seasonable times on the lands they hold, and on all other lands therein not inclosed; and in like manner to fi sh in all boatable waters, and others not private property.”195 Because the convention charged

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with drafting an inaugural Vermont constitution drew heavily on Pennsylvania’s constitution, it was no surprise that Vermont’s constitution included a similarly framed guarantee.196 Although a decade and a half later delegates to Pennsylvania’s 1790 convention eliminated the right to fowl, hunt, and fish, along with numerous other provisions, when Vermont officials framed a new constitution in 1793, they opted to retain their guarantee, which survives to this day.197 Although for two centuries—prior to a wave of amendments beginning in the 1990s—Vermont’s constitution stood as the only state constitution that guaranteed a right to both hunt and fish, two other states added guarantees focused solely on fishing rights in the meantime. Rhode Island was one of only two of the original thirteen states, along with Connecticut, that did not draft a new constitution in the 1770s. Rhode Island continued until the mid-1800s to operate under its colonial charter of 1663, which included explicit protection for fishing rights.198 When delegates to Rhode Island’s 1842 convention drafted a constitution to replace their colonial charter, they retained long-standing protection for fishing rights, declaring, “The people shall continue to enjoy and freely exercise all the rights of fishery, and the privileges of the shore, to which they have been heretofore entitled under the charter and usages of this state.”199 This fishing rights provision survives in Rhode Island’s constitution, just as a fishing rights provision with a different origin has been retained in California’s constitution. In 1910, in the midst of Progressive Era concerns about corporate influence and domination, California voters approved an amendment stating, “The people shall have the right to fish upon and from the public lands of the State and in the waters thereof, .  .  .  and no land owned by the State shall ever be sold or transferred without reserving in the people the absolute right to fish thereupon.” 200 The concerns motivating this California amendment are evident in the language supplied in that year’s voter guide, which took note of the “vigorous development of California’s natural resources by individuals and large corporations” and argued that “many of the streams have been closed to the public and trespass notices warning the public not to fish are displayed to an alarming extent.” 201 If hunting and fishing rights provisions were originally rooted in concerns about restrictive game rules and California’s fishing rights amendment stemmed from concerns about undue corporate influence, the twenty hunting and fishing amendments approved since 1996 are mo-

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tivated by concerns about animal-welfare regulations. 202 In particular, supporters of recent hunting and fishing rights amendments are reacting to bans on certain forms of trapping and hunting imposed through ballot measures and legislative statutes in various states. 203 Sportsmen’s groups have been key backers of these amendments, which have been opposed by the Humane Society and allied groups. 204 Alabama in 1996 and Minnesota in 1998 were the fi rst states in the contemporary era to adopt hunting and fishing rights amendments, followed by eighteen states between 2000 and 2016. 205 On another occasion voters also approved an amendment—in Alabama in 2014—expanding and strengthening the state’s original hunting and fishing rights amendment adopted nearly two decades earlier. These modern hunting and fishing amendments take various forms. A few are framed less as rights-protective measures than as policyexhortation measures, as with a Georgia amendment that declares, “The tradition of fishing and hunting and the taking of fish and wildlife shall be preserved for the people and shall be managed by law and regulation for the public good.” 206 Of the provisions that explicitly protect a right to hunt and fish, some were added to articles of state constitutions dealing with conservation and natural resources, as with a Virginia amendment declaring, “The people have a right to hunt, fish, and harvest game, subject to such regulations and restrictions as the General Assembly may prescribe by general law.” 207 Still other provisions appear in state bills of rights, as with a Louisiana amendment stating, “The freedom to hunt, fish, and trap wildlife, including all aquatic life, traditionally taken by hunters, trappers and anglers, is a valued natural heritage that shall be forever preserved for the people.”208 Although some of these provisions merely provide that the people shall enjoy these rights subject to legislative regulation and restriction, others go further and stipulate that such regulations must be “reasonable,” as when a Wisconsin amendment provides that “the people have the right to fish, hunt, trap, and take game subject only to reasonable restrictions as prescribed by law.”209

Conclusion Although the goal of this chapter has been to provide as comprehensive an account as possible of state constitutional amendments updating understandings of individual rights, it is worth noting briefly several

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amendments that have not been addressed before turning to draw some conclusions. Amendments have also provided heightened protection for other rights, such as freedom of the press, as when California voters approved a 1980 amendment barring contempt charges against journalists for refusing to disclose their sources. 210 Amendments guaranteeing a right to farm have also been passed on two recent occasions, in North Dakota in 2012 and Missouri in 2014. 211 Moreover, and stressing a point made on various occasions in this chapter and addressed in a comprehensive fashion in the next chapter, amendments have also been adopted in response to state court decisions interpreting various rights, including religious establishment, rights of criminal defendants, the death penalty, and personal autonomy. In drawing conclusions about the origin and purpose of rightsdefi ning amendments, it becomes clear that many were prompted by federal developments. On a number of occasions, failed federal amendments prompted adoption of similarly framed state amendments, in part because debates at the federal level boosted the prominence of the issue and in part because the difficulty of navigating the federal amendment process led supporters to focus on passing state amendments. The influence of federal amendment debates on state amendment activity is evident especially in passage of amendments barring public funding of religious schools after the rejection of the federal Blaine amendment in the 1870s, in the enactment of state ERAs at the same time many state legislatures were ratifying the federal ERA in the 1970s, and in the adoption of victims’ rights amendments in two-thirds of the states from the 1980s onward after a presidential task force recommended a federal victims’ rights amendment. Other amendments were prompted by US Supreme Court decisions expanding or occasionally failing to expand rights. In some cases, the US Supreme Court issued expansive interpretations of federal Bill of Rights provisions and in a way that boosted the salience of a threat to rights and led state officials to secure protection from this threat, albeit on an explicit textual foundation. Some privacy-rights amendments in the late 1960s and 1970s were enacted after the US Supreme Court recognized a right to personal autonomy in the Griswold case and after the Court interpreted the federal search-and-seizure clause as limiting eavesdropping in the Katz case. Other amendments were adopted after the US Supreme Court declined to issue expansive interpretations of the federal Bill of Rights; the intent on these occasions was to provide

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greater protection for rights than the Court was prepared to guarantee. This was the motivation for a wave of amendments in the 2000s limiting the eminent domain power after the Supreme Court in the Kelo case declined to impose such limits pursuant to the federal Takings clause. State amendments have not been prompted solely by federal developments. Amendments limiting public funding for religious schools were passed in a number of states in the four decades prior to consideration and defeat of the federal Blaine amendment. Meanwhile, amendments strengthening state right-to-keep-and-bear-arms guarantees were enacted in a number of states in the four decades before the US Supreme Court issued several high-profi le interpretations of the Second Amendment in the 2000s. In still other cases, as with amendments recognizing hunting and fishing rights in the 1990s and 2000s, there was no discussion of these measures at the federal level. The record of state amendment activity also yields insights into the reasons why groups and officials resorted to passing amendments rather than proceeding through legislation or litigation. After all, the same changes in understandings of rights achieved through passage of amendments in some states were secured in some other states through legislation and in other states through court decisions. The availability of multiple institutional pathways at the state level meant that groups and officials were often led to debate the advantages and disadvantages of proceeding through the amendment process rather than the political or judicial process and to set out reasons for taking the amendment route. Securing rights by passing amendments has been viewed as superior to passing legislation for multiple reasons. At times, legislators are not inclined to provide adequate protection for rights, for instance when it came to tightening limits on the eminent domain power after the Kelo decision. In fact, at times, legislators actually pose the main threats to rights, as in the case of the right to bear arms in the late twentieth and early twenty-fi rst centuries. In these situations, conventions, commissions, and citizens acting through the initiative process can bypass legislatures and craft amendments securing adequate protection for various rights. Even when legislatures are willing to enact statutes providing an adequate level of protection for rights, groups and officials have at times thought it beneficial to adopt amendments insulating these rights from reversal. This advantage of guaranteeing rights through constitutional provisions has been on display during debates over religious freedom

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restoration amendments and right-to-know amendments especially. Supporters of taking the amendment route argued that statutes protecting these rights can easily be eroded by future legislators who might be inclined for reasons of self-interest or susceptibility to special interest groups to weaken statutory protections and who might even succumb to temporary passions and eliminate the protections altogether. Entrenching these rights via amendments places them on a more permanent footing and makes backsliding less likely. Updating rights by passing amendments also holds advantages over looking to state supreme courts to achieve similar outcomes by issuing rulings interpreting constitutional provisions. One concern that emerged on various occasions is that judges are not always inclined to provide adequate protection for certain rights. When groups and officials have considered how best to provide heightened protection for free exercise of religion, the right to keep and bear arms, and property rights, for instance, they occasionally have taken the constitutional amendment path because experience has shown that judges were not inclined on their own initiative to provide the desired level of protection. At the least, judges cannot be counted on to provide as much protection as can be obtained through the amendment process, as illustrated by passage of amendments barring specific gun restrictions or requiring judges to adopt a compelling government interest test when adjudicating challenges to laws burdening free exercise of religion, among other practices. Another advantage of updating defi nitions of rights through amendments rather than relying on judges to achieve similar outcomes is to place these rights on a stronger textual foundation. On various occasions, supporters of adopting constitutional amendments guaranteeing privacy rights or gender equity or rights of disabled persons encountered objections from officials who maintained that these amendments were unnecessary because judges have already recognized these rights through expansive interpretations of generally phrased due process and equal protection clauses. In such a situation, critics asked, what is gained by writing these protections into the constitution? To which amendment supporters responded that placing these rights on a stronger textual foundation endows them with more legitimacy and provides valuable guidance to judges in deciding future cases.

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onstitutional amendments limiting or overturning rights- expanding court decisions have been adopted on a regular basis in states, in contrast with the federal level, where amendments responding to US Supreme Court rulings are occasionally introduced but rarely approved. Only four federal amendments, the Eleventh (1795), Fourteenth (1868), Sixteenth (1913), and Twenty- Sixth (1971), have reversed US Supreme Court decisions, and none of them was passed in response to rightsexpanding rulings.1 On various occasions, particularly since the 1960s, Congress has considered approving federal amendments to counteract rights- expanding US Supreme Court decisions. Some of these amendments secured majority support in one or more houses of Congress. But all have fallen short of the two-thirds support in both houses needed to send an amendment to the states. Amendments to overturn US Supreme Court rulings limiting public school prayer were debated from the 1960s through the 1980s and secured the support of a majority of senators voting on the amendment in 1966 and 1984 and a majority of House members on several occasions. 2 Amendments limiting federal court school- desegregation orders were debated in Congress at various points in the late 1970s and fell eight votes shy of securing majority support in the House in a 1979 vote. 3 In the 1970s and 1980s, Congress debated amendments reversing or limiting Supreme Court rulings recognizing a right to abortion; the high-water mark came in 1983 when an amendment fell one vote short of a majority in the Senate.4 Amendments that would reverse Supreme Court decisions extending First Amendment protection to flag burning have come closest to passage, routinely securing support from two-thirds of House members but falling just one vote short of the two-thirds mark

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in the Senate in 2006. 5 A majority of senators voted in 2014 to support an amendment that would reverse US Supreme Court decisions extending First Amendment protection to independent campaign expenditures.6 With the federal amendment process effectively foreclosed as a viable option for responding to the US Supreme Court’s rights- expanding decisions, groups and officials who are dissatisfied with these rulings have resorted to other strategies. They have occasionally secured passage of congressional statutes limiting the effect of Supreme Court decisions, whether by barring federal funding of abortions or enacting statutory guidelines regarding federal court desegregation orders.7 But the main approach has been to change the composition of the Supreme Court. Groups focus on electing a supportive president and winning control of the Senate, in anticipation of vacancies on the Court. Then they mobilize for and against nominees to fi ll vacancies that arise. When groups are able to secure the appointment of favorably disposed justices, they work to generate cases presenting the Court with an opportunity to reverse or limit rights- expanding precedents. For instance, a series of Supreme Court appointments in the 1970s and 1980s led to changes in understandings of criminal-procedure guarantees, including by producing decisions making exceptions to the exclusionary rule in ways not previously permitted. New appointments also resulted in Supreme Court decisions upholding abortion waiting-period and informed- consent laws after earlier decisions disallowed these restrictions. Newly appointed justices were also responsible for issuing decisions allowing public accommodation of some forms of religious expression after earlier rulings cast doubt on their legitimacy. In short, at the federal level, efforts to change the Supreme Court’s composition through the appointment process are the primary means of bringing about changes in understandings of rights. The situation is quite different at the state level, where judicial elections and the flexibility of state constitutional amendment processes present additional options for responding to state court decisions. In thirtyeight states, judges on the state’s highest court stand for reelection at periodic intervals, whether in competitive or retention elections.8 In states with judicial elections, and particularly in states that hold competitive elections, groups seeking to reverse state court rulings have regular opportunities to unseat judges and replace them with judges sympathetic to different understandings of rights. Even in states where judges are appointed by the governor or legislature, groups have more opportunities

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to influence the composition of courts than at the federal level,9 because judges in all but four states serve fi xed but renewable judicial terms, in contrast with the life tenure enjoyed by federal judges.10 Groups and officials have also responded to state court decisions by adopting constitutional amendments, a development that has only begun to receive the scholarly attention that it merits. A number of high-profi le amendments in the early 1980s reversing state court criminal-procedure decisions gave rise to articles highlighting and assessing these developments,11 with a particular focus on California amendments.12 Other scholars broadened the initial focus on criminal-procedure amendments to take account of amendments responding to state court decisions banning capital punishment, protecting abortion rights, and limiting public support of religious schools.13 Additional studies were prompted by passage of numerous state constitutional amendments in the 1990s and early 2000s responding to state court decisions legalizing same-sex marriage.14 In this chapter I analyze state constitutional amendments enacted in response to rights- defi ning state court decisions, with the aim of identifying the decisions that prompted these amendments, the forms these amendments have taken, and the reasons groups have opted to work through the amendment process rather than other institutional mechanisms. To preview the main conclusions, amendments have been adopted in response to state court decisions in two main situations. At times, voters approve amendments to reverse state court decisions relying on state constitutional provisions to provide greater protection for rights than is guaranteed by the US Constitution. At other times, voters approve amendments to preempt rights- expansive state court decisions, generally after similar decisions have been issued in other states and with the aim of insulating state laws or practices from invalidation. Court-responsive amendments take various forms. Some are explicit in authorizing practices invalidated or at risk of invalidation by state courts. Others alter the wording of clauses invoked by state courts when issuing rights- expansive rulings; the goal in these instances is to craft replacement language less susceptible to being interpreted in an expansive fashion. Still other amendments require state courts to adopt a “lockstep” approach and thereby interpret state constitutional provisions no more expansively than US Supreme Court interpretations of similar federal guarantees. As for the reasons for responding to court decisions through the

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amendment process rather than via other means such as influencing the composition of courts, groups and officials have concluded that amendments are generally more effective than alternative approaches. To be sure, the amendment route is not without shortcomings. State judges occasionally push back against court-reversing amendments. Sometimes state judges invalidate these amendments on procedural grounds. At other times, state judges fi nd alternative ways to strike down practices seemingly insulated from reversal by virtue of passing these amendments. In these cases, groups have had to turn to other approaches, such as influencing the makeup of state courts, or have simply resigned themselves to allowing the courts to have the fi nal word. For the most part, though, responding to court decisions via the amendment process has been seen as holding advantages over alternative approaches. In some instances, judges are not necessarily resistant to the outcomes sought by groups and officials dissatisfied with state court decisions. On these occasions, judges may even recommend passage of constitutional amendments as the proper way to change long- established understandings of rights rather than bringing about such a change through judicial reinterpretation of state constitutional provisions. Meanwhile, in cases where judges are at odds with legislators or citizens regarding understandings of rights, court-reversing amendments have been deemed more effective than other possible responses such as changing the composition of the court. Trying to unseat judges who issue rights- expansive decisions and replace them with judges holding a different understanding is usually more difficult than adopting a constitutional amendment, and the success of this strategy depends on the nature of the judicial selection process and the frequency and timing of judicial elections. Adopting an amendment is also a more precise way of counteracting a court decision and less blunt than removing judges from the bench.

Religious Liberty Although state constitutional amendments during the nineteenth and early twentieth century often imposed higher barriers to public support of religious schools and institutions than required by the federal Establishment clause, since the late twentieth century amendments have generally lowered these barriers. Recent amendments permitting government

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accommodation of religious institutions, at least as far as allowed under the US Constitution,15 have not always been adopted in response to state court rulings. Some were prompted by new circumstances or by policy proposals seen as inconsistent with existing constitutional language. Before turning to focus on accommodationist amendments that were prompted by state court rulings, it is worth taking brief note of some accommodationist amendments adopted for other reasons. In Washington State alone, amendments were adopted three times in the twentieth century to make exceptions to the guarantee in the state’s 1889 constitution that “no public money or property shall be appropriated for, or applied to any religious worship, exercise or instruction, or the support of any religious establishment.”16 A 1904 amendment added the qualifying clause, “Provided, however, That this article shall not be so construed as to forbid the employment by the state of a chaplain for the state penitentiary, and for such of the state reformatories as in the discretion of the legislature may seem justified.”17 A 1957 amendment allowed chaplains for “state custodial, correctional, and mental institutions.”18 A 1993 amendment added another exception, allowing chaplains for “a county’s or public hospital district’s hospital, health care facility, or hospice.”19 In adopting these amendments, legislators and voters in Washington were responding to new situations or fresh questions about long-standing policies. In other instances, as in South Carolina and Nebraska in the 1970s, amendments replaced separationist language with more accommodationist language as part of broad constitutional revision exercises and, again, without prompting from state court rulings. As part of a revision of South Carolina’s constitution, a constitutional study committee issued a 1969 report urging a change in a state constitutional provision that banned use of public money “directly or indirectly, in aid or maintenance of any” sectarian college, school, or other institution. 20 After hearing testimony from a number of groups and officials, including representatives of religious colleges, the committee determined that “public funds should not be granted outrightly to such institutions. Yet, the Committee sees that in the future there may be substantial reasons to aid the students in such institutions as well as in state colleges.” To this end, the study committee proposed an amendment, accepted by legislators and ratified by voters in 1972, accomplishing “a prohibition on direct grants only and the deletion of the word ‘indirectly.’” 21 A Nebraska amendment adopted the same year had a similar origin

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and purpose. A state constitutional revision commission report in 1970 included as one of over 100 recommendations a change in a constitutional provision barring appropriation of public funds “in aid of” any religious school or college. In a recommendation supported by the state’s unicameral legislature and ratified by Nebraska voters in 1972, 22 the commission recommended replacing “in aid of” with “to” so that the revised provision would have the more modest effect of only barring appropriation of funds “to” any non-public school. 23 If the preceding amendments are generally not understood as courtresponsive amendments, in a number of other instances, as James N. G. Cauthen has shown, accommodationist amendments were clearly prompted by and designed to reverse state court rulings. 24 Many of these court-responsive amendments sought to allow public funds to be used to bus students to parochial schools, in the face of contrary state court rulings. In drafting a new constitution for New Jersey in 1947, convention delegates drafted the fi rst provision of this sort, in response to the Everson v. Board of Education litigation concerning the legitimacy of publicly funded transportation for parochial school students. Although New Jersey’s highest court upheld the practice in a 1945 ruling, and on appeal the US Supreme Court deemed the practice consistent with the federal constitution, New Jersey convention delegates were reacting to an early ruling in the case in which a lower state court in 1944 initially found the practice to run afoul of the state constitution. 25 To remove any doubt about the legitimacy of the practice, the 1947 New Jersey convention drafted and voters approved a provision declaring that “the Legislature may, within reasonable limitations as to distance to be prescribed, provide for the transportation of children within the ages of five to eighteen years inclusive to and from any school.”26 Whereas the New Jersey constitutional provision did not overturn a state supreme court decision but rather responded to a lower court ruling raising doubts about this practice, amendments were enacted in other states, as in Delaware and Wisconsin in 1967, that directly reversed state supreme court decisions barring use of public funds to bus students to religious schools. The Delaware amendment was enacted in response to a 1966 Delaware Supreme Court opinion reaffi rming an interpretation in a state court decision issued three decades earlier.27 The following year, the legislature approved an amendment that authorized publicly funded transportation for students to non-public schools, “notwithstanding any other provision of this Constitution.”28 The Wis-

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consin amendment overturned a state supreme court ruling issued five years earlier, 29 by stipulating that “nothing in this constitution shall prohibit the legislature from providing for the safety and welfare of children by providing for the transportation of children to and from any parochial or private school or institution of learning.”30 Amendments have also overturned state court decisions limiting practices other than busing. The year after the South Dakota Supreme Court in 1985 interpreted the state’s no-funding provisions as disallowing a textbook loan program as applied to private school students, 31 voters approved an amendment declaring that notwithstanding other state constitutional provisions, “the Legislature may authorize the loaning of nonsectarian textbooks to all children of school age.”32 Meanwhile, one of two accommodationist amendments approved by Wisconsin voters in 1972 authorized “use of public school buildings by civic, religious or charitable organizations during nonschool hours,”33 thereby overturning a two- decade- old state supreme court decision blocking such a policy. 34 The other Wisconsin amendment approved that year dealt with a released-time program (where public school students are released for religious instruction during school hours). This court-preemptive amendment sought to insulate the released-time program against a future state court reversal, 35 even if in this instance no state court decision had yet placed the program in jeopardy. 36 For the most part, these court-responsive amendments have modified state constitutional no-funding clauses in such a way as to permit accommodationist policies; however, some amendments have sought to remove no-funding clauses altogether and were in one case successful. In drafting a new Louisiana constitution, delegates to Louisiana’s 1973– 74 convention were intent on reversing a 1970 Louisiana Supreme Court decision that relied on multiple state constitutional provisions in barring use of public funds to pay the salaries of teachers in religious schools who taught secular subjects. 37 Rather than taking the path followed in other states and adding a provision explicitly authorizing such a policy, Louisiana convention delegates opted to eliminate altogether the no-funding provisions relied on by the state supreme court in its earlier ruling, leaving in place a religious-liberty clause almost identical in wording to the federal guarantee. 38 As successful as many of these court-responsive amendments have been in securing voter approval, others were rejected. As Cauthen has shown, accommodationist amendments have been rejected by voters

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more often than they have been approved. In New York in 1967, voters rejected a convention- drafted revised constitution that included as one of its most salient features elimination of a strict no-funding provision. 39 On other occasions, voters rejected stand-alone amendments that would have repealed no-funding provisions, as in Oregon in 1972 and Florida in 2012.40 Voters in other states defeated amendments that sought to respond to state court decisions by authorizing particular programs, such as busing children to religious schools, as in Idaho in 1972, or loaning textbooks to students attending religious schools, as in California in 1982, among other amendments rejected by voters in Missouri and Massachusetts in the 1970s and 1980s.41 Amendments have not been the sole recourse for groups and officials seeking authorization of accommodationist policies in the face of contrary court rulings. On some occasions when court- overturning amendments failed to pass, state courts reversed course nevertheless and began interpreting no-funding provisions in a more accommodationist fashion even in the absence of any change in the text of the state constitution. For instance, although New York voters rejected a new constitution in 1967 that would have eliminated a no-funding provision relied on by state courts to block accommodationist policies, the state’s high court issued a decision the same year announcing a dramatic change in its understanding of this provision. In particular, in deciding Board of Education v. Allen (1967), in a ruling upheld by the US Supreme Court the following year,42 the New York Court of Appeals acknowledged that the prevailing separationist interpretation of the state’s no-funding provision was based on a four- decadeold precedent, but declared that the current court would no longer be guided by this understanding. The court noted that the separationist interpretation dated to Judd v. Board of Education (1938), which invalidated a law providing for busing of children to religious schools, on the grounds that “although school busing was primarily for the benefit of the child, it still had the effect of giving an incidental benefit to sectarian schools and this ran afoul of” the state’s no-funding provision.43 In deciding the 1967 Allen case and upholding a law providing textbooks to parochial school children, the New York Court of Appeals announced a change in its interpretation of the state’s no-funding provision. The court declared, “We cannot agree with the reasoning of the majority in the Judd case and accordingly hold that it should not be followed.

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The New York State Constitution prohibits the use of public funds for a particular purpose; that is, aiding religiously affi liated schools. Certainly, not every State action which might entail some ultimate benefit to parochial schools is proscribed.”44 As the court explained, “The architecture reflected in Judd would impede every form of legislation, the benefits of which, in some remote way, might inure to parochial schools.”45 No longer prepared to accept this outcome, the New York high court announced a change in its interpretation of the state’s no-funding provision and in a way that moved in a more accommodationist direction. Although a change in judicial interpretation in New York achieved virtually the same goal as would have been accomplished through a constitutional amendment, similar shifts in other state courts’ jurisprudence were generally not forthcoming, thereby necessitating a resort to the amendment process. At times, groups and officials viewed the amendment route as a necessary means of revising strict no-funding language that was so explicit in barring certain practices that it left judges with little choice but to invalidate the policies. In the view of supporters of such policies, such a situation called for passage of an amendment relaxing the strict language. At other times, the problem stemmed not from overly strict no-funding language but rather from judges who were inclined to interpret generally phrased language in a separationist fashion even when the language might as easily have been interpreted in a more accommodationist fashion.46 Regardless of the different roots of the confl icts, whether grounded in the express language of the constitution or in judicial interpretation of constitutional provisions, the remedy was generally the same: amending the constitution to require a more accommodationist approach.

Rights of Criminal Defendants Amendments have been adopted on a regular basis—more than in any other area of law—to reverse state court decisions requiring greater protection for rights of criminal defendants than is required under the US Constitution. It is true that criminal-procedure amendments have not always been adopted in response to state court decisions. In some cases, these amendments have simply updated arrangements in response to new circumstances or changed understandings. But a number of amend-

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ments have been prompted by state court decisions, particularly from the 1970s onward, at a time when state courts were active in interpreting state bills of rights to guarantee greater protection for criminalprocedure rights than the US Supreme Court was prepared to guarantee under the federal Bill of Rights. Search and Seizure On various occasions in the twentieth century, amendments overturned state court decisions requiring more protection of search-and-seizure rights than is guaranteed by US Supreme Court interpretations of the Fourth Amendment. Some of these amendments were adopted well before the US Supreme Court in Mapp v. Ohio (1961) required states to adopt the exclusionary rule, during a time when states were still free to decide whether to admit evidence obtained from an improper search and some state courts interpreted their constitutions as requiring exclusion of such evidence.47 But other amendments were adopted after Mapp, in response to state court rulings demanding exclusion of evidence beyond what was mandated by US Supreme Court rulings. Especially from the 1970s onward, as the US Supreme Court made various exceptions to the exclusionary rule when police officers conducted searches in “good faith” or in other circumstances,48 some state courts have been willing to deviate from federal precedent by rejecting these exceptions.49 Although most state court rulings requiring heightened protection for search-andseizure rights have survived, some were reversed by amendments. 50 Michigan voters approved two amendments limiting the reach and application of the exclusionary rule, beginning with a 1936 amendment enacted in response to a three-year- old state supreme court ruling. The Michigan Supreme Court issued a decision requiring adoption of the exclusionary rule only five years after the US Supreme Court in Weeks v. U.S. (1914) adopted the rule for federal trials but allowed states to determine whether to adopt the rule in state trials. 51 After adopting the exclusionary rule in a 1919 decision, the Michigan Supreme Court went on to issue a 1933 decision disallowing admission into evidence of a concealed weapon seized in an illegal search of a car. 52 In response, voters approved a 1936 amendment stipulating that the state search-and-seizure guarantee does not bar introduction into evidence of “any firearm” or other weapon as long as it is seized outside a person’s home. 53 This was

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followed by passage of a 1952 amendment allowing admission of “any narcotic drug or drugs” seized outside the home. 54 Even after the US Supreme Court in Mapp required states to adopt the exclusionary rule and thereby disallow any improperly seized evidence, Michigan’s 1961– 62 convention retained these exceptions in substantial form in framing a new Michigan constitution, 55 in what the Michigan Supreme Court has interpreted as a directive not to exceed federally mandated minimum requirements for exclusion of evidence. 56 Voters in California and Florida also adopted amendments, both in 1982, in response to state court decisions requiring exclusion of evidence beyond what was required by the Fourth Amendment. In California, voters approved a right-to-truth-in- evidence clause as part of a wide-ranging victims’ rights amendment. The purpose of this citizen-initiated amendment was to overturn a series of California Supreme Court rulings in the 1970s that required suppression of evidence admissible according to the Fourth Amendment but deemed inadmissible by the state supreme court under the state search-and-seizure guarantee. 57 The Florida amendment was prompted by a 1981 Florida Supreme Court decision disallowing admission of evidence obtained through a “warrantless interception of a private conversation conducted in the home,” even when the evidence was admissible under US Supreme Court rulings. 58 Whether implicitly, as in California, 59 or explicitly, as in Florida, these amendments prevent state courts from interpreting state search-and-seizure provisions more broadly than the Fourth Amendment. As Florida’s amendment declares, “This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court.”60 Oregon voters also approved an amendment limiting the exclusionary rule, as part of a wide-ranging citizen-initiated victims’ rights measure approved in 1996;61 but the state supreme court invalided the entire measure two years later on the ground that each of the nine sections should have been submitted separately.62 A number of sections in the original measure were resubmitted the next year as separate amendments, but the section limiting admission of evidence was not among the resubmitted items.63 This nonresuscitated provision would have overturned various Oregon Supreme Court rulings,64 by granting crime victims a right to have “all relevant evidence admissible against the criminal defendant” and stipulating that the state search-and-seizure clause, along with

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another clause, “shall not be construed more broadly than the United States Constitution.”65 Right to Bail The US Constitution does not guarantee a right to bail. The Eighth Amendment simply guarantees that “excessive bail shall not be required,” in a provision whose applicability to state criminal proceedings was for some time uncertain but is now understood to be incorporated against the states via the Fourteenth Amendment.66 However, a majority of state constitutions go further in actually guaranteeing a right to bail, at least for most noncapital defendants.67 State constitutional amendments have been a frequent vehicle for revising the list of nonbailable offenses. As Donald Wilkes noted in a mid1980s analysis, most of these amendments “appear to be explainable simply as part of the overall trend toward law and order and increased emphasis on crime control.”68 In keeping with this trend, and in many instances triggered by high-profi le incidents where defendants out on bail committed heinous crimes, amendments have permitted denial of bail for additional crimes and circumstances. Consider the record in just one state, Texas, where voters approved four amendments of this sort since the 1950s.69 A 1956 amendment authorized denial of bail for up to sixty days for defendants previously convicted of two felonies.70 A 1977 amendment permitted denial of bail in additional circumstances, including for defendants with one felony conviction accused of committing another felony involving use of a deadly weapon.71 A 1993 amendment allowed denial of bail for persons “accused of a violent or sexual offense committed while under the supervision of a criminal justice agency . . . for a prior felony.” 72 In 2005 Texas voters approved still another amendment, this time permitting denial of bail for persons charged with a felony and released on bail who “violated a condition of release related to the safety of a victim of the alleged offense or to the safety of the community.” 73 Texas voters were not alone in approving amendments that make exceptions to “right to bail” guarantees, especially from the 1970s onward.74 Amendments in other states generally make exceptions of the sort added through Texas amendments. Some amendments expand the list of offenses for which bail could be denied. Other amendments permit denial of bail when a person commits serious offenses while already

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on bail, parole, or probation. Still other amendments permit preventive detention when a defendant is deemed to pose a danger to other persons or the safety of the public.75 Although nearly all of these amendments were adopted in response to changing circumstances seen as necessitating updating of right-to-bail provisions, in two cases amendments were passed in direct response to state court decisions. A 1982 California amendment was advanced in response to a nine-year old California Supreme Court decision that found no warrant in the California constitution for denying bail “solely because of petitioner’s dangerous propensities.” 76 The Court’s decision did not rule out the possibility that voters could approve a constitutional amendment permitting denial of bail for this reason, however. The Court advised that “if it becomes necessary to detain such persons, authorization therefore must be found elsewhere, either in existing or future provisions of the law.” 77 California voters responded to this invitation by approving an amendment authorizing denial of bail when “there is a substantial likelihood the person’s release would result in great bodily harm to others” or when a person “has threatened another with great bodily harm and . . . there is a substantial likelihood that the person would carry out the threat if released.” 78 Vermont voters approved amendments in 1982 and 1994 in response to a similar decision issued by the Vermont Supreme Court. In a 1975 ruling, the court held that Vermont’s constitution does not permit “denial of bail because of defendant’s dangerous propensities,” but advised, “If the constitutional guarantees of bail applicable to the cases at bar are in error, then it is up to the people to effect change, since the right to amend the constitution rests solely with the electorate.” 79 After adoption of amendments in 1982 and 1994, Vermont’s constitution permits denial of bail when a person is accused of a violent felony and the person’s release “poses a substantial threat of physical violence to any person and . . . no condition or combination of conditions of release will reasonably prevent the physical violence.”80 Trial by Jury On two occasions, amendments have been passed to allow juries of fewer than twelve persons in response to contrary state court decisions. The US Supreme Court held in Williams v. Florida (1970) that the US Constitution does not mandate twelve-person juries in state trials.81 But state

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supreme courts have occasionally interpreted state constitutional provisions as requiring juries of at least twelve persons. These rulings have, in turn, prompted occasional passage of court- overturning amendments authorizing juries of fewer than twelve persons in certain cases. Court- overturning amendments of this sort were adopted in Connecticut and Minnesota in the late twentieth century. A 1972 Connecticut amendment authorized juries of as few as six persons in noncapital cases, 82 in response to a fi fteen-year- old Connecticut Supreme Court decision holding that an essential feature of a jury is that it consists of twelve persons.83 Minnesota voters in 1988 approved a similar amendment in response to a Minnesota Supreme Court decision issued earlier that year. In its decision, the Minnesota Supreme Court noted that prior rulings, including a ruling handed down barely a decade after adoption of the state constitution, assumed that a jury must have twelve persons. Therefore, “a 12-person jury is written into the constitution by decision of this court as if it were expressly stated in the original constitution itself.”84 In considering whether to sustain a statute permitting juries of fewer than twelve persons, the Court determined that questions of this sort “were best left for the people to decide by constitutional amendment.” The Court concluded, “Therefore, what the members of this court (or the members of the legislature) think about the merits of a six-person jury is immaterial. The right to reduce the size of a jury has been vested only in the people of this state. If a written constitution can be amended by statute or by judicial fiat, it retains no sanctity whatsoever.”85 In response, the legislature drafted and voters ratified an amendment authorizing juries of as few as six persons in nonfelony cases.86 Impeaching a Defendant Voters approved two amendments in the 1980s allowing evidence to be introduced to impeach a defendant, in response to state court decisions limiting admission of evidence for such purposes. One of these amendments was a California amendment included in a wide-ranging 1982 victims’ rights amendment. This particular provision declared that “any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding.”87 In a ruling issued a decade earlier, the California Supreme Court imposed limits on prosecutors’ use of prior felony

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convictions to impeach a defendant who chose to testify.88 The purpose of the 1982 California amendment was to reverse this decision by permitting prior felony convictions to be introduced, without limitation, to impeach a defendant’s credibility. 89 A 1984 Pennsylvania amendment dealt with a related issue: whether statements made prior to receiving Miranda warnings and per se inadmissible could nevertheless be introduced to impeach a defendant’s testimony. The US Supreme Court ruled in Harris v. New York (1971) that the US Constitution does not bar use of such evidence to impeach a defendant’s credibility.90 But several state supreme courts, including the Pennsylvania Supreme Court, interpreted their state constitutions as barring introduction of evidence for this purpose.91 As the Pennsylvania Supreme Court ruled in a 1975 decision, “any statement of a defendant declared inadmissible for any reason by a suppression court cannot be used for the purpose of impeaching the credibility of a defendant who elects to testify on his own behalf at trial.” 92 In response, Pennsylvania legislators drafted and voters ratified an amendment declaring, “The use of a suppressed voluntary admission or voluntary confession to impeach the credibility of a person may be permitted.” 93 Right to Confront Witnesses Whereas the Sixth Amendment affords a defendant the right “to be confronted with the witnesses against him,” one-third of the state constitutions contain confrontation clauses guaranteeing that a defendant can meet witnesses “face to face.” 94 This difference in phrasing has occasionally been invoked by state supreme courts in striking down laws or practices allowing children victimized by sex crimes to give closedcircuit television testimony instead of appearing in the courtroom with the defendant. The US Supreme Court ruled in Maryland v. Craig (1990) that this sort of testimonial arrangement does not violate the US Constitution’s confrontation clause, as long as certain conditions are met and safeguards are in place.95 However, at least eight state courts have held that these sorts of arrangements violate state confrontation clauses, relying at times on clauses phrased identically to the Sixth Amendment and relying at other times on clauses requiring “face to face” confrontation.96 In two states, Illinois and Pennsylvania, voters responded to state court decisions of this kind by approving amendments altering longstanding “face to face” confrontation clause language in their state

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constitutions. A 1994 Illinois amendment was drafted in response to an Illinois Supreme Court decision issued earlier that year invalidating the state’s Child Shield Act on the ground that permitting child victims of sexual abuse to give closed- circuit testimony violated the state’s “face to face” requirement. The Illinois Supreme Court acknowledged that the state act complied with the Sixth Amendment, but it concluded that the distinctive language of the state constitutional guarantee mandated stronger protection for the rights of the accused.97 In response, the Illinois legislature drafted and voters approved an amendment replacing the “face to face” language with the witness- confrontation language in the Sixth Amendment.98 Pennsylvania officials were eventually able to secure passage of a similar amendment overturning a Pennsylvania Supreme Court decision, but the process was more arduous. In a 1991 ruling, Pennsylvania’s Supreme Court held that the “face to face” language of the state constitution did not permit judges to allow child victims of sexual abuse to give closed- circuit television testimony.99 Another ruling in 1994 invalidated a statute allowing children in such cases to give videotaped depositions.100 In response to these rulings, legislators drafted and voters approved a 1995 amendment replacing the “face to face” language with the phrasing found in the Sixth Amendment and adding an explicit declaration that the legislature is authorized to permit child victims or witnesses to offer videotaped depositions or closed- circuit testimony. In a 1999 ruling, however, the Pennsylvania Supreme Court invalidated this amendment on the ground that it amounted to two separate changes, in violation of a constitutional provision requiring amendments to be confi ned to a single subject.101 Legislators responded by crafting two separate amendments, one changing the language in the confrontation clause102 and another explicitly authorizing alternative testimonial arrangements for children.103 Voters approved both amendments in 2003, fi nally achieving the goal of overturning state court decisions issued in one case over a decade earlier. Other Criminal-Procedure Rights Voters have approved amendments reversing state court interpretations of state criminal-procedure guarantees in other cases, including a series of Hawaii Supreme Court rulings in 2003 regarding prosecution and punishment of sex offenses.104 One of these 2003 rulings limited the

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scope of the state’s sex- offender registration statute.105 In response, voters approved an amendment the next year declaring that “the public has a right of access to registration information regarding persons convicted of certain offenses against children and persons convicted of certain sexual offenses” and that the legislature is empowered to “determine which offenses are subject to this provision.”106 Another 2003 Hawaii Supreme Court ruling relied on various provisions in Hawaii’s constitution in holding that a defendant on trial for child sexual abuse has a right to ask questions about communications between the victim and her school counselor.107 The next year, voters reversed this decision via the amendment process.108 Still another 2003 Hawaii Supreme Court ruling regarding prosecution of sex crimes prompted passage of yet another constitutional amendment. At issue in this case was a state law permitting jurors to fi nd a defendant guilty on a charge of continuous sex crimes against a child if jurors agreed that at least three assaults had taken place, even if they could not reach unanimous agreement on the details of the specific acts. In crafting this statute, Hawaii legislators were motivated by concerns that child victims might not remember the dates and specific details of each act of abuse and that it was sufficient to secure jury unanimity on the question of whether three acts had occurred.109 The Hawaii Supreme Court disagreed, concluding that the statute violated the state due process clause.110 Hawaii legislators responded by crafting an amendment reversing the ruling. Voters approved an initial court- overturning amendment in 2004, but it was invalidated by the state supreme court on the ground that the legislature, in crafting the amendment, failed to comply with certain procedural requirements.111 Legislators resubmitted the amendment, which was approved by voters in 2006.112 Court- overturning amendments facilitating prosecution of child sex crimes have also been approved in other states, including in Missouri in 2014. At issue in Missouri was whether prosecutors could introduce “propensity evidence” to show that someone charged with sexual abuse of a minor had a propensity to commit the crime based on prior acts. The Missouri legislature passed a 1994 statute permitting introduction of such evidence; but the Missouri Supreme Court ruled in 1998 that the statute ran afoul of a pair of state constitutional guarantees,113 one barring prosecution “otherwise than by indictment or information” and another permitting the accused to “demand the nature and cause of the accusation” against him.114 The legislature revised the statute in 2000

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in an effort to comply with the ruling, but the state supreme court in a 2007 ruling struck down the revised statute on the same grounds.115 At that point, the legislature drafted and voters in 2014 approved a constitutional amendment stipulating that notwithstanding other provisions in the state bill of rights, “in prosecutions for crimes of a sexual nature involving a victim under eighteen years of age, relevant evidence of prior criminal acts, whether charged or uncharged, is admissible for the purpose of corroborating the victim’s testimony or demonstrating the defendant’s propensity to commit the crime with which he or she is presently charged.”116 Other amendments responding to state court interpretations of criminal-procedure guarantees could be discussed, but California’s Crime Victims Justice Reform Act of 1990 merits particular attention. This citizen-initiated amendment was advanced and approved by voters in part for the purpose of overturning a number of specific California Supreme Court rulings, such as a 1978 ruling requiring that defendants charged by indictment receive a post-indictment preliminary hearing.117 In addition to making specific changes to the Bill of Rights in response to particular state court rulings, the amendment also barred the California Supreme Court from issuing any future decisions providing more protection for the rights of criminal defendants than guaranteed by the US Constitution. This “lockstep” clause, so called because it required the state court to interpret state constitutional guarantees in lockstep with similar provisions in the federal constitution, stipulated that a long list of rights of criminal defendants “shall be construed by the courts of this state in a manner consistent with the Constitution of the United States. This Constitution shall not be construed by the courts to afford greater rights to criminal defendants than those afforded by the Constitution of the United State.”118 However, when the entire 1990 ballot measure was challenged in the California Supreme Court, the justices invalidated the “lockstep” clause on the ground that it amounted to a constitutional revision that could not be achieved through the initiative process.119

Death Penalty Amendments have been adopted in a handful of states from the 1970s to the early 2000s in response to state supreme court decisions banning or limiting imposition of the death penalty. The US Supreme Court has

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interpreted the Eighth Amendment’s ban on “cruel and unusual punishment” as limiting the offenses and persons subject to capital punishment but not as mandating abolition of the death penalty. However, state courts have occasionally invoked state constitutional provisions to bar application of the death penalty altogether or to enforce limits beyond what is required by the US Supreme Court. Not all death penalty amendments have been adopted to authorize capital punishment in response to state court decisions. In fact, some amendments have abolished or prevented adoption of the death penalty, with an eye to constraining or bypassing state legislatures. In Oregon, voters approved a 1914 citizen-initiated amendment discontinuing use of the death penalty,120 before approving a legislature-referred 1920 amendment restoring the death penalty,121 and eventually approving a 1964 legislature-referred amendment that again discontinued the death penalty.122 Meanwhile, in framing a new Michigan constitution, Michigan’s 1961– 62 convention crafted a provision barring death sentences, at a time when capital punishment had long been abolished by state law and for the purpose of preventing future legislators from giving in to the temptation to overturn this ban.123 Still other amendments have resolved particular questions about how the death penalty is carried out, as with amendments in Arizona prescribing lethal gas as the method of execution (by a 1933 amendment) and then changing to lethal injection (via a 1992 amendment).124 Meanwhile, a 1994 Ohio amendment specified that appeals in death penalty cases are taken directly to the state supreme court rather than being heard by courts of appeals.125 None of these amendments were prompted by state court decisions. In a half dozen states, however, amendments have been passed in response to state court decisions imposing limits beyond what is required by the Eighth Amendment. In a 1972 decision, Furman v. Georgia, the US Supreme Court held that the death penalty as currently administered was inconsistent with the Eighth Amendment guarantee against “cruel and unusual punishment,” in what led to a four-year moratorium on executions.126 After states revised their death penalty statutes to reduce the chances that capital punishment would be administered in an arbitrary fashion, the Supreme Court, by virtue of a 1976 decision in Gregg v. Georgia, permitted executions to resume.127 But subsequent Supreme Court rulings have imposed various limits on the crimes that can be penalized by death. As the Supreme Court made clear in Kennedy v.

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Louisiana (2008), death sentences cannot be imposed for nonhomicide crimes against persons.128 States are also barred from executing intellectually disabled persons, per Atkins v. Virginia (2002), or persons under the age of eighteen when they committed the crime, per Roper v. Simmons (2005).129 In these and other cases, the US Supreme Court has imposed limits on the death penalty’s application, but at no time has a majority of the Court held that the death penalty per se violates the US Constitution. In issuing a series of decisions that have generated court-responsive amendments, some state supreme courts have gone further than the US Supreme Court in banning or limiting use of the death penalty. Occasionally, state courts have concluded that state constitutional guarantees against “cruel or unusual punishment” provide greater protection than the Eighth Amendment’s differently phrased ban on “cruel and unusual punishment.” In other cases where state constitutions contain language identical to the Eighth Amendment, state courts have nevertheless interpreted these clauses independently of the federal clause and in such a way as to impose additional restrictions. On still other occasions, state courts have concluded that death penalty statutes violate other state constitutional guarantees, such as the right to a jury trial. In California and Massachusetts, amendments were passed with an eye to reauthorizing the death penalty in response to state supreme court decisions holding that the practice violates state constitutional bans on “cruel or unusual” punishment. California voters approved a citizen-initiated amendment in November 1972 in response to a California Supreme Court decision in People v. Anderson in February 1972.130 The Anderson decision invalidating the death penalty on state constitutional grounds was issued two months before Furman, where the US Supreme Court held that the death penalty as currently administered in states violated the federal constitution.131 But whereas the US Supreme Court ruling was not understood as preventing states from revising their statutes to bring them in compliance with the federal constitution, the California Supreme Court ruling barred reinstatement of the death penalty. With the aim of restoring legislative authority to reinstate the death penalty, California voters approved an amendment declaring that death penalty statutes in effect prior to the state supreme court’s February 17, 1972, decision remain “in full force and effect.” Moreover, “The death penalty provided for under those statutes shall not be deemed to be, or to constitute, the infl iction of cruel or unusual punishments . . . nor shall

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such punishment for such offenses be deemed to contravene any other provision of this constitution.”132 Massachusetts voters approved a similar amendment in 1982 with the intent of reversing a similar decision of that state’s high court.133 The Massachusetts Supreme Judicial Court issued several opinions between 1975 and 1980 relying on a state constitutional ban on “cruel or unusual punishments” to invalidate state death penalty statutes.134 Eventually, in response to a 1980 ruling in District Attorney v. Watson, the Massachusetts legislature drafted and voters in 1982 ratified an amendment to the “cruel or unusual punishments” clause that declares, “No provision of the Constitution, however, shall be construed as prohibiting the imposition of the punishment of death. The general court may, for the purpose of protecting the general welfare of the citizens, authorize the imposition of the punishment of death by the courts of law having jurisdiction of crimes subject to the punishment of death.”135 In 1992, voters in New Jersey approved an amendment overturning a state supreme court decision that disallowed death sentences for certain offenses. Four years earlier, the New Jersey Supreme Court interpreted the state constitution’s ban on “cruel and unusual punishment” as affording greater protection than the identical guarantee in the federal Bill of Rights. The state court held that the death penalty could not be imposed on a defendant who “had no intent to kill his or her victim, but rather intended only to infl ict serious bodily injury, even though the injury did in fact result in death.”136 In response, the legislature drafted and voters ratified an amendment qualifying the “cruel and unusual punishment” guarantee by stipulating, “It shall not be cruel and unusual punishment to impose the death penalty on a person convicted of purposely or knowingly causing death or purposely or knowingly causing serious bodily injury resulting in death who committed the homicidal act by his own conduct or who as an accomplice procured the commission of the offense by payment or promise of payment of anything of pecuniary value.”137 Whereas these amendments were adopted to reverse state court decisions, amendments in Oregon, Florida, and Oklahoma were enacted to preempt such decisions. In initiating and approving a 1984 amendment, Oregon voters were seeking to insulate the death penalty from state court invalidation. They were responding in part to an Oregon Supreme Court decision issued three years earlier invalidating a recently enacted death penalty statute on the ground that it violated a state jurytrial guarantee insofar as it permitted a judge rather than a jury to make

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certain fi ndings of fact in capital cases. In response, death penalty backers took steps in the 1984 election to revise the death penalty statute and insulate it from state court invalidation. They achieved this goal by fi rst securing voter ratification of a citizen-initiated statute revising the state’s death penalty law with an eye to accommodating the state supreme court’s concerns about the role of the judge and jury in imposing death sentences. At the same election, voters also initiated and ratified a constitutional amendment ensuring that the state supreme court would not invalidate the revised death penalty law by relying on other clauses in the state constitution.138 A pair of Florida amendments adopted in 1998 and 2002 were not prompted by any particular Florida Supreme Court decision but were intended to guard against the possibility that the court might strike down the state’s death penalty statute. In approving a wide-ranging 1998 death penalty amendment, Florida voters were primarily concerned with insulating the current method of carrying out death sentences (electrocution) against any state court challenges. As the ballot summary indicated, the purposes of this amendment were “preserving the death penalty, and permitting any execution method unless prohibited by the Federal Constitution” and also requiring state court “construction of the prohibition against cruel and/or unusual punishment to conform to United State Supreme Court interpretation of the Eighth Amendment.” However, in a 2000 decision, the Florida Supreme Court overturned this two-yearold amendment on the ground that the ballot title and summary had not fully disclosed to voters the amendment’s full effects, including the replacement of the existing “cruel or unusual” punishment language with new “cruel and unusual” punishment wording.139 In response, Florida legislators drafted another amendment that was again approved by voters, in 2002. The Florida Supreme Court had by this point upheld electrocution as a method of carrying out the death penalty.140 But the legislature had begun relying primarily on lethal injection instead of electrocution. The purpose of the 2002 amendment was to insulate this new method of execution from state court reversal and also guard against other possible grounds of state court invalidation of the death penalty. Moreover, in order to prevent the Florida Supreme Court from fi nding fault with the ballot summary, the Florida legislature placed the entire text of the constitutional amendment on the ballot. In addition to replacing the “cruel or unusual” language with “cruel and unusual” language, the amendment required that this language be

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“construed in conformity with decisions of the United State Supreme Court” interpreting the Eighth Amendment and declared, “Any method of execution shall be allowed, unless prohibited by the United States Constitution.”141 An amendment approved by Oklahoma voters in 2016 was designed, similarly, to insulate the death penalty and the drug protocol used in the state from invalidation at the hands of the state supreme court. When the legislature crafted this amendment, Oklahoma’s Supreme Court had not yet declared the death penalty or the lethal drug protocol to be in violation of the state constitution. But the justices had temporarily stayed executions in response to legal challenges concerning lethal drug protocol.142 In this context, and with an eye to preventing state courts from relying on state constitutional provisions to invalidate the death penalty, the Oklahoma legislature crafted and voters approved an amendment declaring, in part, “All statutes of this state requiring, authorizing, imposing or relating to the death penalty are in full force and effect, subject to legislative amendment or repeal by statute, initiative or referendum. Any method of execution shall be allowed, unless prohibited by the United States Constitution.”143 Although amendments have been a leading strategy for overturning or preempting state court decisions limiting use of the death penalty, this approach has not always been effective, leading some groups and officials to try to change the composition of state supreme courts, especially in states where judges stand for election. The occasional ineffectiveness of court- overturning amendments was on prominent display in Massachusetts, after passage of a 1982 amendment declaring in part that “no provision of the Constitution, however, shall be construed as prohibiting the imposition of the punishment of death,” in response to the state supreme court’s invalidation of a death penalty statute.144 When a revised death penalty statute came before the state supreme court in a 1984 case, the justices acknowledged that state officials thought the 1982 amendment would “provide[] immunity for any capital punishment statute from invalidation under any article of the Massachusetts Constitution.”145 But the justices invalidated the revised death penalty statute nevertheless, concluding that it violated “the right against selfincrimination and the right to a jury trial” protected in other sections of the state constitution, insofar as the statute provided for death sentences to be imposed only after a jury trial and in a way that might discourage defendants from “asserting their right not to plead guilty and their

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right to demand a trial by jury.”146 This is the clearest illustration in recent history of the limited effectiveness of court- overturning amendments. There is little doubt that Massachusetts legislators and voters assumed that in enacting the 1982 amendment, they were insulating the death penalty from state court invalidation; but the Massachusetts Supreme Judicial Court took a different view, and the death penalty has not been reenacted in the state. In other instances, state supreme courts stopped short of invalidating death penalty statutes but have been aggressive in overturning death sentences on appeal. In California, although the state supreme court eventually permitted a revised 1978 death penalty statute to take effect, over the next eight years the justices “reviewed sixty-four capital cases and upheld the penalty in only six,” according to Barry Latzer’s count. In fact, Chief Justice Rose Bird “reportedly voted to reverse the sentence or conviction in every capital case in which she participated.” The rate of California Supreme Court reversals of death sentences reached a point that in 1985 alone there were “twenty-two rejections and no approvals during that calendar year.”147 The amendment process offers little recourse for responding to judicial behavior of this kind. In states where supreme court justices stand for reelection, however, groups have occasionally tried to unseat judges seen as unsympathetic to the death penalty. Massachusetts is in the minority of states where judges are appointed. But California is one of many states that require judges to stand for retention elections.148 In retention elections held in California in 1986, voters rejected all three state supreme court justices up for reelection that year, including Chief Justice Bird and associate justices Joseph Grodin and Cruz Reynoso, in a campaign where the death penalty was the most prominent issue, along with other issues concerning rights of criminal defendants.149 The defeat of these three justices and subsequent appointment of other justices in their place produced what Latzer described as “a palpable change in the court’s attitude toward the death penalty,” with approvals of death sentences far outpacing disapprovals by the early 1990s.150

Equal Protection State constitutional amendments were approved three times in the 1970s in response to court decisions requiring desegregation of public schools.

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In Colorado in 1974 and Massachusetts in 1978, amendments limiting race-based pupil assignment were enacted in response to federal court rulings.151 These amendments had no practical effect, because federal court interpretations of the Equal Protection clause and any other provisions of the US Constitution take precedence over state constitutional provisions. An amendment approved by California voters in response to a California Supreme Court ruling had a more meaningful effect, in that it limited the reach of desegregation plans promulgated by state courts in excess of federal requirements.152 In sustaining a desegregation order in a 1976 ruling, the California Supreme Court acknowledged that US Supreme Court doctrine distinguished between de jure and de facto segregation and did not require school districts to take affi rmative steps to remedy the latter type of segregation. But the California Supreme Court held that the state equal protection clause imposed a higher requirement, in that “California school boards bear a constitutional obligation to take reasonably feasible steps to alleviate school segregation, whether such segregation is de jure or de facto in nature.”153 In response, the California legislature drafted and voters approved a lengthy amendment in 1979 declaring that neither the state equal protection clause nor any other section of the state constitution “imposes upon the State of California or any public entity, board, or official any obligations or responsibilities which exceed those imposed by the Equal Protection Clause of the 14th Amendment to the United States Constitution with respect to the use of pupil school assignment or pupil transportation.” Moreover, “no 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” above what was required by the federal Equal Protection clause or federal court order pursuant to that clause.154

Personal Autonomy Amendments have been enacted on a regular basis in the late twentieth and early twenty-fi rst century in response to state supreme court decisions affording more protection for personal autonomy than is guaranteed by the US Supreme Court, particularly regarding abortion and same-sex marriage. In the case of abortion, the US Supreme Court

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issued decisions from 1973 onward barring certain restrictions; but some state supreme courts have interpreted state constitutions as imposing additional obstacles to enforcing abortion regulations. In response, voters in some states approved amendments authorizing abortion restrictions permitted under the US Constitution but blocked by state court interpretations of state constitutions. In the case of same-sex marriage, a number of state supreme courts issued decisions guaranteeing a right to same-sex civil unions or marriages well before the US Supreme Court recognized such a right under the US Constitution in a 2015 ruling. In response to these state court decisions, and generally with an eye to preempting similar state court decisions, voters in thirty- one states approved amendments limiting recognition of same-sex marriage. Abortion State constitutional amendments regarding abortion have been advanced on various occasions since the 1970s, when the US Supreme Court fi rst recognized a federal constitutional right to obtain an abortion but permitted states to regulate the procedure in certain circumstances. When some state supreme courts interpreted their state constitutions as providing additional protection for abortion rights, groups responded by proposing amendments restoring state legislative authority to regulate abortion in various respects. Admittedly, some abortion-related amendments were intended to serve purposes other than reversing state court rulings. A number of amendments were designed to authorize abortion restrictions barred by the US Supreme Court, with an eye to creating a confl ict between state and federal law and thereby presenting the Court with an opportunity to reconsider prior rulings. Along these lines, voters in Rhode Island in 1986 and Oregon in 1990 defeated constitutional amendments that would have barred most abortions and in a way that runs counter to US Supreme Court rulings requiring that abortions be permitted at least up to the point of fetal viability.155 Voters defeated similarly motivated personhood amendments in Colorado in 2008, 2010, and 2014, in Mississippi in 2011, and in North Dakota in 2014 that would have declared that life begins at conception and thereby set up challenges to US Supreme Court abortion precedents.156 Despite these occasional amendments designed to challenge US Supreme Court rulings, most amendments sought to authorize abortion

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restrictions permitted under the US Constitution but blocked by state court interpretations of state constitutions. US Supreme Court jurisprudence has undergone some evolution regarding which particular abortion regulations are permissible. But the general framework has remained intact since Roe v. Wade (1973) barred states from outlawing abortions in the fi rst two trimesters of pregnancy and then Planned Parenthood v. Casey (1992) clarified that states may not place an undue burden on a woman’s ability to obtain an abortion prior to fetal viability.157 The Casey decision also made clear, after earlier decisions to the contrary on some of these matters, that states were free to adopt reasonable-length waiting-period rules, parental- consent requirements, and informedconsent requirements where women must be shown certain information before proceeding with an abortion. Meanwhile, the Court indicated in Maher v. Roe (1977) and Harris v. McRae (1980) that states are generally free, with certain exceptions, to decline to fund abortions.158 In this context, some state supreme courts have issued decisions requiring heightened protection for abortion rights. Although states are permitted under federal law to decline to fund most abortions for Medicaid recipients, a dozen state courts have issued decisions requiring states to fund abortions for Medicaid recipients in the same fashion as they fund other medical procedures.159 Other state courts have overturned waiting-period, informed- consent, and parental- consent requirements, even as the US Supreme Court has indicated that these restrictions are generally consistent with the US Constitution.160 In response, amendments have been proposed to overturn and in some cases preempt these state court rulings. Most of these amendments have been rejected by voters. This has been the fate of many, though not all, amendments limiting public funding of abortions in response to contrary state court decisions.161 In 1986, voters in Massachusetts, Oregon, and Rhode Island considered amendments of this sort, but only the Rhode Island amendment was approved. The unsuccessful Massachusetts amendment would have overturned a 1981 Massachusetts Supreme Judicial Court decision relying on the state due process clause to require public funding of abortion to a greater extent than required under federal law.162 Referring to this state court ruling in the lead-up to the 1986 vote on the amendment, the legislative director of Massachusetts Citizens for Life, Dan Avila, argued, “The proposed amendment is the only way we have to reverse that decision.”163 If voters had approved the 1986 Massachusetts amendment, state legislators would have been

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allowed to decline to fund abortions, at least to the extent possible under federal law. The amendment would have also authorized the legislature to enact any other abortion restrictions permitted by the US Supreme Court, thereby preempting future state court decisions that might require greater protection for abortion rights pursuant to the state constitution.164 A citizen-initiated Oregon amendment, also rejected at the polls that year,165 had a similar origin and purpose: overturning a 1984 Oregon Supreme Court decision requiring public funding for abortions beyond what was required under federal law.166 But in the same election, Rhode Island voters approved a wide-ranging convention-generated amendment adding a due process and equal protection clause that concluded with a qualifying statement declaring, “Nothing in this section shall be construed to grant or secure any right relating to abortion or the funding thereof.”167 Voters also considered amendments restoring legislative authority to enforce other abortion regulations, including parental-notification, informed- consent, and waiting-period requirements. On three occasions, California voters turned aside proposed amendments that would have adopted parental-notification requirements, after the California Supreme Court issued a 1997 ruling overturning a parental- consent law and placing significant obstacles in the way of regulations along these lines.168 In response to this ruling, pro-life groups turned to the initiative process to qualify amendments for the ballot in 2005, 2006, and 2008.169 Although phrased in slightly different ways, each of these unsuccessful California amendments would have imposed a parental-notification requirement and made clear that the state constitution should not be interpreted as prohibiting such a regulation.170 Backers of court- overturning amendments enjoyed more success in Florida and Tennessee. Florida voters considered two court- overturning amendments, approving one and rejecting another, in response to Florida Supreme Court decisions invalidating parental- consent and parentalnotification laws. In a 1989 decision, the Florida Supreme Court relied on a state privacy guarantee to strike down a parental- consent law enacted the prior year.171 A decade later, the legislature tried again to pass a law regulating abortions for minors in a way that might withstand legal challenge. After much debate, legislators settled for drafting a less stringent law requiring that a parent be notifi ed before a minor obtains an abortion.172 However, the Florida Supreme Court struck down this

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parental-notification law, in a 2003 ruling that again relied on the state’s privacy clause.173 At that point, Florida legislators concluded that their best option for overcoming the justices’ objections was to pass a constitutional amendment explicitly authorizing abortion regulations blocked by the state supreme court.174 The Florida legislature approved and voters ratified a 2004 amendment focusing specifically on authorizing a parentalnotification requirement. The amendment declares, “Notwithstanding a minor’s right of privacy provided in Section 23 of Article I, the Legislature is authorized to require by general law for notification to a parent or guardian of a minor before the termination of the minor’s pregnancy. The Legislature shall provide exceptions to such requirement for notification and shall create a process for judicial waiver of the notification.”175 Florida legislators next turned their attention to removing obstacles to a parental- consent requirement, by drafting an even more sweeping amendment that was rejected by voters in 2012.176 As the language of this failed 2012 measure made clear, this amendment, if it had been ratified, would have “overrule[d] court decisions which conclude that the right of privacy under Article I, Section 23 of the State Constitution is broader in scope than that of the United States Constitution.”177 To this end, and as a way of preventing the state supreme court from relying on any other state constitutional provisions to provide greater protection for abortion rights, another provision in the unsuccessful amendment would have declared, “This constitution may not be interpreted to create broader rights to an abortion than those contained in the United States Constitution.”178 Tennessee voters in 2014 approved the most recent amendment overturning a state court decision blocking abortion regulations. Tennessee legislators drafted the amendment in response to a 2000 Tennessee Supreme Court decision interpreting various state constitutional provisions as guaranteeing a right to “procreational autonomy” deemed broad enough to invalidate the state’s waiting-period and informedconsent requirements, among other abortion regulations.179 In turning to the amendment process to permit reenactment of these abortion regulations, legislators and supportive groups explained that they were taking their cue in part from a dissenting justice in the 2000 state supreme court case who noted that the only way to overcome the court’s decision was through passage of a constitutional amendment.180 In following this path,

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legislators approved and voters ratified an amendment adding a section to the Bill of Rights that declares, “Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion. The people retain the right through their elected state representatives and state senators to enact, amend, or repeal statutes regarding abortion, including, but not limited to, circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother.”181 Same- Sex Marriage Between 1998 and 2012, voters in thirty- one states approved amendments limiting recognition of same-sex marriage. Unlike a number of other court-responsive amendments, the vast majority of these amendments did not overturn state court rulings. The first two same-sex marriage limitation amendments, in Hawaii and Alaska in 1998, were arguably court- overturning amendments, because they responded to court decisions seen as paving the way for recognition of same-sex marriage. Meanwhile, a 2008 California amendment was clearly a courtoverturning amendment, in that it reversed a recently issued California Supreme Court decision recognizing a right to same-sex marriage. However, the remaining amendments were all advanced with the intent of preempting state supreme court decisions. The 1998 Hawaii amendment had its origin in a 1993 Hawaii Supreme Court decision, Baehr v. Lewin, that did not actually order recognition of same-sex marriage but set the stage for such an outcome by remanding the case to a state circuit court judge to consider whether the state could overcome a presumption that a statutory ban violated the state equal protection clause.182 Pursuant to this order, Hawaii Circuit Court judge Kevin Chang issued a December 1996 decision in Baehr v. Miike concluding that the state failed to show a compelling interest in denying recognition of marriage to same-sex couples.183 Although Judge Chang stayed his decision while the case was appealed to the state supreme court, the clear expectation in view of the Hawaii Supreme Court’s 1993 decision was that the circuit court ruling would be upheld and Hawaii would become the fi rst state to recognize same-sex marriage.184 Judge Chang’s December 1996 ruling prompted groups and officials who supported the state’s ban on same-sex marriage to draft a constitutional amendment preventing the state judiciary from ordering recognition of same-sex marriage. Hawaii legislators had considered crafting

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such an amendment in anticipation of the circuit court decision, but the House and Senate were unable to reach agreement on the wording of an amendment during their 1996 session.185 The circuit court decision gave renewed urgency to calls for drafting an amendment186 and eventually led both houses in the 1997 session to approve an amendment intended, according to a conference committee report, “to provide the people of Hawai’i with the opportunity to amend the Hawai’i State Constitution to expressly state that the Legislature has the power to constitutionally reserve marriage to couples of the opposite sex, thereby addressing the ruling in Baehr v. Lewin on that issue.”187 In the 1998 election, Hawaii voters approved the amendment, which declared that “the legislature shall have the power to reserve marriage to opposite-sex couples.”188 When the Hawaii Supreme Court eventually disposed of the appeal of the circuit court judge’s Baehr decision in a 1999 order, the justices took note of the recent state constitutional amendment and brought the lawsuit to a close.189 The Baehr litigation in Hawaii inspired same-sex marriage supporters to fi le similar lawsuits in other states but also prompted passage of additional amendments barring recognition of same-sex marriage. In Alaska, in response to a lawsuit inspired by the Hawaii litigation, superior court judge Peter A. Michalski issued a February 1998 decision, Brause v. Bureau of Vital Statistics, interpreting the privacy and equal protection guarantees of the Alaska constitution as supporting recognition of same-sex marriage.190 This superior court ruling was not a fi nal decision on the merits and did not lead immediately to issuance of marriage licenses to same-sex couples; rather, the judge called for a further hearing to determine if the state had a compelling interest in maintaining its statutory same-sex marriage ban.191 With an eye to preventing a fi nal court decision overturning the statutory ban on same-sex marriage, Alaska legislators drafted a constitutional amendment that voters ratified in the 1998 general election.192 In this sense, Alaska and Hawaii amendments had similar origins in an intent to prevent courts from legalizing same-sex marriage. The Alaska amendment differed in one key respect from the Hawaii amendment, though. Whereas the Hawaii amendment prevented the state judiciary from legalizing same-sex marriage but left open the possibility that the legislature could do so, the Alaska amendment prohibited the state judiciary and legislature alike from legalizing same-sex marriage. All of the other same-sex marriage ban amendments enacted in subsequent

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years generally resembled the Alaska amendment, which declared, “To be valid or recognized in this State, a marriage may exist only between one man and one woman.”193 Voters in two other states, in Nebraska and Nevada, considered amendments in 2000 barring recognition of same-sex marriage, in part as a way of preempting state court decisions of the sort issued by Alaska and Hawaii courts but also in response to a December 1999 Vermont Supreme Court ruling requiring recognition of same-sex civil unions. In Baker v. Vermont, the Vermont Supreme Court found that the state’s statutory ban on recognizing same-sex marriage violated the Vermont constitution’s provision requiring that government be “instituted for the common benefit” of the people. The court stopped short of ordering the legislature to issue same-sex marriage licenses, however. The legislature could meet its constitutional obligations, the court advised, either by extending marriage to same-sex couples or by instituting a “parallel ‘domestic partnership’ system or some equivalent statutory alternative.”194 In its 2000 session, the Vermont legislature considered adopting a court-reversing constitutional amendment,195 before deciding to take the second option held out by the court and approving a statute legalizing same-sex civil unions.196 Partly in response to the Vermont Supreme Court ruling and the resulting legalization of same-sex civil unions in Vermont, voters in Nebraska and Nevada expressed support later that year for citizen-initiated same-sex marriage ban amendments. The influence of the Vermont ruling was evident in the framing of the 2000 Nebraska amendment, the fi rst amendment that not only barred recognition of same-sex marriage but also, in an approach taken by nineteen other states in coming years, barred recognition of the “uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship.”197 Nevada voters gave the fi rst of two required approvals that year for a citizen-initiated same-sex marriage ban amendment; the second approval came two years later. After fi nal passage of the Nevada amendment in 2002, a total of four states had adopted amendments limiting same-sex marriage in some fashion. The number of states with same-sex marriage ban amendments increased dramatically after the Massachusetts Supreme Judicial Court ruled in November 2003 in Goodridge v. Department of Public Health that denying marriage to same-sex couples violated the Massachusetts constitution198 and then advised in a February 2004 opinion that the leg-

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islature could not satisfy its constitutional obligations merely by allowing same-sex civil unions.199 In response to this ruling and the resulting legalization of same-sex marriage in Massachusetts in May 2004, amendments were placed on the ballot, at times by the legislature and at times via the initiative process, in thirteen states in 2004 and approved by voters every time.200 Voters in two more states ratified amendments in 2005, 201 followed by eight states in 2006. 202 None of the twenty-three same-sex marriage ban amendments adopted between 2004 and 2006 overturned state supreme court decisions, given that no other state supreme courts ordered legalization of samesex marriage during this period. 203 Rather, these amendments were advanced by groups and officials for the purpose of preempting state court rulings along the lines of the Massachusetts Supreme Court’s 2003 decision. 204 The one court-reversing amendment that was given serious consideration during this time, a citizen-initiated amendment to overturn the Massachusetts ruling, failed to qualify for the ballot due to the particular rules for placing Massachusetts amendments on the ballot, combined with a lack of support from state legislators. 205 Opponents of the Massachusetts court ruling initially pressed for a legislature-referred courtoverturning amendment and secured the necessary legislative support in March 2004. 206 But Massachusetts is one of a number of states requiring legislature-referred amendments to be approved by legislators in two consecutive sessions. When the Massachusetts legislature in September 2005 considered whether to approve the amendment a second time, which would have sent the amendment to voters for a ratification vote, the legislature defeated it. 207 Opponents of the Massachusetts court decision then tried to pass a court- overturning amendment through the initiative process, but they were again unsuccessful. As one of two states that provide for indirect rather than direct constitutional initiatives, Massachusetts requires citizen-initiated amendments to overcome the additional hurdle of obtaining the approval of one-fourth of legislators in a joint meeting of both houses and in two consecutive sessions. Opponents of the Massachusetts court ruling secured the requisite signatures in 2005 in support of a citizen-initiated amendment limiting marriage to opposite-sex couples. 208 After much debate, the legislature eventually gave the requisite fi rst approval to this amendment on the last day of the session in January 2007. 209 However, when this amendment was taken up in the next session

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in June 2007, it failed to secure the requisite one-fourth of legislative votes, 210 thereby bringing a halt to efforts to enact a court- overturning amendment in Massachusetts. 211 Three more same-sex marriage ban amendments were approved in 2008: in California, Florida, and Arizona. The 2008 California amendment is the only one that overturned a state supreme court decision responsible for the issuance of same-sex marriage licenses. Supporters of a citizen-initiated California amendment had already gathered enough signatures to qualify the amendment for the ballot before a May 2008 California Supreme Court decision, In re Marriage Cases, ordered legalization of same-sex marriage. But once the decision was handed down and same-sex marriage licenses began to be issued in June 2008, the amendment offered voters the opportunity, which they took advantage of in the November 2008 election, to reverse the court’s ruling by declaring in the state constitution that “only marriage between a man and a woman is valid or recognized in California.” When the California Supreme Court heard a challenge to the legitimacy of this amendment, with opponents arguing that it amounted to a constitutional “revision” that could not be achieved through the constitutional initiative process, the justices rejected this claim and permitted the court-reversing amendment to stand.212 The other amendments adopted in 2008, in Florida and Arizona, were generally intended to preempt court decisions, as was a 2012 amendment approved in North Carolina, the thirty-fi rst and fi nal approval of an amendment limiting recognition of same-sex marriage. 213 By the time voters in Florida and Arizona approved same-sex marriage ban amendments (along with California voters) in November 2008, another state supreme court had ordered recognition of same-sex marriage, in Connecticut, via an October 2008 ruling. 214 When North Carolina voters approved a same-sex marriage ban amendment in 2012, still another state supreme court, in Iowa, had ordered recognition of same-sex marriage, via a 2009 ruling. 215 Enacting amendments was not the only strategy pursued by opponents of state court decisions legalizing same-sex marriage. In states where judges stand for reelection, opponents tried to unseat the judges responsible for issuing these decisions. In Iowa, critics responded to a 2009 Iowa Supreme Court decision legalizing same-sex marriage in part by proposing a court- overturning amendment. Although amendment backers secured approval for an amendment in the state house in 2011, it

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was blocked in the state senate. In the meantime, opponents pursued another strategy. Three of the seven Iowa Supreme Court justices who issued the unanimous ruling were slated to stand for retention election in 2010. Opponents of the court ruling urged Iowa voters to reject these justices’ bid for another term and succeeded in defeating all three of them, thereby triggering the process for replacing defeated judges, which requires the governor to make an appointment for each vacant judgeship from a list of names identified by a nominating commission. A fourth justice who stood for retention election in 2012 was also targeted for defeat by opponents of the ruling but narrowly prevailed in his reelection bid. 216 Although adopting amendments was not the only strategy pursued by opponents of state court decisions legalizing same-sex marriage, it was seen as holding advantages over alternative approaches. Most important, amendments were more effective in preventing or overturning these decisions than other strategies such as unseating judges responsible for issuing them. The defeat of three Iowa Supreme Court judges who stood for retention election in 2010 had no effect on recognition of same-sex marriage in that state. The reconstituted court, with three new justices appointed in place of the rejected justices, did not take any steps to reconsider its 2009 decision. However, California’s 2008 amendment brought a halt to issuance of additional same-sex marriage licenses, just as passage of amendments in thirty other states prevented state courts from ordering recognition of same-sex marriage licenses in those states. Of course, state constitutional amendments barring recognition of same-sex marriage are only effective in overturning or preempting state court decisions and cannot forestall federal court rulings. A federal district judge invalidated the 2008 California same-sex marriage ban amendment in a 2010 ruling that was sustained by the US Court of Appeals for the Ninth Circuit and was allowed to stand when the US Supreme Court held in 2013 that amendment supporters who had appealed the district court’s decision lacked standing to sue. A number of other federal district court judges invalidated other same-sex marriage ban amendments in 2013 and 2014, in rulings that were in nearly all cases sustained by federal circuit courts and then upheld by the US Supreme Court in a 2015 ruling, Obergefell v. Hodges, that recognized a right to same-sex marriage under the US Constitution and barred enforcement of contrary state statutes and constitutional amendments.217

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Tort Suits On various occasions, groups and officials have proposed state constitutional amendments authorizing caps on damages awards in tort suits, in response to contrary state court decisions. Considered in a number of states in the late twentieth and early twenty-fi rst centuries and adopted on one occasion, these amendments were generally proposed after state courts relied on state bills of rights to overturn caps on noneconomic damages awards in medical-malpractice suits. The intent of passing amendments, one of various strategies considered for responding to these state court decisions, was to restore these caps and preempt future state court challenges. Amendments dealing with damages awards in tort suits have not always been proposed in response to state court decisions and with an eye to authorizing tort-reform legislation. Sometimes these amendments were advanced for other reasons, such as eliminating long-standing state constitutional provisions explicitly barring limits on damages awards and without prompting from any state court decision. For instance, Arizona’s constitution has since its inception included a provision, one of a number of such provisions found in state constitutions, barring enactment of laws “limiting the amount of damages to be recovered for causing the death or injury of any person.” 218 In the late twentieth century, supporters of damages caps in Arizona, as well as a few other states with explicit bans of this sort, urged passage of amendments eliminating this constitutional language, albeit without success. 219 For the most part, amendments authorizing limits on noneconomic damages have been advanced to overturn state court decisions. From the 1980s onward, state courts have relied on various state constitutional provisions to invalidate caps on noneconomic damages in medicalmalpractice cases and other tort suits.220 In some states, courts have relied on jury-trial guarantees. Other courts have relied on provisions guaranteeing access to courts. Courts have also relied at times on state equal protection and due process clauses. In responding to these state court rulings, groups and officials have pursued multiple strategies. A leading approach has been to secure the appointment or election of state judges sympathetic to interpreting state constitutional provisions in such a way as to sustain tort-reform legislation. Efforts to shift the composition of state courts and thereby

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alter the outcome of cases challenging tort-reform laws have been particularly prominent in states holding judicial elections. In fact, tortreform supporters have been among the most active groups, along with opponents of such reforms, in campaigning for and contributing to state judicial candidates from the 1980s to the present. 221 In some states, this strategy was successful. For instance, after the Ohio Supreme Court issued a series of decisions from 1991 to 1999 invalidating tort-reform laws on state constitutional grounds, 222 critics worked to unseat a number of state supreme court judges in subsequent elections and with some success. When a reconstituted Ohio Supreme Court issued a 2007 decision regarding the constitutionality of yet another tort-reform law, it upheld the caps on noneconomic damages, in a major shift from prior interpretations of state constitutional provisions.223 In other states, critics of state court decisions sought relief through the amendment process. Most of these proposed court-reversing amendments failed to emerge from state legislatures.224 But on four occasions, tort-reform supporters qualified amendments for the ballot. Florida voters placed a citizen-initiated amendment on the 1988 ballot in response to a 1987 state supreme court decision relying on an “open courts” provision to strike down a cap on noneconomic damages in medical-malpractice cases. 225 In Texas, the legislature in 2003 placed an amendment on the ballot to overturn a similar 1988 state supreme court decision that also relied on an “open courts” provision. 226 In Oregon, voters considered a legislature-referred amendment in 2000227 and a citizen-initiated amendment in 2004, 228 both of which were proposed in response to a 1999 state supreme court decision relying on a jury-trial provision to invalidate a cap on noneconomic damages in tort suits. 229 Although voters rejected the Florida amendment and both Oregon amendments, they approved the Texas amendment. The 2003 Texas amendment makes clear in one section pertaining to medical-malpractice suits that “notwithstanding any other provision of this constitution, the legislature by statute may determine the limit of liability for all damages and losses, however characterized, other than economic damages.”230 In approving the amendment, Texas voters thereby insulated from state court reversal a statute passed by the legislature earlier that year capping noneconomic damages awards in medical-malpractice cases. 231 The amendment also provided, in another section, that the legislature is authorized by a three-fi fths vote to enact future laws limiting noneconomic damages awards in other tort suits.232

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Conclusion Several lessons can be drawn from reviewing state constitutional amendments adopted in response to rights- expanding state court decisions. One benefit of this analysis is to demonstrate the prevalence of courtresponsive amendments in the states, in contrast with their virtual absence at the federal level. Although much of the scholarly attention regarding court-responsive state constitutional amendments, especially in the 1980s and 1990s, focused on amendments dealing with rights of criminal defendants, voters have also adopted court-responsive amendments in a wide range of other areas, including religious liberty, equal protection, personal autonomy, and tort reform. Another benefit of this analysis is to identify the range of factors motivating consideration of court-responsive amendments. In most instances, these amendments are proposed with an eye to reversing state court rulings, as with California amendments restoring legislative authority to adopt the death penalty or reserve marriage to opposite-sex couples. In other instances, amendments are advanced for preemptive purposes, often in response to court decisions in other states. For instance, the vast majority of amendments barring recognition of same-sex marriage did not overturn state court rulings; rather, they sought to prevent issuance of state court rulings requiring legalization of same-sex marriage, in a situation where other state courts had issued decisions of this kind. A fi nal benefit of analyzing court-responsive amendments is to illustrate the reasons why groups have often responded to court decisions through the amendment process rather than via other mechanisms. In considering these reasons, it is helpful to consider two main situations that groups and officials have encountered, beginning with one set of cases where state courts issue rights-protective rulings but invite passage of amendments achieving a different outcome. In issuing these sorts of decisions and inviting a resort to the amendment process, state courts have occasionally identified certain advantages associated with overturning judicial precedents through amendments rather than bringing about these changes through judicial reinterpretation of constitutional provisions. These arguments and advantages are on most prominent display in various cases where state courts interpreted jury-trial provisions as requiring twelve-person juries or held that right-to-bail provisions did not

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allow preventive detention. When the Minnesota Supreme Court considered the legitimacy of a state statute allowing juries of fewer than twelve persons, the court held the statute to be inconsistent with longstanding interpretations of the state’s jury-trial provision. Any change in this understanding, the court argued, should come about through a formal change in the constitutional text rather than through judicial reinterpretation of a long-standing constitutional provision. This path was preferable, the court reasoned, not least because it would lead to more respect for the constitution than if the document were viewed as capable of being changed simply through judicial reinterpretation. The Vermont Supreme Court did not provide an extended argument along these lines for viewing the amendment process as the appropriate way to authorize preventive detention of defendants for reasons of public safety in the face of a long-standing right-to-bail provision that did not seem to allow an exception of this sort. But the conclusion reached by the Vermont court was the same: if changes were to be made in regarding to interpretations of the state bill of rights, it was preferable that they be made in the constitutional text in a clear fashion and through a vote of the people rather than achieved by judicial reinterpretation of the text. In a second situation, characteristic of the vast majority of cases, groups and officials encounter a different dynamic, where state judges issue rights-protective decisions and are not inclined to welcome courtoverturning amendments and may even resist them. In these situations, the key question confronting legislators and citizens is whether to respond to decisions through amendments or to try to influence the composition of the state supreme court. Although there are advantages and disadvantages to both courses of action, groups and officials have generally viewed the amendment route as more effective. Changing the composition of a state supreme court is, to be sure, not without its advantages when responding to rights- expanding court decisions. Most important, some state courts can be quite resourceful in resisting court- overturning amendments. As we have seen, state courts have routinely invalidated court- overturning amendments, whether a wide-ranging California criminal-procedure amendment, a Pennsylvania witness- confrontation amendment, an Oregon search-and-seizure amendment, a Florida death penalty amendment, or a Hawaii juryunanimity amendment, and for a range of reasons, whether because they ran afoul of single-subject rules or accurate-title requirements or other requirements. For the most part, legislators and voters were able to

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redraft and resubmit the invalidated amendments and in a way that overcame state court objections. But this was at times a lengthy and arduous process, as with a Pennsylvania witness- confrontation amendment that permitted child victims of sex crimes to offer closed- circuit television testimony and fi nally succeeded twelve years after issuance of a contrary state court ruling. In still other cases, state courts did not formally invalidate courtoverturning amendments but issued rulings effectively evading their intent, especially in death penalty cases. As we have seen, although a Massachusetts amendment declared that “no provision of the Constitution, however, shall be construed as prohibiting the imposition of the punishment of death,” the Massachusetts Supreme Court responded by invalidating the state’s death penalty statute as a violation of the state privilege against self-incrimination and right to a jury trial. Meanwhile, when California voters approved an amendment explicitly authorizing the death penalty, the state supreme court allowed the amendment to stand but nevertheless overturned the vast majority of death sentences. In the face of state court resistance and occasional evasion of courtoverturning amendments, groups and officials have sometimes resorted to changing the composition of the state supreme court by unseating the judges responsible for such rulings, as when voters decided against retaining three California Supreme Court judges in the mid-1980s, in large part because of their repeated reversal of death sentences. Despite these limits on the effectiveness of the amendment process as a means of responding to rights- expanding court decisions, groups and officials have generally viewed passing amendments as preferable, on balance, to changing the composition of the state supreme court. Although there have been some high-profi le cases featuring state court resistance to court- overturning amendments, the vast majority of amendments have had the intended effect. Moreover, amendment processes are in most cases more accessible than judicial selection processes and hold out a higher probability of success. Some states do not hold judicial elections, leaving groups and officials to take the more difficult route of trying to influence gubernatorial or legislative reappointment of judges. Even in states that hold judicial elections, incumbent defeats are uncommon. Not only do groups face substantial difficulties in trying to unseat judges, but they are also dependent on the election calendar when it comes to gaining an opportunity to vote judges out of office, with some state supreme court judges facing reelection less than once a

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decade and other judges enjoying life tenure or serving until they reach a designated retirement age. By comparison, the process of enacting a constitutional amendment is generally shorter and has better prospects of success. From a fi nal vantage point, adopting an amendment might be seen as preferable to changing judicial personnel, because an amendment is more precisely targeted for overturning a particular court decision than unseating a series of judges responsible for issuing the decision but whose judicial record is otherwise unobjectionable.

Part IV Policies

Chapter Five

Policy- Constraining Amendments

S

tate constitutional amendments have been a regular means of constraining the policy choices of public officials, a use of the amendment process with little precedent at the federal level. Groups have occasionally urged passage of policy- constraining amendments to the US Constitution, which from its inception has disallowed certain taxes (taxes on articles exported from any state and direct taxes not apportioned by state population) but otherwise contains few policy- constraining provisions. Twice in the mid-1990s, congressional supporters of a federal balanced-budget amendment came within one vote in the Senate of sending such an amendment to the states for ratification. One might also view as a policy- constraining amendment of sorts the 1861 Corwin Amendment, one of six congressionally approved but unratified federal amendments, which would have prevented adoption of any future amendment authorizing Congress to abolish slavery, in an ill-fated effort to head off the Civil War. Few other policy- constraining amendments have been given serious consideration at the federal level, where dissatisfaction with the performance of governing institutions, particularly Congress, is channeled in directions other than passage of amendments, as groups focus instead on unseating wayward Congress members or pressuring them to change their behavior. In this chapter I examine the routine reliance on policy- constraining amendments in states, with the aim of identifying the policies targeted via these amendments, the motivations for adopting these amendments, and the reasons for proceeding through the amendment process rather than the political process. To preview the main conclusions, policy- constraining amendments have been adopted on a range of topics since the early nineteenth cen-

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tury. An initial wave of amendments dating from the 1820s and 1830s prohibited states from operating lotteries. The 1840s brought passage of amendments limiting legislative power to charter and invest in banks and other corporations—in some cases prohibiting legislative action altogether and in other cases requiring legislators to satisfy certain procedures before acting. In reaction to state legislatures’ improvident investment in turnpikes, canals, and railroads and the resulting defaults on state debt payments when these projects failed, the 1840s brought amendments limiting legislatures’ ability to undertake internal improvement protections and borrow money. Debt-limitation amendments, along with similarly motivated balanced-budget amendments, eventually became standard features of state constitutions. The 1970s brought still another wave of policy- constraining amendments in the form of tax-andexpenditure limitations. In considering the motivations for policy- constraining state constitutional amendments and the reasons why they are so prevalent, this analysis shows the need to move beyond what might be considered the standard scholarly explanation. The tendency has been to view the prominence of policy- constraining amendments at the state level, compared with their absence at the federal level, as attributable to the plenary powers of the former governments in contrast with the enumerated powers of the latter. On this view, policy- constraining amendments are unnecessary at the federal level because the federal government only exercises powers enumerated in the US Constitution; but because state governments possess all powers not prohibited, there is a heightened need to impose prohibitions via the amendment process. This explanation turns out not to be so helpful in accounting for adoption of many of these amendments, which generally impose limits on activities undertaken by state and federal governments alike, such as banking, road building, borrowing, taxing, and spending.1 In fact, most policy- constraining amendments have been adopted in response to perennial concerns about ways that public officials, especially legislators, fall short of providing effective governance, as demonstrated especially in the work of John Wallis, among other scholars.2 Policy- constraining amendments are seen as necessary in some cases because legislators are particularly susceptible to the influence of powerful groups. In other cases, amendments are motivated by concerns that legislators act in a shortsighted manner and without regard for the polity’s long-term interest, whether because they are afraid to make difficult

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decisions or no less prone than the citizenry to acting out of momentary passion. These concerns about deficiencies in the political process are present at the federal level no less than the state level; but they have been addressed on a regular basis through state amendment processes, in part because these processes are more flexible than the federal amendment process. Many of these amendments have been adopted through legislature-bypassing devices available in states, via conventions, commissions, and initiatives. In some cases, though, legislators themselves have been responsible for advancing policy- constraining amendments, whether because they have come under pressure from the public to relinquish responsibility or because they have concluded from experience that governance would be improved to the extent that their own discretion is limited. The main lesson is that groups and officials have concluded that certain deficiencies in legislative performance are not attributable to legislators acting in bad faith and cannot be resolved by electing different representatives or exhorting them to act in the public interest. Rather, these deficiencies have been viewed as enduring challenges best addressed by resorting to amendment processes.

Lotteries The earliest policy- constraining amendments barred legislatures from operating or licensing lotteries. Beginning in the 1820s and continuing through the late nineteenth century, the vast majority of states adopted lottery-ban amendments. 3 For the most part, these amendments were framed by conventions to prevent legislators from resorting to a practice that was admittedly useful in raising funds but came to be viewed as inimical to the long-term interest of the polity. After a period when state legislatures routinely authorized lotteries for a range of purposes, by the 1820s the public became increasingly concerned about the operation of lotteries and the role of state governments in licensing and profiting from them.4 Quakers and other groups had long expressed opposition to lotteries, but they did not have much influence in stemming the popularity of a practice viewed by legislators as a valuable way of raising revenue for internal improvements and various other public and private projects. It was only in the 1820s that

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anti-lottery sentiment grew to a point that public officials considered halting state-licensed lotteries. 5 The main impetus for a reconsideration of lotteries was an 1818 libel case focusing on newspaper editor Charles Baldwin’s sensational charges about corruption in New York lotteries.6 Lottery managers were purchasing tickets and collecting prizes in games they were operating. Lottery numbers were drawn in suspect fashion, occasionally to the benefit of public officials who were given advance notice of winning numbers. These and other fraudulent practices were brought to light by these charges and by a 1819 New York legislative committee report prepared in the aftermath of a libel trial at which Baldwin was acquitted.7 As historian John Samuel Ezell has written, this episode “shook the lottery system to its roots in New York, and by undermining public confidence in the effectiveness of close government regulation and supervision, caused reverberations throughout the country.”8 Ensuing debates in New York and other states focused in part on fraudulent lottery practices that were highlighted by Baldwin’s trial and the legislative committee report.9 Groups and officials contended, however, that the problems with lotteries were even more fundamental and could not be addressed merely by imposing tighter restrictions on lottery managers and games. Such was the view of John Duer, a delegate to New York’s 1821 convention who urged passage of an amendment prohibiting the legislature from authorizing any more lotteries. Duer “supposed it was an admitted truth, in political economy—in truth, in the present state of that science, almost regarded as elementary, that the plan of raising a revenue from lotteries ought not to be adopted by a wise and moral government, since of all taxes, it was the most unjust and unequal in its mode of imposition and collection, and the most pernicious in its operation. He believed that the evils of lotteries were inseparable from the system, and not to be remedied by any regulations or restrictions that could be devised.”10 The principal concerns were that lotteries tended to “encourage a spirit of rash and wild speculation among the poor and laboring classes—to fi ll their minds with absurd and extravagant hopes, which diverted them from the regular pursuit of industry.” It was clear to Duer that “the larger portion of the revenue derived from lotteries, would always be drawn from the pockets of the poor,” and that by licensing lotteries, legislatures became complicit in “a process which was certain to debauch the morals, and augment the poverty of those who were betrayed into vice by legislative seduction.”11

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Lottery critics were not content with merely urging state legislators to cease issuing lottery licenses; they argued that constitutional provisions were needed to constrain legislators from renewing this practice. The challenge was to prevent legislators from giving in to a perennial, but nevertheless regrettable, temptation to turn to lotteries to raise revenue instead of relying on more legitimate revenue sources. Duer explained it this way: But why, the question was constantly repeated, why not leave the subject to the discretion of the legislature? Because, he would reply, this was exactly one of the subjects on which the discretion of an ordinary legislature was not to be trusted. Legislatures were always under a strong temptation to resort to lotteries as a mode of raising revenue; and from a temptation, to which it is more than probable they would yield, the Constitution should prevent them. Lotteries, though taxes in effect, were not such in appearance and form, they were not so considered or felt by the people, or even by that portion of the community by whom they were paid; they were not considered as forming any addition to the public burthens, and could therefore be laid without any hazard to the popularity of those by whom they were imposed. Experience justified the assertion that this motive was too strong to be resisted by the virtue of any popular assembly; and the safest course to preserve their integrity was to remove the temptation.12

Other delegates at New York’s 1821 convention, the fi rst convention to consider adopting an anti-lottery provision, acknowledged that policyconstraining provisions had scant precedent but maintained that this was no argument against adoption of a lottery ban. William Dodge explained, “We are told that other states have not embraced this principle in their constitutions, and that the general government has authorized a lottery. This is no answer. We are now solemnly called upon in this convention, representing this great and powerful state, to set an example to our sister states worthy of their imitation.”13 After some debate, New York’s 1821 convention approved an antilottery provision as part of a constitutional revision ratified by voters. The precise form of the lottery amendment was a subject of some discussion at the convention. Chancellor James Kent, who was more sympathetic to lotteries than many other delegates, proposed an alternative provision, whereby lotteries could be permitted only after a two-thirds vote of the legislature. This sort of legislative supermajority requirement

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would turn out to be a popular constitutional safeguard for constraining legislative discretion in other policy areas. But it was rejected as inadequate by New York’s 1821 convention,14 in favor of a provision erecting a complete ban on any new lotteries chartered by the legislature.15 Although no other states followed New York’s lead during the next decade, lottery-ban provisions were adopted in several states in the mid1830s, beginning with Tennessee, Michigan, Maryland, and Arkansas, and became standard features of state constitutions after that point.16 In most cases, convention delegates were responsible for advancing these amendments, generally with an eye toward ending a practice that the legislature had already discontinued and ensuring that future legislators did not succumb to a temptation to revive it. Occasionally, legislators were willing to take the lead in proposing amendments that would bind themselves and their successors, as in Maryland, where legislators gave the requisite approval in consecutive sessions to an 1835 amendment providing, in part, that “after the expiration of existing lottery grants, the Legislature of Maryland shall not pass any law authorizing the drawing or any lottery or the traffick or dealing in lottery tickets, or schemes or devices in the nature of lotteries, or the distribution of money or property by chance.”17 From the mid-nineteenth century onward, conventions drafting or revising constitutions routinely adopted provisions prohibiting legislators from operating or licensing lotteries, to the point that by the century’s end, every state had eliminated state- operated or -sanctioned lotteries,18 in most cases via constitutional provisions.19 Thus, when the question was taken up in Utah’s 1895 convention, one of the fi nal state conventions held in the nineteenth century, delegates were led to approve a lottery ban for the same reasons that motivated adoption of such bans in earlier decades. As delegate William Grant Van Horne argued in this convention, a lottery ban was needed to prohibit the legislature from “granting a franchise that common consent of the country holds to be an immoral franchise and detrimental to the public good.” 20 Moreover, as Abel Evans, among other delegates, explained, it was important to include this ban in the constitution, because otherwise “there will be a combination of people who will importune our incoming Legislature for the purpose of securing a franchise to carry on lotteries and games of chance.” 21 Evans acknowledged that other delegates were confident that legislators could resist these entreaties from outside groups and

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therefore “the Legislature cannot be bamboozled into granting such a franchise”; nevertheless, he was convinced, and a majority of the convention delegates agreed, that the safest course of action would be to “make a prohibition in the Constitution so that [the Legislature] will not even consider the question at all.” 22

Corporate Charters State legislatures’ involvement in chartering corporations became a growing concern in the 1820s and 1830s and eventually led to widespread passage of amendments halting incorporation of businesses by special acts. Special incorporation acts were the norm in the late 1700s and early 1800s. Legislatures would enact laws incorporating churches, schools, and charitable associations. It was no surprise that legislatures followed the same process when it came to establishing business corporations to provide insurance and banking services and to build and operate turnpikes, canals, and railroads. Groups seeking to establish a business took their request to the state legislature, which would draw up and approve an act of incorporation. 23 Special incorporation acts came to be viewed as increasingly problematic, however. Some members of the public grew concerned about the exclusive privileges and monopolies that corporations obtained through this chartering process. From this vantage point, special incorporation acts benefited corporations and were in need of curtailment as a way of reducing corporate power and influence. 24 Another concern that figured even more prominently was that special incorporation acts impaired the legislative process. 25 L. Ray Gunn, in his analysis of special incorporation acts in New York, highlighted various ways that “the process lent itself to lobbying, corruption, and logrolling.” 26 Because legislators had to give their assent to each incorporation act and therefore had something valuable to bestow or withhold, interested persons and groups went to great lengths to persuade legislators to give their approval. This was a concern in its own right: that legislators were subject to intense lobbying. But this also raised concerns about improper tactics and pressure, which might be applied by groups seeking incorporation acts and might just as readily be undertaken by legislators demanding something from these groups in exchange for

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approving these acts. 27 Moreover, special incorporation acts “encouraged legislative ‘backscratching’: members agreed to vote for other legislators’ bills in return for a similar consideration.” 28 An equally important concern highlighted by delegates in mid-1800s conventions was that the attention paid to special incorporation acts prevented the legislature from operating effectively. Judah Benjamin complained during a debate in Louisiana’s 1845 convention that “the routine of specifying the powers and liabilities of a corporation, occupies a great portion of the most precious time of the legislature, and diverts its attention from subjects which peculiarly appertain to it, and which cannot be transferred.” 29 Focusing on recent developments in the Louisiana legislature, he reminded his fellow delegates, “One branch alone of that body passed six weeks of the last session in discussing the provisions of a charter for a mutual insurance company! What a waste of time and money!”30 A related concern about special incorporation acts, Benjamin noted, is that “it frequently happens that in the confl ict of debate, provisions escape observation,” whether because they are “hurried through” or are “procrastinated so long that attention wearies,” especially near the end of the session, so that “many bad provisions go through.”31 Although passing amendments to require general incorporation laws in place of special incorporation acts eventually became the dominant approach, other approaches were also considered. 32 Delegates to New York’s 1821 convention approved the fi rst constitutional provision addressing problems associated with special incorporation acts, when they adopted a requirement that the legislature meet a two-thirds vote requirement for passing any acts “creating, continuing, altering, or renewing any body politic or corporate.”33 Supermajority requirements for passing special incorporation acts were also included in new or revised constitutions in the 1830s and early 1840s in Delaware, Michigan, Florida, and Texas. 34 Another approach was to adopt amendments requiring additional transparency and deliberation in passing special incorporation acts. In drafting Florida’s inaugural 1838 constitution, convention delegates not only adopted a two-thirds rule for passing incorporation acts but also required these acts to be publicized before passage, as part of a constitutional provision requiring that “public notice in one or more newspapers in the States shall have been given for at least three months immediately preceding the session.”35 Rhode Island’s 1843 constitution sought to maximize publicity and deliberation in a different fashion, by requiring

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that incorporation acts presented to the legislature must “be continued until after another election of members of the general assembly shall have taken place, and such public notice of the pendency thereof shall be given.”36 With the adoption of new or revised constitutions in Louisiana, Iowa, and New York, 37 the dominant approach from the mid-1840s onward was to prohibit special incorporation acts altogether and require general incorporation laws whenever possible. New York’s 1846 constitution stipulated, in an approach that served as a model for other states, that corporations “shall not be created by special acts,” except “in cases where in the judgment of the Legislature, the objects of the corporation cannot be attained under general law.”38 By the mid-twentieth century, only four state constitutions lacked provisions requiring general incorporation laws. 39

Banks Even as debates about a national bank dominated politics at the federal level from the 1790s through the 1830s, questions about the legitimacy and wisdom of establishing state banks also attracted significant attention. By the late 1830s, when a wide range of groups began pressing in earnest for adoption of state constitutional amendments on this subject, “state banking laws were a crazy quilt of restrictiveness and permissiveness,” as James Roger Sharp has written.40 Acting at times pursuant to express constitutional provisions, some state legislatures, particularly in the South and the Midwest, established a single state bank.41 In other states, legislatures provided fi nancial support for banks by purchasing their stock or guaranteeing bonds that they issued, at times with an eye toward fi nancing internal improvements.42 In still other states, especially in the Northeast, legislatures chartered banks through a similar process as was used when incorporating other businesses. In this fi nal group of states, legislatures initially chartered banks through special incorporation acts and eventually began passing general laws for chartering and restricting operation of banks, along with other corporations.43 Amendments constraining legislative chartering of banks drew support from a range of groups with disparate concerns. Even before the panic of 1837 led to many bank failures, banks attracted criticism from residents of rural areas, working- class voters, and groups (such as the

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Loco Focos) concerned about monopolies and exclusive privileges, whether attached to banks or to other institutions.44 Other long-standing concerns centered on lobbying, corruption, and logrolling seen as endemic to the bank chartering process. In his history of banking in early America, Howard Bodenhorn highlighted the events surrounding the New York legislature’s chartering of the Merchants’ Bank of New York City in 1805. He concluded that “the Merchants’ Bank scandal represented the most audacious assault on sometimes loose legislative morals. Agents for the bank literally patrolled the halls of assembly, eavesdropped on committee debates on the charter, and promised favors to garner support.  .  .  . Once the extent of the bribery became public, the governor prorogued the assembly and the attorney general was instructed to prosecute all those involved.”45 In other cases, the concern was not so much that banks engaged in “bribery of one or more influential legislators,” but rather that they would “exploit chronic budgetary concerns and, in effect, overtly bribe the entire legislature,”46 by promising “to fi ll the state treasury, sometimes with a onetime payment, sometimes with a promise to lend at preferential rates, sometimes by ceding a block of shares to the state so that it would reap a stream of dividends.”47 Although constitutional provisions regarding banks were occasionally adopted prior to the 1830s,48 it was only after the panic of 1837 that limits on banks became standard features of state constitutions.49 In some cases, bank critics pressed for amendments imposing an absolute barrier to legislation chartering or sanctioning banks. Delegates to Michigan’s 1850 convention eventually rejected such an amendment; but Alfred Hanscom was one of a group of delegates who concluded that the legislature could not be trusted to authorize banks. He “would not absolutely condemn all systems of banking merely because we have had a bad system; but when all experience demonstrates that all systems are bad ones, we should proceed at least with great caution.” He sought support for a motion “preventing for all coming time the creation of any banks in the State.”50 In other states, amendments banning banks attracted even more support and enjoyed more success. Conventions in Louisiana and Texas took the lead by including identical provisions in their respective 1845 constitutions declaring, “No corporate body shall be hereafter created, renewed, or extended with banking or discounting privileges.”51 Conventions framing inaugural constitutions for Iowa, California, and Oregon in the 1840s and 1850s adopted similar provisions. 52

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Although these provisions were generally framed by conventions and imposed on legislatures, at times legislatures agreed to constrain themselves. For instance, after the Arkansas legislature in the early 1840s passed a law designed to end bank charters, legislators followed up by cementing this ban in the state constitution when they approved and submitted for voter ratification an 1846 amendment declaring, “No bank or banking institution shall be hereafter incorporated, or established in this State.”53 Most amendments adopted in the 1840s and 1850s stopped short of imposing absolute bans on legislative chartering of banks, focusing instead on adding safeguards to the chartering process, with the aim of minimizing the role of lobbying, corruption, and logrolling. 54 Amendments in prior years had occasionally relied on mechanisms such as a supermajority legislative vote for chartering banks, no less than other corporations, and limiting the number of bank charters to one per legislative session, as ways of minimizing opportunities for logrolling and maximizing transparency. 55 Additionally, and borrowing from a device employed to constrain legislative discretion in other areas, states began to adopt amendments requiring banking laws to be approved in a popular referendum. In 1848, Illinois and Wisconsin adopted the fi rst constitutional provisions requiring voter approval of banking laws. 56 Similar provisions were included in constitutions adopted in Michigan in 1850 and Ohio in 1851. 57 Amendments requiring referenda on banking laws took various forms. The leading approach, pioneered in Illinois’s 1848 constitution, was to stipulate that no laws authorizing banks could take effect until they were approved by voters. 58 Wisconsin’s 1848 constitution took another approach and adopted a double-referendum provision. Under the Wisconsin plan, a legislature seeking to authorize banks fi rst had to submit to voters the question of “BANK or NO BANK.” If the “BANK” option secured a popular majority, then the legislature was permitted to craft a general banking law or grant particular bank charters, but only under the condition that each of these laws or charters would also have to be submitted to and approved by voters. 59 Regardless of their diverse and particular forms, these provisions were motivated by a common concern that legislators were susceptible to undue influence from outside groups and could not be trusted to charter banks. As Ephraim Danforth argued in Michigan’s 1850 convention, “It is well known to every person who has been in the Legislature that the

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influence of the banks over the Legislature is irresistible.”60 Referenda were useful in part because legislators, knowing that the banking laws they crafted would be submitted to the people, would be strengthened in their resolve to resist entreaties from banking interests. Robert McClelland argued in the same convention, “It is a well established fact that most of our bank charters are drafted by those to be interested in them, and that therefore the provisions are favorable to the bankers.” But with a referendum requirement in place, he argued, “those who desire a general banking law will make it as perfect as they can before they submit it to the criticisms and scrutiny of the people. Their object will be to obtain their approval; and knowing the extreme sensitiveness that exists, and that the slightest defect exposed may defeat the project, they will act honestly and in good faith.”61 Moreover, in the event that legislators succumbed to the influence of banking entities and framed laws not consonant with the public interest, the referendum requirement would enable the public to reject them. John Pierce in the same convention lamented “instances in which the Legislature had refused to pass bank charters, but which had been lobbied through at the close of the session.” He proclaimed, “This would not have been the case had the people had a direct vote upon it.”62

Internal Improvements The panic of 1837 also prompted reconsideration of the wisdom of permitting unfettered legislative discretion in building turnpikes, canals, and railroads, after several decades when states invested heavily in these projects only to see them falter during the economic downturn, leaving states with the bills. Legislators were often enthusiastic supporters of these projects during the 1820s and 1830s, especially after the success of New York’s Erie Canal.63 In fact, some constitution makers during this period encouraged support for internal improvements, as when Missouri’s 1820 constitution declared that “internal improvement shall forever be encouraged by the government of this State” and made it a “duty of the general assembly” to support projects regarding “roads and navigable waters.”64 With or without encouragement of this kind, legislators supported internal improvements in various ways, generally by issuing bonds whose proceeds were used to purchase stock in

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companies carrying out these projects or by pledging the faith of the state to guarantee bonds issued by the companies themselves.65 In the years following the panic of 1837, by which time states had incurred nearly $110 million in debt for turnpikes, railroads, and canals alone,66 the public turned strongly against these projects, in what has been termed a “revulsion against internal improvements.”67 Particularly after another economic downturn in 1839, public officials began debating what had gone wrong and what could be done to prevent a recurrence of the problem. Why had legislatures borrowed so heavily, if not profl igately, to support these projects? And what lesson should be drawn from this experience going forward? Three principal explanations for the failure of these projects and legislative recklessness in undertaking them were advanced in conventions called during the 1840s and 1850s.68 Some delegates charged that legislators had approved these projects because they were seeking to advance their own interests in maintaining their offices. Lorenzo Shepard was one of several delegates in New York’s 1846 convention who attributed the mania for internal improvements to legislators’ reelection incentive. He argued that “legislatures have a very slight interest to keep them from a career of reckless extravagance. They desire to secure votes by pleasing particular localities with the grant of an improvement at the public expense and then the members are too often willing to vote an improvement in a remote neighborhood against their judgment and their principles, in order to secure a few votes for an improvement in their own vicinity.”69 Daniel Read in Indiana’s 1851 convention lent support to this explanation, among other explanations, when he offered his own diagnosis: “If there is a single proposition settled beyond all manner of controversy, by every principle of sound reason, by experience all over the world, and more especially by the experience of our American States, it is this, that government should not in its own capacity, nor by a partnership with individuals, become an agent in business operations, except so far as required for the mere purposes of government.” Noting that “the history of the last thirty years has taught the American people a lesson on this subject never to be forgotten; the results of which, I trust, will be incorporated in every amended State Constitution, that like fatal experiments may not under any new phase of circumstances be repeated, or even attempted,” Read asked, “Why, sir, what have we seen?” Among other things, “We have seen the public patronage of the States, the mere

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foot-ball of contending political parties—we have seen partisan leaders advocating local expenditures to strengthen their own power.” 70 A second explanation, not necessarily inconsistent with the fi rst but placing more emphasis on the role of outside groups, contended that legislatures supported internal improvements in response to lobbying by corporations that stood to benefit from these projects. John Morrison reminded delegates in Indiana’s 1851 convention of the mammoth internal improvement bill approved by the Indiana legislature in 1836 and argued, “Our people are to this day ground down by most oppressive taxes, which the system of internal improvements of that year have infl icted upon them;—better called a system of oppression, infl icted by the representatives of the people, as they call themselves, in the Legislature.” 71 Among the factors leading to approval of this system was legislators’ susceptibility to entreaties of “individual interests” that used various tactics to secure approval of their projects. Morrison argued, “The State has been aptly compared to a goose, and according to the saying, he was a fool who did not pluck her. And in view of what we have suffered heretofore, I think it is but the part of prudence that we should provide for the evil to come.” 72 If some delegates attributed legislative support for questionable projects to legislators’ self-interest, and other delegates faulted pressure from interested groups, still others blamed the public. Schuyler Colfax argued in the same Indiana convention, “When we look back upon the scenes of excitement through which our State has passed—when we remember that so enthusiastic were the people in favor of the mammoth system, that they would as heartily and as strongly, and as overwhelmingly have voted for its adoption at the polls, as did their Representatives in the Legislature, it does seem as if, now in our cooler moments, with the results of that infatuation in full view before us, we should so act as to prevent, if possible, their repetition.” 73 As a number of convention delegates pointed out when it came time to assign blame for state legislative decisions made in the 1830s, the passion for internal improvements at that time was at least as strong, if not stronger, among the public as in the general assembly. Despite the differences in emphasis in these diagnoses, the common lesson drawn from them was the need to amend the constitution to prevent a recurrence of the malady. It was insufficient, convention delegates concluded in the 1840s and 1850s, to rely on the electoral process to hold legislators accountable. As John Dix, a member of New York’s

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Albany Regency argued in 1842, elections had “not proved an effectual safeguard.” 74 To the extent that the problem was caused by legislators pursuing reelection or by groups employing pressure tactics, elections were unlikely to change legislators’ behavior. And of course insofar as the problem was rooted in public attitudes, the electoral process offered no safeguard. In crafting amendments to address the problem, some states relied on safeguards previously devised in other policy areas. In a procedure fi rst included in Mississippi’s 1832 constitution75 and later included in the Texas Constitution of 1845,76 some amendments required a two-thirds vote to pass legislation involving the state in internal improvements. An amendment approved by the Maryland legislature in 1841 took a different approach, requiring laws loaning the credit of the state to be approved in two separate sessions.77 Other amendments mandated that only one project could be included in any particular bill, in “an attempt to prevent logrolling.” 78 For the most part, amendments imposed an absolute bar against loaning the credit of the state, purchasing stock in private companies, or participating in internal improvement projects. Florida’s 1838 constitution was the fi rst to include a provision banning loans of state credit. It is noteworthy that the same Florida constitution that declared in another article that “a liberal system of internal improvements, being essential to the development of the resources of the country, shall be encouraged by the government of this State” 79 nevertheless limited the way this could be done, stipulating, “The general assembly shall not pledge the faith and credit of the State to raise funds in aid of any corporation whatsoever.”80 New Jersey’s 1844 constitution included a similar provision banning the loaning of the state credit to private corporations.81 These clauses soon become standard features of state constitutions, along with provisions that fi rst appeared in the constitutions of Louisiana and Texas in 1845 barring the legislature from purchasing stock in private corporations.82 Beginning with the inaugural 1848 Wisconsin constitution and the revised 1850 Michigan constitution, conventions began to frame provisions explicitly prohibiting state involvement in internal improvement projects.83 For instance, Michigan’s provision declared, “The state shall not be a party to, nor interested in, any work or internal improvement, nor engaged in carrying on any such work, except in the improvement of or aiding in the improvement of the public wagon roads and in the expenditure of grants to the state of land or other property.”84

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In several states, conventions took the additional step of crafting provisions applying to local governments and barring them from purchasing stock in private companies, especially in states where local governments became major investors in railroads. 85 Conventions in Ohio and Indiana in the early 1850s took the lead in banning local government investment in internal improvements.86 But it was not until the panic of 1873 and “widespread railroad bankruptcies” that amendments were adopted on a regular basis banning local government investments in corporations, to go along with long-standing bans on state investments.87

Debt The panic of 1837 and fi nancial losses suffered in the aftermath by state governments, largely but not solely due to the failure of internal improvement projects, also spurred adoption of amendments limiting legislatures’ ability to borrow. Financial losses were so severe, and many states were so unprepared for them, that in 1841 and 1842 eight states— Mississippi, Arkansas, Indiana, Illinois, Maryland, Michigan, Pennsylvania, and Louisiana—and the territory of Florida defaulted on debt payments and in several cases repudiated all or part of their debt.88 Several other states, including Alabama, New York, and Ohio, barely avoided defaulting.89 Officials were forced to grapple with the reasons why legislators borrowed so heavily and made inadequate provision for servicing the debt through taxation or other means.90 As the economic historian Wallis has explained, “States had to come to grips with whether their current fiscal crises were the result of corrupt individuals manipulating the system for their own benefit or whether they were the result of systematically corrupt decisions made by state governments. Did the crises result from bad institutions or from bad individuals?” 91 Much rested on the answer to this question, because “if it was bad institutions, then the appropriate remedy was to alter the institutions. If it was bad individuals, then the appropriate response was to vote the rascals out. States, in general, decided that bad institutions were the cause of the crisis.” 92 In particular, delegates in conventions held in the 1840s and early 1850s concluded that the “misfortunes created by legislative borrowing had not been simply the product of bad legislators” but rather illuminated “a perennial defect of legislatures: the inability to account for

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the future costs of present decisions to incur debt,” as Stewart E. Sterk and Elizabeth S. Goldman have written.93 On this view, it was certainly worth exhorting legislators to adopt a more long-term perspective and urging the public to unseat legislators who failed to do so. But these remedies were bound to fall short of what was needed in terms of “reconciling the confl ict between short-term and long-term interests that debt generates,” as Richard Briffault has written in accounting for the logic underlying debt-limitation provisions. Briffault explained that “elected officials may be tempted to approve projects that are not fully costjustified,” in the belief that “they can get the credit for the new project immediately, while the blame for the additional taxes needed to pay off the debt will be borne by their successors.” In order “to offset the temptations that can cause elected officials to burden future generations with unnecessary debt,” constitutional provisions were adopted to “provide a constraint likely to be missing from the ordinary political process.”94 The consensus in favor of limiting legislatures’ borrowing power was so strong that mid-nineteenth- century convention debates focused less on whether to adopt constitutional constraints than on the particular form they should take. Occasionally, delegates pushed back against the very idea of debt-limit proposals, as when Arphaxed Loomis maintained in New York’s 1846 convention that “the legislature and people . . . might with perfect propriety be trusted with the disposition of the immediate subject before them” and that it was not proper for constitution makers “to say in advance that the people should not impose on themselves debt and taxation, if they think the emergency required it.”95 But this was a minority view. There was little doubt on the part of most delegates in 1840s and 1850s conventions that safeguards on legislatures’ borrowing power would be approved. After all, these conventions had in many cases been called primarily to impose such constraints. In its June 1846 issue, the Democratic Review noted that New York’s 1846 convention “originated in one single cause—the improvidence of the Legislature in contracting debts on behalf of the state.” As this opinion journal argued, the convention was called “after the state had been threatened with bankruptcy, and the people had been invoked in various quarters to provide by constitutional guarantees against the impending calamity and disgrace.”96 Although some convention delegates who had served in the legislatures responsible for contracting these debts sought to defend their honor and justify their prior support for these projects,97 for the most

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part delegates agreed that constitutional safeguards were necessary. In a historical analysis that focused on New York but could easily have described the predominant view in other states by the mid-1840s, L. Ray Gunn concluded that “many New Yorkers had come to believe that the result of unrestricted representative government was corruption; special interest domination of the legislative process; legislative agendas overwhelmed by the annual flood of special, local, and private bills; and huge state debts, arising principally from the logrolling of ill- conceived and untimely internal-improvement projects,” and in a way that required “imposing tough new standards of legislative procedure and bringing the legislature more directly under popular control.”98 As Augustus Kinney argued in Wisconsin’s 1847–48 convention, “Legislatures frequently involved their states largely in debt without any advantage to the people. The members of this convention were sent here to guard the people against such evils. This was a subject on which members of the legislature were very apt to act contrary to the wishes of their constituents.” 99 Rhode Island’s 1842 convention framed the pioneering debtlimitation amendment,100 the fi rst of many such amendments advanced by conventions, and occasionally by legislatures, during the next decade.101 In framing or revising constitutions over the next decade, twelve other states adopted similar convention-framed provisions,102 while voters in two states approved legislature- crafted amendments.103 These constitutional provisions imposed various kinds of limits and safeguards. Indiana’s 1851 constitution,104 among several other constitutions,105 prevented legislatures from contracting any debt, save for designated exceptions such as meeting casual deficits, paying interest on the state debt, or providing for the public defense. Other constitutional provisions capped the level of outstanding debt,106 as when the Texas Constitution of 1845 stipulated that “the aggregate amount of debts hereafter contracted by the legislature shall never exceed the sum of one hundred thousand dollars, except in case of war, to repel invasions, or suppress insurrections.”107 Another approach was to rely on procedural safeguards to promote publicity and deliberation when legislatures contracted debt. Some of the earliest debt-limitation provisions adopted in the 1840s, as in Rhode Island, Michigan, and New York, included a popular-referendum requirement.108 Other provisions required a supermajority legislative vote before debt could be contracted, as in a Texas provision that imposed a two-thirds requirement.109 Still another approach, embodied in a Lou-

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isiana provision, was to require laws contracting debt above a certain amount to be approved by the legislature in two sessions, separated by an election.110 Most state debt-limitation provisions were enacted in the 1840s and 1850s or in subsequent decades when states revised their constitutions or drafted their fi rst constitutions, but in a few cases debt-limit amendments were approved in the twentieth century. In 1933 Arkansas became the most recent state to default on its debt, after the legislature borrowed heavily to fi nance highway construction and was unable to keep up with debt-service payments during the Great Depression.111 In response, the legislature crafted and Arkansas voters in 1934 approved an amendment prohibiting any future debt unless it was approved in a popular referendum.112

Budgets Amendments requiring submission, passage, and maintenance of a balanced budget have been adopted on a widespread basis, generally out of a concern that public officials are influenced too heavily by short-term considerations and are reluctant to make difficult budgeting decisions involving trade- offs between competing priorities, preferring to shift these decisions to future generations. Balanced-budget amendments were initially approved in the 1840s and 1850s and then adopted on a gradual basis in subsequent decades, until another wave of adoptions in the 1970s and 1980s. The fi rst balanced-budget requirements appeared in Wisconsin’s 1848 constitution and Ohio’s 1851 constitution as part of wide-ranging responses to concerns about legislative shortsightedness exposed by the panic of 1837. In addition to barring public investment in internal improvements and limiting debt creation, convention delegates also approved provisions requiring legislators to levy taxes that were sufficient to meet annual expenses. As the economic historian Wallis has written, when officials reflected on the economic downturn of the late 1830s and defaults in the early 1840s, “The lesson that state governments thought they learned in the 1840s was that taxes must be raised when spending is contemplated.”113 State officials “saw that the very nature of the democratic process made certain ways of doing things, taxless fi nance in particular, appear very attractive.”114 Convention delegates therefore sought

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to put an end to taxless fi nance, whereby legislators funded transportation projects by borrowing money or lending the credit of the state to corporations willing to undertake these projects.115 Instead, legislators would be required to levy taxes to raise the revenue necessary to support government operations and projects. The pioneering Wisconsin provision is typical of these early provisions. After declaring that “the credit of the State shall never be given, or loaned, in aid of any individual, association, or corporation,” and “the State shall never contract any public debt, except in the cases and manner herein provided,” Wisconsin’s 1848 constitution included another provision requiring that “the legislature shall provide for an annual tax sufficient to defray the estimated expenses of the state for each year; and whenever the expenses of any year shall exceed the income, the legislature shall provide for levying a tax for the ensuing year, sufficient, with other sources of income, to pay the deficiency as well as the estimated expenses of such ensuing year.”116 Similar amendments, some phrased in nearly identical language to the Wisconsin amendment, were approved by Ohio’s 1850– 51 convention and Nevada’s 1864 convention as well as a number of other conventions drafting inaugural state constitutions in the late nineteenth and early twentieth century.117 After a century-long period when balanced-budget requirements were added to state constitutions on a gradual basis, with some approved during and after the Great Depression,118 and others included in revised constitutions crafted in the mid-twentieth century,119 the 1970s and 1980s saw a surge of additional amendments. Balanced-budget requirements adopted from the 1970s onward were in some cases approved as part of wide-ranging amendments limiting growth in government expenditures, as with convention-framed amendments in Tennessee and Hawaii in 1978.120 But most amendments were stand-alone measures advanced by legislatures with the aim of placing in the constitution rules that previously rested on a statutory basis, as in North Carolina in 1977,121 or entrenching in the constitution long-standing practices and norms, as in Maryland in 1974 and Virginia in 1984.122 The precise number of states with balanced-budget provisions is a matter of long-standing discussion and dispute, owing to the wide variation in the forms these provisions take and because of a tendency for some analysts to treat debt-limitation provisions and balanced-budget provisions interchangeably.123 Most studies have concluded that between twothirds and three-fourths of state constitutions contain balanced-budget

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provisions,124 with nearly all of the remaining states adopting statutory requirements.125 The least stringent constitutional provisions require the governor to submit a balanced budget. Other provisions are stricter, in that they require the legislature to adopt a balanced budget. The most stringent provisions require actual revenue to meet or exceed actual expenditures and prohibit carrying over deficits from year to year.126

Taxing and Spending Amendments limiting legislatures’ taxing and spending power have been adopted more frequently than any other policy- constraining amendments. Some amendments, including tax-uniformity guarantees that were adopted from the mid-nineteenth century onward, have sought to limit group influence in the legislative process. Other amendments, especially late twentieth- century amendments requiring creation of rainyday funds and trust funds, require legislators to adopt a long-term perspective when crafting budgets. Still other amendments, including some tax-and- expenditure limits adopted from the 1970s onward, have been adopted out of a concern that legislators are not sufficiently responsive to public preferences and priorities. Tax- Uniformity Requirements The earliest tax-limiting provisions required uniformity in levying property taxes, the main source of revenue in the nineteenth century. Although uniformity guarantees were initially adopted for various reasons in different regions of the country, by the mid-nineteenth century they became standard features of state constitutions and were generally enacted to limit corporate influence in the legislative process. Currently found in the constitutions of all but a handful of states, these uniformity provisions occasionally apply to all taxes but are generally “focused on the property tax” and “may apply to tax rates; to the measure of the value subject to tax; or to the determination of the persons or activities subject to a tax.”127 Several of the earliest uniformity provisions were included in state bills of rights,128 beginning with Maryland’s 1776 declaration of rights, which declared that although paupers should not be taxed, “every other person in the State ought to contribute his proportion of public taxes, for

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the support of government, according to his actual worth, in real or personal property.”129 Similar provisions declaring in a general fashion that all property should be taxed in proportion to its value were included in bills of rights in the 1818 Illinois constitution130 and the 1820 Missouri constitution.131 In other states, conventions opted to insert these guarantees into frame- of-government sections of state constitutions, starting with Tennessee’s 1796 constitution.132 Some of these frame- of-government provisions were stated in a succinct fashion, as in the constitutions of Alabama in 1819, Maine in 1820, and Florida in 1838, the last of which directed that “the general assembly shall devise and adopt a system of revenue, having regard to an equal and uniform mode of taxation, to be general throughout the State.”133 But several other provisions, as in constitutions approved in Arkansas, Louisiana, and Texas in the 1830s and 1840s, were quite detailed.134 For instance, a provision in Arkansas’s 1836 constitution required that property “shall be taxed according to its value—that value to be ascertained in such manner as the General Assembly shall direct; making the same equal and uniform throughout the State. No one species of property, from which a tax may be collected, shall be taxed higher than another species of property, of equal value.” The provision went on to allow exceptions to be made with regard to “the power to tax merchants, hawkers, peddlers, and privileges.”135 Southern states adopted many of the uniformity provisions in place prior to the late 1840s. Based on this pattern, and drawing on debates in Virginia’s 1829– 30 convention where delegates considered but ultimately opted against adopting such a clause, legal historian Robin L. Einhorn concluded that early uniformity clauses were adopted as a concession to slaveholders and with the intent of “ensuring that democratized legislatures taxed slaves at the same rate as other forms of property—such as the land and livestock of the yeomen.”136 By the late 1840s and 1850s, as conventions in the Midwest (in Wisconsin, Michigan, Ohio, Indiana, and Minnesota) and the West (in California and Oregon) began routinely adopting uniformity provisions, the motivations for these amendments were quite different. In his study of the development of tax-uniformity clauses, William L. Matthews Jr. concluded that convention delegates in this era were demonstrating an increasing “fear of the power of legislatures” in their exercise of the taxing power, no less than in their propensity to contract excessive debt and invest improvidently in canals and railroads. Delegates were concerned,

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in particular, that “railroads, land development organizations, corporations, and many other newly organized institutions produced by an economy no longer based exclusively on agriculture had received preferential treatment at the hands of the legislatures.” In such a context, conventions were willing “to fetter the taxing power” via adoption of constitutional limitations.137 Admittedly, adoption of uniformity provisions during this time was animated by other motives aside from the particular factors leading to passage of constitutional provisions limiting debt and internal improvements.138 As Wade J. Newhouse argued in a comprehensive study, “debt limitations, the limitation on government participation in internal improvements, credit clauses, and the like” were “very specific responses to specific historical events,”139 whereas tax-uniformity clauses were “not such a specific response to some single, identifiable historical event occurring during a fi xed period.”140 Newhouse concluded that the advent of debt and internal improvement limits and the surge of tax-uniformity clauses are best understood as “parallel, related developments, not congruent developments.”141 Nevertheless, mid-nineteenth- century convention debates surrounding adoption of uniformity provisions reveal a prominent concern with limiting the influence of powerful groups in the legislative process, as in debates over international-improvement limits, albeit in this instance with a concern for preventing powerful groups from prevailing upon legislatures to secure lower taxes than other residents. As Sumner Benson argued in tracing the development of uniformity provisions, they were partly a product of “an idealistic assertion of the fundamental principle of equality” as applied to taxation; but they were “just as much a bitter reaction against many real and imagined exemptions.”142 In Wisconsin’s 1847–48 convention,143 for instance, delegate John Rountree saw a need “to have the legislature bound by some rules which would secure equal taxation, some rules which would require that taxation should be based upon some fair valuation of the property taxed, and not left to tax property coming under the same general denomination equally, while the value might be very different.” He expressed concern that “our present laws did not secure a just and equitable valuation of property as the rule of taxation, and it was this kind of partiality and favoritism extended to particular kinds of property which he wished to see prohibited by the constitution.”144 Although some delegates pushed back against these proposals, critics generally failed to prevent adoption of uniformity clauses that eventually

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became standard features of state constitutions.145 Of the extant records of convention debates during this period, the debates regarding a uniformity provision in Ohio’s 1850– 51 convention are among the most extensive and have attracted significant attention from scholars seeking to understand adoption of these provisions.146 David Barnett was among the minority of delegates in this Ohio convention who was “opposed to too great restriction. He was satisfied that if the matter were left to the General Assembly, that body would, in its wisdom, construct a good system.”147 But most Ohio convention delegates agreed with John Larwill, that “upon this subject and various others the people are desirous to take from the Legislature the sweeping powers it has had. It is due to us to fi x some bounds to this power. If we do not, there will be great danger of abuse and fluctuations both in the system and in the amount of taxation.”148 Rufus Ranney contended in the same convention that “there is nothing which more naturally belongs to the framers of the fundamental law, than the duty to regulate and prescribe rules for the exercise of the taxing power. I deem it one of the greatest evils which have ever befallen the State of Ohio, that the Legislature have so grossly disregarded the true principles of taxation. Heretofore they have laid the heavy burden of taxation upon some descriptions of property, whilst they have entirely exempted other descriptions of property.”149 A leading concern motivating adoption of tax-uniformity amendments in the mid-nineteenth century and later years was that legislators were susceptible to influence from corporations and other groups seeking lower rates of taxation than were set for the public as a whole. As Samuel Kirkwood explained in Ohio’s 1850– 51 convention, “The difficulty heretofore has been, that the Legislature have been authorized to make bargains with corporations, and to determine whether their stock should be taxed or not, or to what extent it should be taxed. Now, I do not believe that the Legislature should have the right to tax the property of corporations in one way, and the property belonging to the citizens of the State generally in another way.” He was aware that other delegates would rather not constrain the legislature, preferring to address these matters through the political process. But he was no longer prepared to leave it “to the Legislature to make such distinctions as they have seen fit,” because the power “has been grossly abused by them heretofore. They have been bargaining with particular classes of men how their property should be taxed, whilst they have left other property belonging to the people of the State to be taxed under a general law.”150

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Tax- and-Expenditure Limitations No policy- constraining amendments have attracted more attention—and criticism—than a series of tax-and- expenditure limitation (TEL) amendments adopted from the 1970s onward. These amendments have taken various forms. Some limit property-tax or income-tax rates. Others require all new taxes or tax increases to be approved by a supermajority legislative vote or submitted to a popular referendum. Other amendments limit the annual rate of growth of revenue or expenditures. Still other amendments bar certain taxes altogether. Although Proposition 13, the citizen-initiated California amendment approved in June 1978,151 played a key role in the late twentieth- century surge of TEL amendments, these sorts of amendments were occasionally adopted in prior eras.152 During the Great Depression, for instance, Arkansas voters approved a 1934 amendment requiring approval of any increases in existing state taxes (the general sales tax had not yet been adopted) by a popular referendum or a three-fourths legislative vote.153 In fact, focusing primarily on the modern wave of TEL amendments, California voters’ approval of Proposition 13 was actually preceded by three months by Tennessee voters’ approval of a convention-referred Copeland Amendment that limited annual increases in state spending to the rate of growth of the state’s economy.154 In crafting this amendment, which might be considered the fi rst of the modern TEL amendments, delegates to Tennessee’s 1977 convention were seeking to require legislators to make difficult budgeting decisions in the face of strong pressure from groups seeking fi nancial support for a range of programs. Although a few Tennessee convention delegates such as Oris Hyder objected to imposing constitutional limits on the legislature, which he viewed as “the closest body that we have to our people,” and which he thought “must be trusted in fiscal areas,”155 a majority of delegates concluded that a constitutional constraint was warranted in light of recent growth in the state budget and accompanying sales-tax increases. Delegate Dan Oehmig expressed his concern that “when there is pressure from every department in this state government on the Legislature for a bigger budget, more spending, and more money, the Legislature succumbs.”156 Meanwhile, his colleague Judson Thornton focused on the influence of “lobbying and the special interests,” arguing that it is “extremely difficult for the legislators to separate the special interest groups from the wishes of all the people back home. As a result, they only heard one side of the issue;

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therefore, they were under some pressure to increase spending in various areas.” In this context, Thornton thought an expenditure-limitation amendment “would be a help to the legislators,” especially in “establishing priorities.”157 Despite voter approval of this Tennessee amendment and a few state legislatures’ adoption of statutory limits on spending in the mid-1970s,158 Proposition 13 was critically important, not only for governance in California but also because it triggered passage of similarly motivated constitutional amendments in many other states. In explaining Californians’ support for this amendment cutting property-tax rates to 1 percent of the property value, requiring approval of state tax increases by a twothirds legislative vote, and requiring approval of local tax increases by a two-thirds popular vote, analysts have considered a range of factors.159 Certainly, voters were responding to increasing property-tax bills. But they were also reacting against what they perceived to be unresponsive public officials. In an analysis of TEL amendments that highlighted the role of political entrepreneurs, interests, and donors in bringing about their passage, political scientist Daniel A. Smith also took note of voter motivations, concluding that California voters were “infuriated by the slow response of their state and local governments in dealing with the property tax crisis.”160 Voter dissatisfaction increased throughout the 1970s, as “a growing number of Californians came to view their state and local governments as increasingly wasteful and unresponsive,”161 and peaked after the 1977 legislative session when the general assembly considered several bills that would have granted property-tax relief but adjourned without passing any of them.162 In their analysis of factors correlated with voter support for the 1978 amendment, which passed by nearly a two-to- one margin, David Lowery and Lee Sigelman found that support was particularly high among voters “who were most likely to look upon political institutions as being unresponsive to their needs” and who exhibited various other measures of “political disaffection” and “political disillusionment.”163 Voters approved TEL amendments on a regular basis in the late 1970s and early 1980s,164 in some states within months after passage of Proposition 13.165 In a number of states, groups relied on conventions or initiatives to craft amendments in the face of occasionally unresponsive legislators.166 Conventions took the lead in several states, as when voters in Hawaii approved a convention-referred amendment in the 1978 general election,167 to go along with Tennessee voters’ approval of a

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convention-referred amendment in a spring 1978 special election. Meanwhile, voters relied on the initiative process to adopt several high-profile amendments: the Headlee Amendment in Michigan in 1978, the Gann Amendment in California in 1979 (following passage of Proposition 13 the prior year), and the Hancock Amendment in Missouri in 1980.168 In other cases, legislatures responded to public pressure and took the lead in framing TEL amendments, as in seven states where voters approved legislature-generated amendments in the late 1970s and early 1980s.169 The 1990s brought another wave of TEL amendments, highlighted by Colorado voters’ reliance on the initiative process to pass a 1992 Taxpayer Bill of Rights (TABOR) amendment requiring voter approval for state and local tax increases, capping the rate of growth of state and local revenue, and refunding excess revenue to taxpayers.170 As with the earlier wave of 1970s and 1980s amendments, the initiative process was a frequent vehicle for enacting these 1990s TEL amendments. Voters approved citizen-initiated amendments on eight occasions between 1990 and 1998, although one of these amendments was held invalid by a state supreme court.171 Legislature- crafted amendments were approved on five occasions in the 1990s.172 These TEL amendments have taken various forms, with a few amendments capping property-tax rates or requiring all local tax increases to be approved in a popular referendum,173 but many others focused on state taxes and spending. A number of these amendments limit the rate of growth of state expenditures. A leading approach has been to limit growth in state spending by relying on formulas taking account of some mix of population growth, economic growth, and inflation. A 1978 Tennessee amendment stipulates that “in no year shall the rate of growth of appropriations from state tax revenues exceed the estimated rate of growth of the state’s economy as determined by law.”174 Other amendments take a slightly different approach, specifying that expenditures cannot exceed a certain percentage of total personal income. For instance, a 1978 Arizona amendment prohibits the legislature from appropriating “state revenues in excess of seven per cent of the total personal income of the state for that fiscal year as determined by the economic estimates commission,” a limit that can only be exceeded by a two-thirds legislative vote.175 A number of TEL amendments constrain legislatures’ ability to increase taxes, relying heavily on the same procedural devices that have been employed to promote deliberation and publicity in other areas such

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as borrowing money. Colorado’s TABOR amendment relies primarily on a referendum requirement whereby new taxes or increases in taxes must be approved by voters before taking effect. A number of other states rely on legislative supermajority vote requirements.176 Other amendments, some of which predate the late-1970s surge, set a ceiling on state tax rates.177 To take several of many examples, in framing a new state constitution, Michigan’s 1961– 62 convention crafted a provision prohibiting the legislature from levying a sales-tax rate of more than 4 percent.178 A 1972 Florida amendment bars the legislature from raising the corporate income-tax rate above 5 percent, unless such a measure secures a supermajority legislative vote.179 A 1989 Nevada amendment limits the severance tax to 5 percent.180 A 2014 Georgia amendment prohibits the legislature from increasing the maximum individual income-tax rate above the rate in effect when the amendment took effect (6 percent).181 Still other amendments, adopted occasionally before the post-1970s wave of tax-limitation measures but with particular frequency in recent decades, bar certain taxes altogether.182 Some of these amendments eliminated existing taxes. For instance, various amendments have repealed sales taxes on food and prescription drugs, as was achieved through a 1974 citizen-initiated amendment in Michigan.183 Meanwhile, voters in 2000 approved a citizen-initiated South Dakota amendment repealing an inheritance tax.184 At other times, amendments preempt taxes not yet in effect. Voters in several states approved amendments barring the legislature from taxing individual income, as was achieved in Nevada through a citizen-initiated amendment in 1990 at a time when groups feared the legislature might adopt such a tax,185 or taxing payroll or earned personal income, as was achieved in Tennessee through a legislature-referred amendment in 2014,186 or extending the sales tax to any service or transaction not currently taxed, as achieved through a citizen-initiated amendment in Missouri in 2016.187 To provide a fi nal example—and others could be offered—groups have secured passage of amendments barring new or increased real- estate transfer taxes in the 1990s and 2000s in Arizona, Colorado, Missouri, Montana, North Dakota, Oregon, Louisiana, and Texas, in all but the fi nal two cases via the constitutional initiative process.188 Although amendments usually constrain legislatures by limiting their ability to increase taxes or expenditures, other amendments have occa-

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sionally constrained legislatures by requiring a minimum level of spending. Taken together, this practice of limiting total state spending but requiring a certain level of spending on some functions, especially education, has been labeled ballot-box budgeting on account of the way the overall effect of separately adopted citizen-initiated amendments has been to impose significant constraints on legislators’ flexibility to craft budgets in some states.189 Voters in California and Colorado approved the leading amendments of this kind, largely in response to earlier TEL amendments. A decade after passage of Proposition 13 and the Gann Amendment in 1978 and 1979 respectively, California voters relied on the initiative process to secure passage of a 1988 amendment requiring, as an immediate step, that nearly 40 percent of the state budget must be dedicated to school spending, and, in subsequent years, that school spending would generally be required to increase by a formula taking account of growth in per- capita income and student enrollment.190 Meanwhile, nearly a decade after passage of Colorado’s TABOR amendment, Colorado voters approved a citizen-initiated amendment in 2000 requiring state spending on K–12 schools to increase each year by the rate of inflation plus 1 percent for a ten-year period and by the rate of inflation for each year thereafter.191 Rainy-Day Funds Rainy- day funds, or budget stabilization funds, as they are generally called, have been established in all but a few states, generally through legislative statutes but in nearly one-third of the states through constitutional amendments. The New York legislature established the fi rst rainy- day fund in 1946 on a statutory basis, pursuant to a 1943 amendment permitting the legislature to create such a fund.192 A few other state legislatures followed suit, again on a statutory basis, in the 1950s and 1960s.193 But most state rainy- day funds, and all of the rainy- day funds established via constitutional amendments on a mandatory basis, were adopted from the 1970s onward,194 at a time when public officials concluded, after various recessions, that there was a need to require legislators to stockpile budget surpluses in good economic times to prepare for downturns. South Carolina was the fi rst state in the modern era to establish a rainy- day fund via the constitutional amendment process, when the legislature crafted and voters approved a 1978 amendment creating a

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General Reserve Fund.195 Delaware, Oklahoma, and Texas approved legislature-generated amendments creating rainy- day funds in the 1980s.196 Louisiana, Alaska, Rhode Island, Virginia, and Florida established rainy- day funds through constitutional amendments in the 1990s, generally via legislature-referred amendments but in Florida through a commission-referred amendment.197 Missouri, Alabama, Oregon, California, Washington, and Hawaii created rainy- day funds via legislaturecrafted amendments in the 2000s.198 On some occasions, voters in these states passed subsequent amendments adjusting details of previously established rainy- day funds. In most cases, rainy- day fund provisions specify the maximum size of the fund, the level of annual deposits, and circumstances when money can be withdrawn. When there have been calls for adjusting any of these details, amendments have been the vehicle for making the desired changes. On various occasions, as in Oklahoma, South Carolina, and Virginia in 2010 in the aftermath of a recession, and with the aim of better preparing for future economic downturns, voters approved amendments requiring higher annual deposits or increasing the maximum size of existing funds.199 In creating rainy- day funds through the amendment process, as fi fteen states have done, rather than relying on statutes for this purpose, as in other states, public officials have sought to reduce the likelihood that short-term considerations and pressures would prevail over the long-term public interest. In recommending that the Virginia General Assembly establish a rainy- day fund through the amendment process, a 1991 Virginia Joint Legislative Audit and Review Commission (JLARC) report highlighted various benefits of passing an amendment. One goal was to make the fund more permanent. Because “constitutional amendments are rarely repealed,” entrenching the fund in the constitution would be useful in “protecting the fund balance, over the long term, from competing budgetary demands” and limiting “uses of the fund for other purposes.” 200 Creating a rainy- day fund via the amendment process also makes it more difficult for legislators to hold off on making necessary deposits into the fund. As the Virginia JLARC report noted, a “statutorilycreated fund[] could always be modified or overridden by the Appropriation Act. A statutorily- created fund, to which no money is appropriated, would be a non- entity and of no value.” Drafters of the report were “fully cognizant of the political environment in which State budgetary

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decisions are made.” In view of these budget pressures, a constitutional amendment “specifying the conditions and mechanisms for depositing and withdrawing money from the fund[] would provide the greatest protection for the fund” and would be “in the greatest long-term interest of the Commonwealth.”201 Trust Funds Amendments have also been a vehicle, especially in the late twentieth and early twenty-fi rst century, for creating trust funds in which revenue is deposited and invested for future use. Trust funds are similar to rainy- day funds in requiring legislatures to sacrifice short-term benefits in favor of long-term fiscal interests. However, as Barry G. Rabe and Rachel  L. Hampton have explained, some trust funds “go far beyond state ‘rainy- day funds,’ which generally function as general-purpose savings accounts, or ‘designated funds’ that link revenues from a particular tax to some related function.” Rather, trust funds “entail highlystructured processes for safeguarding the preservation and allocation” of certain revenue sources and are “designed to grow their principal through constitutionally-sanctioned investment.” 202 In an initial wave of adoptions in the 1970s and then again in the 2010s, voters in a half dozen states approved legislature-generated amendments that require a portion of revenue from severance taxes (generally on oil and gas production) to be deposited in trust funds for investment and future use. Voters in Montana and Wyoming approved amendments of this sort in 1974, 203 followed by voters in New Mexico and Alaska in 1976. 204 In the twenty-fi rst century, North Dakota voters approved a 2010 amendment requiring a portion of severance taxes to be deposited in a legacy fund whose proceeds could not be used for at least seven years, followed by Utah voters’ approval of a 2012 amendment requiring a percentage of severance-tax revenue to be deposited in a permanent state trust fund. 205 Although legislators had various purposes in crafting these energy trust fund amendments, the main goal was to require public officials to adopt a long-term perspective regarding management of revenue from a particularly volatile tax. In states “where production ‘busts’ often followed ‘boom’ periods,” it made sense to establish trust funds “to mitigate impacts of any bust and prepare for the longer-term,” as Rabe and Hampton have written. 206 Legislators also doubted “their capacity to

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prudently handle major revenue surges that might arrive with little advanced notice” and “viewed the trust fund as a stabilizer that might minimize major fiscal errors and avoid reckless, short-term expenditures of government revenues likely not sustainable over extended periods.” 207 This concern with managing revenue surges in a prudent fashion and with an eye toward long-term fiscal interests also figured prominently in adoption of amendments establishing trust funds for use of revenue from cigarette manufacturers’ payments to states as part of the $206 billion, forty-six-state Master Settlement Agreement of 1998. With states expecting to take in significant new revenue over a twenty-five-year period and some states taking this payment in a lump sum, legislatures in Utah, Montana, and Oklahoma crafted and voters approved amendments in 2000 establishing trust funds for depositing and using these payments. 208

Conclusion In drawing conclusions from this review of policy- constraining amendments, one lesson to emerge from this analysis is that although these amendments have often been prompted by particular events, they were generally seen as necessary to address enduring deficiencies in political institutions brought to light by these events. At times, amendments have targeted policy areas where legislators are particularly susceptible to pressure from powerful groups. For instance, although legislatures initially chartered banks and other businesses by passing special incorporation acts, this practice came to be seen as associated with bribery, corruption, and logrolling. As long as legislatures handle incorporation by passing special acts, groups seeking charters will try to influence legislators, by proper and improper means, and will undoubtedly be successful on various occasions. Another set of amendments sought to induce legislators to take more account of the state’s long-term interests in the face of short-term pressures, especially budget pressures. In part because of their interest in maintaining their offices, legislators are often unwilling to make difficult budgeting decisions. They prefer to borrow money rather than raise taxes or cut spending when needed. They also fail to stockpile enough money in good economic times to prepare for economic downturns. The challenge in these situations is to induce legislators to make difficult

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budgeting decisions and with an eye to the long run. In other situations, legislators, no less than the general public, are caught up in temporary passions such as mania for internal improvements. The challenge in these Ulysses-like cases is to make it more difficult for citizens and their representatives to succumb to these temptations. A second lesson is that amendment processes hold advantages over other mechanisms that might be relied on to address these challenges, such as removing wayward legislators via the ballot box or devising statutes to promote responsible behavior. Certainly, the electoral process is one avenue for holding legislators accountable when they side with special interests rather than the public interest. But elections sometimes proved inadequate to the task. Such was the judgment of a number of convention delegates who concluded after the panic of 1837 that the problems brought to light were attributable less to faithless legislators than to institutional incentives that rendered legislators susceptible to influence by interested groups. It was not just a matter of electing different legislators. Certain tasks had to be withdrawn from the legislative portfolio. Moreover, in some cases the problem was less with legislators than with the citizenry. After all, legislators and the general public were equally supportive of the improvident internal improvement projects whose failure led to state defaults in the 1840s. For these and other reasons, convention delegates—and at times legislators themselves— concluded that various deficiencies in the performance of political institutions could not be addressed solely through the electoral process. If the amendment process was viewed as better suited than the electoral process to address these and other problems, amendments were also seen as preferable to relying on legislative statutes when it came to crafting safeguards to prevent a recurrence of these problems. In many instances when legislatures responded to problems by framing constitutional amendments, they had the option of enacting statutes instead. In fact, in many of these policy areas, some legislatures relied on statutes whereas other legislatures sought to achieve the same goal by framing constitutional amendments. Thus, some legislatures discontinued state lotteries by passing statutes, whereas others framed lottery-ban amendments. Some legislatures adopted balanced-budget statutes, whereas most states have approved balanced-budget amendments. Most legislatures have established rainy- day funds on a statutory basis, whereas a minority of states have created rainy- day funds via constitutional

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amendments. When legislators have taken the amendment route— and this logic was on prominent display during debates over creating rainy- day funds—it is generally because they have sought the benefit of added protection against the inevitable temptation to make fiscal decisions in response to short-term budgetary pressures rather than in accord with the state’s long-term fiscal interests.

Chapter Six

Policy-Authorizing Amendments

A

mendments authorizing adoption of policies have been enacted on a regular basis in states, in contrast with the federal level, where amendments of this sort are occasionally introduced but rarely approved. One clear case of a policy-authorizing federal amendment is the Sixteenth Amendment (1913), which permitted a federal income tax in response to the US Supreme Court’s ruling to the contrary in Pollock v. Farmers’ Loan & Trust Co. (1895). The Fourteenth Amendment (1868) and Fifteenth Amendment (1870) might also be viewed as empowering Congress to enact policies protecting African Americans at a time when the legitimacy of these measures was in doubt. The only other policyauthorizing amendment to emerge from Congress sought to authorize federal regulation of child labor after the US Supreme Court invalidated a federal child labor law in Hammer v. Dagenhart (1918).1 Approved by Congress in 1924, this amendment failed to secure ratification by the requisite number of state legislatures and was eventually rendered unnecessary when the Supreme Court in U.S. v. Darby (1941) reversed course and upheld the 1938 Fair Labor Standards Act, which included a provision regulating child labor. 2 Presidents and members of Congress have urged passage of other amendments when the legitimacy of federal acts has been in doubt or the US Supreme Court has invalidated them; but none of these amendments came close to passing. In some situations, presidents or members of Congress proposed amendments to resolve the legitimacy of certain acts but eventually determined that the acts in question could be viewed as legitimate even without passage of an authorizing amendment. For instance, President Thomas Jefferson initially doubted that the US Constitution authorized acquisition of territory from other countries and

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the formation of new states from that territory. After giving serious consideration to pressing for a constitutional amendment that would have authorized the Louisiana Purchase, he concluded after discussions with advisers that an amendment was unnecessary and could complicate prospects in Congress for the treaty’s ratification. Jefferson was also one of many early nineteenth- century presidents, along with James Madison and James Monroe, among others, to conclude that federal involvement in building roads, canals, and harbors required passage of an authorizing amendment. 3 Several presidents vetoed road, canal, and harbor bills and indicated in their veto messages that passage of a constitutional amendment would be necessary before these acts could be approved. Eventually, though, presidents began routinely signing internal improvement acts, on the ground that the constitutionality of these measures had over time been accepted by the people, without passage of an amendment. In other cases, passage of federal amendments proved unnecessary because shifts in the composition or direction of the US Supreme Court led to reversals of Court rulings limiting congressional power. After the Supreme Court began invalidating parts of President Franklin Roosevelt’s New Deal program, members of Congress introduced constitutional amendments that would have explicitly authorized federal regulation of agriculture, business, and labor unions.4 In fact, in 1935 Roosevelt and his advisers discussed crafting amendments that would have legitimated a range of New Deal policies, including some that had already been invalidated, some that were pending before the Court, and some that had not yet been enacted. 5 Roosevelt eventually decided against pushing for a policy-authorizing amendment, in part, as he explained in a March 1937 fi reside chat, because “it would take months or years to get substantial agreement upon the type and language of an amendment. It would take months and years thereafter to get a two-thirds majority in favor of that amendment in both Houses of the Congress. Then would come the long course of ratification by three-fourths of all the States.”6 Roosevelt opted instead to bring about a shift in the Supreme Court’s jurisprudence and eventually succeeded. Initially, he pushed for legislation increasing the number of justices. Although the court-packing plan failed in Congress, the Court began upholding New Deal programs on a routine basis from 1937 onward. By the early 1940s, after vacancies enabled Roosevelt to appoint eight new justices, the Court ceased to interpret the Constitution as limiting federal regulation of agriculture,

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industry, labor unions, and worker protections, in some cases upholding congressional acts in these areas by a unanimous vote. I focus in this chapter on the prevalence of policy-authorizing amendments in states, in contrast with their absence at the federal level, with the aim of identifying policies that have been the subject of these state constitutional amendments, the motivations for adopting them, and the reasons for proceeding through the amendment process rather than through other means. To preview the main conclusions, state constitutional amendments have authorized a range of policies from the late nineteenth century to the present. An initial wave of turn- of-the-twentieth- century amendments, which has drawn some scholarly attention, empowered legislatures to enact laws regulating the hours, wages, and conditions of workers.7 Then, in the early and mid-twentieth century, amendments authorized pensions for disabled persons, mothers of dependent children, and the elderly.8 Amendments have been adopted from the late nineteenth century onward authorizing certain taxes or creating exemptions from taxes.9 Amendments have also been adopted, dating from the early twentieth century, with an eye to enabling state governments to borrow money for various purposes. The twentieth and early twenty-fi rst centuries also brought passage of a stream of amendments authorizing lotteries and other forms of gambling. In explaining why policy-authorizing amendments are prevalent in the states, we are led to confront what initially appears to be a puzzling reversal of expectations. The federal government possesses enumerated powers, whereas state governments exercise plenary powers limited only by federal or state prohibitions. One might therefore expect federal policy-authorizing amendments to be prominent and state policyauthorizing amendments to be infrequent. How to explain the prevalence of policy-authorizing state constitutional amendments in the face of these expectations? The principal answer is that groups and officials have encountered various barriers to enactment of state policies, sometimes in the form of explicit state constitutional prohibitions and sometimes as a result of state court interpretations of state constitutions. In some cases, one generation limited state legislatures’ ability to pass certain policies by enacting policy- constraining amendments. When later generations sought to enact policies in the face of these constraints, they were led to pass amendments eliminating or easing these limits. In other cases, state courts placed barriers in the way of enacting policies,

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whether by relying on doctrines loosely tethered to constitutional provisions or by interpreting provisions in a strict fashion. In response, and with an eye to overturning and in some cases preempting these sorts of state court decisions, groups have occasionally secured passage of amendments making clear that legislatures are empowered to adopt certain policies. Although policy advocates might have tried to overcome these constitutional constraints through other means, they have seen advantages in proceeding through the amendment process. To be sure, expansion or legitimation of state policy authority has sometimes been achieved in the same fashion as at the federal level: by replacing judges or persuading them to sustain policies previously seen as illegitimate. But these mechanisms have not always been effective, given the difficulty of changing the composition or direction of the judiciary. Moreover, compared with securing passage of amendments, other mechanisms have not provided the desired degree of permanence for expansions of policy authority. After all, changes in the composition or direction of the judiciary can bring about limitation of policy authority just as readily as they can bring about expansion of policy authority. In this context, policy-authorizing amendments achieve a more permanent outcome, given the difficulty, but not impossibility, of reversing amendments through passage of subsequent amendments.

Worker-Protection Measures Amendments granting workers a lien on the subject of their labor, establishing an eight-hour day, setting a minimum wage, eliminating commonlaw employer-liability doctrines, creating workers’ compensation programs, and authorizing collective bargaining have been advanced for various purposes. Some of these amendments, which date as far back as mechanics’ lien amendments in the 1860s and are in other cases as recent as amendments increasing the minimum wage in the early 2000s, are best viewed not as policy-authorizing amendments but rather as policy- enacting amendments. Generally advanced by conventions or via the initiative process, these sorts of policy- enacting amendments, which are noted on various occasions in this chapter and treated at length in the following chapter, initiate policies that are clearly legitimate but are blocked in the legislative process for various reasons.10 From the 1890s

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through the 1930s, however, groups and officials sought to pass a number of policy- authorizing amendments, which are the focus of this chapter and empowered legislatures to enact worker-protection laws whose legitimacy was placed in doubt by state court rulings. In pressing for enactment of policy-authorizing amendments, labor groups were primarily reacting to state court decisions relying on state due process clauses or otherwise invoking liberty- of- contract doctrines. A good deal of scholarship has focused on early twentiethcentury US Supreme Court decisions: Lochner v. New York (1905) overturning a maximum-hours law for bakers, Adair v. U.S. (1908) and Coppage v. Kansas (1915) overturning laws prohibiting yellow- dog contracts, and Adkins v. Children’s Hospital (1923) overturning a law setting a minimum wage for women.11 But state courts were also active—in some states more active than the US Supreme Court—in striking down worker-protection laws. Prominent state court rulings include In re Jacobs (1885) overturning a New York statute banning manufacturing of cigars in tenement houses, Godcharles v. Wigeman (1886) overturning a Pennsylvania law banning payment of wages in scrip, Ritchie v. The People (1895) overturning an Illinois statute limiting work hours for women, In re Morgan (1899) overturning a Colorado law limiting work hours of miners, and Ives v. South Buffalo Railway Co. (1911) overturning New York’s workers’ compensation law.12 Admittedly, the frequency of state and federal court rejection of worker-protection laws was overstated in some conventional accounts, as scholars have shown in recent years.13 The Lochner decision that has attracted so much scholarly attention was more anomalous than typical. The vast majority of worker-protection laws were sustained, both in state and federal court. Nevertheless, state courts issued notable rulings impeding passage of several policies and raising doubts about the legitimacy of others.14 Groups and officials pursued multiple strategies in responding to these state court rulings. They worked to unseat judges responsible for issuing these decisions and were occasionally successful in replacing them with judges more inclined to sustain labor laws. They also tried to persuade state judges to change their views on the constitutionality of these measures, again with some success. But the amendment process was a particularly effective means of ensuring the legitimacy of these policies.

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Mechanics’ Liens Some of the earliest worker-protection amendments gave mechanics a lien on the property of persons for whom they had performed work, thereby providing them redress when they went unpaid. Georgia, North Carolina, and Texas adopted the fi rst mechanics’ lien amendments in the 1860s;15 followed by Louisiana and California in the 1870s;16 Florida, Minnesota, and Idaho in the 1880s;17 and Ohio in the 1910s.18 The phrasing of the 1868 Georgia provision is typical: “Mechanics and laborers shall have liens upon the property of their employers for labor performed or material furnished, and the legislature shall provide for the summary enforcement of the same.”19 Most mechanics’ lien amendments were framed by conventions with the aim of enacting policies unattainable or insecure in the legislative process. In many of these cases, there was little concern about the legitimacy of these policies; rather, delegates resorted to the constitutional amendment process to enact policies when they lacked confidence that legislators would do so. This purpose was made clear in Idaho’s 1889 convention, when delegate James Reid argued that a mechanics’ lien amendment would be valuable because it “makes it compulsory upon [the legislature] to do it and provide a proper mechanic’s lien.” After his colleague George Shoup asked, “Wouldn’t the legislature have power to do that without the constitutional authorization?” Reid responded, “I think so; but there we make it obligatory upon them by saying they shall do it.” 20 In a few cases, however, officials advanced policy-authorizing amendments with the aim of empowering legislators to pass such policies in response to state court decisions that raised doubt about their legitimacy. Opponents of mechanics’ lien laws took to the courts to challenge these laws in the late nineteenth century and sometimes secured state supreme court rulings invalidating them in whole or in part, as in Minnesota, Michigan, and Ohio. 21 These rulings occasionally prompted court- overturning amendments. Amendments of this sort were adopted quickly in Minnesota and after some delay in Ohio. In Minnesota, legislators were responding to an 1888 Minnesota Supreme Court ruling in Meyer v. Berlandi striking down a mechanics’ lien statute. They crafted an amendment to the Minnesota Bill of Rights that was approved by voters later that year and permitted reenactment of such a policy. 22

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A response to an Ohio Supreme Court decision in Palmer v. Tingle (1896) invalidating a mechanics’ lien law took longer in coming; but eventually Ohio’s 1912 convention crafted and voters ratified a courtoverturning amendment. After quoting extensively from the Tingle ruling, Stephen Stilwell argued in the Ohio convention that a mechanics’ lien amendment is made necessary because of the fact that the supreme court of Ohio has previously held certain phases of the mechanics’ lien law unconstitutional. I doubt if there is a delegate in the Convention who does not fully appreciate the injury that is done to material men and mechanics by reason of their inability to collect for material or labor because of unscrupulous and oftentimes dishonest contractors. I am not assuming to say what kind of a law would be passed under this provision of the constitution, but I am assuming that such a statute would be passed as would require of all dishonest men to do the thing that all honest men do now. 23

As his colleague James Halfi ll explained, “If this proposal is adopted it will be entirely competent for the legislature to pass a law similar to the laws that I read here, which the supreme court of Ohio has declared unconstitutional.” 24 The resulting Ohio amendment declared, “Laws may be passed” securing to workers “their just due by direct lien upon the property, upon which they have bestowed labor or for which they have furnished material. No other provision of the constitution shall impair or limit this power.” 25 Worker Safety Amendments protecting workers from accidents and compensating them for injuries have taken various forms. A few policy- enacting amendments were framed by conventions as early as the 1870s and directed legislators to improve the safety of mines. Other amendments, also dating to the 1870s, were adopted in response to common-law doctrines used by railroads and other employers to avoid liability for workplace injuries; these amendments modified contributory-negligence, fellow-servant, and assumption- of-risk doctrines and thereby made it easier for workers to recover damages. Voters approved another wave of amendments in the 1910s in response to state court decisions invalidating or questioning the legitimacy of workers’ compensation programs. This fi nal set

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of amendments in the 1910s, the lone policy-authorizing worker-safety amendments, made clear that legislatures were empowered to adopt workers’ compensation laws, notwithstanding other state constitutional provisions. Coal miners were instrumental in securing adoption of the fi rst worker-safety provision to appear in a state constitution, when they persuaded delegates to Illinois’s 1869– 70 convention to craft a provision requiring certain steps to be taken to improve mine safety. One of many policy- enacting amendments of this sort that were adopted in other states during the next few decades, 26 Illinois’s pioneering 1870 provision was approved by convention delegates after miners were repeatedly rebuffed by legislators. 27 As Henry Atkins argued in this Illinois convention, “It has been demonstrated, by the general concurrence of all thoughtful men on this subject, that it is unsafe to leave this question to the caprices of the Legislature. It is clearly necessary to have some provision in the fundamental law, to protect the lives, limbs and health of this large and useful class of our citizens.” 28 There was little question, as Joseph Medill argued in the same convention, that “the Legislature has the power to pass such laws, . . . but the Legislature has neglected to perform its duty; session after session has passed, but no law has been enacted to secure the life and health of the miners.”29 In light of legislators’ intransigence and Medill’s concern that without a constitutional provision “there is very little likelihood that they will take any effectual action whatever,”30 the convention sought to “furnish the requisite remedy for the evil complained of,” by approving a constitutional provision declaring it to be “the duty of the general assembly to pass such laws as may be necessary for the protection of operative miners, by providing for ventilation, when the same may be required, and the construction of escapement shafts, or such other appliances as may secure safety in all coal mines.”31 In the mid-1870s, conventions began crafting another set of workersafety amendments, in this case to modify common-law doctrines relied on by employers to evade liability for workplace injuries. The contributory-negligence doctrine held that employers were not responsible for injuries caused in any way by a worker’s negligence. The fellowservant doctrine limited employers’ liability when a worker’s injury was caused by the negligence of another worker. The assumption- of-risk doctrine held that workers assumed the risk of injury when they accepted employment.

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Legislatures can limit these common-law rules via statute and occasionally did so; but they could not always be counted on to act in the face of pressure from railroads and other companies that made use of these doctrines to avoid liability for workplace accidents. The Georgia legislature passed the fi rst statute limiting these judicially developed doctrines, an 1856 statute modifying the fellow-servant rule, 32 followed by passage of similar statutes in Iowa in 1862 and Kansas in 1874. 33 But many state legislatures declined to act. And some legislatures enacted statutes of this kind but turned around several years later and reversed them, as when the Wisconsin legislature in 1875 passed a statute abrogating the fellow-servant rule as applied to railroads but repealed this act five years later after a change in partisan control of the legislature. 34 Judges could also modify these common-law doctrines and did so on various occasions. Sometimes judges held these doctrines inapplicable in certain cases. 35 Some judges recognized exceptions to these doctrines and in a way that limited employers’ ability to escape liability. In applying the fellow-servant doctrine, for instance, judges occasionally recognized a vice-principal rule or common- employment rule, whereby negligence by a foreman or conductor did not absolve the employer of responsibility for injuries suffered by workers under their supervision. 36 When relief was not achieved through the judicial process and proved unattainable or insecure in the legislative process, conventions occasionally crafted constitutional provisions abrogating one or more of these employer-liability rules. 37 Colorado’s 1876 convention framed the fi rst constitutional provision of this sort, with an eye to banning ironclad contracts. 38 In approving the state’s inaugural constitution, convention delegates included a measure barring employers from requiring as a condition of employment that workers sign contracts releasing employers “from liability or responsibility on account of personal injuries received by such servants or employees  .  .  . by reason of the negligence of such person, company or corporation, or the agents or employees thereof.”39 Conventions in Montana and Wyoming in 1889 adopted similar provisions in framing their states’ inaugural constitutions.40 Other conventions approved provisions abrogating the assumption- of-risk doctrine, and occasionally the contributory-negligence and fellow-servant doctrines, in Mississippi in 1890, Virginia in 1902, Oklahoma in 1907, and Arizona in 1910.41 The reason why modification of these common-law doctrines had to be done in conventions and through passage of constitutional amend-

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ments, as Charles Meredith explained in Virginia’s 1901– 2 convention, was because legislatures had failed to act. “At every session we have been met by the attorneys for the railroads insisting that these people should not be protected in their lives and limbs; holding that the property of the railroad should be protected in preference to the lives and limbs of our fellow- citizens. . . . We are asking for protection to- day, as far as we can get it.”42 Nor was there anything to be regretted about enacting such a policy as part of a constitutional revision. As Meredith argued, “You are putting it in your Constitution, just as properly and with just as high a motive, as when you say a man’s property shall not be taken for public purposes without due compensation. Surely, if it is necessary to put in the Constitution some provision to protect a man’s property, if you fi nd the whole tendency or doctrine of the courts to allow a man’s life to be taken without due compensation, it is necessary to have a Constitutional protection to stop that evil also.”43 Voters approved a fi nal set of worker-safety amendments, the lone policy-authorizing amendments in this area, after the New York Court of Appeals invalidated New York’s pioneering workers’ compensation act. The New York Court of Appeals’s 1911 ruling in Ives v. South Buffalo Railway striking down New York’s 1910 compulsory workers’ compensation act attracted significant attention around the country, due in part to Theodore Roosevelt’s frequent critiques of the Ives decision, which he often paired with the US Supreme Court’s Lochner decision when assailing state and federal courts for blocking labor reforms.44 It is true that no other state or federal court invalidated workers’ compensation acts, which were implemented in some states as a voluntary program whereby employers could choose whether to participate and adopted in other states, beginning in New York, on a compulsory basis. But the Ives decision, even if it was unique, generated uncertainty about the legitimacy of workers’ compensation policies enacted or under consideration in other state legislatures. Labor groups responded in part by trying to change the membership and direction of state courts. In New York, critics of the Ives decision campaigned against the decision’s author, William Werner, when he sought election to the chief judge position and defeated him in a 1913 election that was “widely considered a referendum on his Ives decision.”45 Although Werner remained on New York’s highest court as an associate judge for several more years, he was reported to have regretted his opposition and changed his view regarding the legitimacy of the work-

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ers’ compensation law.46 In any case, after several appointments to New York’s highest court, including Benjamin Cardozo in 1914, the court was no longer inclined to stand in the way of workers’ compensation acts or other worker-protection measures.47 In other states, labor groups campaigned against judges seen as unsupportive of pending workers’ compensation laws, among other Progressive measures. They occasionally succeeded, as in Ohio where two state supreme court justices were defeated in 1910 in an election where labor unions were active in part out of concern about “impending workmen’s compensation legislation.”48 Alongside of these efforts to influence state court decision-making, groups such as the American Association for Labor Legislation (AALL) pressed for passage of amendments authorizing workers’ compensation policies.49 In 1913, in the same election that New York voters rejected the Ives author’s bid for election to chief judge, they approved a legislaturecrafted amendment overturning the ruling. To remove any doubt about the legitimacy of a workers’ compensation act, which the legislature promptly reenacted, the New York amendment declared, “Nothing contained in this constitution shall be construed to limit the power of the legislature to enact laws” providing for a compulsory workers’ compensation program. 50 Whereas New York voters approved a court- overturning amendment, voters in other states approved court-preempting amendments. As delegates to Ohio’s 1912 convention were just beginning their work of rewriting the Ohio constitution, the Ohio Supreme Court upheld the state’s voluntary workers’ compensation program, 51 albeit by a narrow margin and in an opinion that raised doubts about whether a compulsory program would be upheld. 52 Convention delegates responded by approving a pair of amendments with an eye toward ensuring that a compulsory program could be passed and upheld. 53 As delegate Henry Cordes explained, the proposal “undertakes to write into the constitution of Ohio a constitutional provision making secure the workmen’s compensation law passed by the last legislature, and declared constitutional by the Ohio supreme court by a vote of 4 to 2. Labor asks that this proposal be adopted, because we believe that by writing it into the constitution it will make it possible to continue this beneficial measure without any further fear of a constitutional question being raised again on this matter.”54 Amendments authorizing workers’ compensation policies and insulating them from state court reversal were also adopted in the 1910s in Arizona, California, Vermont, Wyoming, and Pennsylvania. 55 At times,

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as in Arizona, these amendments were crafted by convention delegates seeking to prod legislatures to pass workers’ compensation policies and simultaneously protect them against state court invalidation. Patrick Connelly argued during Arizona’s 1910 convention that “if the legislature does follow our wishes and pass a law the courts cannot declare it unconstitutional, because we have in the constitution such a provision, whereas if we did not put in anything like this the courts can say it is unconstitutional.”56 In other cases, as in Vermont in 1914, legislators were intent on passing a workers’ compensation law but were sufficiently concerned with ensuring the constitutionality of the law that they fi rst crafted a policy-authorizing amendment for referral to voters and then awaited its ratification before approving a statute the next year. 57 In still other cases, as in California, the legislature crafted an initial amendment authorizing a workers’ compensation policy and then, when it came time to expand the program and out of a concern with guaranteeing its legitimacy, it approved another authorizing amendment. As a California state senator explained in the 1918 ballot guide, the purpose of passing an amendment was to put the program “upon a fi rm constitutional basis, beyond the possibility of being attacked on technical grounds or by reason of any questioned want of constitutional authority,” thereby placing “beyond any doubt the constitutional authority for a complete workmen’s compensation system.”58 Maximum Hours Amendments regulating work hours have been approved on a regular basis, beginning with a few policy- enacting amendments in the 1860s and 1870s. These early amendments were crafted by conventions and served to institute hours regulations seen as unattainable in the legislature. As Emily Zackin has shown, Louisiana’s 1864 convention crafted the fi rst maximum-hours amendment that appeared in a state constitution (and the fi rst worker-protection provision of any kind to appear in a state constitution, for that matter). 59 In response to petitions brought by labor groups, the convention included a provision in the state’s 1864 constitution declaring, “Nine hours shall constitute a day’s labor for all mechanics, artisans, and laborers employed on public works.”60 Similar provisions setting an eight-hour day on public works were approved by California’s 1878– 79 convention and Idaho’s 1889 convention, at a time when convention delegates were confident that legislators possessed the

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power to enact such regulations but doubted that they could be counted on to exercise this power.61 In the 1890s, however, state courts began limiting legislatures’ power to regulate work hours, and in a way that placed in doubt the legitimacy of hours laws. On various occasions, state courts struck down laws limiting hours on public works. Some state courts struck down laws limiting work hours for women. In one case a statute limiting work hours in hazardous occupations was held unconstitutional by a state court. In response, legislatures and conventions crafted a range of amendments authorizing regulation of work hours in these various situations. Two state court decisions generated significant doubt about the legitimacy of women’s hours laws: an 1895 Illinois Supreme Court decision, Ritchie v. The People,62 which was overturned a decade and a half later by the same court, and a 1907 New York Court of Appeals ruling, People v. Williams,63 which was reversed within the decade by the same court.64 To be sure, other state courts, along with the US Supreme Court, upheld women’s hours laws.65 Meanwhile, the willingness of the Illinois and New York high courts to reverse their earlier decisions after changes in their membership made passage of court- overturning amendments unnecessary in those two states.66 But with an eye toward preventing rulings of this sort in other states, voters occasionally approved amendments authorizing women’s hours laws, as when Michigan’s 1907– 8 convention included such a provision in a new constitution approved by voters in 1908.67 In response to critics who complained in Michigan’s convention that such a provision “attempts to confer on the legislature a power which it now possesses under the police regulations of the state” and “would simply be surplusage in this Constitution,”68 supportive delegates argued that such a provision was necessary on account of court decisions striking down women’s hours laws in other states. Charles M. Black noted, “We have a law in regard to the employment of women and children already, as have several other states along the same line; but in some instances those laws have been declared to be unconstitutional.” He proposed this amendment “purely with the idea of safeguarding those laws, and making it improbable at least that the supreme court of this state should at any time in the future declare such a law unconstitutional.”69 John Fairlie stressed that the chief concern motivating this amendment was to safeguard laws “in regard to the regulation of the hours for women.” 70 Medor Louisell pointed in particular to the 1907 New York

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Court of Appeals decision invalidating a women’s hours law as “interfering with the freedom of contract.” 71 After joining in the criticism, verging on mockery, of the recent New York ruling, Eugene Sawyer concluded, “If there is any doubt whatever in relation to the right of the legislature of this state to pass this law, if there is to be any question that possibly in the future such a law might be declared unconstitutional, we ought at this time to place our seal of approval upon its constitutionality.” 72 Meanwhile, a series of state court decisions invalidating hours limits on public works prompted passage of amendments ensuring the legitimacy of these particular policies. After the California Supreme Court invalidated a Los Angeles ordinance in an 1890 decision,73 California voters approved an amendment a dozen years later setting an eight-hour day on public works.74 A 1904 New York Court of Appeals decision75 was overturned the next year when voters approved an amendment establishing an eight-hour day on public works.76 A 1902 Ohio Supreme Court ruling77 was overturned a decade later by an amendment crafted by delegates at Ohio’s 1912 convention setting an eight-hour day on public works.78 Percy Tetlow explained in this Ohio convention that the purpose of the amendment was “to circumvent the decisions rendered by courts of this state,” with an eye toward authorizing the law “providing for an eight-hour day on public works” that “was declared unconstitutional by the supreme court of this state.” 79 Even in states where courts had not overturned public works laws, voters approved amendments setting an eight-hour day on public works and thereby preempting contrary state court decisions, as in Utah, Montana, Oklahoma, Arizona, and New Mexico.80 A Colorado Supreme Court decision invalidating a miners’ hours law prompted passage of a court- overturning amendment in Colorado and court-preempting amendments in other states. Colorado legislators crafted and voters in 1902 approved an amendment authorizing maximum-hours laws for miners and smelters, 81 just three years after the Colorado Supreme Court invalidated an earlier statute.82 To remove any doubt about the legitimacy of miners’ hours laws under state constitutions—the US Supreme Court had already upheld a similar Utah law under the US Constitution83—voters approved miners’ hours amendments during the next few years in Idaho, Montana, and Oklahoma.84 Amendments were also approved in subsequent decades authorizing hours laws that applied even more broadly and were not targeted to women, public works, or hazardous jobs. An amendment crafted by the

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Michigan legislature and approved by voters in 1920 added “men” to a provision that already authorized the legislature to regulate the hours and conditions of employment for “women and children.”85 A decade and a half later, the Montana Supreme Court invalidated an hours law applying to fi remen, 86 at the same time that Montana courts were also hearing challenges to the applicability of hours limits for other occupations.87 To guarantee legislative authority to enact broad-based hours laws and insulate these laws from further challenges, the Montana legislature crafted and voters in 1936 approved an amendment providing that “eight hours shall constitute a day’s work in all industries, occupations, undertakings and employments, except farming and stock raising.”88 On a number of occasions when these amendments were considered, labor groups and public officials debated the need for passing amendments authorizing hours laws, with some opponents of this strategy arguing that it would be better to look to judges to reverse outdated precedents and uphold hours regulations. The main advantages of proceeding through the amendment process were twofold, in the view of supporters of the amendment approach. In some cases, of course, judges could not be counted on to uphold hours laws; the amendment process was a particularly effective vehicle for overcoming the judicial veto in these instances, especially when efforts to change the membership or direction of the court were unavailing or proceeding slowly. But even when judges issued rulings upholding hours laws, these rulings were seen as resting on precarious footing; there was always the possibility that they could change as the membership of the court changed in future years. As George Groat explained in an article published after passage of a 1905 New York hours amendment, although in one respect a recent court decision was favorable to labor groups, there was always the risk that “a change in the personnel of the court or a technicality of procedure might reverse the substance of the decision. The matter would, consequently, be always in doubt. An amendment to the constitution appeared to be the only way in which the question might be fi nally settled.”89 Minimum Wage Voters approved a number of minimum-wage amendments, generally to authorize a minimum wage in the context of early twentieth- century state court opposition but in several cases to increase the minimum-wage rate in the face of early twenty-fi rst century legislative and gubernatorial

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resistance. Some early policy-authorizing amendments were prompted by state court decisions limiting legislative authority to set wages on public works.90 For instance, in response to a string of New York Court of Appeals rulings, including a 1901 decision limiting legislators’ ability to require payment of the prevailing wage on municipal public works,91 New York voters approved a 1905 amendment authorizing the legislature to regulate wages on public works projects.92 Other early twentieth- century amendments sought to authorize a minimum wage for women and children at a time when legislatures were just beginning to adopt such regulations and were uncertain about their legitimacy. Legislatures from 1912 onward began passing minimum-wage laws covering women and children; but these laws were immediately challenged in court. The Oregon Supreme Court sustained Oregon’s law, one of the earliest minimum-wage laws, in a 1914 decision appealed to the US Supreme Court and eventually allowed to stand when the justices split four-four.93 But legislators in other states feared that similarly framed laws might be invalidated by state courts and therefore crafted amendments ensuring their legitimacy. Amendments authorizing a minimum wage for women and children were occasionally prompted by an awareness of litigation in other state courts and with an eye to insulating legislation from reversal, as in California, Louisiana, and Utah.94 For instance, after enacting a law providing a minimum wage for women and children, the California legislature sought to ensure that the law would be not be invalidated on state constitutional grounds, by crafting an amendment that was approved by voters in 1914. The California amendment declared, “The legislature may, by appropriate legislation, provide for the establishment of a minimum wage for women and minors.” Additionally, “No provision of this constitution shall be construed as a limitation upon the authority of the legislature” to exercise this power.95 In that year’s ballot guide, a member of the California Assembly took note of the ongoing litigation over the Oregon law, recently “sustained by the Oregon courts,” and argued that an amendment was needed to insulate the recently passed California law from reversal and ensure “that nothing in our state constitution will prevent this great act of justice and mercy being done to protect the women of this state.”96 The Utah legislature crafted a similarly motivated 1933 amendment providing that “the Legislature may, by appropriate legislation provide for the establishment of a minimum wage for women and

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minors,” in order to insulate from state court reversal a statute passed in the same session.97 Other amendments authorizing a minimum wage for women and children were advanced by legislatures or conventions in response to decisions issued by their own state courts, most notably in Ohio and Nebraska. As part of a wide-ranging amendment enacted in response to Ohio Supreme Court rulings limiting labor laws, Ohio’s 1912 convention approved an amendment declaring that “laws may be passed . . . establishing a minimum wage.”98 Meanwhile, delegates to Nebraska’s 1919– 20 convention took note of several Nebraska Supreme Court decisions seen as creating uncertainty among Nebraska legislators about the legitimacy of a proposed but not yet enacted minimum-wage law for women and children.99 To remove any doubt, the convention crafted and voters approved an amendment declaring, “Laws may be enacted regulating the hours and conditions of employment of women and children, and securing to such employees a proper minimum wage.”100 Delegate Ora Spillman explained the need for such an amendment by arguing in the Nebraska convention, “The mere fact that heretofore the question has been raised in the legislature as to whether or not legislation of that kind is Constitutional, is the best reason in the world why we should make it certain in this state that it is Constitutional, so that the legislature’s hands will not be tied in the future.”101 Moving ahead a century, voters approved a handful of minimumwage amendments in the early 2000s, albeit to a different end of increasing the minimum wage in the face of legislative and gubernatorial opposition, in what are best understood as policy- enacting amendments. By this time, there was no doubt about the legitimacy of setting or increasing a minimum wage. But in a number of states, Republican- controlled legislatures resisted efforts to increase the minimum wage via statute. In the face of this opposition, unions and other supportive groups occasionally resorted to the initiative process to secure approval of these policies. Sometimes they relied on the statutory initiative process.102 But they have occasionally enacted minimum-wage hikes through the constitutional initiative process, as in Florida in 2004, in Colorado, Nevada, and Ohio in 2006, and then again in Colorado in 2016, in part to better protect these gains against legislative erosion.103 In New Jersey, meanwhile, a Democratic- controlled legislature supported a minimum-wage increase but could not overcome Republican

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governor Chris Christie’s veto. Although it takes a two-thirds vote in both houses to override a veto in New Jersey, a hurdle too high for supporters of this policy, legislators can place a constitutional amendment on the ballot by a bare majority vote in consecutive sessions. Supporters crafted an amendment increasing the minimum wage and providing for annual cost- of-living increases,104 and the amendment was approved by New Jersey voters in 2013.105 Collective Bargaining Amendments have occasionally been adopted to protect and empower union members, at times to guard policies against legislative erosion and at other times to insulate them from state court reversal. North Dakota’s 1889 convention and Utah’s 1895 convention crafted amendments at a time of uncertainty about whether legislatures could be counted on to provide such protection. These provisions banned the exchange of “blacklists” used by corporations to identify union members or other workers deemed problematic and shared with other corporations.106 Then, beginning in the 1930s with passage of a pioneering New York amendment, a handful of states adopted constitutional provisions guaranteeing workers’ ability to organize and engage in collective bargaining: in New York (1938), Florida (1944), Missouri (1945), New Jersey (1947), and Hawaii (1950).107 These collective-bargaining amendments, which were crafted by conventions in all but one case,108 were intended in part to prevent legislatures from eroding statutory protections. To this end, several delegates at New York’s 1938 convention, including Robert F. Wagner, argued that protecting collective bargaining in the constitution was necessary to guard against the possibility that a future “reactionary Legislature can deprive the wage earners of our State of that fundamental right.”109 Similarly, a decade later, Frank Eggers urged his fellow delegates at New Jersey’s 1947 convention to “look at recent history and judge for yourselves as to how much labor can trust the legislative body. Labor is merely asking this Convention to guarantee to it for the future the inherent right to organize and bargain collectively, so that during emotional crises, during times when public opinion might be swayed against labor, that a Legislature amenable to such emotional public opinion will not deprive labor of the inherent right it has always had.”110 Delegates at these mid-twentieth- century conventions also supported

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collective-bargaining amendments for an additional reason, not only to prevent legislative erosion but also to guard against state court reversal. While introducing a collective-bargaining amendment in New York’s 1938 convention, Murray Gootrad noted that the legislature had “by recent statutory enactment” protected collective-bargaining rights,111 but “the constitutionality of this fundamental law as set forth in the Labor Law has not as yet been passed upon, and it is our duty to set at rest any doubt that may exist as to the constitutionality of these rights.”112 Out of a concern that the law may be “subject to harmful modification or outright repeal by judicial decision,”113 he contended that “when a question still exists as to the constitutionality of some of these provisions, I believe that we should settle that question right now when the opportunity exists.”114

Social Welfare Policies Amendments were adopted on a scattered basis in the early 1900s and more frequently in the 1930s to authorize social welfare policies in the  face of state constitutional constraints. These twentieth- century provisions were not the fi rst amendments dealing with social welfare policy. A number of conventions in the 1860s inserted in new or revised constitutions provisions exhorting and in some cases committing local governments to aid the poor, elderly, and disabled, as when Nevada’s 1864 constitution declared, in language that appeared in other Reconstruction- era constitutions, “The respective counties of the State shall provide, as may be prescribed by law, for those inhabitants who, by reason of age and infi rmity, or misfortunes, may have claim upon the sympathy and aid of society.”115 But early twentieth- century amendments were different; they were clearly enacted to authorize state officials to adopt policies providing pensions for mothers, the blind, and the elderly and occasionally to participate in various federal grant programs aiding such persons at a time when the legitimacy of these state acts was placed in doubt by state constitutional provisions. Pensions for the Blind, Mothers, and the Elderly State constitutional provisions presented multiple obstacles to enacting early twentieth- century social welfare policies. A number of state

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constitutions required any expenditure of funds to be appropriated by the legislature, thereby posing challenges for direct payments to individuals that were a key part of pension policies.116 Of particular importance were constitutional provisions dating to the mid-nineteenth century barring the credit or money of the state from aiding corporations or persons.117 Many of these policy- constraining provisions were passed in the 1840s and 1850s to prohibit state-aided internal improvement projects whose failure caused so many problems after the panic of 1837.118 Still other provisions were adopted beginning in the 1870s and “emerged in some states from frustration with rampant favoritism” in the form of grants to sectarian and charitable institutions that were “useful to politicians who wished to shore up their electoral support.”119 These nineteenth- century policy- constraining provisions took various forms. At times, they barred the granting of the state’s credit or money in aid of any individual. At other times, they barred the granting of credit or money for any private purpose.120 Occasionally, they made explicit exception for payments to charitable institutions.121 For the most part, though, they did not include qualifying language of this sort. Moreover, these qualifying clauses generally did not authorize payments to individuals, and certainly not the full range of individuals that pension policies were designed to help beginning in the early 1900s.122 When state legislatures in the early twentieth century considered adopting pension programs to make payments to the blind, mothers of dependent children, and the elderly, they frequently encountered legal challenges stemming from these nineteenth- century state constitutional limitations. As Susan M. Sterett has shown in an extensive analysis,123 state courts in the late nineteenth century occasionally invoked state constitutional provisions to overturn laws aiding impoverished farmers124 and offering bounties to veterans.125 When states began adopting laws providing pensions for the blind (led by Ohio in 1904), mothers of dependent children (led by Illinois in 1911), and the elderly (led by Arizona in 1914), courts in some states relied on similar reasoning to invalidate or limit these policies. Pension programs encountered varying degrees of difficulty in state courts. Although pensions for the blind were generally upheld,126 a pioneering Ohio law providing for blind pensions was struck down by the Ohio Supreme Court in Lucas County v. State (1906).127 Most mothers’ pension laws also survived judicial scrutiny;128 but the Arizona Supreme Court invalidated an Arizona mothers’ pension law in State Board of

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Control v. Buckstegge (1916).129 Old-age pension laws encountered the most difficulty. On various occasions, state supreme courts issued advisory opinions indicating that proposed old-age pension laws would be unconstitutional, as in New Hampshire in 1917,130 or handed down rulings invalidating laws already enacted, as in Pennsylvania in Busser v. Snyder (1925).131 Doubts about the legitimacy of these policies prompted passage  of amendments intended in some cases to pave the way for passage of pension laws and in other cases to insulate recently enacted pension laws from judicial invalidation. Convention delegates were sometimes responsible for crafting these amendments, as in Louisiana, where a 1921 convention promulgated a new constitution that contained a provision permitting passage of a mothers’ pension law.132 For the most part, legislatures drafted these amendments, occasionally framing a separate amendment for each stage of a pension program’s expansion. For instance, Missouri voters in 1916 approved a legislature-referred amendment authorizing pensions for the blind, in the face of a general prohibition on such payments. In 1932 they approved another amendment to the same provision, this time authorizing old-age pensions for persons above the age of seventy.133 In a similar fashion, California voters approved three separate amendments in the 1920s adding exceptions to a long-standing provision that generally barred payments to persons but allowed payments for orphans or the elderly. A 1920 California amendment carved out an additional exception, authorizing relief for “children of a father who is incapacitated for gainful work by permanent physical disability or is suffering from tuberculosis in such a stage that he cannot pursue a gainful occupation.”134 A pair of 1928 California amendments then permitted relief for “needy blind persons” and for other “needy physically handicapped persons.”135 As two California state senators who supported the fi rst of these 1928 amendments explained in that year’s ballot guide, “Efforts to rehabilitate the blind in California have been largely futile, owing to the fact that our legislature has not had the legal right to expend money to aid blind persons, who were not inmates of a state institution.” But “passage of this measure will enable the legislature” to make such payments.136 Adopting constitutional amendments was not the only possible approach to overcoming state constitutional limits on pension policies. As Sterett has shown, a series of state commissions issued reports in the 1910s setting out a range of policy options for dealing with the elderly

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poor in particular and considering how policies might be enacted in the face of limits embedded in state constitutions and various principles relied on by state courts in interpreting them. Some of these state commissions, especially a 1915 Wisconsin commission, adopted an approach “that treated principles as open to continual reinterpretation.” As Sterett concluded, “According to the Wisconsin commission, the state constitution did not necessarily require amendment, nor did its current interpretation represent only the arbitrary will of some judges. The people needed not a new constitution or new judges but a collective willingness to rethink the meaning of constitutional provisions.”137 But in considering the various options, including the approach urged by the Wisconsin commission and the possibility of persuading judges to interpret state constitutional limits in a way that would reflect changing conditions, other commissions and public officials in the 1910s and 1920s found “good reason to consider amendments.”138 Participation in Federal Grant Programs Another wave of amendments was prompted by passage of the Social Security Act of 1935 and was intended to overcome state constitutional provisions limiting state participation in federal grant-in-aid programs. The Social Security Act, known primarily for its purely federal Old Age and Survivors Insurance (OASI) program, was a wide-ranging act that also launched an Unemployment Insurance program and provided grants-in-aid to states for Aid to Dependent Children (ADC), Aid to the Blind (AB), and Old-Age Assistance (OAA) programs. The challenge for some states seeking to benefit from these ADC, AB, and OAA public-assistance programs was that rules for participating states were at odds with long-standing state constitutional provisions.139 Among other rules, states were required to adopt statewide programs rather than making participation optional for localities, as was the norm in many states up to that point. States seeking federal support for old-age assistance programs had to set an age of eligibility of sixty-five; several state oldage pension programs had previously set a higher eligibility age. There was also the long-standing challenge, already overcome by some but not all states, posed by state constitutional provisions preventing payment of public funds to individuals. In the immediate aftermath of the Social Security Act’s passage, voters in several states approved amendments with an eye to overcom-

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ing state constitutional provisions inhibiting state participation in these grant programs. For instance, a 1936 Florida amendment allowed counties to continue providing assistance to residents “who by reason of age, infi rmity, or misfortune, may have claims upon the aid and sympathy of society,” but also provided, in keeping with the requirements of the Social Security Act for maintenance of a statewide system, that “the Legislature may by general law provide for a uniform State-wide system for such benefits, and appropriate money therefor.”140 Meanwhile, Missouri voters, who had previously approved a 1932 amendment authorizing old-age assistance for persons over seventy years of age, approved a 1938 amendment lowering the age to sixty-five, to comply with federal requirements.141 Most of the amendments approved in the immediate aftermath of the Social Security Act’s passage focused on authorizing payment of public funds to individuals, thereby overcoming long-standing state constitutional limits on such payments. For instance, Pennsylvania voters, who had already approved a 1933 amendment authorizing payment of public funds to blind persons and war veterans,142 approved another amendment in 1937 authorizing old-age assistance and mothers’ pensions.143 Voters in other states adopted similar amendments authorizing payments to the elderly, the blind, and mothers of dependent children, and occasionally unemployed persons, thereby enabling states to receive federal grants and make payments to these persons. In addition to the already noted amendments, voters approved amendments of this sort in Kentucky and Texas in 1935;144 in Kansas, Louisiana, Oklahoma, and South Carolina in 1936;145 and in Texas146 in 1937.147 Nearly all of the social welfare policy amendments enacted in the 1930s and 1940s were policy-authorizing amendments; but it is worth noting that some amendments during this time took the form of policyenacting amendments unprompted by concerns about legitimacy of state policies. For instance, although Colorado had been operating a state oldage pension program dating to the 1920s, Colorado voters in 1936 approved a citizen-initiated amendment setting higher benefit levels and earmarking a substantial portion of certain tax revenue for the program.148 Citizen-initiated amendments approved by voters in other states occasionally had a similar purpose of boosting benefits, as with an Aged and Blind Aid Amendment in California in 1948.149 For the most part, though, social welfare policy amendments were intended to authorize policies and remove any doubt about their legiti-

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macy, as was evident during debates in New York’s 1938 convention surrounding the passage of several social welfare policy amendments. In crafting a pioneering “Social Welfare” article, along with a new “Housing” article, for inclusion in New York’s constitution,150 convention delegates argued that these amendments were needed in part to remove any doubt about the legitimacy of state action. Edward Corsi, chair of the convention’s Committee on Social Welfare, argued that this was one of the main reasons for approving an amendment that declared, “The aid, care and support of the needy are public concerns and shall be provided by the State and by such of its subdivisions and in such manner and by such means as the Legislature may from time to time determine.”151 Corsi argued that such an amendment would “remove from the area of constitutional doubt the responsibility of the State to those who must look to society for the bare necessities of life.”152 He took note of the long-standing prohibition in New York’s constitution against granting the credit or money of the state “in aid of any private undertaking, individual, association or corporation” and reported that “the committee appreciates the importance of this prohibition but believes that it should not apply to such matters of grave public interest as the relief of destitution, the care of the unemployed, the protection of workers against the hazards of sickness and old age, physical disability, and the care of the health and welfare of the dependent child.”153 While listing several other states that had recently adopted “provisions in their constitutions in order to meet their own prohibitions against the use of their state credits,”154 Corsi explained, “What we ask is that such constitutional doubts as exist be removed and the State’s obligation be recognized defi nitely and specifically.”155 As with amendments authorizing state pension policies in the 1910 and 1920s, officials in the 1930s were occasionally led to consider the best approach to take to enable state participation in Social Security grant programs and whether to pass amendments or rather take another approach to overcoming state constitutional limits. Some officials and scholars advised that amendments were unnecessary and that existing limits could likely be evaded without resorting to passing amendments. After canvassing the various state constitutional provisions that limited state participation in grant programs created by the Social Security Act in a 1935 article, Frank E. Horack Jr. acknowledged that some states had seen it necessary in earlier years to enact constitutional amendments to adopt workers’ compensation programs, in the face of similar constitu-

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tional constraints. But he expected that “in spite of these difficulties it is probable that in most states, by one device or another, the administrative standards of the federal program will be obtained without the necessity of constitutional amendment.”156 However, in nearly a dozen cases in the 1930s, legislators or convention delegates concluded, based in part on their experience with state court decisions to the contrary, that adopting a constitutional amendment was preferable to looking to state judges to interpret existing constitutional limitations in such a way as to uphold state participation in various Social Security grant programs.

Debt Amendments have been approved on a regular basis from the early twentieth century onward authorizing borrowing of funds and thereby overcoming state constitutional provisions limiting the purpose and amount of debt that can be contracted. These debt-limit provisions were originally adopted in the mid-nineteenth century after the failure of state-backed internal improvements led a number of states to default on their debts; but by the early twentieth century, these provisions came to be seen as impeding legislative efforts to pay bonuses to veterans, build roads, and undertake other capital projects. Consequently, supporters of these projects frequently resorted to the amendment process to authorize bonds in excess of state debt limits. To be sure, state legislatures and courts have developed ways of circumventing policy- constraining provisions, in this area more than any other policy area, and thus eliminating the need to pass constitutional amendments to overcome these constraints. Nevertheless, amendments authorizing debt have been approved on a routine basis and for various purposes. Veterans’ Bonuses Amendments authorizing bonds to fund payments to veterans have been approved after each major military confl ict in the twentieth and twentyfi rst centuries. Not all states establishing programs known interchangeably as veterans’ pensions, bounties, or bonuses saw a need to adopt amendments. Some state legislatures opted to fund these programs through general revenues or by raising taxes and without passing an amendment. But in a number of states, legislatures were led to advance

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amendments, generally to overcome debt-limit provisions and occasionally to overcome other provisions. A 1923 New York amendment was a rare veterans’ bonus amendment that was intended to overcome a provision other than a debt-limit provision.157 The amendment was seen as necessary to overcome a New York Court of Appeals decision, People v. Westchester County National Bank of Peekskill (1921), which interpreted the state constitution’s ban on gifts or loans to individuals as barring payments to veterans.158 But this was an unusual decision. State courts were generally prepared to permit direct payments to veterans, even as these same courts occasionally relied on no-aid and public-purpose provisions to limit direct payments to the blind or elderly.159 The primary challenge faced by supporters of veterans’ bonus policies stemmed from a different source: constitutional limits on the amount of money a state could borrow. In states without enough revenue to fund the significant amount of payments to World War I veterans, legislatures saw a need to borrow money in excess of the constitutional debt limit and therefore crafted amendments authorizing the extra borrowing.160 Numerous amendments were approved during the 1920s authorizing bonds to pay bonuses to World War I veterans.161 Voters in Maine, Michigan, Missouri, and South Dakota approved veterans’ bonus amendments in 1920 alone, followed by Ohio and Oregon in 1921 and other states later in the decade.162 In some of these states, passage of a World War I veterans’ bonus amendment marked the fi rst time that voters approved an exception to a state’s debt-limit provision, as in Ohio, whose 1921 amendment allowed up to $25 million in bonds for veterans’ payments, well in excess of the state’s long-standing $750,000 debt limit.163 In other states, amendments authorizing bonds for World War I veterans were just the most recent amendments making exceptions to a state’s debt-limit provision. For instance, by the time that Maine voters approved such an amendment in 1920, they had already amended the debt provision to permit debt in excess of the $800,000 limit to fund highways, bridges, public wharves, and port facilities. The 1920 amendment added an additional exception “to provide for the payment of a bonus to Maine soldiers and sailors in the war with Germany”164 and went on to declare in a separate section that “the legislature may authorize the issuing of bonds not to exceed the amount of three million dollars, payable within ten years, which bonds or their proceeds shall be devoted exclusively to paying a bonus to Maine soldiers and sailors in the war with Germany.”165

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Similar amendments were adopted after each subsequent war, with waves of amendments adopted after World War II, the Korean War, and the Vietnam War especially. In fact, some states have approved as many as four or five separate amendments, one after each major military confl ict. For instance, West Virginia voters approved five separate amendments authorizing bonds for veterans who served in the two world wars (adopted in 1950), the Korean War (adopted in 1956), the Vietnam War (adopted in 1973), the Gulf War and military confl icts in Lebanon, Grenada, and Panama (adopted in 1992), and the military confl ict in Kosovo and wars in Afghanistan and Iraq (adopted in 2004).166 Roads Amendments authorizing bonds to pay for road construction were fi rst approved in the early twentieth century and have been adopted on a frequent basis since that time. In a few cases, passage of amendments authorizing state participation in road construction was necessary to overcome state constitutional provisions other than debt-limit provisions. For instance, a 1908 Wisconsin amendment allowing public funds to be used for road construction was intended to overcome a constitutional provision dating to the 1840s that not only barred the state from contracting “any debt for works of Internal Improvement,” but also barred the state from being “a party in carrying on such works.”167 In most states, however, debt-limit provisions posed the main obstacle, and in a way that led supporters of road-building programs to advance amendments authorizing bonds in excess of what was allowed by debt-limit provisions. Road-building amendments were adopted on a scattered basis in the fi rst decade of the 1900s and in a widespread fashion in later decades.168 New York voters approved a pioneering amendment in 1905 authorizing a $50 million bond for highway construction, and then followed up seven years later by approving an amendment authorizing another $50 million highway bond.169 Voters in a number of other states approved initial amendments authorizing bonds for roads in the 1910s or the 1920s. For instance, between 1912 and 1929, Maine voters approved six separate amendments authorizing bonds for roads and bridges, including several amendments authorizing bonds to be used generally for roads and bridges and other amendments authorizing bonds for constructing specific bridges.170 Amendments authorizing road- construction bonds were also ap-

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proved in subsequent decades in these and other states. The key question was whether to adopt a pay-as-you-go approach and fund road construction through general revenues and possibly new or increased taxes, in which case no amendment was required, or to rely on borrowing and therefore pass an amendment overcoming a debt limit. Ohio was one of several states opting for the former approach during the fi rst half of the twentieth century before shifting to the latter approach mid- century. Delegates to Ohio’s 1912 convention engaged in extensive debate before submitting to voters an amendment that would have authorized a $50 million bond for roads. Hiram Peck expressed the view of a majority of delegates when he argued, “The limitation of $750,000 of public indebtedness has kept the general assembly from doing anything in the way of public improvements in this state.” He thought it only proper that the convention approve an amendment authorizing bonds that would permit “a system of highways commensurate with the dignity and population and wealth and capacity and business of the state” and would count on “the people of thirty or thirty-five years from now” who “will all have the benefit of these roads” to “contribute something in payment for them.”171 Although this view carried the day in the convention, it did not prevail with Ohio voters, who narrowly rejected the amendment and, in doing so, sided with the position of delegate Humphrey Jones, who called attention to the continuing benefit of adhering to a debt limit. Jones reminded Ohio’s 1912 convention delegates that the debt-limit provision was originally adopted in the mid-nineteenth century after the bonded debt of the state became so prohibitive due to prior borrowing for internal improvement projects that Ohio’s 1850– 51 convention had seen this as “a great evil that had to be remedied and the remedy proposed for it was to take away from the legislature the power to issue bonds for any purpose of internal improvement, and that was done by the amendment that is now sought to be changed.” Jones objected to the proposal “to abandon the policy of making the state pay as it goes and substituting therefore the policy of permitting the legislature to run the state into debt by the issue of bonds.”172 In the wake of Ohio voters’ defeat of this amendment, it would be another four decades before they would approve an amendment authorizing a highway bond; however, between 1953 and 1995, they went on to approve a half dozen amendments authorizing bonds for roads and highways in some fashion.173

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Revenue Bonds and Other Alternatives to General Obligation Bonds One approach to raising funds for road building, as well as other capital projects, is to issue general obligation bonds and, as necessary, approve amendments authorizing them; but this is not the leading approach.174 Legislatures have also fi nanced projects by issuing revenue bonds not backed by the full faith and credit of the state. These bonds are issued on the understanding that they will be repaid with revenue generated by the project itself, for instance through tolls on roads, bridges, or tunnels, or even through gas taxes generated by drivers using the roads.175 Legislatures have also created public authorities that issue bonds and carry out projects.176 Conventions, commissions, legislators, and citizens have occasionally advanced amendments endorsing these alternative borrowing mechanisms, especially by authorizing revenue bonds and making it easier to issue them. For instance, as part of a 1971 constitutional revision, Virginia voters approved an amendment authorizing issuance of debt for “revenue-producing capital projects” and without any need for a public referendum.177 In 1986, voters in Arkansas approved a similar amendment placed on the ballot via the initiative process.178 For the most part, though, public officials have not resorted to the amendment process to legitimate these alternative forms of borrowing. Rather, legislators have simply employed these alternative borrowing mechanisms and counted on state courts to uphold them. This approach— relying on judicial decisions rather than constitutional amendments to authorize measures whose legitimacy is in doubt—differs from the response of public officials who have encountered state constitutional constraints in other policy areas; but it resembles the approach generally followed at the federal level. Although state courts have expressed varying levels of tolerance for alternative borrowing mechanisms, Richard Briffault concluded that in general, courts have been quite tolerant, often issuing rulings “indicating that arrangements that abide by the letter of the law—albeit barely—but not its spirit are constitutional.”179 In fact, as Briffault noted, judges who have approved these alternative borrowing arrangements have occasionally been quite willing to acknowledge that these arrangements are designed to circumvent state constitutional debt limits. This was particularly evident in a 1972 New Jersey Supreme Court decision upholding an arrangement whereby the

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legislature created a public authority to build and operate the Meadowlands sports complex, issuing bonds to pay for its construction and paying down the debt with revenue from wagering on horse racing at the complex.180 The court noted that “whenever the state government wishes to enter upon a public project requiring immediate substantial expenditure of money for its execution, it is faced with the bar of the debt clause. The modern science of government has found a method of avoiding that clause, and the courts have approved it. It is to create an autonomous public corporate entity to undertake the task and to borrow money for the purpose on its own bonds.”181 In assessing the legitimacy of the arrangement, the court concluded, “Within the limits necessary to the preservation of our tripartite form of state government, and the basic principle on which it rests, the debt clause of the Constitution must be construed (as the great majority of cases throughout the country involving self-sustaining autonomous governmental agencies have done) to the end that public progress and development will not be stifled and that public problems with their ever increasing complexity may be met and solved.”182 Insofar as other state courts have been willing to issue similar rulings that interpret state constitutional debt-limit provisions with an eye to sustaining legislative workarounds, there has been less need to pass constitutional amendments authorizing these sorts of alternative borrowing arrangements.

Taxation Tax-related amendments have served varied purposes. Many amendments, discussed in the preceding chapter, constrain legislative power to levy taxes. Some other amendments, addressed in the following chapter, levy new taxes or raise taxes that are within the legislature’s power to impose but are unattainable in the legislative process. Still other amendments, the focus of this section, have a different purpose. Rather than limiting legislative power to impose taxes or adopting any particular taxes, these amendments empower legislatures to levy taxes or exempt certain persons from paying taxes. In most but not all cases, policy-authorizing tax amendments have been adopted to overcome limits imposed by tax-uniformity provisions that were added to state constitutions on a widespread basis in the mid-nineteenth century. These tax-uniformity provisions, eventually en-

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acted in all but a handful of states,183 are phrased in various ways. Most require the legislature to adopt an equal and uniform rule of taxation for property taxes. Some constrain legislative discretion in other ways, for instance by stipulating that property is the only legitimate object of taxation. These tax-uniformity provisions and state court decisions interpreting them have limited legislatures’ ability to adopt various tax policies and have, in turn, generated a range of policy-authorizing amendments. Around the turn of the twentieth century, a number of amendments authorized inheritance taxes. The early twentieth century also saw enactment of more than a dozen amendments authorizing income taxes. Other amendments, passed on a continuing basis from the turn of the twentieth century onward, authorize legislatures to classify different forms of property and tax them at different rates. Still other amendments have regularly authorized property-tax exemptions, whether homestead exemptions or tax breaks for senior citizens, veterans, or disabled persons. Inheritance Taxes Some of the fi rst policy-authorizing tax amendments permitted passage of progressive inheritance taxes after state supreme courts, relying primarily on uniformity guarantees, began invalidating inheritance-tax laws in late nineteenth- century decisions. State inheritance taxes were levied on a scattered basis as early as the 1820s and became more widespread in the 1880s and 1890s.184 The inheritance-tax statutes adopted in the late 1800s encountered various legal challenges, however, and were struck down in seven states.185 Some state courts, as in New Hampshire, held that inheritance taxes amounted to double taxation of property, in violation of state constitutional principles of equality and proportionality.186 Other state courts, as in Minnesota and Ohio, ruled that inheritance-tax laws violated uniformity provisions insofar as they exempted a certain amount of an estate from the tax and therefore were not applied in a uniform fashion.187 One route that public officials took in responding to these rulings was to pass constitutional amendments ensuring the legitimacy of inheritance taxes. This was not the only path that inheritance-tax backers pursued. In some states, as in Missouri, legislators were able to revise invalidated statutes in a way that satisfied judges’ concerns.188 In other states, though, legislatures or conventions resorted to the amendment pro-

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cess to overcome state court interpretations of uniformity clauses and thereby insulate inheritance taxes from judicial invalidation. Minnesota voters approved the fi rst amendment of this sort, an 1894 amendment explicitly authorizing graduated inheritance taxes, in response to a Minnesota Supreme Court ruling five years earlier. This was one of three amendments crafted by the Minnesota legislature and approved by voters in the late 1800s to insulate certain taxes from invalidation in response to state supreme court interpretations of the state’s uniformity guarantee. An 1871 Minnesota amendment authorized a tax on railroad earnings.189 An 1896 Minnesota amendment authorized a graduated tax on utilities, among other entities.190 In short, legislators and voters in Minnesota relied on the amendment process on a regular basis to authorize certain taxes during this period. In the case of the 1894 inheritance-tax amendment, the measure approved by voters declared that “there may be by law levied and collected a tax upon all inheritances, devices, bequests, legacies and gifts of every kind and description above a fi xed and specified sum” and that such a tax “may be uniform, or it may be graded or progressive.”191 To be sure, despite the amendment’s passage, the Minnesota Supreme Court went on to invalidate another inheritance-tax law passed by the legislature. But after another decade passed, the Minnesota legislature enacted and the court fi nally sustained an inheritance tax.192 Voters approved similar amendments in the early 1900s in other states, generally in direct response to state court decisions but occasionally to remove doubts about progressive inheritance taxes in advance of any legal challenges. Delegates to New Hampshire’s 1902 convention193 and Ohio’s 1912 convention194 crafted amendments overcoming state court decisions invalidating inheritance taxes. Meanwhile, in framing an inaugural Arizona constitution, delegates to Arizona’s 1910 convention took note of constitutional challenges to graduated inheritance taxes, along with other graduated taxes, that had been enacted in other states. These delegates argued that an authorizing amendment would be valuable in preempting these sorts of challenges. Arguing in support of such a provision in this Arizona convention, delegate Fred Ingraham urged that this was a case where “an abundance of caution should be exercised,” in that the convention should guarantee that the legislature was empowered to enact progressive inheritance taxes. He thought any prediction as to how a court would rule on the legitimacy of graduated rates in the absence of a provision explicitly authorizing them would be “en-

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tirely conjectural” and “would depend on the interest of the judge or his affi liation.” In such a situation, he argued, “It seems to me that leaving it in this way is a dangerous matter.”195 He urged, and a majority of convention delegates agreed, that a provision should be crafted explicitly authorizing the legislature to pass “graduated collateral and direct inheritance taxes,” among other graduated taxes.196 Income Taxes State legislatures began to levy income taxes on a regular basis from the 1910s to the 1930s and were often led during this period to craft amendments to overcome state constitutional limits and court rulings. State income taxes had some precedent in earlier years. Several states levied income taxes on a temporary basis to pay off debt incurred after the panic of 1837 and then again to pay debt incurred during the Civil War.197 Conventions in a half dozen states crafted amendments authorizing imposition of income taxes in these periods, dating to adoption of constitutions in Louisiana and Texas in 1845,198 although not all legislatures in these states followed up on passage of these amendments by actually levying such taxes.199 Despite this earlier activity, the modern era of state income-tax policies is generally pegged as beginning in Wisconsin, where voters approved a 1908 amendment authorizing a graduated income tax and the legislature enacted such a tax in 1911. When legislators in Wisconsin and other states considered adopting an income tax in the early 1900s, they faced some of the same constraints encountered by supporters of inheritance taxes, along with some additional constraints. Constitutional provisions occasionally specified that property taxes were the only permissible taxes; this obviously presented problems for taxes on income. But uniformity provisions presented the biggest challenge. The key question was whether taxes on income should be understood as taxes on property and therefore subject to uniformity requirements. In deciding Pollock v. Farmers’ Loan & Trust and invalidating an 1894 federal income tax, the US Supreme Court faced a similar question, although in a different context. The justices were concerned with determining whether an income tax imposed a tax on property in violation of a constitutional prohibition on direct taxes unless they were apportioned by state population. 200 A number of state courts reached a conclusion similar to that of the US Supreme Court in Pollock—that taxes on income were in key respects taxes on property—and in a way

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that raised doubts about the legitimacy of state income taxes. Income taxes of any kind, whether levied at a flat or graduated rate, were seen by some judges as violating uniformity provisions; but graduated income taxes were particularly problematic. In the same way that Congress responded to the Supreme Court’s invalidation of a federal income tax by crafting a 1913 federal amendment authorizing such a federal tax, legislatures and conventions in more than a dozen states resorted to the state amendment process to overcome doubts about the legitimacy of state income taxes. In most cases, courts in these states had not yet issued decisions invalidating state income taxes. Rather, in proposing amendments, state officials were usually responding to state court rulings signaling a general willingness to interpret state uniformity guarantees in a strict fashion; the intent in passing amendments was to remove any doubt about the legitimacy of incometax statutes and thereby preempt contrary rulings. The Wisconsin legislature took the lead in crafting such an amendment in the early 1900s. As John O. Stark has written, in tracing the origin of Wisconsin’s income tax, “The state constitution lay squarely in the path of reform,” because Wisconsin’s constitution specified that “only property, not income, was a constitutionally authorized object of taxation.” 201 After giving the fi rst of two required approvals to an amendment in its 1903 session, and then having to restart the process two years later when a technical flaw was discovered in the measure, the Wisconsin legislature eventually approved and voters in 1908 ratified an amendment authorizing an income tax with graduated rates.202 The amendment kept intact the long-standing uniformity clause stating that “the rule of taxation shall be uniform and taxes shall be levied upon such property as the legislature shall prescribe,” but it added a stipulation that “taxes may also be imposed on incomes, privileges, and occupations, which taxes may be graduated and progressive, and reasonable exemptions may be provided.”203 Legislatures and conventions in other states adopted similar amendments between the 1910s and 1930s with the aim of preempting state court rulings that might block an income tax. In some states that levied an income tax during this period, officials saw no need to adopt such an amendment, whether because the relevant state constitutional provisions were not seen as blocking such a tax or because prior state court rulings signaled judges’ willingness to interpret these provisions in a permis-

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sive fashion. In other states, officials saw a need to pass an authorizing amendment. Preemptive amendments were adopted during the 1910s in Arizona, Ohio, and South Dakota. 204 In the 1920s, Louisiana readopted such a provision, as part of its 1921 constitution. 205 The 1930s brought enactment of amendments authorizing income taxes in some fashion in Utah, 206 West Virginia, Indiana, Kansas, Montana, and Colorado. 207 State legislatures varied in how quickly they levied income taxes after approval of these amendments. In most cases, legislators approved income-tax laws shortly after ratification of an authorizing amendment. In one case, legislators adopted an income-tax law while simultaneously approving an amendment for submission to voters. In its 1933 session, the Montana legislature enacted an income tax and also approved an authorizing amendment for submission to voters in the following year’s election. As it turned out, by the time Montana voters ratified the amendment in 1934, the Montana Supreme Court had already issued a decision holding that the income-tax law was valid under the unamended state constitution. 208 In several other states, a good deal of time elapsed between passage of an amendment and imposition of an income tax, as in Ohio, where the legislature did not adopt a state income tax until 1971, nearly six decades after approval of an authorizing amendment. 209 Although most income-tax amendments were preemptive, several were adopted in direct response to state court rulings invalidating income-tax statutes or advising that they were illegitimate. Most notably, after the Alabama Supreme Court issued a 1920 decision invalidating an Alabama income-tax law adopted the prior year, 210 Alabama legislators crafted and voters in 1933 approved an amendment authorizing such a tax. 211 In Massachusetts, the state supreme court issued several advisory opinions, including a 1915 advisory opinion, indicating that a tax on income would violate the state constitution.212 In response, voters approved a constitutional amendment later that year authorizing an income tax. 213 In both states, income-tax laws took effect within a year after the amendment’s passage. These and other income-tax amendments were generally effective in overcoming constitutional constraints, but some had mixed effectiveness. In Massachusetts, the legislature sought, a decade and a half after passage of its 1915 amendment, to move to a graduated income tax. But the state supreme court advised that it did not understand this amendment to have authorized a graduated rate.214 Legislators and citizens

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have responded on four occasions in subsequent decades by crafting and placing on the ballot amendments to authorize a progressive income tax, but they have all been defeated by voters, most recently in 1994. 215 Nor is the Massachusetts experience exceptional; legislators in other states continue to operate under constraints imposed by state court decisions. Washington is one of nine states currently without a broad-based income tax (two of these states only tax interest and dividend income), 216 after the Washington Supreme Court twice invalidated income-tax statutes in the early 1930s as violating the state’s uniformity guarantee. 217 Washington legislators responded to these rulings by placing before voters a half dozen amendments between 1934 and 1973 that would authorize a progressive income tax, but voters rejected all of them.218 In several other states, legislatures adopted an income tax but have been unable to impose graduated rates, because doing so would violate express constitutional prohibitions or state court interpretations of uniformity guarantees. 219 In Pennsylvania, for instance, the state supreme court issued a 1935 ruling invalidating a graduated income-tax law. 220 The Pennsylvania legislature eventually reenacted such a tax, in 1971, but the court struck this down as well. 221 The legislature responded later that year by passing a flat-rate tax, which remains in effect. 222 Pennsylvania supporters of a progressive income tax have considered pressing for passage of an amendment authorizing a graduated income tax but have yet to secure legislative support for placing such an amendment on the ballot. 223 Property-Tax Classification From the turn of the twentieth century onward, scholars, groups, and officials have sought to tax different types of property at different rates and were led in many states to advance amendments authorizing these policies. In the early 1900s, reformers sought to tax intangible property such as fi nancial assets at a lower rate than other real or personal property, on the view that this might induce persons holding fi nancial assets to be more willing to reveal them and subject them to taxation than if they were taxed at the same rate as other property. 224 Meanwhile—and these concerns have been prominent from the early 1900s through the early 2000s—groups have sought to tax agricultural property at lower rates than residential property. However, these policies, as well as others, were frequently in confl ict with state uniformity provisions. In the face of these confl icts between support for property-classifica-

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tion policies and limits imposed by state uniformity guarantees, legislators have frequently resorted to passing policy-authorizing amendments. To be sure, legislators in some states opted against taking the amendment route; they simply adopted property- classification policies and hoped they would go unchallenged or be sustained in court. Occasionally, this approach proved successful. But in many other states, legislatures saw a need to craft authorizing amendments. Although a few late nineteenth- century conventions, beginning with Pennsylvania’s 1872– 73 convention, crafted or modified tax-uniformity provisions so as to permit classification, 225 Minnesota voters’ approval of a Wide Open Tax Amendment marks the start of the modern era of property- classification amendments. 226 Prior to 1906, Minnesota legislators were constrained by a strictly construed uniformity provision that included a stipulation that “all property on which taxes are to be levied shall have a cash valuation and be equalized and uniform throughout the State.” With an eye toward gaining more discretion to classify and tax property at different rates, the Minnesota legislature crafted and voters approved a 1906 amendment requiring, in its essential part, that “taxes shall be uniform upon the same class of subjects, and shall be levied and collected for public purposes.” 227 The key change was that taxes now had to be uniform only “upon the same class of subjects.” In the decade after the amendment’s adoption, the Minnesota legislature took full advantage of this newfound authority, by passing statutes that produced a classification program unrivaled by any other state to that point. By virtue of a 1911 statute, certain forms of intangible property were taxed at a lower rate than other property. And then a 1913 statute divided remaining property into four classes—iron ore, urban real estate, rural real estate, and household goods—with a different means of assessing the value of property in each class. 228 During the 1910s and the next several decades, voters approved similar amendments authorizing classification of property. In 1911, voters approved such a provision as part of the inaugural Arizona constitution. 229 Voters also approved amendments of this sort in Maine, North Dakota, New Mexico, Maryland, Kentucky, Oregon, and South Dakota. 230 These amendments occasionally targeted particular types of property, as when a Maine amendment declared, “The Legislature shall have power to levy a tax upon intangible personal property at such rate as it deems wise and equitable without regard to the rate applied to other classes of property.” 231 Other amendments, as in North Dakota, were

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“wide open” amendments simply requiring that “taxes shall be uniform upon the same class of property.”232 All told, voters approved around a dozen amendments of this kind between the 1910s and 1930s. 233 Property- classification amendments, which experienced another surge after the 1960s, 234 have been prompted by various developments but are often advanced in response to state court decisions holding taxassessment policies incompatible with uniformity provisions. 235 Focusing on two of many recent examples, amendments were adopted in the 1980s in Nebraska and Wyoming, in both cases within a year after state supreme court decisions invalidating tiered assessment practices. In 1984 Nebraska voters approved an amendment allowing the legislature to defi ne farmland as a separate class of property to be taxed at different rates than residential and commercial property, 236 in response to a Nebraska Supreme Court decision earlier that year deeming this practice consistent with the state’s uniformity provision. 237 Wyoming voters approved a similarly motivated amendment in 1988 in response to a state supreme court decision the prior year invalidating the state’s tiered assessment policy. 238 The Wyoming amendment went so far as to delete the state constitutional requirement that “all taxation shall be equal and uniform” and then went on to divide property into three classes—mines and minerals, industrial property, and all other property—and permit different tax rates for each class. 239 Property-Tax Exemptions Uniformity guarantees have also posed obstacles to legislative efforts to exempt certain persons from paying taxes and have, in turn, prompted passage of numerous amendments authorizing property-tax exemptions. Some state uniformity provisions require that all property be taxed according to its value. Even in the absence of explicit requirements of this sort, uniformity provisions are generally understood as disallowing efforts to exempt persons from paying some or all of their property taxes. To be sure, many state constitutions have long qualified their uniformity clauses by providing that churches, charitable institutions, and certain other entities are exempt from property taxes. But when legislators have sought to grant additional exemptions, they have invariably resorted to the amendment process to authorize them and on a regular basis through the years.

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Voters have approved dozens of amendments authorizing propertytax exemptions in the twenty-fi rst century alone. To provide a sampling, voters in Texas approved an amendment increasing the amount of the residence homestead exemption for school tax purposes. 240 Meanwhile, voters in Tennessee, Texas, Virginia, and Florida approved amendments authorizing legislatures and localities to provide property-tax relief to senior citizens in some fashion. 241 Amendments authorizing propertytax exemptions for active- duty military, veterans, and their surviving spouses have been adopted at a particularly steady pace in the 2000s. Florida voters approved an amendment expanding a tax exemption for active- duty military deployed overseas. 242 Amendments granting exemptions for disabled veterans were approved by Florida, Colorado, Texas, Oklahoma, Virginia, and Louisiana voters and for disabled former prisoners of war by Missouri voters. 243 Amendments granting exemptions for the surviving spouse of a disabled veteran were approved by voters in New Mexico, Oklahoma, and Texas. 244 Finally, voters in Florida, Louisiana, Texas, Oklahoma, and Virginia approved amendments authorizing tax exemptions for spouses of veterans (and in some cases first responders) who died in the line of duty. 245 This review of recent amendment activity might be seen as illustrating the range and regularity of taxexemption amendments in the states.

Gambling Voters approved a steady stream of amendments in the twentieth and twenty-fi rst centuries authorizing lotteries, raffles, bingo games, racetrack betting, and casino gaming, in the face of state constitutional lottery bans adopted in the nineteenth century at a time when lotteries were widely viewed as inimical to the health of the polity. To be sure, not all states emerged from the nineteenth century with lottery bans in their constitutions; in some states legislators simply passed statutes discontinuing lotteries and declaring them illegal. But in most states, convention delegates and legislators saw a need to supplement statutory bans with amendments preventing future legislators from giving in to the powerful temptation, often fueled by entreaties from gaming interests, to resort to lotteries to raise revenue. Although charitable raffles and bingo, as well as racetrack betting and (in one state) casino gaming were occasionally

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permitted between 1894 and 1964, lotteries were illegal in every state and prohibited by express constitutional provisions in the vast majority of them. 246 Lotteries When public opinion shifted in the mid-twentieth century toward greater acceptance of lotteries, as part of “a general liberalization of attitudes on social and moral questions in society,” 247 and with an appreciation for “the revenue that a lottery would bring,” especially for public schools, 248 lottery supporters often confronted state constitutional provisions banning them. In states without lottery-ban amendments, legislators were able to respond to growing public support for lotteries more readily, by legalizing them via statutes. The New Hampshire legislature took this path in becoming the fi rst state in seven decades to legalize lotteries; New Hampshire legislators simply established a state lottery by passing a statute, which they chose to submit to a referendum that was approved by voters in 1964. Legislators in some other states without lottery-ban provisions took a similar route to legalizing lotteries in the early 1970s and later years—passing a statute and often submitting it to voters for their approval in a referendum before it could take effect. 249 But in the vast majority of the forty-four states instituting lotteries in the half century beginning with New Hampshire’s pioneering act—only Alabama, Alaska, Hawaii, Mississippi, Nevada, and Utah are currently without lotteries—supporters had to resort to the amendment process. From the mid-1960s onward, voters in nearly two-thirds of the states approved amendments authorizing lotteries. New York voters in 1966 approved the fi rst such amendment, which authorized a lottery that began operating the next year. 250 New Jersey voters followed by approving an amendment in 1969 that allowed a lottery to begin selling tickets the next year. 251 These were followed by amendments in ten states in the 1970s, 252 thirteen states in the 1980s, 253 three states in the 1990s, 254 and four states in the 2000s. 255 These amendments take different forms. Legislatures, commissions, and conventions occasionally crafted amendments or framed new constitutions that simply eliminated lottery bans, thereby leaving future legislators free to decide whether to adopt a lottery. This was the route taken by a 1969 Virginia commission, a 1969– 70 Illinois convention, a 1971– 72 Montana convention, and legislatures in Iowa and Washing-

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ton in 1972 and Indiana in 1988. 256 At times, as in Illinois and Indiana, legislatures acted quickly thereafter to enact a lottery by statute or by legislative referendum. In other states, somewhat more time passed—a decade or more in Washington, Iowa, Montana, and Virginia—before legislatures took advantage of their newfound discretion and approved lottery statutes. 257 Other states chose to add language explicitly authorizing lotteries in some fashion. At times, as in Florida, a provision declaring that “lotteries, other than the types of pari-mutuel pools authorized by law as of the effective date of this constitution, are hereby prohibited in this state” 258 was retained, but new language was added in a different section, in this case via a citizen-initiated amendment providing that “lotteries may be operated by the state.” 259 In other states, and this is the most common approach, amendments made explicit exception for state- operated lotteries by adding qualifications to existing bans. For instance, a Tennessee amendment modified a lottery ban to provide that “the Legislature shall have no power to authorize lotteries for any purpose, and shall pass laws to prohibit the sale of lottery tickets in this state, except that the legislature may authorize a state lottery if the net proceeds of the lottery’s revenues are allocated to provide fi nancial assistance to citizens of this state to enable such citizens to attend post-secondary educational institutions located within this state.”260 In still other cases, language banning lotteries was eliminated altogether and replaced by language authorizing a lottery, as in Arkansas, where a 2008 citizen-initiated amendment, the nation’s most recent lottery-authorizing amendment, simply declares, “The General Assembly may enact laws to establish, operate, and regulate State lotteries.” 261 Raffles and Bingo Games Raffles, bingo games, and lotteries operated by charities, senior citizens’ organizations, and veterans have raised another set of issues. There was little doubt, given the clarity of lottery-ban provisions, that supporters of state-run lotteries had to enact amendments to authorize them. But it was unclear whether charitable raffles and bingo games were encompassed by lottery-ban provisions and therefore whether it was necessary to approve an amendment legalizing them. The answer to this question depended in part on the language of each state’s constitutional provision and how broadly it was crafted and interpreted. Did the con-

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stitution merely ban lotteries? Or ban all games of chance? Or prohibit all forms of gambling? In situations where the constitutionality of raffles and bingo games was uncertain or when state courts issued decisions invalidating these practices, officials responded by passing amendments overcoming these constraints. Voters have approved—and are still approving at a steady pace in the 2010s—a series of amendments authorizing charitable raffles and bingo games. In some cases, voters approved these sorts of amendments prior to authorizing state-run lotteries. For instance, voters in New Jersey and New York approved amendments in the 1950s authorizing certain charitable bingo games before approving amendments authorizing state-run lotteries in the 1960s. 262 In a similar fashion, Wisconsin voters approved a pair of amendments in the 1970s authorizing charitable raffles and bingo games before eventually approving an amendment in the 1980s allowing a state lottery. 263 In other states, as in South Carolina and Tennessee, the fi rst step was to approve an amendment authorizing a state lottery in the early 2000s; this was followed by amendments in the 2010s authorizing charitable raffles or bingo. In some cases where voters approved amendments authorizing charitable raffles, legislators only turned to the amendment process after initially trying to legalize raffles via statute. The Kansas constitution has long prohibited “lotteries and the sale of lottery tickets,” albeit with exceptions made for bingo games (via a 1974 amendment) and a state-run lottery (via a 1986 amendment). When Kansas legislators in 2013 sought to legalize charitable raffles, they initially proceeded by enacting a statute, only to be rebuffed by Governor Sam Brownback, who maintained that such a step should only be taken after fi rst passing an authorizing amendment, as had been done to authorize bingo and a state-run lottery in the past. In vetoing the bill, the governor explained that it “violated Article 15, Section 3 of the Kansas Constitution. However, I support the Legislature’s policy goal of permitting limited raffles for charitable purposes. As such, I encourage the Legislature to consider a constitutional amendment to accomplish this goal.”264 In response, the legislature crafted an amendment that was approved by voters in 2014, declaring, “Notwithstanding the provisions of section 3 of article 15 of the constitution of the state of Kansas, the legislature may authorize the licensing, conduct and regulation of charitable raffles by nonprofit religious, charitable, fraternal, educational and veterans organizations.” 265

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Racetrack Betting Betting on horse races raised still other issues and generated another set of policy-authorizing amendments from the 1930s onward. In some states, supporters of racetrack wagering confronted explicit state constitutional bans. For instance, in crafting New York’s 1894 constitution, convention delegates sought to stamp out racetrack betting by strengthening the long-standing lottery ban to also bar “pool-selling, bookmaking, or any other kind of gambling.” 266 In 1897, voters in New Jersey and Delaware approved similarly phrased amendments barring poolselling and all other forms of gambling. 267 In these and other states that emerged from the nineteenth century with explicit constitutional restrictions on pool-selling, the dominant method of racetrack betting, groups and officials in the 1900s had no choice but to resort to the amendment process to authorize this form of wagering. To this end, amendments were approved in the 1930s in Delaware, New Jersey, and New York explicitly authorizing betting on horse races. 268 The New York amendment is typical, in that it carved out of a general prohibition on gambling a specific exception for “pari-mutuel betting on horse races as may be prescribed by the legislature.” 269 Supporters of racetrack betting resorted to the amendment process in other states for another set of reasons, whether because it was unclear if anti-lottery provisions would be interpreted as banning this form of gambling or because state courts had already interpreted these provisions to preclude betting of this sort. The question of whether betting on horse races qualified as a lottery was considered by a number of state courts in the mid-twentieth century, with most courts concluding that betting on horse racing had an element of skill and therefore was not a lottery or game of chance. 270 To focus on just one of various state courts that reached this conclusion, the Arkansas Supreme Court in 1949 ruled that betting on horse races did not run afoul of a lottery ban in the state constitution. Nearly a decade later, the same court faced a slightly more difficult question as to whether this same lottery ban barred betting on greyhound races, where no jockey was involved and therefore the element of skill was reduced, if not absent. The Arkansas Supreme Court reached the same conclusion as in the earlier case: Betting on greyhound races had an element of skill and was not barred. 271 Other state courts reached different conclusions about racetrack betting, thereby prompting passage of constitutional amendments authoriz-

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ing the practice. In Nebraska, supporters of racetrack betting raised the same arguments as were advanced in many other state courts: that the state constitution only barred operation of “any games of chance, lottery, or gift enterprise” and therefore did not prevent racetrack betting. 272 But the Nebraska Supreme Court rejected this interpretation and issued a 1929 decision holding that betting on horse racing was a game of chance and therefore barred by the state constitution. 273 In response, supporters of racetrack betting relied on the constitutional initiative process to secure passage of a 1934 amendment declaring, “Nothing in this section shall be construed to prohibit the enactment of laws providing for the licensing and regulation of wagering on the results of horse races by the pari-mutuel or certificate method, when conducted by licensees within the race track enclosure at licensed horse race meetings.” 274 Nearly all of the twentieth- century racetrack-betting amendments, whether regarding horse racing or in some cases dog racing, were intended to overcome constitutional constraints. In addition to various amendments that authorized racetrack betting in the 1930s long before the revival of lotteries, several amendments were enacted in later decades as part of wide-ranging efforts that legalized racetrack betting and lotteries simultaneously, as with passage of amendments in the 1980s in Missouri, Kansas, and Wisconsin. 275 The one amendment that might be seen as serving a different purpose, entrenching a policy against public or legislative opposition, was adopted through the initiative process in Arkansas in 1956 and declared, “Horse racing and pari-mutuel wagering thereon shall be lawful in Hot Springs, Garland County, Arkansas, and shall be regulated by the General Assembly.” 276 There was seemingly little need to pass an amendment authorizing this practice, since the Arkansas Supreme Court had recently declared wagering on horse racing permissible. Rather, backers of the amendment were motivated at least as much by a desire to prevent opponents in this particular county from being able to vote in a local referendum, as permitted under state law, to discontinue this form of wagering. 277 Casino Gaming A fi nal set of amendments enacted from the 1970s onward authorized casino gaming in various forms. In states without sweeping constitutional bans on gambling, legislatures could legalize casino gaming simply by passing statutes. 278 This was the route taken by the Nevada legislature

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in legalizing casino gambling through a pioneering statute in 1931. But in other states, supporters had to resort to the amendment process to overcome constitutional constraints. After nearly a half century when Nevada stood alone in permitting casino gambling, New Jersey voters approved a 1976 amendment authorizing casino gambling in Atlantic City. 279 Voters in several other states during the next several decades also approved amendments authorizing casino gaming in the face of constitutional provisions limiting games of chance. 280 A 2013 New York amendment is typical. It carves out a specific exception in a broad-based gambling ban, by permitting “casino gambling at no more than seven facilities as authorized and prescribed by the legislature.”281 Admittedly, not all casino-gaming amendments have been policyauthorizing amendments. Some of these amendments institute policies and insulate them against legislative or popular reversal. Most notably, a citizen-initiated amendment in Ohio in 2009 established four casinos around the state and provided specific guidance on their location and ownership. 282 Nevertheless, most casino-gaming amendments, along with nearly all other gambling amendments adopted in the twentieth and twenty-fi rst centuries, have been enacted to authorize policies in the face of clear constitutional prohibitions or state court rulings interpreting constitutional provisions in a strict fashion. 283

Conclusion Why have groups and officials secured passage of policy-authorizing amendments on a regular basis? The short answer is that supporters of various policies have encountered constraints in the form of explicit constitutional bans or state court decisions and viewed amendments as a proper and effective means of overcoming these constraints. These constraints were generally, though not always, imposed by prior generations that concluded that legislatures could not be counted on to act responsibly in certain areas. The 1820s and 1830s brought adoption of the fi rst constitutional lottery bans. In the 1840s and 1850s, conventions and legislatures responded to the failure of state-backed internal improvement projects and the resulting debt by enacting constitutional provisions banning public aid to corporations and private entities and limiting how much debt could be contracted. The 1840s and 1850s also saw a surge in adoption of constitutional provisions requiring taxes to be

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imposed in a uniform fashion. In some other cases, constraints emanated not from the conscious decisions of prior generations of convention delegates, legislators, and citizens, but rather from the inclination of judges to invoke broadly framed provisions or doctrines to block proposed policies, as when state courts in the 1880s and 1890s began invalidating laws regulating the hours, wages, and conditions of workers. At various points from the late 1800s onward, confl icts emerged as groups and officials who supported various policies found they were constrained by state constitutional provisions or court rulings. At times, these confl icts between policy proposals and constitutional constraints were rooted in shifts in public opinion. This was most evident in evolving public attitudes toward lotteries. Widely viewed as inimical to the health of the polity and universally banned by the late 1800s, lotteries came to be viewed by the late 1900s in a less negative light. At other times, confl icts between policy proposals and constitutional constraints arose because concerns motivating adoption of constitutional limits in prior eras proved less compelling to later generations and were outweighed by benefits not foreseen by earlier generations. Debtlimit provisions were adopted in the mid-1800s largely due to concerns about improvident investments in internal improvements; but by the early 1900s, these concerns were less troubling, and the benefits of building a highway system were more compelling. Similarly, although bans on granting public money to private entities were originally adopted in the mid-1800s out of a concern with grants to railroads and later to charitable associations, these bans were viewed by the early 1900s as unnecessarily limiting grants to the disabled, mothers, and elderly persons. Views of tax-uniformity provisions underwent a similar evolution. Originally adopted in the early 1800s in part to prevent corporations from prevailing upon legislatures to secure lower tax rates, they came to be viewed by the 1900s as making it more difficult to tax fi nancial assets as well as the income and inheritance of upper-income earners. Still other confl icts between policy goals and constitutional constraints were rooted in the behavior of state courts in interpreting state constitutional provisions. This was most evident in the case of labor reforms, which were blocked by judges who relied on liberty- of- contract doctrines and in a way viewed by many state officials in the late 1800s and early 1900s as untethered to the text of state constitutional provisions and the intent of their framers. But state courts were also faulted for their interpretation of other state constitutional provisions, as when

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they were seen as engaging in creative interpretation of tax-uniformity provisions to block imposition of various taxes in the early 1900s. Passing amendments was not the only path that backers of these policies took in trying to overcome these constitutional constraints. Sometimes groups tried to change the composition or direction of state courts, especially when judicial interpretation of state constitutions was seen as the chief obstacle to adoption of policies. Labor groups pursued this path on occasion and with some success, as when they campaigned against and sometimes unseated judges who invalidated worker-protection policies in the early 1900s. At other times, officials simply enacted policies of dubious legitimacy and hoped that they would go unchallenged or counted on them being sustained by judges willing to interpret relevant constitutional provisions in a permissive fashion. This approach has been pursued on several occasions and with some success, most notably when legislatures taxed property at different rates even in the face of tax-uniformity clauses or circumvented debt-limit provisions by issuing revenue bonds or establishing public authorities. Despite the occasional reliance on alternative mechanisms, groups and officials have generally viewed the amendment process as the most effective means of overcoming constitutional constraints. As groups have concluded on various occasions, especially during the Progressive Era, unseating judges or persuading them to change their interpretive approach is an arduous and lengthy process. Even then, there is no guarantee that the composition or direction of the court will not revert back in the future. As for various methods of circumventing constitutional provisions through legislative workarounds, these may go unchallenged for a time or pass muster with some judges; but other judges may be prepared to continue enforcing constitutional constraints even in the face of long-standing practice, as seen with several late twentieth- century rulings invoking tax-uniformity clauses to invalidate tiered property assessment policies. It is far more effective, groups and officials have often concluded, to pass amendments as a way of overcoming intransigent courts and obviating the need to count on favorably disposed courts to interpret constitutional provisions in a permissive fashion. The amendment process has been viewed as an effective way of authorizing policy changes; it has also been seen as a particularly appropriate means of achieving constitutional change, especially in comparison with alternative courses of action that would rely on expanding gov-

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ernment authority through statutes and counting on courts to sustain them. On various occasions, scholars and public officials who have faced confl icts between policy proposals and constitutional constraints have debated the virtues of these competing paths to undertaking constitutional change. For instance, commissions in the 1910s charged with studying how to provide for old-age pensions in the face of constitutional constraints occasionally advised against taking the amendment route; likewise with legislators in the 2010s who sought to legalize charitable raffles in the face of constitutional barriers. In these cases, as well as others, however, the decision was eventually made to proceed through the amendment process, by explicitly authorizing old-age pensions in the fi rst case and charitable raffles in the latter case, in part because changing the text of the constitution is seen as the proper way of bringing about constitutional change.

Chapter Seven

Policy-Enacting Amendments

P

olicies have been enacted on a regular basis by passing state constitutional amendments, a feature of state politics with little parallel at the federal level. Only one amendment to the US Constitution is clearly a policy- enacting amendment. The Eighteenth Amendment (1919) prohibited the manufacture, sale, and transportation of alcoholic beverages but was repealed by the Twenty-First Amendment (1933). The Thirteenth Amendment (1865) abolishing slavery could also be considered a policyenacting amendment, though it might more properly be deemed a rights-protecting amendment. Aside from these rare instances, groups initiating policies at the federal level have not proceeded through the amendment process. Rather, they work through the political process— electing sympathetic officials and bringing policies to fruition via statutes, executive orders, and administrative regulations. In states, by contrast, groups and officials routinely pass constitutional amendments to adopt policies unattainable or insecure in the political process. Policy- enacting amendments have at times been framed by legislatures, generally in response to public pressure and at times to prevent interference by future legislators. However, these amendments are most often adopted when efforts to obtain legislative support prove unavailing and groups are led to proceed instead through conventions, commissions, or initiative processes that require little or no legislative participation. The constitutional initiative process has been a particularly potent engine of policy- enacting amendments, occasionally in the early twentieth century and especially from the late twentieth century onward. Policy- enacting amendments, which have received some scholarly attention, generally as part of wide-ranging analyses of policy amend-

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ments,1 can be distinguished from policy- constraining amendments and also from policy-authorizing amendments. The defi ning feature of policy- enacting amendments is that they initiate policies that legislators are authorized to implement, or at least not constitutionally constrained from implementing. There is, to be sure, some overlap between policyenacting and policy- constraining amendments. By their nature, amendments initiating a policy and entrenching it in the constitution prevent legislators from making different policy choices. Nevertheless, and acknowledging some overlap, it is possible to distinguish amendments whose primary purpose is to constrain legislators’ policy discretion from amendments initiating policies. In this chapter I examine policy- enacting amendments, with an eye to identifying the policy changes these amendments have secured, the motivations for passing them, and the reasons for proceeding via the amendment process rather than through other mechanisms. To preview the main conclusions, policy- enacting amendments have been adopted in a wide range of areas. A significant number of policyenacting amendments have dealt with social policies such as alcohol prohibition, affi rmative action, marijuana legalization, stem- cell research, and animal protection. Amendments have also enacted labor-relations policies, particularly right-to-work laws. Political reforms have also been achieved on various occasions via amendments imposing campaignfi nance and lobbying regulations. Amendments have also been enacted on a regular basis increasing taxes and occasionally earmarking the revenue. These amendments have been adopted in four main circumstances. In one set of cases, policy proposals are blocked by legislators on account of their interest in maintaining their offices or prerogatives; supporters therefore resort to passing amendments, generally via legislaturebypassing amendment processes, to adopt these policies and prevent their reversal. In a second set of cases, when influential groups impede passage of policy changes, the amendment process is a means of overcoming this opposition and limiting groups’ ability to undermine these policies once enacted. Amendments are also adopted in a third set of cases, when legislators are insufficiently representative of or responsive to public opinion on certain policy issues; supporters resort to the amendment process to place these policies on the agenda, secure their passage, and entrench them against erosion. On a fi nal set of occasions, supporters of policies blocked by supermajority legislative-vote require-

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ments or gubernatorial vetoes can overcome these barriers via amendment processes whose legislative-approval requirements are sometimes not as stringent and do not require gubernatorial approval. In considering the reasons for securing policy changes through the amendment process rather than the political process, several lessons emerge. One advantage of enacting amendments rather than legislative statutes is to enable the public, via legislature-bypassing amendment mechanisms, to overcome resistant or reluctant public officials. Convention delegates can submit amendments for voter ratification. Commission members can also act independently of legislators, especially in Florida, where commissions submit amendments directly to voters. Most important, in eighteen states providing for citizen-initiated amendments, voters can propose and approve amendments, generally without a need for legislative support. A second advantage of proceeding through the amendment process— and this holds true when comparing amendments with either legislative statutes or initiated statutes—is to render policy changes more secure. At times, legislators frame policy changes as amendments in order to make it more difficult for them to be weakened by future legislators who may be susceptible to the influence of special interests or otherwise tempted to engage in backsliding. Convention delegates, commission members, and citizens are in many cases likely to share this goal of preferring amendments to legislation as a way of protecting policy changes against interference from potentially resistant legislators and influential groups. Concerns about preventing legislatures from undermining policy changes also account for groups’ reliance on citizen-initiated amendments rather than citizen-initiated statutes in states where both options are available. In some states, both options are not available. Florida, Illinois, and Mississippi, all relatively recent adopters of the constitutional initiative process, do not allow statutory initiatives. Groups seeking to bypass unresponsive legislators through the initiative process in these states often have no choice but to frame policy changes as constitutional amendments. However, in the fi fteen states that allow both constitutional and statutory initiatives, groups have a choice of framing policy changes as amendments or statutes. In a number of cases, groups opt to pass amendments because they seek to make it more difficult for legislators and groups to erode policy gains, especially in states that permit legislatures to alter or repeal initiated statutes, whether instantly or after several years.

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Social Policy Amendments have been a regular vehicle for making changes in what might be broadly termed social policies. Groups seeking to prohibit alcohol sales, legalize marijuana, limit affi rmative action, support stemcell research, protect animals, and designate English as the official language have all resorted to passing amendments. Although these same changes have sometimes been achieved via legislative statutes or citizeninitiated statutes, groups thought it necessary in various states and circumstances to proceed through the amendment process. In trying to enact social policies, groups have encountered two main challenges in the political process that led them to turn instead to constitutional amendment processes. First, policies supported by a majority of the public are in some cases opposed by groups wielding significant influence over legislators. Second, legislators occasionally prioritize a different set of issues than the general public or are not sufficiently responsive or attuned to constituent preferences. In these circumstances, groups pressing for social policy changes have occasionally resorted to passing amendments, generally by making use of legislature-bypassing amendment processes and with the intent of preventing interference with these policies once they were in place. Alcohol Prohibition During a four- decade period beginning in 1880 and ending in 1919 with ratification of the Eighteenth Amendment to the US Constitution, voters in twenty- one states approved state constitutional amendments prohibiting the sale of alcoholic beverages. To be sure, temperance groups did not rely solely on passing amendments during three waves of prohibition activity. In the initial wave, state prohibition measures in the 1850s were adopted entirely through legislative statutes. Even during a second wave (from 1880 to 1889) and a third wave (from 1907 to 1919), temperance groups in some states continued to secure passage of prohibition statutes, even as groups in other states began to pursue the amendment route.2 But prohibition supporters came, over time, to view amendments as generally preferable to statutes. Amendments were seen as appropriate in part because the amendment process ensured that the public played a direct role in affi rming such a consequential policy.

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Amendments also came to be viewed as providing more permanence for prohibition policies, especially in light of the significant power that liquor interests wielded in the legislative process and their success in repealing or weakening a number of initial prohibition statutes. Maine’s legislature in 1851 enacted the fi rst statewide prohibition statute, which was followed by passage of prohibition laws in ten other states and two territories by 1855. State legislatures in earlier decades occasionally limited the sale of certain quantities and types of alcoholic beverages, as with passage of a Massachusetts Fifteen Gallon Law in 1838 and a lightly enforced prohibition act in Maine in 1846. 3 But it was not until the 1850s that legislatures prohibited the manufacture and sale of alcohol on a statewide basis.4 After passage in 1851 of the Maine law, legislatures in Rhode Island, Massachusetts, and Vermont passed prohibition laws in 1852, followed by Michigan in 1853, Connecticut in 1854, and Indiana, Delaware, Iowa, New York, and New Hampshire in 1855. 5 Few of these early prohibition laws survived for long, partly because several were invalidated by state courts. To be sure, most state courts sustained these prohibition laws against legal challenges that were fi led in nearly all of the states enacting them.6 But the Indiana Supreme Court invalidated Indiana’s prohibition statute in an 1855 decision that was followed the next year by a New York Court of Appeals ruling striking down New York’s prohibition statute.7 Still other state supreme courts issued rulings or advisory opinions weakening enforcement of state prohibition laws.8 Legislatures repealed or weakened other state prohibition laws, whether in response to changes in partisan control of state governments  in the mid-1850s, public dissatisfaction with the way these laws were enforced, or influence wielded by liquor interests in legislative assemblies.9 As political scientist Anne-Marie E. Szymanski noted in her analysis of early prohibition laws, “the statutory character of prohibition prompted further legislative action, much of it sponsored by the pro-liquor forces. In some cases, the wets defi nitively revoked prohibition once they controlled the legislature; in others, prohibition would be strengthened, diluted, repealed, or reinstated, depending on the legislature’s makeup.”10 After several decades when no additional states adopted prohibition laws and many of the early laws were repealed, the 1880s brought a second wave of prohibition measures, this time framed as  constitutional amendments. Prior to this point, a few states had adopted constitutional provi-

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sions regulating alcohol, but none of these earlier constitutional amendments enacted statewide prohibition. For instance, in revising their constitutions, Michigan’s 1850 convention and Ohio’s 1850– 51 convention crafted provisions prohibiting the granting of liquor licenses.11 A quarter century later, the Texas convention of 1876 drafted a new constitution that included a local- option provision allowing localities to decide whether to prohibit the sale of alcohol, in a move followed by conventions in Florida in 1885, Kentucky in 1890– 91, and Delaware in 1896– 97.12 But according to D. Leigh Colvin, an activist in and chronicler of the prohibition movement, “it was not until 1878 that state constitutional prohibition came to be seriously urged, when a few scattered temperance workers in Iowa, Kansas, and Wisconsin began to agitate in its behalf.”13 In 1880, Kansas voters ratified the fi rst of six statewide prohibition amendments adopted around the country in the 1880s, after the legislature overcame significant opposition and maneuvering by liquor interests and approved an amendment that was ratified by voters.14 Similar amendments were advanced by legislatures and approved by voters in Iowa in 1882, Maine in 1884, and Rhode Island in 1886.15 Meanwhile, in framing inaugural constitutions in 1889, conventions in South Dakota and North Dakota approved prohibition provisions that were submitted separately from the main constitutional question and ratified by voters.16 Three of the prohibition amendments enacted in the 1880s suffered the same fate as prohibition laws adopted in the 1850s. The Iowa Supreme Court invalidated Iowa’s amendment on the ground that the legislature had not followed proper procedure in approving it for submission to voters.17 The Rhode Island and South Dakota amendments were both repealed soon after taking effect, after elections produced majority-wet legislatures that framed prohibition-repeal amendments that were approved by voters.18 Despite the occasional overturning of these 1880s amendments via court rulings or subsequent amendments, dry groups concluded by this point in time that constitutional amendments held various advantages over statutes. Most important, as Colvin argued, “One of the objects of the movement for state constitutional prohibition was to place it in the state constitution where it would be more stable and permanent. To repeal it would require the same difficult procedure as its adoption.”19 To be sure, repeal of the Rhode Island and South Dakota prohibition amendments showed that this hurdle could be overcome; but these were viewed as anomalous cases. In any event, in comparison with statutes, amend-

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ments offered greater security, especially in view of “Demon Rum’s influence over state legislatures.”20 When prohibition rested merely on statutory grounds, the liquor lobby could bring about its repeal by electing or otherwise winning support of a majority of legislators, using proper or oftentimes improper means. When prohibition was adopted by constitutional amendment, liquor interests seeking its reversal not only had to fl ip the legislature and secure legislative approval for an overturning amendment but also had to prevail in a popular ratification vote. The opportunity for citizens to play a role in ratifying amendments offered an additional reason for adopting prohibition via the amendment process. As Colvin explained, “Another virtue of constitutional prohibition is that it has solemn sanction of the people.” In his view, “Adopting an amendment to a state constitution expresses the popular will of the state directly and authoritatively,” and in a way that was particularly appropriate when implementing a policy such as alcohol prohibition that sought to bring about a major modification in individual behavior. 21 After a hiatus of nearly two decades in adopting additional prohibition amendments, Oklahoma voters in 1907 approved a convention-framed amendment that marked the start of a third and fi nal wave of state prohibition measures. Between 1907 and 1919, sixteen states adopted prohibition amendments. Some legislatures continued to adopt prohibition on a statutory basis. 22 But during this third wave, amendments were clearly the preferred vehicle for enacting statewide prohibition. One notable development during this time opened still another avenue for enacting prohibition amendments in the 1910s: the advent of the constitutional initiative process in fourteen states. Prior to adoption of the initiative process, prohibition supporters were often stymied by legislatures seen as beholden to liquor interests and unwilling to advance a policy commanding broad public support. After a number of states adopted the statutory initiative process—and in some cases the constitutional initiative process—temperance groups were able to overcome the liquor lobby by making an end run around the legislature. In nearly half of the states adopting prohibition amendments in 1910s, dry groups proceeded through the constitutional initiative process (in Arizona, Colorado, and Oregon in 1914; Michigan, Nebraska, and South Dakota in 1916; and Ohio in 1918). 23 In other states voters approved legislaturegenerated prohibition amendments (in West Virginia in 1912; Idaho in 1916; New Mexico in 1917; Utah, Wyoming, and Florida in 1918; and Texas and Kentucky in 1919). 24

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Marijuana Legalization In some policy areas, such as marijuana legalization, groups have resorted to passing citizen-initiated amendments when legislators have either not prioritized or resisted adoption of policies supported by the public. In failing to advance measures legalizing medical or recreational marijuana, there is no indication that legislators are succumbing to pressure from interest groups, as in the case of alcohol prohibition. Rather, in this policy area, legislators have simply been unresponsive to or unrepresentative of public opinion on an issue where public sentiment has evolved quickly in the twenty-fi rst century. 25 To overcome legislators’ reluctance to advance marijuana legalization measures, supporters have frequently turned to the initiative process. In nearly half of the twenty-nine states eliminating criminal penalties for medical marijuana, legalization has been accomplished via the initiative process, beginning with California voters’ approval of a citizen-initiated statute in 1996. Voters in four other states approved citizen-initiated medical-marijuana legalization statutes in the late 1990s—Alaska, Oregon, and Washington in 1998 and Maine in 1999—before the Hawaii legislature in 2000 became the fi rst state legislature to legalize medical marijuana. 26 Meanwhile, all eight states decriminalizing recreational marijuana have proceeded through the initiative process, beginning with Colorado and Washington in 2012. 27 On five occasions, supporters of marijuana legalization have not been content to pass citizen-initiated statutes but rather have relied on citizeninitiated amendments. Decriminalization of medical marijuana was achieved via citizen-initiated amendments that received fi nal approval in Nevada and Colorado in 200028 and Arkansas and Florida in 2016. 29 Meanwhile, after initially legalizing medical marijuana via an initiated amendment, Colorado voters went further and legalized recreational marijuana through an initiated amendment in 2012. 30 In choosing at times to legalize marijuana via constitutional amendments, groups have been responding in part to peculiar amendment rules in certain states and have also been concerned with insulating policy gains against legislative reversal. In Colorado, for instance, the rules for passing constitutional initiatives were for many years no more stringent than the rules for enacting statutory initiatives. 31 In such a situation, groups in Colorado framed legalization measures as initiated amendments to insulate this policy from legislative reversal, especially given

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that there is no barrier to legislative modification of initiated statutes in that state. 32 Meanwhile, Florida provides for a constitutional initiative process but not a statutory initiative process, so that groups in that state wanting to bypass unresponsive legislators through the initiative process have no choice but to frame their policy changes as constitutional amendments. 33 In explaining the decision to proceed through the constitutional initiative process in an unsuccessful 2014 effort to legalize medical marijuana, the campaign manager for a coalition of supportive groups pointed to the Republican- controlled Florida legislature’s refusal “to take up medical marijuana bills fi led by Democrats in recent years” and argued, “The voters realize the Legislature has failed again and again on this issue.”34 The 2014 amendment attracted the support of nearly 58 percent of voters, but not enough to overcome the state’s 60 percent voter-approval threshold. When supporters turned back to the constitutional initiative process two years later, voters easily overcame the 60 percent threshold, with a Florida newspaper columnist lamenting during the campaign the “unwillingness of the Legislature to address this issue in any comprehensive way after 58 percent of the electorate voted for the last version of the amendment” and arguing that this “shows why a constitutional amendment is the only way this might ever move forward.”35 Affirmative-Action Limits Groups seeking to limit reliance on race and gender in public college admissions and government hiring and contracting secured passage of a handful of constitutional amendments from the 1990s onward. These amendments were adopted either through the initiative process or in circumstances where advocacy groups were preparing constitutional initiatives that pressured legislators to act. The prominent role of legislaturebypassing mechanisms in bringing about affi rmative-action limits is largely attributable to a disjunction between public support for limiting affi rmative action and legislators’ reluctance to advance these limits. Amendments banning affi rmative action have been approved in all but one case when they appeared on the ballot. But legislators have frequently been uncomfortable with taking the lead in advancing such limits, and they face powerful cross-pressures in deciding whether to support them. 36 In an effort spearheaded by Ward Connerly, a businessman and mem-

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ber of the University of California Board of Regents who went on to form the American Civil Rights Institute (ACRI), California voters in 1996 approved the fi rst anti-affi rmative-action amendment. 37 The ACRI and other critics of affi rmative action turned next to the statutory initiative process to pass a 1998 measure in Washington, a state that lacks a constitutional initiative process. This was followed by voter approval of citizen-initiated amendments in Michigan in 2006 and in Nebraska in 2008, 38 along with the lone voter rejection of such a measure, in Colorado in 2008. 39 Affi rmative-action limits have not been adopted entirely through initiative processes. But even in cases where they have been enacted by governors or advanced by legislators, these policies have generally come about in response to proposed or threatened initiatives. Florida governor Jeb Bush implemented such a policy by executive order in 1999, as a way of heading off an effort by the ACRI to qualify an amendment for the following year’s ballot through the initiative process.40 In Arizona and Oklahoma, legislators approved amendments for referral to voters after the failure of earlier efforts to secure passage of citizen-initiated amendments. In both states, the ACRI worked to gain enough signatures to qualify citizen-initiated amendments for the 2008 ballot but came up short.41 In this context, legislators in Arizona and Oklahoma approved amendments that were ratified by voters in 2010 and 2012, respectively, bringing to five the total number of states with constitutional provisions limiting affi rmative action.42 Stem- Cell Research In three states in the early 2000s, voters approved citizen-initiated amendments legalizing and supporting embryonic stem- cell research, generally with an eye to overcoming legislative opposition.43 In some states, legislators were prepared to enact statutes establishing and funding stem- cell research.44 But in other states, legislatures were unwilling to support stem- cell research and sometimes adopted or considered adopting statutes banning this research.45 In the face of state legislative resistance to policies that generally enjoyed broad public support, groups turned on three occasions to the constitutional initiative process.46 California voters adopted the fi rst stem- cell research amendment, in 2004. California legislators were prepared to permit stem- cell research but blocked efforts to fund it. In response, groups crafted and voters

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approved a citizen-initiated amendment adding a Medical Research Article to the California constitution. Among other things, the amendment “established the California Institute for Regenerative Medicine,” provided that the institute shall “make grants and loans for stem cell research,” and “established a right to conduct stem cell research.”47 In Missouri and Michigan, stem- cell research backers encountered even more resistance from legislators. The Michigan legislature adopted a ban on stem- cell research in 1998 and was unwilling to lift this ban.48 The Missouri legislature was considering enacting such a ban in the early 2000s.49 In an effort to overcome legislative opposition in a situation where this policy enjoyed public support, groups turned once again to the constitutional initiative process. Voters in Missouri in 2006 and Michigan in 2008 approved similarly phrased amendments stipulating that stem- cell research “permitted under federal law may be conducted” in each state. 50 Animal Welfare Groups opposed to various hunting, trapping, fishing, and farming practices have proposed and occasionally secured restrictions through the initiative process when legislators have resisted limiting these practices. Although a few animal-welfare initiatives were advanced in the early twentieth century, reliance on the initiative process intensified in the 1990s and early 2000s. 51 The Humane Society of the United States (HSUS) and other animal-welfare groups worked during this period to prohibit leghold traps, bear hunting, and close confi nement of pigs, calves, and hens, among other livestock practices. But they were often unsuccessful in state legislatures, in part, according to HSUS official Wayne Pacelle, because “policy makers are often among the last to recognize the currents of change in culture. It was not surprising then that state legislatures and executive agencies remained stubborn in their opposition to even modest reforms.”52 In response, as Pacelle explained, “Animal advocates have resorted to the initiative process after policy makers stonewalled popular reforms. For them, the initiative process has served as a safety valve, allowing popular sentiment to prevail over lawmakers bent on perpetuating the status quo.”53 Although most animal-welfare policies have been adopted through statutory initiative processes, groups have sometimes proceeded via constitutional initiative processes. In occasionally framing these policy

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changes as amendments, groups were sometimes responding to particular state rules governing initiative processes. In Florida, which permits initiated amendments but not initiated statutes, animal-welfare groups that were rebuffed in the legislature saw no alternative but to enact initiated amendments. They secured approval for a 1994 amendment prohibiting the use of “gill nets or other entangling nets”54 and a 2002 amendment making it illegal to “confi ne a pig during pregnancy in an enclosure, or to tether a pig during pregnancy, on a farm in such a way that she is prevented from turning around freely.”55 An additional reason for framing these policies as amendments was to insulate them from erosion at the hands of legislators. Backers of a 1990 California amendment, a Marine Resources Protection Act that enacted strengthened restrictions on use of gill nets by fishermen, 56 resorted to the initiative process because the legislature was unwilling to go far enough in limiting this practice. As amendment supporters explained in that year’s ballot guide, although the California legislature had “banned gill nets along our northern and central coasts,” “under pressure from the commercial fishing industry, the Legislature failed to extend this ban to southern California waters.” One purpose of this 1990 measure was therefore to “fi nish the job,” in the language of amendment supporters. Given a choice between taking the statutory initiative route or the constitutional initiative route, supporters chose to craft an amendment, so as to protect new and existing restrictions against efforts to weaken them, which would be possible if they rested on a statutory footing. As supporters argued in the ballot guide, “the Legislature can now lift the existing gill net ban in central and northern California waters at any time for any reason.” The amendment, which was approved by voters, would “make sure this doesn’t happen.”57 Animal-welfare groups have ample justification for their fear that statutory restrictions are at risk of reversal in legislatures. On various occasions when groups relied on the statutory initiative process to secure restrictions on hunting and animal- confi nement practices, these policies were targeted for “counterattacks” by hunting and farming groups that sought to weaken them, sometimes successfully. 58 For instance, a citizen-initiated 1992 Colorado statute restricting bear hunting was significantly weakened by subsequent legislation. 59 In response, animal-welfare groups in Colorado were led to resort to the amendment process, drafting and securing voter approval of a 1996 citizen-initiated

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amendment making it “unlawful to take wildlife with any leghold trap, any instant kill body-gripping design trap, or by poison or snare.”60 English Language State constitutional amendments have been a regular vehicle for enacting English-language policies, in cases where legislators are unwilling to advance measures enjoying broad public support, on account of a disjunction between elite and public opinion. Sometimes there has been no disjunction, or at least not to an extent that prevented legislators from advancing these policies. Nearly half of state legislatures have enacted statutes designating English as the language for official government communications.61 Meanwhile, on four occasions, legislatures drafted and voters approved English- only constitutional amendments: in Alabama (in 1990), Arizona (in 2006, after the state supreme court invalidated a 1988 citizen-initiated amendment), Missouri (in 2008), and Oklahoma (in 2010).62 On other occasions, however, groups have relied on other mechanisms for advancing these amendments, generally through initiative processes but occasionally via conventions. These convention-generated and citizen-initiated amendments have been enacted during two main periods when public support for Englishlanguage policies has been particularly strong: in the post–World War I era and around the turn of the twenty-fi rst century. Nebraska’s 1919– 20 convention approved an English-language amendment that was ratified by voters and marked the fi rst appearance of such a provision in a state constitution.63 The 1980s brought a resurgence of activity. Although groups were unable to secure much support for a federal constitutional amendment supporting English-language policies,64 they enjoyed more success at the state level, particularly via the constitutional initiative process. Voters approved citizen-initiated English-language amendments in 1986 in California and in 1988 in Colorado, Florida, and Arizona (in a measure later declared unconstitutional by the Arizona Supreme Court).65 In the 1990s and early 2000s, political entrepreneur Ron Unz and advocacy groups turned their attention to enacting policies requiring English-language instruction in public schools but encountered resistance from legislators who were reluctant to advance English-immersion instruction policies. In response, groups turned once again to the initiative

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process. Voters approved citizen-initiated statutes in California, Arizona, and Massachusetts. But the lone citizen-initiated amendment to appear on the ballot, in Colorado in 2002, was rejected at the polls.66

Right-to-Work Policy Right-to-work amendments limiting union security arrangements that require individuals to join a union or pay union dues as a condition of employment have been adopted in nine states. Voters approved amendments in Florida and Arkansas in 194467 and in Arizona, Nebraska, and South Dakota in 1946,68 all prior to the federal Taft-Hartley Act’s explicit authorization of state right-to-work policies in 1947. Then, after a dozen-year period when right-to-work policies were adopted primarily via legislative statutes,69 voters in Kansas in 1958 and Mississippi in 1960 approved right-to-work amendments.70 After another long hiatus, at a time when several additional right-to-work policies were adopted by legislative statutes, voters approved right-to-work amendments in Oklahoma in 2001 and Alabama in 2016.71 These right-to-work amendments were in some cases adopted through the initiative process in situations where supporters feared that labor unions wielded enough power to prevent their passage in the legislature. In fact, three of the amendments approved during the initial wave in 1944 and 1946 were placed on the ballot via the initiative process: in Arkansas, Arizona, and Nebraska. To be sure, business groups occasionally miscalculated the level of public support for right-to-work policies. Unable to secure legislative passage of right-to-work statutes and mistakenly attributing this failure to the disproportionate influence of unions in the legislative process, business groups resorted to the initiative process to place right-to-work amendments on the ballot in California in 1944, in Ohio, Colorado, and California in 1958, and in Missouri in 1978, only to see them all defeated.72 But in some instances, business groups proved correct in their assessment that legislative resistance to right-to-work policies was not an accurate reflection of public opinion and could be overcome by placing the question before voters through the constitutional initiative process. In other states, right-to-work amendments were advanced by legislatures. These measures could just as easily have been enacted as statutes, which is the route taken in two-thirds of the twenty- eight states that have

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adopted right-to-work policies.73 But constitutional amendments were seen as having several virtues. When right-to-work policies were adopted on a statutory basis, as was done in ten states in 1947, the year that Congress passed the Taft-Hartley Act,74 unions sought repeatedly to revisit the issue and occasionally secured the repeal of these statutes, whether by forcing a referendum and overturning a statute, as in Maine in 1948, or prevailing upon legislators to repeal recently enacted statutes, as in Delaware and New Hampshire in 1949.75 These repeal efforts continued in the 1950s. In Nevada, after business groups secured adoption of an initiated right-to-work statute in 1952, unions responded by qualifying repeal initiatives for the ballot in 1954 and 1956, although they were both unsuccessful.76 In Louisiana, unions enjoyed more success, when they responded to the legislature’s passage of a 1954 right-to-work statute by prevailing upon the legislature to repeal the law two years later and replace it with a narrower measure.77 Adopting right-to-work policies via constitutional amendments avoided these pitfalls by making it more difficult to weaken or repeal them. In part for this reason, six of the successful right-to-work amendments were framed by legislators who were motivated in part by a desire to insulate these policies from reversal. This includes the fi rst right-towork amendment to appear on a state ballot, in Florida, where legislators had multiple reasons for proceeding through the amendment process, not all of them rooted in a desire to insulate the policy from reversal.78 Legislatures in other states also framed successful right-to-work amendments, at times for the purpose of instituting right-to-work policies and at times to entrench previously passed statutes. Amendments in Florida, Kansas, and Oklahoma enacted right-to-work policies for the fi rst time in these states. In South Dakota, Mississippi, and Alabama, the legislature had already adopted a right-to-work statute, but passage of amendments served to entrench these policies against reversal.79 The key point in understanding the motivation for resorting to the amendment process is that right-to-work statutes have occasionally been repealed, but no right-to-work amendments have been repealed, despite various efforts to do so, as in Arkansas in 1976, when voters rejected a union-backed citizen-initiated repeal amendment.80 Another advantage of proceeding via the amendment process is to permit the public to participate directly in making policy on a contentious issue. When right-to-work advocates in Oklahoma in the early 2000s considered whether to enact a statute or rather frame a consti-

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tutional amendment for referral to voters, their initial preference was to pass a statute.81 But they were eventually led to take the amendment route, in part in response to arguments that such a significant policy change deserved to be submitted to the people. As the Tulsa World newspaper editorialized in the midst of a legislative debate in the 2001 session, “The Legislature could enact right to work as statute, but that would only mean a new fight over it every session. However, putting the measure on a statewide ballot would not only let the people decide this important question, but it would put the issue to rest for the foreseeable future.”82

Political Reforms Amendments have been adopted on a routine basis to enact reforms of the political process, especially with an eye to regulating campaign fi nance and lobbying.83 These policy reforms have been seen as particularly suitable for placement in constitutions, because legislators’ interests in maintaining their offices are not always consonant with the public interest in these areas. Groups seeking to enact contribution limits or lobbyist gift bans have found it especially necessary to proceed through amendment processes, which not only offer various means of bypassing resistant legislatures but also help to insulate these reforms against reversal at the hands of future legislators. Campaign-Finance Regulations Constitutional amendments regulating the conduct and fi nancing of campaigns have generally been adopted via the initiative process or at the instigation of conventions or commissions.84 To be sure, legislatures in many states have adopted statutes requiring disclosure of campaign contributions, imposing contribution limits, and establishing public-fi nancing systems. But dissatisfaction with the limited reach of these regulations has occasionally led groups to try to impose more stringent rules. At times, citizen-initiated statutes have been a vehicle to this end.85 But statutes can be reversed by legislators, especially when the regulations they impose confl ict with legislators’ interests in maintaining their offices. As a result, groups supporting these regulations have sometimes found it necessary to enact constitutional amendments.

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One approach followed in Oklahoma was to establish a commission to regulate campaign conduct. In 1990 Oklahoma voters approved a citizen-initiated amendment creating an ethics commission with wide-ranging powers. Among other things, the amendment directs the commission to “promulgate rules of ethical conduct for campaigns for elective state office and for campaigns for initiatives and referenda, including civil penalties for violation of these rules,” and stipulates that these rules shall take effect unless disapproved by the legislature.86 The amendment also empowers the commission to investigate and prosecute violations of the rules.87 Several other amendments require disclosure of contributions and expenditures. In fact, disclosure requirements were the focus of the fi rst campaign-fi nance provision to appear in a state constitution. In crafting Arizona’s inaugural constitution, delegates to the state’s 1910 convention included a provision stipulating that the legislature, “at its fi rst session, shall enact a law providing for a general publicity, before and after election, of all campaign contributions to, and expenditures of campaign committees and candidates for public office.”88 Similar amendments requiring legislators to adopt disclosure rules were adopted many decades later, via a convention-framed amendment in Rhode Island in 1973 and a rare case of a legislature-generated campaign-fi nance amendment adopted in Minnesota in 1980.89 In recent years, voters in some states have relied on the constitutional initiative process to implement specific disclosure rules that go well beyond what legislators have been willing to adopt. A Sunshine Amendment approved by Florida voters in 1976 marked the fi rst passage of a citizen-initiated amendment in that state. Among other rules, the measure requires officeholders and candidates to submit an annual statement disclosing their net worth, assets, liabilities, and sources and amount of income above $1,000.90 Oregon voters approved a wide-ranging 1998 citizen-initiated amendment requiring speedy disclosure of campaign contributions, but the Oregon Supreme Court invalidated this amendment on single-subject grounds.91 Amendments have also been a vehicle for establishing public-fi nance systems. To be sure, legislatures have occasionally adopted these programs via statutes. However, reform groups have occasionally found it necessary to resort to conventions or commissions to craft publicfi nance policies that are often seen as aiding challengers in their bid to unseat legislative incumbents and opposed by legislators for that reason.

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A convention- crafted amendment in Hawaii in 1978 made various changes to campaign-fi nance policy, including adding a provision requiring the legislature to “establish a campaign fund to be used for partial public fi nancing of campaigns.”92 Similar amendments directing legislators to establish public-fi nancing systems for state offices were approved in Rhode Island via a 1986 convention- crafted amendment and in Florida via a 1998 commission-submitted amendment.93 Contribution limits have been another focus of amendments, as groups have relied on the constitutional initiative process to enact stricter limits than legislatures are prepared to impose. A 1994 Oregon amendment barring out- of- district contributions was invalidated by the US Court of Appeals for the Ninth Circuit on federal constitutional grounds.94 But a 1996 Nevada amendment imposing a limit on individual contributions survived.95 Amendments limiting campaign contributions in 2002 in Colorado and in 2016 in Missouri are of particular interest in illustrating the advantages of proceeding through the amendment process. In Colorado, groups including Common Cause and the League of Women Voters tried in the early 1990s to persuade the legislature to enact campaignfi nance reforms. But they met with significant resistance, which they attributed to “legislators’ self-interest and the opposition of the powerful groups such as the Colorado Education Association that contributes heavily to legislative campaigns.”96 Eventually, the Colorado legislature passed a modest campaign-fi nance-reform law in its 1996 session, after Common Cause threatened to place a statutory initiative on the ballot.97 Even after passage of this legislative statute, “supporters of fi nance reform went ahead with the initiative because they viewed the legislature’s bill as very weak.”98 Voters in November 1996 approved the initiated statute, which imposed sweeping limits on campaign contributions and independent expenditures. This 1996 Colorado citizen-initiated statute encountered multiple challenges that eventually prompted passage of a 2002 citizen-initiated amendment. One challenge came in the form of a federal lawsuit leading to the invalidation of certain provisions. But the second challenge came from the state legislature, which revised the law in 2000 in response to the federal court’s concerns but also went beyond what was necessary to comply with the court decision and eliminated key components of the initiated statute. The Denver Post viewed this 2000 legislative revision as “gutting” the 1996 initiated statute. As a League of Women Voters

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official commented in the aftermath of this legislative session, “The legislature in general doesn’t like campaign fi nance reform.”99 At that point, Common Cause and the League of Women Voters resorted once again to the initiative process to try to restore the “gutted” provisions.100 But this time, as a way of preventing future legislative interference, they turned to the constitutional initiative process and secured passage of a sweeping 2002 amendment that added an entirely new “Campaign and Political Finance” article to the state constitution.101 A 2016 citizen-initiated Missouri amendment had a similar origin and purpose. Groups seeking to impose strict contribution limits secured passage of a citizen-initiated statute in 1994 that went further than the legislature was prepared to go in terms of restricting campaign donations. After protracted federal litigation, the strict contribution limits imposed via the initiative process were deemed in violation of the US Constitution, but the more lenient limits imposed by the legislature were permitted to stand. Then, a decade later, the Missouri legislature repealed these contribution limits altogether.102 With the aim of reinstating contribution limits and insulating them against legislative reversal, campaignfi nance-reform groups resorted to the constitutional initiative process and secured Missouri voters’ approval of a 2016 amendment imposing a cap on individual contributions to candidates, among other contribution limits.103 Lobbying Regulation Amendments have been a vehicle for enacting various lobbying reforms in the face of legislative intransigence. In the late nineteenth and early twentieth centuries, reformers were particularly concerned about eliminating free rail passes that were distributed to legislators and other officials with an eye to gaining influence over them.104 Legislators were at times prepared to enact statutes preventing railroads from handing out free passes. A few legislatures were even willing, in response to public pressure, to advance constitutional amendments banning this practice.105 But in other cases, reformers saw a need to resort to legislature-bypassing mechanisms to adopt amendments limiting free rail passes.106 Pennsylvania’s 1872– 73 convention and Arkansas’s 1874 convention crafted the fi rst constitutional provisions banning the practice. The Pennsylvania provision went so far as to bar distribution of free rail passes to “any person.”107 The Arkansas provision took the approach followed by nearly

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all other states, barring the granting of free passes “to any officer of this State, legislative, executive, or judicial.”108 Late nineteenth- and early twentieth- century conventions had numerous occasions to debate whether to leave it to legislators to bar free passes or whether constitutional amendments were warranted, with an exchange in New Hampshire’s 1902 convention illuminating the main arguments on both sides. On one hand, some New Hampshire convention delegates thought it was sufficient “to leave it to the good sense and sound judgment and honor of our legislators” to address the problem, as George Stone argued.109 Delegate Edwin Jones contended, similarly, that “action in this regard should be left to the legislature,” because it was “inexpedient to write into [the Constitution] a matter with which the legislature of the state has now full power to deal.”110 Although this view ultimately prevailed in this New Hampshire convention, the case for adopting an amendment proved compelling in other state conventions, where delegates concluded that legislators were unlikely to discontinue a practice that benefited them even as it harmed the public. As Eugene Hubbard argued in this New Hampshire convention in support of an ultimately unsuccessful effort to approve an amendment banning rail passes, “The corrupting influence, as far as the political influence of these free passes is concerned, is more than all other political influences combined.” Pointing to harms that New Hampshire residents had suffered on account of legislators’ access to free rail passes, in the form of railroad regulations that the legislature had failed to enact, Hubbard lamented that railroads had “manipulated our politics, corrupted our legislature, and defeated the ends of justice in many cases.”111 In the view of many delegates, legislators could not be counted on to eliminate the practice, nor could legislators be expected to hold fi rm against efforts to reinstate the practice. Legislators might, in response to public pressure, pass a statute banning free passes; but once the issue faded from public consciousness, legislators were inclined to weaken the ban through subsequent legislation. William Chandler noted in the same New Hampshire convention, “It is an evil, Mr. Chairman and gentlemen, which the people of this country have not been able to combat through the legislatures of the states by ordinary legislation, and therefore nine states of this Union have felt compelled to put in their Constitutions the prohibition of free transportation on their railroads.”112 As Chandler explained, the New Hampshire legislature passed a statutory ban in 1878 but three years later voted down an effort to tighten

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the ban and in 1897 went in the other direction of weakening the ban, by approving a statute “under the suspension of the rules” that opened a loophole in the original ban and made “legal the issuance of passes to the members of the legislature.”113 Although these arguments in support of a constitutional provision did not prevail in New Hampshire’s 1902 convention, they proved persuasive in a number of other turn- ofthe-twentieth- century conventions that adopted rail-pass bans.114 Reformers have also targeted a range of other ways that groups wield influence in the legislative process, with a particular concern in the early twenty-fi rst century with preventing legislators from accepting gifts from lobbyists or with requiring legislators to refrain from lobbying after leaving office. In many cases, legislatures have responded to public pressure and enacted statutes imposing these sorts of lobbying restrictions. But in a few cases, reformers have turned to the amendment process in order to overcome legislative resistance or to prevent future legislative interference. In 2006 Colorado reformers secured passage of an “Ethics in Government” amendment through the constitutional initiative process. Included in this wide-ranging measure is a rule prohibiting public officials from accepting gifts of more than $50 as well as a rule banning public officials from engaging in lobbying for two years after they give up their position, along with creation of an independent ethics commission to police these and other regulations.115 In Arkansas, reformers secured legislators’ support for advancing a similar gift ban and postservice lobbying ban, along with various contribution limits and other campaign-fi nance reforms, which were all packaged in one amendment, along with a provision relaxing legislative term limits, and approved by voters in 2014.116

Tax Policy Although tax-policy amendments are approved on a frequent basis, not all tax amendments are policy- enacting amendments. As discussed in prior chapters, some tax amendments constrain legislators’ ability to impose taxes, whereas others authorize certain taxes or permit certain exemptions. But other amendments, the focus of this section, initiate changes in tax policy, generally by increasing taxes and occasionally earmarking the revenue. These policy- enacting tax amendments have been adopted in various situations. At times, groups pass tax-

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hike amendments as a way of overcoming legislative supermajority requirements or gubernatorial vetoes that impede passage of these policies in the legislative process. In a second set of cases, measures raising taxes on particular products are framed as amendments, and generally adopted through the initiative process, in order to overcome resistance from powerful groups. In a third set of cases, amendments are enacted, again generally through the initiative process, when legislators are for various reasons reluctant to advance tax increases that enjoy public support. Finally, the amendment process is occasionally a vehicle for earmarking new or existing revenue sources for particular purposes, as a way of preventing legislative deviations from public priorities. To consider each of these motivating factors and provide examples of amendments passed in each case, groups and officials occasionally resort to the amendment process to secure tax increases unattainable in the legislative process on account of supermajority legislative-vote rules or gubernatorial vetoes. In several states, laws imposing or increasing taxes must meet a supermajority legislative threshold. But it is possible in some of these states to bypass these requirements by adopting a constitutional amendment increasing taxes.117 In 2010 Arizona governor Jan Brewer urged legislators to enact a temporary sales-tax increase to stave off cuts in education and other programs. But when the governor fell short of securing the two-thirds legislative vote required to pass statutory tax increases in Arizona, she prevailed upon legislators to approve the measure as a constitutional amendment, which requires support from a bare legislative majority and approval by a majority of voters.118 California governor Jerry Brown encountered a similar obstacle two years later. He supported a temporary increase in the sales-tax and income-tax rate for upper-income earners as a way of addressing a budget shortfall, but he was unable to secure support for his plan from the necessary two-thirds of legislators. In response, the governor and supportive groups turned to the constitutional initiative process and qualified a tax-increase amendment for the 2012 ballot, and it was approved by voters, as was a 2016 amendment that extended the income-tax increase for a dozen additional years.119 On other occasions, efforts to increase taxes through the legislative process secure enough support among legislators to meet constitutional requirements, only to be blocked by a gubernatorial veto. In Louisiana in 2011, a statute extending a cigarette-tax increase had enough support to clear the legislature but was vetoed by Governor Bobby Jindal.

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Supporters responded by adding this measure to a pending constitutional amendment,120 which does not need the governor’s signature, and submitted it to voters for approval.121 At times, supporters of tax increases, especially cigarette taxes, encounter resistance in the legislative process from powerful groups and have to resort to the initiative process to overcome these obstacles. Cigarette-tax-hike initiatives have generally been framed as statutes. But on some occasions, groups have crafted constitutional amendments, in part as a way of earmarking the cigarette-tax revenue for particular programs and ensuring that the revenue will not be used for nondesignated purposes. Some citizen-initiated cigarette-tax-hike amendments have been defeated at the polls. But they are occasionally successful, as in Colorado in 2004 and California in 2016, when voters approved amendments boosting the cigarette tax and dedicating the revenue to health programs.122 As these cigarette-tax-hike amendments demonstrate, amendments are a regular vehicle for simultaneously raising taxes and earmarking the revenue for particular programs. Combining these purposes (increasing taxes and earmarking the revenue) in one amendment is intended in part to overcome legislative opposition to tax increases, by highlighting the specific benefits that will flow from the added tax revenue. Another benefit—and this has occasionally led legislatures themselves to advance these amendments—is to ensure that this revenue will in fact be used as promised by future legislatures and not diverted to other purposes. A number of amendments have increased taxes and dedicated the revenue to conservation programs. In 1976, Missouri voters approved the fi rst amendment of this sort, a citizen-initiated amendment increasing the sales tax by one- eighth of 1 percent and earmarking the revenue “for the control, management, restoration, conservation and regulation of the bird, fish, game, forestry and wildlife resources of the state.”123 Almost a decade later, Missouri voters approved a separate 1984 amendment, in this case a legislature-generated amendment, increasing the sales tax by one-tenth of 1 percent and dedicating the revenue for “soil and water” conservation,124 albeit on a temporary basis that has to be renewed by voters periodically. Among other amendments of this sort that could be mentioned, legislatures crafted and voters approved similar amendments in Arkansas in 1996 and Minnesota in 2008 increasing the sales tax and earmarking the revenue for conservation programs as well as, in the case of Minnesota, arts and cultural heritage programs.125

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Another set of amendments has redirected existing revenue streams, often lottery proceeds, and designated some or all of the revenue for specific purposes. At times, these amendments were adopted via the initiative process as a way of adopting policies supported by the public but not necessarily embraced by legislators. For instance, a 1992 citizen-initiated amendment in Colorado created the Great Outdoors Colorado program and required that all revenue from a several-year- old state lottery be allocated to a range of environmental, wildlife, and parks programs.126 At other times, legislatures have been responsible for advancing these revenue-redirecting amendments, often in response to pressure from voters who are dissatisfied with the way legislators are allocating lottery revenue. In some states, lotteries were established with a promise that the proceeds would be used for certain designated purposes, but legislators began allocating the revenue for other programs. In response, the public demanded that legislators craft amendments requiring that lottery proceeds be used in whole or in part for certain programs.127 For instance, a 1990 Minnesota amendment requires at least 40 percent of revenue from a recently created lottery to be allocated to an environment and natural resources trust fund.128 In Virginia, voters in 2000 approved an amendment requiring that all lottery proceeds be spent on public education,129 after legislators in the dozen years prior to passage of the amendment had occasionally used the money for other purposes.130 Similarly motivated amendments have required other revenue sources to be spent only on related programs. Such is the purpose of legislaturecrafted amendments in Maine in 1992 and Iowa and West Virginia in 1996 requiring all money derived from fishing, hunting, and trapping licenses, fees, and permits to be spent on fish and wildlife programs.131 Along these lines, amendments have been adopted on a frequent basis earmarking revenue from gas taxes and other motor-vehicle-related taxes and fees for road construction and maintenance.132 A few amendments in the 1920s authorized the legislature to levy taxes or fees on motor vehicles and fuel to support road construction.133 Then, beginning in the 1930s, amendments were approved in nearly a third of the states explicitly prohibiting diversion of motor-vehicle-related tax and fee revenue from transportation programs.134 These nondiversion amendments have occasionally been proposed via the initiative process, in cases where legislators were seen as resisting a nondiversion policy.135 In most cases, though, legislators have been willing to craft these amendments.136 In advancing these nondiversion amendments, state legislators have

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occasionally debated whether these policies merit inclusion in state constitutions, with a gas-tax nondiversion amendment generating extended debate in Maine in 1943 in particular.137 Some Maine legislators inveighed against entrenching such a policy in the constitution. Senator Clifford McLaufl in made clear he had “no objection” to the current statute barring diversion of gas-tax revenue and said that he had “no idea whatsoever of diverting those funds.” But he did not want “this legislature or any future legislature to have their hands tied” by a constitutional provision.138 Senator George Brown argued, similarly, that it was unwise to “bind the hands of future legislators so that they cannot, in their wisdom, if it is deemed necessary, use any of this money in an emergency.”139 Joining these opponents in stressing his support for retaining the current statutory policy “that these funds should be devoted exclusively to highway purposes,” Senator Lauren Sanborn echoed his colleagues in explaining that no “member of the senate can know what changed conditions may present themselves to a future legislature which may make it seem vitally important that some of that money may be applied to some other use.” If a nondiversion policy was entrenched in the constitution and the need arose for another use of these funds, Sanborn argued, “it would be necessary then to invoke another resolve, have another amendment to the Constitution, more consumption of time, and for all we know, with all the injury and harm to the interests of the state which might ensue from such a delay.”140 Counterarguments in favor of placing these policies in state constitutions frequently proved more persuasive, not only in Maine, where the amendment was approved by the legislature and ratified by voters, but also in other states that approved amendments barring diversion of gastax revenue. During the 1943 Maine legislative debate, Senator Francis H. Friend noted that Maine voters had relied on the statutory initiative process five years earlier to adopt the current nondiversion policy, largely because the state did not have a constitutional initiative process. Based on recent legislative behavior, he argued, voters would have pressed for passage of a citizen-initiated amendment if such a process had been available in the state, because “in the past few sessions of the legislature there have been many very serious attempts to divert highway money and spend it for other purposes.” He noted that “in no case were these attempts successful. But they may be successful in the future.” In light of these recent efforts to divert this revenue and strong public support for a nondiversion policy, Senator Friend argued that it was important for the

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legislature to accomplish what the voters were unable to achieve, given the absence of a constitutional initiative process, by advancing a constitutional amendment that “would forestall any such attempts and would make it impossible to divert any of these highway funds.”141

Conclusion It is worth taking brief note of several other policy- enacting amendments before drawing some lessons from this analysis. This chapter has focused on policy- enacting amendments considered in multiple states, with the intent of examining the main policies enacted through the amendment process around the country. But one might also take note of amendments adopted on a one-time basis, as these can also be helpful in illuminating the motivations and perceived advantages of enacting policies through the amendment process. In part because Florida provides for a constitutional initiative process but does not allow for statutory initiatives, the state has been home to policy- enacting amendments with little parallel in other states. Voters approved citizen-initiated amendments in Florida on various occasions in the 2000s that adopted policies whose passage was blocked in the legislature by powerful groups and interests. This includes a 2002 amendment banning smoking in indoor workplaces, over the objections of tobacco companies;142 a 2004 amendment limiting the percentage of funds that plaintiffs’ lawyers can claim from medical-malpractice awards, passed over the objection of trial lawyers’ groups;143 and a pair of 2004 amendments providing for more disclosure of medical-malpractice judgments against doctors and taking away licenses from doctors after their third medical-malpractice incident,144 both passed over the objection of doctors’ groups. Citizen-initiated amendments were also a vehicle in 2002 for reducing class sizes and requiring expansion of prekindergarten programs,145 in circumstances where legislators were unwilling to advance policies backed by the public. Still other examples could be provided of one-time policy- enacting amendments in Florida and occasionally other states, especially states providing for the constitutional initiative process and in an accessible fashion. In turning now to consider the lessons to be drawn from a review of state policy- enacting amendments, one lesson is that groups and officials have generally advanced these amendments in response to perceived

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deficiencies in the political process. Some amendments are motivated by concerns that legislators’ interests are not consonant with the public interest and therefore certain policies, especially regarding campaignfi nance policy, can only be rendered secure through the amendment process. Other amendments, especially amendments prohibiting the sale of alcohol, increasing cigarette taxes, or barring union security agreements, have been advanced when policies backed by the general public are unattainable or insecure in the political process due to the influence of powerful groups, whether liquor interests, tobacco companies, or labor unions. Still other amendments have enacted policies such as marijuana legalization, affi rmative-action limits, and stem- cell funding, when a disjunction between elite and popular opinion or between legislator and public preferences has prevented adoption of policies supported by the public. In a fi nal set of cases, amendments have been a vehicle for overcoming institutional rules such as supermajority requirements or gubernatorial vetoes preventing adoption of policies, often tax increases, backed by the public. In considering the reasons for enacting policies through the constitutional amendment process rather than the political process, groups have concluded that amendment processes are sometimes the most effective means of securing adoption of certain policies. When groups seeking adoption of policies have met with resistance in the legislative process, they have turned to legislature-bypassing mechanisms, whether conventions, commissions, or initiative process, to elevate policy changes on the agenda and place them before voters. Conventions have occasionally advanced amendments bottled up in legislatures, as when turn- of-thetwentieth- century conventions crafted amendments barring free rail passes for public officials. At times, commissions have played a similar role, as when a Florida constitutional revision commission framed an amendment establishing public fi nancing for statewide offices. The initiative process has been a particularly important vehicle for securing passage of policies blocked in the legislative process, whether political reforms, social policies, labor-relations policies, or tax policies. Another advantage of proceeding through the amendment process rather than the political process is that policies are more secure against reversal when they are placed in the constitution. On various occasions, groups have responded to the repeal or weakening of policies adopted on a statutory basis by turning to the amendment process to place them on stronger ground. After temperance groups saw legislatures repeal

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some prohibition laws passed as part of the initial wave of measures in the 1850s, they began in the 1880s to press for adoption of prohibition amendments. Political reformers reached a similar conclusion after New Hampshire legislators weakened a statutory ban on free rail passes in the 1890s, thereby necessitating passage of a constitutional ban. Business groups drew a similar lesson from their experience with right-towork measures in the 1940s and 1950s. Although right-to-work statutes were occasionally repealed or weakened by subsequent legislatures, right-to-work amendments have in every case withstood efforts to bring about their reversal. The Humane Society learned a similar lesson in the 1990s, after initially securing passage of animal-welfare protection measures through the statutory initiative process, only to see their opponents prevail upon legislatures to delay or undermine enforcement of these laws. Campaign-fi nance-reform groups in Colorado and Missouri also came to this conclusion in the 2000s, after initially securing limits on campaign contributions through the statutory initiative process. When legislators repealed these limits, reform groups thought it necessary to pass citizen-initiated amendments with an eye to reinstating these limits and insulating them from reversal. Still another advantage of enacting policies through the amendment process is to ensure that the public has an opportunity to participate directly in making policy on particularly contentious and consequential issues. On various occasions, legislators face a choice of advancing policy changes through the statutory process or through the amendment process and have opted to frame these changes as constitutional amendments, not only as a way of entrenching these changes but also as a way of ensuring that the public would have a chance to approve important policies. This has been the case especially regarding alcohol prohibition and right-to-work policy, where legislators viewed amendments as preferable to statutes in part because of the benefits of securing express public sanction for consequential policies.

Part V Evaluation

Chapter Eight

Consequences of Relying on Amendments as Instruments of Governance

O

ne aim of this book has been to show that constitutional amendments are a regular means of changing the way states are governed. In making this case, I have sought to turn attention away from the federal government, which attracts the greater share of public and scholarly interest, to focus on state governments, which have long been responsible for much of the governance that takes place in America. I have also focused on constitutional amendments, a modest engine of change at the federal level but a prominent feature of state politics. Amendments have transferred authority among state governing institutions. They have updated defi nitions of rights on some occasions and overturned understandings of rights expressed in state court decisions on other occasions.  Amendments have also been a regular vehicle for securing policy changes, whether by limiting legislative discretion in areas where legislators are at risk of governing irresponsibly, authorizing passage of policies whose legitimacy is in doubt, or enacting policies unattainable or insecure in the political process. Another purpose of this book, to which I turn in a sustained fashion in this fi nal chapter, is assessing the consequences of relying on amendments as instruments of governance. Scholars who have assessed the advantages and disadvantages of relying on amendments as opposed to legislation or litigation have generally drawn on the experience under the US Constitution, with its inflexible amendment process,1 or that of other countries whose amendment processes exhibit varying degrees

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of flexibility. 2 But the prominent reliance on amendments in American states, which are surpassed by few polities around the world in their frequent resort to amendments, furnishes a valuable opportunity to contribute to this line of inquiry. In considering what difference it makes whether changes in governance are undertaken via amendments or through legislation or litigation, two main situations have to be considered, both of which are on prominent display in the states. In one set of cases, amendments secure different outcomes than are attainable through legislation or litigation, whether by producing a different balance of institutional power, yielding different understandings of rights, or securing different policies. One goal of this concluding chapter is to draw lessons about these different outcomes. In a second set of cases, similar outcomes are achieved through amendments, legislation, and litigation; but other consequences follow from proceeding through one or the other of these paths. On various occasions legislators are open to making certain changes via statutes, but the decision is nevertheless made, at times by legislators themselves and at other times by other officials and groups, to undertake these changes via amendments instead. On other occasions, judges are prepared to bring about certain changes via interpretation of constitutional texts; yet citizens, officials, and sometimes judges themselves conclude that these changes should come about instead through amendments. The determination to proceed through amendments rather than through legislation or litigation is often the product of significant deliberation, with arguments for and against proceeding via the amendment process considered at some length. Another goal of this chapter is to set out the advantages and disadvantages of proceeding through amendments rather than legislation or litigation, even when these various processes are likely to produce similar outcomes.

Outcomes of Amendment Processes Although groups and officials occasionally view the amendment process as an alternative to both legislative and judicial processes, for the most part backers of amendments view only one or the other as a viable option in any given situation. That is, in some cases groups conclude that success through legislation is unavailing and opt to resort to the amendment

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process, whereas in a separate set of cases they conclude that a goal is unattainable through the judiciary, thereby prompting resort to the amendment process. In taking stock of the distinctive outcomes generated by amendment processes, it therefore makes sense to consider separately the different outcomes produced by amendments compared with legislation and the different outcomes produced by amendments compared with litigation. Amendments Compared with Legislation Amendments are a regular means of achieving outcomes unattainable through legislation, in part because of the availability of legislaturebypassing amendment mechanisms. To be sure, legislatures generate the vast majority of state constitutional amendments approved each year. But this does not exhaust the means of placing amendments on the ballot. In all fi fty states, conventions can submit amendments to voters. In eighteen states citizens can initiate amendments. Commissions can also frame amendments, most notably in Florida, where they submit amendments directly to voters. Conventions, commissions, and citizens have advanced amendments that bypass legislatures in various circumstances. At times, amendments are adopted to overcome legislators’ self-interest when their desire to maintain their offices and prerogatives prevents passage of measures in the public interest. Other amendments are enacted when legislators are deemed overly susceptible to the influence of powerful groups. Amendments are also adopted when legislators are prone to act in a shortsighted fashion and without regard for the long-term interest of the polity. Still other amendments are advanced when legislators’ preferences diverge from citizen preferences because legislators are not attuned to their constituents or are out of step with them. As we have seen in preceding chapters, at times amendments produced a different balance of institutional power than was achievable through legislation, especially by transferring authority from legislatures to other institutions when legislators were not prepared to relinquish power voluntarily. Municipal home rule was fi rst achieved through a conventionapproved constitutional provision in Missouri in 1875 and then adopted in many other states through convention-framed amendments and occasionally via citizen-initiated amendments. Conventions also created commissions empowered to set railroad rates, as in California in 1879,

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and to regulate other corporations, as in Virginia in 1902. In later years, citizens occasionally relied on the constitutional initiative process to establish or strengthen conservation commissions, among other commissions. Convention-framed and citizen-initiated amendments have also vested in commissions the decennial task of drawing legislative districts, in the face of legislative resistance. Amendments have also produced different policies than are attainable through legislation. At times amendments have constrained legislators in policy areas where they are viewed as incapable of acting responsibly. For instance, New York’s 1821 convention crafted the nation’s fi rst lottery-ban provision, which was followed by convention-framed provisions in many other states banning state-sanctioned gambling. Meanwhile, Rhode Island’s 1842 convention adopted the nation’s pioneering debt-limit provision, the fi rst of many convention-framed provisions limiting legislatures’ ability to borrow money and in many cases requiring adoption of a balanced budget. In the late twentieth century, the constitutional initiative process was a vehicle for enacting tax-and-expenditure limitations, not only in California in 1978, where passage of Proposition 13 with its focus on property-tax limits attracted significant attention, but also in dozens of other states that enacted wide-ranging tax limitations. The constitutional initiative process has been a particularly potent tool for enacting policies that legislatures are not inclined to enact voluntarily. A number of alcohol prohibition amendments passed in the 1910s took the form of citizen-initiated amendments, as a way of overcoming resistance from liquor companies. In the 1940s, right-to-work policies were occasionally enacted via citizen-initiated amendments in the face of labor union resistance. Citizen-initiated amendments also enacted cigarette-tax hikes and smoking restrictions in the 2000s over the objections of tobacco companies. Citizen-initiated amendments also secured campaign-fi nance reforms and lobbying restrictions that legislators were disinclined to enact, in part because they threatened legislators’ offices and prerogatives. In still other cases, especially in the 2000s, citizeninitiated amendments adopted policies protecting animal welfare and legalizing marijuana when legislators were out of step with constituent preferences. These various instances when amendments generated different outcomes than legislation invite consideration of how to evaluate this record and whether reliance on amendments has contributed to good governance in this respect. Reasonable persons can disagree on the answers

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to these and other evaluative questions. My purpose is less to provide a defi nitive judgment about the superiority of one or the other position than to draw lessons from the record of state amendment activity about the main areas of scholarly disagreement, the competing claims, and the extent to which these claims can be supported. The main disagreements revolve around a pair of considerations. First, how significant are the failings in the political process that prompted passage of these amendments? Second, to what extent are these failings capable of being addressed without resort to amendments? From one perspective, the deficiencies in the political process that prompted passage of many legislature-bypassing amendments might be viewed as more episodic than enduring features of state politics. The panic of 1837 alone was responsible for a good portion of policyconstraining provisions in state constitutions, including amendments limiting legislatures’ power to borrow, invest in corporations, loan the credit of the state, and undertake internal improvements. Absent this economic downturn and the resulting defaults on state debt in the early 1840s, a number of fiscal-policy amendments might never have been adopted. From another perspective, though, these failings of the political process can be seen as rooted in and indicative of perennial challenges of governance. On this reading of the record, the panic of 1837 highlighted long-standing deficiencies in the behavior of legislatures and thereby prompted responses that would have eventually been forthcoming, if not at this moment in the nineteenth century, then at a later time. Moreover, legislatures have been shown to be incapable of securing the public interest in other ways that transcend particular eras, as illustrated by the perennial challenges of drawing legislative district lines without regard for incumbency and partisanship. As for the necessity of resorting to amendments to address these failings, the record can again be read in two ways, by showing that alternative means of relief are sometimes available but are in other cases not forthcoming. On one hand, legislation has been a viable path for addressing some deficiencies in the political process. Statutes were a vehicle in certain states for adopting municipal home rule, executive-budget systems, and regulatory commissions, even if passage of amendments was necessary to accomplish these goals in other states. Additionally, legislatures were willing in a fair number of states to adopt statutes banning lotteries and requiring balanced budgets, among other constraints

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that were adopted in other states via constitutional amendments. Legislation has also been adopted on numerous occasions when legislators’ self-interest, or group influence, or disjunctions between legislators’ and citizens’ preferences were so pressing as to necessitate passage of amendments in other states, as with campaign-fi nance reform, cigarettetax increases, and marijuana legalization. In each of these instances, legislatures in some states were willing to achieve similar outcomes via statutes as were achieved via amendments in other states, thereby suggesting that amendments are not essential for addressing deficiencies in the political process. On the other hand, legislation was unavailing in many cases and ineffective in others. This reading of the record would stress the ways amendments often went much further than statutes in addressing problems of governance. Consider the varied responses to problems associated with regulating railroad rates and drawing legislative district lines, to take two of many examples. It is true that some legislatures passed statutes establishing railroad commissions and redistricting commissions; but commissions adopted through legislation were generally weaker and less effective than arrangements established via amendments. This reading of the record would also highlight cases where legislation was rarely forthcoming, as with municipal home rule, which was heavily resisted by legislatures and generally adopted, if at all, via amendments. Amendments Compared with Litigation Amendments have on various occasions secured outcomes unattainable through litigation, and in a way that has generated much discussion, and no small amount of scholarly concern, particularly regarding protection of rights. These differences in outcomes are by no means confi ned to cases concerning individual rights. Amendments have also overturned or preempted judicial rulings regarding the distribution of institutional authority, as with home-rule and legislative-veto amendments that were adopted in response to contrary state court decisions. Other amendments have overturned or preempted judicial rulings concerning public policies, especially during the Progressive Era when amendments authorized maximum-hours, minimum-wage, and workers’ compensation acts in the face of court decisions blocking these policies. But the most prominent differences—and the ones that have occasioned the most scholarly discussion—concern individual rights.

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Conventions, legislators, and voters have regularly passed amendments recognizing or expanding rights in advance of state court decisions. Voters in two-thirds of the states approved amendments since the 1980s recognizing rights of crime victims, in circumstances where groups lacked confidence that state courts were sufficiently protective of these rights. Amendments limiting use of the eminent domain power were adopted in a dozen states in the early twenty-fi rst century, when groups concluded they could not count on state judges to provide the desired level of protection for property rights. Amendments have also been adopted in nearly two dozen states since the late twentieth century recognizing, clarifying, and extending the right to keep and bear arms, with an eye to achieving greater protection than state courts were prepared to provide. Amendments have also been advanced and on one occasion adopted to protect free exercise of religion, generally due to a lack of confidence that judges can be counted on to provide adequate protection. In other cases—and this use of the amendment process has generated a great deal of scholarly attention—amendments have responded to court decisions by overturning them or limiting their effect and thereby securing a different understanding of rights. Collisions between voters’ and legislators’ understandings of rights as expressed via amendments and judges’ understandings of rights as conveyed in court rulings are on most prominent display in regard to the death penalty. In a half dozen instances, state supreme courts interpreted state constitutional provisions regarding cruel and unusual punishment as barring the death penalty; but legislators and voters supported amendments reflecting a different understanding of these provisions and authorizing the death penalty. Collisions between amendments and court decisions have also been frequent and sometimes quite fierce regarding the meaning of a number of criminal-procedure guarantees. A handful of amendments overturned state court decisions interpreting search-and-seizure guarantees as preventing admission of certain evidence. Amendments in several states overturned state court interpretations of witness- confrontation guarantees, at times for the purpose of permitting child victims of sexual abuse to offer videotaped depositions or closed- circuit testimony. In fact, state court decisions interpreting criminal-procedure rights to limit prosecution and punishment of sexual offenses against children have generated a fair number of court- overturning amendments intended to facilitate prosecution and punishment of these crimes. Amendments have also preempted or overturned state court decisions

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regarding other rights. For instance, amendments were passed in thirtyone states from the late 1990s to the early 2010s in response to, and sometimes with an eye to preempting, state court decisions recognizing a right to same-sex marriage. Amendments have also been adopted in several states with an eye to permitting enforcement of abortion regulations such as parental-notification, waiting-period, and informed- consent provisions in the face of contrary state court rulings. Amendments have also responded to state court decisions interpreting religious- establishment guarantees. Judges have often interpreted religious- establishment provisions in a separationist fashion so as to limit public support of religious schools especially; but amendments have often reflected an accommodationist understanding that permits practices that judges were not inclined to allow. These instances when amendments produced outcomes at odds with court decisions lead naturally to the question of how to assess this record and whether it yields clear evidence regarding whether amendment processes contribute to good governance in this respect. Again, reasonable persons can disagree in assessing these outcomes. The disagreements center primarily on the value to be placed on the interpretations of rights advanced through amendments compared with the interpretations embodied in court decisions. The disagreements revolve, secondarily, around how to assess the case for amendments, as opposed to other mechanisms, in reconciling confl icts among judges, legislators, and citizens over different understandings of rights. As the record demonstrates, the disagreement is not helpfully framed along the lines of whether one prefers greater protection for rights (understood as flowing from court rulings) or diminished protection (associated with amendments). The relationship among amendments, court decisions, and rights is more complicated than this. In some cases, amendments recognize rights in advance of court decisions or extend protection beyond what is guaranteed by courts, as with victims’ rights, property rights, and the right to keep and bear arms. In other cases, amendments limit expansions of rights recognized through court decisions, as with rights to same-sex marriage and abortion. In still other cases, amendments and court decisions might be seen as simply reflecting different understandings of the same rights, as with bans on cruel and unusual punishment, various criminal-procedure guarantees, and religious liberty. In short, the record of state amendment activity yields clear differences in the understandings of rights recognized through

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amendment processes compared with court decisions. But the record does not establish—and reasonable persons can disagree about—which understandings should be privileged. Disagreement about the advisability of resorting to the amendment process on a regular basis also revolves around another matter: whether amendments are a necessary and appropriate means of overturning court decisions in cases where citizens’ and legislators’ understandings of rights confl ict with judges’ understandings. That is, to the extent that facilitating responses to court decisions might be deemed advisable— and this remains a disputed question—this invites further consideration of whether this should be achieved via amendments or through other means. On one hand, the record might be understood as showing that amendments are in a number of situations not necessary, because other institutions and avenues are available for responding to court decisions and bringing about changes in understanding of rights expressed in these decisions. This is particularly the case in thirty- eight states where judges stand for election. In these states especially, but even in states where judges are appointed, it is possible for citizens, groups, and officials to respond to court decisions by unseating judges responsible for issuing them, as was done in response to some death penalty and tort-reform decisions, to take several examples. However, the record might also be read in another fashion, as showing the ineffectiveness of other mechanisms for responding to state court rulings and the advisability of proceeding via amendments. As we have seen, groups encounter significant obstacles in trying to defeat judges and thereby change the composition and direction of state courts, given how rarely incumbent judges are defeated. Judicial elections are also a blunt instrument for bringing about changes in judicial interpretations of rights and are inferior in this regard to amendments, which are better targeted to overturning a particular court decision rather than having to unseat a number of judges, as would be necessary to produce a meaningful change in judicial doctrine.

Other Consequences of Proceeding via Amendment Processes Although amendments sometimes secure outcomes unattainable via legislation or litigation, amendments are also adopted in another set of

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situations where similar outcomes can be obtained through these various paths but the decision is nevertheless made to proceed through the amendment process. These decisions about whether to pursue amendments have been the subject of extensive deliberation in conventions, commissions, legislatures, and courts, and among the citizenry, in a way that permits an assessment of the advantages and disadvantages of proceeding through amendments or through legislation or litigation. Although participants in these debates have considered various possible consequences, they have focused primarily on the virtues of stability and legitimacy, the relative weight to be placed on these virtues, and how they are best secured. 3 Stability A chief consideration in deciding whether to proceed via the amendment process or through legislation or litigation is how to achieve the requisite degree of stability in governance. Legislatures and judges have at times expressed a willingness to achieve certain changes in governance, but supporters of these changes have urged that they be achieved through amendments, partly because statutes and judicial decisions fail for various reasons to provide adequate stability for changes in institutions, policies, and rights. In the ensuing debates, critics have pushed back against these claims and maintained that legislation and court decisions can indeed provide the proper level of stability. As we have seen, amendment backers have often prevailed in these debates, and in a way that reveals four main advantages of proceeding via amendments. A fi rst reason why amendments are seen as necessary to provide adequate stability for changes in governance stems from concerns that legislators might not be committed to maintaining these changes and may even have an interest in undermining them, thereby requiring that they be entrenched in constitutional provisions. Arguments of this sort— along with counterarguments about the advisability of making these changes by statutes—have been expressed on a regular basis. They surfaced during debates about establishing municipal home rule and enacting campaign-fi nance regulations, to take several leading examples. But these arguments were advanced with particular intensity whenever budget-related amendments have been proposed and questions have surfaced about whether to create executive-budget systems, impose

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balanced-budget requirements, adopt tax-and- expenditure limitations, or establish rainy- day funds. During debates about these various amendments, whether related to budgeting or other issues, some groups and officials could usually be found expressing sympathy for the proposed changes but objecting to relying on amendments to achieve them. They preferred that these arrangements be implemented via legislation rather than entrenching them in constitutions. As long as these arrangements rest on a statutory footing, according to this line of reasoning, legislators can more readily make improvements in response to lessons derived from experience, especially when dealing with innovative arrangements such as executivebudget systems. Additionally, insofar as these matters are worked out by statute, legislators can better respond to changing circumstances, such as economic downturns, that invite modification of arrangements such as balanced-budget requirements and rainy- day funds. Supporters of relying on amendments have not lacked for responses, preferring to stress the disadvantages associated with leaving these matters to be worked out via legislation. They have argued, and in a way that often proved persuasive, that placing these changes on a statutory basis might enable legislators to make improvements over time—but might be just as likely, or even more likely, to permit legislators to weaken them. In fact, amendment backers have argued, experience shows that when these kinds of changes are permitted to rest on a statutory basis, they often prove vulnerable to backsliding. One generation of legislators might be willing to relinquish power (as with municipal home rule), or enact reforms running counter to their own interests (as with campaign-fi nance regulations), or adopt a long-term perspective in place of short-term solutions (as with creation of rainy- day funds, trust funds, or other budget rules), but future legislators cannot be counted on to maintain these institutional arrangements and could well erode them. A second reason for relying on the amendment process is to protect changes from reversal due to pressure from powerful groups. At various times when changes have been considered by conventions, legislatures, and citizens, some persons have recommended that they be framed as statutes instead of amendments, in order to preserve flexibility of decision-making. In the face of these arguments, amendment supporters have generally responded, often successfully, that placing these changes on a statutory basis might allow for improvement but might just as well

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leave them susceptible to weakening or reversal under pressure from interested groups. These concerns about insulating changes in governance from pressure groups figured prominently in debates about establishing railroad commissions at the turn of the twentieth century and enacting animal-welfare protection at the turn of the twenty-fi rst century, to take several leading cases. Amendment supporters cited instances where railroad commissions and animal-welfare measures had initially been adopted on a statutory basis, only to be weakened or eliminated altogether under pressure from targeted groups, whether railroad companies or hunters and farmers, thereby eventually necessitating a turn to the amendment process to safeguard these reforms. A third reason for viewing amendments as achieving a desirable level of stability for changes is to guard against erosion due to shifts in public opinion. This concern surfaced in various debates but figured particularly prominently during debates about debt-limitation and anti-lottery amendments adopted in the nineteenth century. At conventions where debt-limit and lottery-ban measures were considered, one group of delegates maintained that reducing reliance on debt and lotteries was a desirable outcome, but it was unwise to entrench these bans in constitutions, because this would make it more difficult to borrow money or operate lotteries if future generations were to reconsider the propriety of these practices and determine that they were necessary. In fact, public opinion regarding debt and lotteries shifted significantly by the late twentieth century, to the point that limits on debt and lotteries eventually came to be seen as hamstringing later generations and were often repealed or weakened through late twentieth- century amendments. How to assess the reliance on amendments to adopt constraints on policy choices, in view of these experiences with shifting public opinion regarding debt and gambling? From one perspective, the need to resort to later amendments to overturn earlier limits could be seen as vindicating doubts about the wisdom of enacting these limits via the amendment process in the fi rst place. On the other hand, supporters of the early wave of amendments in each of these areas could view them as serving a beneficial purpose. The initial amendments did not erect insurmountable barriers to borrowing money or operating lotteries, as indicated by the passage of later waves of amendments authorizing these practices. Rather, the initial amendments placed hurdles in the way of these later efforts and therefore made it somewhat more difficult to engage in these practices, and appropriately so, by requiring a more arduous and

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deliberative procedure for reconsidering an earlier commitment to limiting these practices, and in a way that might be deemed desirable. A fourth and fi nal reason why amendments are seen as necessary to provide adequate security for changes—and this applies especially but not solely to changes in understandings of rights—is to guard against their reversal at the hands of judges. On various occasions, especially when conventions considered adopting privacy-rights provisions in the late nineteenth century and then again in the late twentieth century, some of the assembled convention delegates maintained that these amendments were unnecessary. They supported the goal of protecting privacy rights, but they maintained that judges had been willing and would continue to be willing to interpret broadly framed guarantees of individual liberty to encompass and extend protection for privacy rights in response to threats in the form of government searches, electronic surveillance, or limits on personal autonomy. On this view, updating and extending rights can safely be entrusted to judges. But supporters of adopting privacy-rights amendments—and other rights provisions that occasioned similar debate—prevailed in several of these conventions. Amendment supporters contended that adding explicit constitutional privacy provisions would be valuable in guiding and in some ways constraining future judges, who would no longer have to rely on expansive interpretations of generally phrased guarantees to protect privacy rights but could draw on and would in some ways be bound by explicit constitutional language. Legitimacy In deciding whether to make changes through amendments or through statutes or court rulings, discussion has also focused on the consequences for the legitimacy of the changes and the constitutional system overall. At various times when legislators or judges have been willing and able to make a given change by passing a statute or issuing a ruling, the choice has nevertheless been made, in some instances by legislators or judges themselves, to proceed instead through the amendment process, partly because this is seen as a more legitimate course of action and more likely to be viewed as legitimate by the citizenry. At the same time, critics of proceeding through the amendment process have invoked legitimacy concerns of a different kind, arguing that passage of amendments in situations when statutes or court rulings are viable alternatives risks erasing the distinction between constitutional law and other forms of law

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and thereby reducing respect for the constitution. Although amendment critics attracted some support when they advanced this position, arguments in favor of relying on the amendment process prevailed on a regular basis. The argument against adopting amendments when other mechanisms are available is grounded in concerns that frequent changes in a constitution’s text diminish its legitimacy. On this view, constitutions are most respected when they deal with fundamental matters and change infrequently, in the way Madison hoped that the US Constitution would be venerated. On numerous occasions in state convention debates, critics of proposed amendments invoked this understanding of legitimacy in trying to discourage passage of amendments. Although this understanding has long prevailed at the federal level, it has not been the dominant view in the states. The alternative view, which has proved persuasive to many state convention delegates, judges, and legislators, holds that legitimacy is best secured by ensuring that changes in governance are reflected in and take the form of changes in the text of the constitution. This understanding—that constitutional change should be embodied in textual changes to the constitution—was on prominent display, among other occasions, during turn- of-the-twentieth- century convention debates about establishing corporation commissions. In response to delegates who expressed support for creating corporation commissions but preferred that they be established on a statutory basis, supporters of corporation- commission amendments stressed that these institutions wielded a mix of legislative, executive, and judicial powers, in a way that challenged traditional separation- of-powers principles. On this view, the novelty of these commissions and the extent of their departure from traditional understandings of constitutional principles required that they be established via constitutional amendments, an approach taken in a number of states. A similar view of legitimacy is evident in state court opinions where judges declined to bring about shifts in interpretation of constitutional provisions on the ground that these changes would be viewed as more legitimate if they came about through constitutional amendments. On various occasions, state courts have been asked to permit denial of bail to persons posing a danger to the public safety, or to sustain state statutes authorizing juries of fewer than twelve persons, among other cases where rulings would bring about a change in a traditional understanding. In declining to undertake these and other changes through judicial

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reinterpretation of constitutional provisions, judges have occasionally argued that the amendment process is the more appropriate venue, in part because maintaining the sanctity of a written constitution requires that changes in the understanding of key principles be achieved by amending the text. On this view, constitutions are legitimate and are viewed by citizens as legitimate insofar as changes in constitutional principles come about through changes in constitutional texts that citizens have an opportunity to approve or disapprove. Constitutions are deserving of respect, according to this understanding, less because of their longevity and immutability than because constitutional changes are made through a process that clearly and publicly signals that changes are being undertaken and permits citizens to give or withhold their consent in a direct fashion. Arguments about this particular benefit of proceeding through the amendment process have been expressed with particular enthusiasm when changes of a controversial nature are considered, such as during debates about enacting alcohol prohibition. Legislatures in some states were prepared to adopt prohibition statutes; in fact, this was the dominant means of adopting prohibition in the mid-nineteenth century. During later waves of state prohibition activity in the late nineteenth and early twentieth centuries, however, legislators turned, increasingly, to adopt prohibition via constitutional amendments. In the view of prohibition supporters, because constitutional amendments must generally be approved in a popular referendum, measures enacted through the amendment process command the support of the public, in a way particularly appropriate when adopting momentous changes. This benefit of proceeding via amendments was by no means confi ned to controversial policies such as alcohol prohibition, or right to work, where similar arguments were advanced. Undertaking changes in constitutional understandings through the amendment process was seen as generally superior to making changes through the legislative process, where citizens are only indirectly represented, or the judicial process, where the level of popular consent and control is even more attenuated.

Conclusion My primary purpose in this book has been showing that state constitutional amendments are a regular instrument for bringing about changes

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in governance. I have been concerned with categorizing the use of amendments—not only showing that amendments can be grouped by whether they deal with institutions, rights, or policies but also distinguishing among various types of institutional, rights, and policy amendments. Amendments can alter institutions in two main ways: by changing the structure of institutions and means of selecting officials or by shifting authority among institutions and officials. Amendments can alter understandings of rights in either of two ways, whether defi ning rights in advance of court decisions or overturning understandings of rights expressed in court decisions. Policy amendments also take different forms, whether preventing passage of policies, initiating policies, or authorizing policies in the face of constraints preventing their adoption. In examining amendments adopted in each of these categories, I have sought at one level to explain why amendments are adopted routinely in states but are rare at the federal level. Regular passage of amendments to the fi fty state constitutions is attributable in part to the accessibility of state amendment processes. Legislature-generated amendments are in nearly all respects easier to enact in states than at the federal level. Some state constitutions also set out means of adopting amendments, such as constitutional initiative processes, that are not available at the federal level. But the relative flexibility of state amendment processes does not offer a full explanation. Officials, groups, and citizens also display a greater willingness to accept regular reliance on the amendment process in states than at the federal level, albeit to a greater degree in some states than others. Along with compiling a record of state amendment activity and explaining why groups and officials have resorted on a regular basis to passing state constitutional amendments regarding rights, institutions, and policies, I have also drawn lessons about the consequences of relying on amendments versus other mechanisms for undertaking changes in governance. A leading benefit of studying amendment activity in the states is that citizens and public officials have engaged in extensive debate about the merits of proceeding through the amendment process versus the political or judicial process. The main lesson to be drawn from this analysis is that relying on amendments might in certain respects be inferior to proceeding via legislation or litigation but might be considered superior in other respects, and in a way that renders this approach at least as attractive and in key respects preferable to alternative approaches to bringing about changes in governing authority.

Notes Introduction 1. Christopher G. Tiedeman, The Unwritten Constitution of the United States (New York: G. P. Putnam’s Sons, 1890), 42–45; John R. Vile, Constitutional Change in the United States: A Comparative Study of the Role of Constitutional Amendments, Judicial Interpretations, and Legislative and Executive Actions (Westport, CT: Praeger, 1994), 4; Mark A. Graber, A New Introduction to American Constitutionalism (New York: Oxford University Press, 2013), 161; Bruce Ackerman, The Civil Rights Revolution (Cambridge, MA: Harvard University Press, 2014), 32. 2. Vile, Constitutional Change in the United States, 63– 64. 3. Mark Tushnet, “Social Movements and the Constitution,” in Mark Tushnet, Mark A. Graber, and Sanford Levinson, eds., The Oxford Handbook of the U.S. Constitution (New York: Oxford University Press, 2015), 249– 50. 4. Howard Lee McBain, The Living Constitution: A Consideration of the Realities and Legends of Our Fundamental Law (New York: Macmillan, 1927), 25– 28; Gerard N. Magliocca, “Constitutional Change,” in Tushnet, Graber, and Levinson, eds., The Oxford Handbook of the U.S. Constitution, 914; Graber, A New Introduction to American Constitutionalism, 169– 72. 5. Mariah Zeisberg, War Powers: The Politics of Constitutional Authority (Princeton, NJ: Princeton University Press, 2013), 7–10. 6. Stephen M. Griffi n, American Constitutionalism: From Theory to Politics (Princeton, NJ: Princeton University Press, 1996), 28; McBain, The Living Constitution, 29– 31. 7. Mark A. Graber, “Resolving Political Questions into Judicial Questions: Tocqueville’s Thesis Revisited,” Constitutional Commentary 21 (2004): 485, 509–10. 8. Vile, Constitutional Change in the United States, 43–45. 9. Magliocca, “Constitutional Change,” 915.

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10. Vile, Constitutional Change in the United States, 45–46. 11. Carlo Fusaro and Dawn Oliver offer a useful way of understanding this phenomenon, when they distinguish between the questions of “how constitutions change” and “how constitutions are changed.” The latter might be seen as referring to formal changes achieved via constitutional amendment processes. But the former is a broader question encompassing formal changes achieved by passage of constitutional amendments as well as changes that are “informal and political as well as the product of the decisions by the courts.” Carlo Fusaro and Dawn Oliver, “Towards a Theory of Constitutional Change,” in Dawn Oliver and Carlo Fusaro, eds., How Constitutions Change: A Comparative Study (Oxford, UK: Hart Publishing, 2011), 407. 12. Kermit L. Hall, Harold M. Hyman, and Leon V. Sigal, eds., The Constitutional Convention as an Amending Device (Washington, DC: American Historical Association and American Political Science Association, 1981); John Kincaid, “State Constitutions in the Federal System,” Annals of the American Academy of Political and Social Science 496 (Mar. 1988): 12, 13; Kermit L. Hall, “The Irony of the Federal Constitution’s Genius: State Constitutional Development,” in Peter F. Nardulli, ed., The Constitution and American Political Development: An Institutional Perspective (Urbana: University of Illinois Press, 1992), 235, 240–41; G. Alan Tarr, ed., Constitutional Politics in the States: Contemporary Controversies and Historical Patterns (Westport, CT: Greenwood Press, 1996); G. Alan Tarr, Understanding State Constitutions (Princeton, NJ: Princeton University Press, 1998), 23– 24. 13. For several pioneering studies, see Donald S. Lutz, “Toward a Theory of Constitutional Amendment,” American Political Science Review 88 (June 1994): 355– 70; Vile, Constitutional Change in the United States, ch. 6. 14. Brannon P. Denning and John R. Vile, “The Relevance of Constitutional Amendments: A Response to David Strauss,” Tulane Law Review 77 (2002): 247, 274– 81; John O. McGinnis and Michael B. Rappaport, Originalism and the Good Constitution (Cambridge, MA: Harvard University Press, 2013), ch. 5; Magliocca, “Constitutional Change.” 15. Xenophon Contiades and Alkmene Fotiadou, “Models of Constitutional Change,” in Xenophon Contiades, ed., Engineering Constitutional Change: A Comparative Perspective on Europe, Canada, and the USA (New York: Routledge, 2013), 417– 68. 16. Griffi n, American Constitutionalism, 41–42; Kathleen M. Sullivan, “What’s Wrong with Constitutional Amendments?,” in Alan Brinkley, Nelson W. Polsby, and Kathleen M. Sullivan, New Federalist Papers: Essays in Defense of the Constitution (New York: Twentieth Century Fund, 1997), 61, 64. In recent articles, Mila Versteeg and Emily Zackin have explored the contrasting approaches evident in US federal and state constitutions as well as in other countries’ constitutions and have taken some steps to identify the consequences. See

Notes to Pages 5–6

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Mila Versteeg and Emily Zackin, “American Constitutional Exceptionalism Revisited,” University of Chicago Law Review 81 (2014): 1641–1707; Mila Versteeg and Emily Zackin, “Constitutions Unentrenched: Toward an Alternative Theory of Constitutional Design,” American Political Science Review 110 (2016): 657– 74. 17. Sanford Levinson, “Popular Sovereignty and the United States Constitution: Tensions in the Ackermanian Program,” Yale Law Journal 123 (2014): 2644, 2669. 18. Graber, A New Introduction to American Constitutionalism, 158– 59. 19. For instance, Tom Ginsburg and Eric Posner argue that “subconstitutions are weaker than regular constitutions. Because the superstate can reduce agency costs in the substate, constitutional structures in the substate are less important than they would otherwise be.” Tom Ginsburg and Eric Posner, “Subconstitutionalism,” Stanford Law Review 62 (2010): 1583, 1627. But Ginsburg and Posner acknowledge that in focusing on whether constitutions serve to “reduce agency costs,” they do not consider, save for in a footnote, “other functions of constitutions” aside from reducing agency costs that might apply equally to state and federal constitutions. Ibid., 1594, 1594 n. 29. John O. McGinnis and Michael B. Rappaport identify several reasons why lessons drawn from studying state constitutional change are inapplicable to federal constitutions. “State constitutions exist within a federal system,” so that “citizens can exit states more easily,” and “the populations of states are also more homogeneous than those of constitutional republics,” in ways that make it less important to design institutional arrangements to reflect “consensus,” their principal scholarly concern. McGinnis and Rappaport, Originalism and the Good Constitution, 74. Cheryl Saunders is more equivocal, noting that “state constitutions differ from the national constitutional paradigm both because of their subordination to the federal constitution and because there is a range of doctrinal, theoretical and practical objections to sourcing the authority for such constitutions in the people of the respective states,” even while concluding that the “impediments to according constitutional status to [them] are diminishing.” Cheryl Saunders, “The Constitutional Credentials of State Constitutions,” Rutgers Law Journal 42 (2011): 853, 869, 879. 20. See, for instance, Walter F. Dodd, The Revision and Amendment of State Constitutions (Baltimore: Johns Hopkins Press, 1910); James Q. Dealey, Growth of American State Constitutions from 1776 to the End of the Year 1914 (1915; New York: Da Capo Press, 1974). 21. A recent book by Emily Zackin analyzing adoption of state constitutional workers’ rights, environmental-protection, and education provisions performed an important service in this and other ways by demonstrating the importance of state constitutional amendments and their varied purposes, including some purposes that are not consistent with the dominant court- centered scholarly understanding of constitutional change. Emily Zackin, Looking for Rights in All

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the Wrong Places: Why State Constitutions Contain America’s Positive Rights (Princeton, NJ: Princeton University Press, 2013). 22. For studies that explore the consequences of state constitutional provisions and governance in the states, see the contributions to G. Alan Tarr and Robert F. Williams, eds., State Constitutions for the Twenty- First Century, vol. 3, The Agenda of State Constitutional Reform (Albany: State University of New York Press, 2006).

Chapter One 1. Walter F. Dodd, The Revision and Amendment of State Constitutions (Baltimore, MD: Johns Hopkins Press, 1910), 120– 21. 2. New Jersey’s 1776 constitution made explicit mention of certain articles that could not be altered, in phrasing that could be seen as implying other articles could be altered. However, it did not set out an explicit procedure for enacting amendments. On this point, see Willi Paul Adams, The First American State Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era (Chapel Hill: University of North Carolina Press, 1980), 140; Marc W. Kruman, Between Authority and Liberty: State ConstitutionMaking in Revolutionary America (Chapel Hill: University of North Carolina Press, 1997), 56. 3. Delaware Constitution (1776), art. 30. 4. Maryland Constitution (1776), art. LIX. Maryland’s constitution also set out a specific provision for amendments dealing with the Eastern Shore, by requiring approval by two-thirds of both houses of the legislature for any amendments dealing with that part of the state. 5. Dodd, Revision and Amendment of State Constitutions, 122– 23. 6. Ibid., 125. 7. Connecticut Constitution (1818), art. 11. 8. Maine Constitution (1820), art. X, sec. 2. 9. Dodd, Revision and Amendment of State Constitutions, 130. 10. Data and information regarding amendment procedures discussed in this paragraph are drawn from “Constitutional Amendment Procedure: By the Legislature,” Book of the States 2017 (Lexington, KY: Council of State Governments, 2017), tbl. 1.2. 11. In addition to the nine deviating states discussed in this paragraph, in Nebraska amendments must obtain the support of a majority of voters casting ballots on the amendment, and the number of voters supporting the amendment must amount to at least 35 percent of the voters casting ballots in the entire election.

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12. Amendments repealing in whole or in part any provision of the constitution can still be approved by a simple majority. Colorado Constitution (1876), art. V, sec. 1; art. XIX, sec. 2 (amended 2016). 13. Amendments providing for a new tax or fee not in effect as of 1994 must meet an even higher bar: ratification by two-thirds of voters on the amendment question. Florida Constitution (1969), art. XI, sec. 7 (adopted 1996). 14. John Dinan, “21st Century Debates and Developments regarding the Design of State Amendment Processes,” Arkansas Law Review 69 (2016): 283, 287. 15. In 1974 Oklahoma became the most recent state to dispense with the majority-in-the- election requirement. Oklahoma Constitution (1907), art. XXIV, sec. 1 (amended 1974). 16. An 1898 Minnesota amendment replaced a long-standing majority- onthe-amendment rule with the current majority-in-the- election rule. Minnesota Constitution (1858), art. IX, sec. 1 (amended 1898). 17. After making a 1996 change to require any amendments establishing or increasing taxes not in effect as of 1994 to be ratified by two-thirds of voters in the entire election, Florida voters in 2006 required all other amendments to be ratified by 60 percent of voters on the amendment. Florida Constitution (1969), art. XI, sec. 5(e) (adopted 2006). A 2016 Colorado amendment stipulates that any amendment that does not repeal an existing constitutional provision must be ratified by 55 percent of voters on the amendment. Colorado Constitution (1876), art. V, sec. 1; art. XIX, sec. 2 (amended 2016). On the motivation for recent efforts to increase voter-ratification requirements, see Dinan, “21st Century Debates and Developments regarding the Design of State Amendment Processes,” 293– 95. 18. The exceptions are as follows: In Connecticut, the legislature can place an amendment on the ballot by a majority vote in two sessions; alternatively, the legislature may place an amendment on the ballot by a three-fourths vote in one session. In New Mexico, amendments dealing with the elective franchise and certain education matters must be approved by the legislature by a three-fourths vote (and also by three-fourths of the voters). 19. Gerald Benjamin and Thomas Gais have argued that for this reason, legislature-generated amendment processes in each of these states “are more difficult than that in the U.S. constitution.” Gerald Benjamin and Thomas Gais, “Constitutional Conventionphobia,” Hofstra Law and Policy Symposium 1 (1996): 53, 66. 20. The states are Delaware, Indiana, Iowa, Massachusetts, Nevada, New York, South Carolina, Tennessee, Vermont, Virginia, and Wisconsin. 21. The specific rules regarding the maximum number of amendments per election or session are as follows: Arkansas (three legislature-referred amendments per election), Kentucky (four amendments per election), Kansas (five

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amendments per election), Illinois (amendments can address no more than three articles), and Colorado (the legislature can consider amendments to no more than six articles in one session). 22. John J. Dinan, The American State Constitutional Tradition (Lawrence: University Press of Kansas, 2006), 313 n. 132. 23. Power v. Robertson, 130 Miss. 188 (1922). 24. Dinan, The American State Constitutional Tradition, 313 n. 132. 25. Ibid. 26. Ibid. 27. The rules discussed in this paragraph are detailed in “Constitutional Amendment Procedure: By Initiative,” Book of the States 2017 (Lexington, KY: Council of State Governments, 2017), tbl. 1.3. 28. North Dakota requires signatures equal to 4 percent of the population. 29. Nebraska requires signatures equal to 10 percent of registered voters. 30. Florida requires signatures equal to 8 percent of voters for president. 31. Colorado requires signatures equal to 5 percent of voters for secretary of state. 32. California, Illinois, Missouri, and Oregon. 33. Arkansas, Michigan, Montana, Ohio, and South Dakota. 34. These states are Arkansas, Colorado, Florida, Massachusetts, Mississippi, Missouri, Montana, Nebraska, Nevada, and Ohio. These rules generally specify that no more than a certain portion of signatures can come from a single county or legislative district or require at least a certain portion of signatures to come from a specified fraction of counties or legislative districts. These requirements range from rules specifying that no more than one-fourth of the signatures can come from a single county (as in Massachusetts) or no more than one-fi fth can come from any one congressional district (as in Mississippi) to more complex rules requiring a certain number of signatures to be collected in each of one-half of the counties (as in Ohio) or in each of one-half of the congressional districts (as in Florida) or in each of the state’s senate districts (as in Colorado). 35. These federal court cases are discussed in Henry S. Noyes, The Law of Direct Democracy (Durham, NC: Carolina Academic Press, 2014), 256. In fact, some states that previously applied such requirements to statutory initiative processes have ceased enforcing them, as in Idaho in the aftermath of a federal district court ruling upheld by the US Court of Appeals for the Ninth Circuit, in Idaho Coalition United for Bears v. Cenarussa, 342 F.3d 1073 (9th Cir. 2003). However, all of the states applying geographic- distribution requirements to their constitutional initiative processes are still enforcing them. In Montana and Nevada, states have complied with federal court rulings regarding the validity of geographic- distribution requirements for citizen-initiated amendments by replacing distribution requirements based on counties (which differ dramatically in population) with distribution requirements based on legislative or

Notes to Pages 17–18

287

congressional districts (which must be equal in population). After a federal district court in Montana Public Interest Research Group v. Johnson, 361 F. Supp. 2d 1222 (D. Mont. 2005), invalidated a 2002 amendment requiring signatures to be collected from at least 10 percent of voters in at least half of the counties in the state, the state attorney general advised that the prior requirement would remain in effect, whereby signatures have to be collected from at least 10 percent of voters for governor in at least two-fi fths of the state’s legislative districts. In Nevada, the US Court of Appeals for the Ninth Circuit in 2006 struck down a long-standing provision requiring signatures to be collected from at least 10 percent of voters in the last general election in thirteen of the state’s seventeen counties. ACLU of Nevada v. Lomax, 471 F.3d 1010 (9th Cir. 2006). After the state legislature revised the requirement in 2007 to apply to all seventeen counties, this requirement was also invalidated, in 2008, this time by a federal district court. Marijuana Policy Project v. Miller, 578 F. Supp. 2d 1290 (D. Nev. 2008). The legislature revised the requirement once again, in 2009, and this time, in response to suggestions in the prior federal court rulings, by requiring signatures to be collected from at least 10 percent of voters in each of the state’s congressional districts. The US Court of Appeals for the Ninth Circuit upheld this requirement in a 2012 ruling, Angle v. Miller, 673 F.3d. 1122 (9th Cir. 2012). 36. Nevada also had an indirect constitutional initiative process until 1962. Michael W. Bowers, The Nevada State Constitution, 2nd ed. (New York: Oxford University Press, 2014), 169. 37. Massachusetts Constitution (1780), Articles of Amendment, art. XLVIII (adopted 1918). 38. Mississippi Constitution (1890), art. 15, sec. 273 (6) (7). 39. Data in this paragraph are drawn from “Procedures for Calling Constitutional Conventions,” Book of the States 2017 (Lexington, KY: Council of State Governments, 2017), tbl. 1.4. 40. Such is the case with Illinois’s rule requiring ratification by three-fi fths of voters on the question or a majority of voters in the election, Nebraska’s requirement that amendments be ratified by a majority of voters on the question and that this majority must amount to at least 35 percent of voters in the election, Florida’s recently adopted 60 percent voter-ratification rule for approving most amendments, and Colorado’s recently adopted 55 percent voter-ratification rule for approving most amendments. 41. Massachusetts requires that initiated amendments secure a majority of voters on the amendment question and that this majority amount to at least 30 percent of voters in the election. Mississippi maintains a similar rule, albeit with a requirement that the majority voting for the amendment amount to at least 40 percent of voters in the election. 42. Bowers, Nevada State Constitution, 170. 43. These limits are detailed in Gerald Benjamin, “Constitutional Amend-

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ment and Revision,” in G. Alan Tarr and Robert F. Williams, eds., State Constitutions for the Twenty- First Century, vol. 3, The Agenda of State Constitutional Reform (Albany: SUNY Press, 2006), 189– 90; John Dinan, “State Constitutional Initiative Processes and Governance in the 21st Century,” Chapman Law Review 19 (2016): 61, 102–4. 44. Illinois permits use of the constitutional initiative process only to address “structural and procedural subjects” contained in the legislative article. Illinois Constitution (1971), art. XIV, sec. 3. 45. Mississippi prohibits use of the constitutional initiative process for “the proposal, modification or repeal of any portion of the Bill of Rights,” or amending or repealing any constitutional provision “relating to the Mississippi Public Employee’s Retirement System,” or altering the right-to-work provision of the state constitution, or modifying the constitutional initiative process itself. Mississippi Constitution (1890), art. 15, sec. 273(5) (amended 1992). Massachusetts sets out a detailed list of proscribed topics, including religion; tenure, removal, or recall of judges; reversal of judicial decisions; specific appropriations; and various rights protected in the state declaration of rights such as freedom of speech, press, and peaceable assembly, trial by jury, and freedom of elections. Massachusetts Constitution (1780), Articles of Amendment, art. XLVIII, part II, sec. 2 (adopted 1918). Missouri does not allow initiatives “to be used for the appropriation of money other than of new revenues created and provided for thereby.” Missouri Constitution (1945), art. III, sec. 51. Arizona initiatives that appropriate funds must “provide for an increased source of revenues sufficient to cover the immediate and future costs of the proposal.” Arizona Constitution (1912), art. IX, sec. 23 (adopted 2004). As a result of a recent change, Ohio’s constitution designates for special treatment initiated amendments creating monopolies or otherwise conferring commercial benefits on persons or entities not “available to other similarly situated persons or nonpublic entities.” Ohio Constitution (1851), art. II, sec. 1 (amended 2015). 46. Twentieth- century changes making these processes more accessible are noted in Dinan, “21st Century Debates and Developments regarding the Design of State Amendment Processes,” 289– 90. Twenty-fi rst- century changes are discussed in ibid., 296– 305. 47. Geographic distribution requirements were tightened in Montana in 2002 and instituted in Colorado in 2016. Earlier deadlines for submitting signatures were approved in Florida in 2004, Ohio in 2008, and North Dakota in 2014. 48. Subject limits were approved in Arizona in 2004 and Ohio in 2015. 49. Dinan, “State Constitutional Initiative Processes and Governance in the 21st Century,” 104– 7. 50. This process of experimentation is described in Kruman, Between Authority and Liberty, ch. 2. 51. Dodd, Revision and Amendment of State Constitutions, 6–10.

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52. For a list of state constitutions approved without being submitted to voters for ratification, see Albert L. Sturm, Thirty Years of State Constitution- Making: 1938–1968; With an Epilogue: Developments during 1969 (New York: National Municipal League, 1970), tbl. 1, 7– 9. The late nineteenth- and early twentiethcentury constitutions that were promulgated by conventions without voter ratification are Delaware’s 1897 constitution; Louisiana constitutions of 1898, 1913, and 1921; Mississippi’s 1890 constitution; South Carolina’s 1895 constitution; and Virginia’s 1902 constitution. 53. Kruman, Between Authority and Liberty, 55, 57. 54. Pennsylvania Constitution (1776), sec. 47; Vermont Constitution (1777), sec. XLIV. 55. Lewis Meador, “The Council of Censors,” Pennsylvania Magazine of History and Biography 22 (1898): 265– 300. 56. Andrew E. Nuquist and Edith W. Nuquist, Vermont State Government and Administration: An Historical and Descriptive Study of the Living Past (Burlington: Government Research Center, University of Vermont, 1966), 30– 32. 57. Georgia Constitution (1777), art. LXIII. 58. Massachusetts Constitution (1780), pt. 2, ch. 6, art. X. 59. New Hampshire Constitution (1784), pt. II, art. 99. 60. New Hampshire Constitution (1784), pt. II, art. 100 (amended 1792). For the next 170 years, this was the only means of amending New Hampshire’s constitution. It was not until 1964 that New Hampshire became the fi nal state to adopt a legislature-generated amendment process, but without dispensing with the periodic convention referendum. The one change made at that time in the convention referendum procedure was lengthening the interval between convention referenda from seven years to ten years. John Dinan, “The Political Dynamics of Mandatory State Constitutional Convention Referendums: Lessons from the 2000s regarding Obstacles and Pathways to Their Passage,” Montana Law Review 71 (2010): 395, 402. 61. Dodd, Revision and Amendment of State Constitutions, 48. 62. Delaware Constitution (1792), art. X. 63. Tennessee Constitution (1796), art. 10. 64. States vary in their procedures regarding legislative and popular approval of convention calls. In terms of legislative approval, fi fteen states permit the legislature to submit a convention question to voters upon a two-thirds legislative vote. Two states allow legislative submission of a convention question to voters upon a three-fi fths legislative vote. Another seven states permit the legislature to call a convention without any need to submit a convention question to voters, whether by a three-fourths, two-thirds, or majority legislative vote. In the remaining states, legislatures can submit a convention question to voters by a majority legislative vote. As for voter approval of convention questions where

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voter approval is required, most states require approval by a majority of voters on the question; but ten states set a higher bar, generally by requiring approval by a majority voting in the election. See “Procedures for Calling Constitutional Conventions.” 65. The states are Arkansas, Indiana, Massachusetts, Mississippi, New Jersey, North Dakota, Pennsylvania, Texas, and Vermont. G. Alan Tarr and Robert F. Williams, “Foreword: Getting from Here to There: Twenty-First Century Mechanisms and Opportunities in State Constitutional Reform,” Rutgers Law Journal 36 (Summer 2005): 1075, 1078 n. 12. 66. Christian G. Fritz, American Sovereigns: The People and America’s Constitutional Tradition before the Civil War (New York: Cambridge University Press, 2008). For discussion of and references to many of the conventions that were called in the absence of constitutional provisions explicitly authorizing them, see Roger S. Hoar, Constitutional Conventions: Their Nature, Powers, and Limitations (Boston: Little, Brown, 1917), ch. 4. 67. The development of this device is discussed in Robert J. Martineau, “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– 55. 68. Dinan, “The Political Dynamics of Mandatory State Constitutional Convention Referendums,” 399. 69. Ibid., 400. Two other states—Indiana and Virginia—instituted this device in the nineteenth century, in 1816 and 1870, respectively, only to repeal it several decades later in each case. Ibid., 401. 70. Ibid., 400. 71. Ibid., 402. 72. Ibid. 73. “Procedures for Calling Constitutional Conventions.” 74. For a review of this debate and some of the relevant provisions and court decisions, see Tarr and Williams, “Getting from Here to There,” 1085– 92. 75. Ibid., 1086. 76. Ibid.; Benjamin, “Constitutional Amendment and Revision,” 194. Among other limits on the substance or timing of conventions, Tennessee’s constitution stipulates that conventions cannot be held more often than once every six years. Tennessee Constitution (1870), art. XII, sec. 3. 77. On these various roles, see Peter J. Galie and Christopher Bopst, “Changing State Constitutions: Dual Constitutionalism and the Amending Process,” Hofstra Law and Policy Symposium 1 (1996): 37, 40–46. 78. Peter J. Mazzei and Robert F. Williams, “Traces of Its Labors”: The Constitutional Commission, the Legislature and Their Infl uence on the New Jersey State Constitution, 1873–1875 (Trenton, NJ: Office of Legislative Services, 2012), 6– 7.

Notes to Pages 22–23

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79. Ibid., 7; Dodd, Revision and Amendment of State Constitutions, 262. 80. Robert F. Williams, “Are State Constitutional Commissions Things of the Past? The Increasing Role of the Constitutional Commission in State Constitutional Change,” Hofstra Law and Policy Symposium 1 (1996): 1, 20– 21. Constitutional commissions operating from 1965 to the present are detailed in Vladimir Kogan, “The Irony of Comprehensive State Constitutional Reform,” Rutgers Law Journal 41 (2010): 881, 898– 905. 81. For the most part, advisory commissions are ad hoc bodies; but in Utah, the legislature eventually established an ongoing commission. In 1969 the Utah legislature created the Utah Constitutional Revision Study Commission as a temporary commission, which in 1977 was turned into a permanent body, eventually renamed the Utah Constitution Revision Commission, that retained its charge of recommending amendments to the legislature and evaluating amendments under consideration in the legislature. John Dinan, “State Constitutional Developments in 2012,” in Book of the States 2013, vol. 45 (Lexington, KY: Council of State Governments, 2013), 4. 82. Commissions drafted new constitutions for Georgia in 1945, 1976, and 1983, Florida in 1968, and Virginia in 1971. See Tarr and Williams, “Getting from Here to There,” 1083– 84. 83. Ibid., 1094– 96. 84. The current provision is at Rhode Island Constitution (1986), art. XIV, sec. 2. 85. Tarr and Williams, “Getting from Here to There,” 1097– 98. 86. Rebecca Mae Salokar, “Constitutional Revision in Florida: Planning, Politics, Policy, and Publicity,” in G. Alan Tarr and Robert F. Williams, eds., State Constitutions for the Twenty- First Century, vol. 1, The Politics of State Constitutional Reform (Albany: State University of New York Press, 2006), 22. 87. Ibid., 22– 23. 88. The amendments generated by these Florida commissions in recent decades are discussed in John Dinan, “Accounting for Success and Failure of Southern State Constitutional Reform, 1978– 2008,” Charleston Law Review 3 (2009): 483, 497– 501. 89. “General Information on State Constitutions as of January 1, 2017,” Book of the States 2017 (Lexington, KY: Council of State Governments, 2017), tbl. 1.1. 90. Calculated from the data presented in ibid. 91. In calculating the amendment rate in this fashion—that is, taking the total number of adopted amendments divided by the number of years the current constitution has been in effect—I follow most other scholars working in this area. See, for example, Donald S. Lutz, “Toward a Theory of Constitutional Amendment,” American Political Science Review 88 (1994): 355– 70; Bruce E. Cain, Sara Ferejohn, Margarita Najar, and Mary Walther, “Constitutional Change: Is

292

Notes to Pages 23–27

It Too Easy to Amend Our State Constitution?,” in Bruce E. Cain and Roger G. Noll, eds., Constitutional Reform in California: Making State Government More Effective and Responsive (Berkeley, CA: Institute of Governmental Studies Press, 1995), 265– 90. For an endorsement of this approach to calculating state amendment rates, see G. Alan Tarr, Understanding State Constitutions (Princeton, NJ: Princeton University Press, 1998), 36 n. 34. This is not the only approach that could be taken, though. For studies that take a different approach and focus on whether any amendments were adopted by a state in a given year and therefore calculate the amendment rate by taking the total number of years that any amendments were approved divided by the number of years the constitution is in effect, see Tom Ginsburg and Eric Posner, “Subconstitutionalism,” Stanford Law Review 62 (2010): 1583, 1608; Mila Versteeg and Emily Zackin, “American Constitutional Exceptionalism Revisited,” University of Chicago Law Review 81 (2014): 1641, 1674. 92. Calculated from data presented in “General Information on State Constitutions as of January 1, 2017.” 93. Paul E. Herron, Framing the Solid South: The State Constitutional Conventions of Secession, Reconstruction, and Redemption, 1861–1902 (Lawrence: University Press of Kansas, 2017). 94. Lutz, “Toward a Theory of Constitutional Amendment”; Cain et al., “Constitutional Change: Is It Too Easy to Amend Our State Constitution?”; John Ferejohn, “The Politics of Imperfection: The Amendment of Constitutions,” Law and Social Inquiry (1997): 501– 30 (review essay); Rosalind Dixon and Richard Holden, “Constitutional Amendment Rules: The Denominator Problem,” in Tom Ginsburg, ed., Comparative Constitutional Design (New York: Cambridge University Press, 2012), 195– 218. 95. See Tarr and Williams, “Getting from Here to There,” 1118–19. As Melvin Hill has shown, at the time Georgia voters approved the state’s current 1983 constitution and discontinued the practice of adopting local amendments, the prior constitution had been amended 1,105 times, and 908 of these amendments were local amendments. Melvin Hill, The Georgia State Constitution: A Reference Guide (Westport, CT.: Greenwood Press, 1994), 22. Local amendments were also adopted on a frequent basis in South Carolina and made up a large portion of amendments to the state’s constitution, before they were discontinued in a 1971– 72 constitutional revision. Cole Blease Graham, The South Carolina State Constitution: A Reference Guide (Westport, CT: Greenwood Press, 2006), 25. 96. Lutz, “Toward a Theory of Constitutional Amendment,” 361. 97. Dixon and Holden, “Constitutional Amendment Rules,” 205. 98. Ibid., 205, 206. 99. Cain et al., “Constitutional Change,” 273. 100. Ibid.

Notes to Pages 27–28

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101. Ferejohn, “The Politics of Imperfection,” 524. 102. Dixon and Holden, “Constitutional Amendment Rules,” 205. Surprisingly, the authors found that “for less demanding initiative rules . . . , the presence of an initiative rule in a constitution had no significant effect on the overall rate of amendment.” They explain this surprising fi nding—that states with more rigid rules for approving initiated amendments boast higher amendment rates than states with less rigid rules—by writing that this is “likely because it was possible for proponents of constitutional change to propose an amendment without fi rst building a broad base of political support” (ibid.). It should also be noted that in other models, they did not fi nd any relationship between the availability of citizen-initiated amendments and amendment rates (ibid., 206). 103. Cain et al, “Constitutional Change,” 273. 104. Ferejohn, “The Politics of Imperfection,” 524. 105. Tarr, Understanding State Constitutions, 37. 106. Several instances are discussed in ibid., 36. 107. Florida offers a recent example. Out of a concern that amendments were being adopted too frequently, Florida voters in 2006 approved a change in the voter-ratification requirement for nearly all amendments (tax-increase amendments were already subject to an even higher ratification rule). Rather than permitting amendments to be ratified by a simple majority of voters, most amendments considered after 2006 have to obtain the support of 60 percent of voters. In elections held during the eight-year period prior to this change taking effect, Florida voters approved twenty-four amendments. In the eight-year period after this change, voters approved only twelve amendments. This is calculated from data showing that Florida had adopted 86 amendments after the 1998 election, 110 amendments after the 2006 election, and 122 amendments after the 2014 election. Book of the States 2000– 2001 (Lexington, KY: Council of State Governments, 2001), 3; Book of the States 2007 (Lexington, KY: Council of State Governments, 2007), 9; and Book of the States 2015 (Lexington, KY: Council of State Governments, 2015), 11. 108. In support of his claim that “it seems obvious that constitutions that may be readily changed will in fact be changed more often than others,” Michael G. Colantuono points to the frequently amended Florida Constitution and the infrequently amended Kentucky Constitution and argues that the former provides a greater range of amendment options and more flexible processes than the latter constitution, and in a way that can be seen as responsible, at least in part, for their different amendment rates. Michael G. Colantuono, “The Revision of American State Constitutions: Legislative Power, Popular Sovereignty, and Constitutional Change,” California Law Review 75 (1987): 1473, 1509. 109. This is consistent with the fi ndings of most scholars who have studied the relationship between the design of amendment processes and amendment rates in other countries and have concluded that rigidity of amendment processes

294

Notes to Pages 28–29

does not generally explain much of the variation in amendment rates and that, at the least, other factors must also be considered. For scholars who have reached this conclusion after comparing amendment rates of subnational constitutions in Germany, see Astrid Lorenz and Werner Reutter, “Subconstitutionalism in a Multilayered System: A Comparative Analysis of Constitutional Politics in the German Lander,” Perspectives on Federalism 4 (2012): E-148, E-164– 65. Other scholars have reached such conclusions when comparing amendment rates of national constitutions. See Astrid Lorenz, “How to Measure Constitutional Rigidity: Four Concepts and Two Alternatives,” Journal of Theoretical Politics 17 (2005): 339, 355; Andrew Roberts, “The Politics of Constitutional Amendments in Postcommunist Europe,” Constitutional Political Economy 20 (2009): 99, 107. A mixed verdict, whereby a supermajority requirement is not associated with frequency of amendment but the numbers of veto players and veto points are associated with frequency of amendments, is reported in Bjorn Erik Rasch and Roger D. Congleton, “Amendment Procedures and Constitutional Stability,” in Roger D. Congleton and Birgitta Swedenborg, eds., Democratic Constitutional Design and Public Policy (New York: Cambridge University Press, 2006), 319, 332– 35. 110. Lutz, “Toward a Theory of Constitutional Amendment,” 359. 111. Cain et al, “Constitutional Change,” 275– 77; Ferejohn, “The Politics of Imperfection,” 524; Benjamin and Gais, “Constitutional Conventionphobia,” 68; Dixon and Holden, “Constitutional Amendment Rules,” 202, 205. 112. Cain et al., “Constitutional Change,” 275. 113. Ibid., 276– 77. For a similar argument focusing on adoption of detailed prohibitions on legislative action that give rise to amendments circumventing these prohibitions, see Benjamin and Gais, “Constitutional Conventionphobia,” 68. 114. Much of this scholarship has focused on differences in constitutional culture across countries and among states. But it is worth noting that some attention has also been paid to differences in attitudes at various points in time in the United States regarding the federal constitution. Michael Vorenberg argues that prior to the Civil War, it was understood that amendments to the US Constitution should be reserved for minor changes, but that this attitude changed during the 1860s in a way that became more accepting of constitutional amendments that made transformative changes. Michael Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment (New York: Cambridge University Press, 2001), 192. 115. Tom Ginsburg and James Melton, “Does the Constitutional Amendment Rule Matter at All? Amendment Cultures and the Challenges of Measuring Amendment Difficulty,” International Journal of Constitutional Law 13 (2015): 686, 708. For a thoughtful reflection, stimulated by this article, on the need to take account of the concept of constitutional culture and various ways

Notes to Pages 29–31

295

that scholars of comparative constitutionalism might proceed in doing so, see Xenophon Contiades and Alkmene Fotiadou, “The Determinants of Constitutional Amendability: Amendment Models or Amendment Culture” (review essay), European Constitutional Law Review 12 (2016): 192– 211. 116. The concept and importance of constitutional culture are discussed, among other places, in Dodd, The Revision and Amendment of State Constitutions, 267 (referring to the “conservatism” of states in New England and the Middle West as part of the explanation for the infrequent amendment of state constitutions in those regions); James A. Gardner, Interpreting State Constitutions: A Jurisprudence of Function in a Federal System (Chicago: University of Chicago Press, 2005), 27 (referring to “an underlying attitude toward state constitutions that treats them with considerably less reverence than is accorded the Constitution of the United States”); and Ferejohn, “The Politics of Imperfection,” 524. For an empirical investigation into citizen attitudes regarding proposed amendments to the US Constitution and state constitutions that identifies a greater willingness to support state constitutional amendments than federal constitutional amendments, see James R. Zink and Christopher T. Dawes, “The Dead Hand of the Past? Toward an Understanding of ‘Constitutional Veneration,’” Political Behavior 38 (2016): 535– 60. 117. Tarr, Understanding State Constitutions, 31. 118. Alden L. Powell, “Amending the Louisiana Constitution,” Southwestern Social Science Quarterly 18 (June 1937): 25, 30– 31, quoted in B. U. Ratchford, American State Debts (Durham, NC: Duke University Press, 1941), 432 n. 2. 119. Mark T. Carleton, “Elitism Sustained: The Louisiana Constitution of 1974,” Tulane Law Review 54 (Apr. 1980): 560, quoted in Tarr, Understanding State Constitutions, 143. 120. Cain et al, “Constitutional Change,” 277. 121. Trends in initiative use are documented in John G. Matsusaka, “2014 Ballot Propositions,” Book of the States 2015 (Lexington, KY: Council of State Governments, 2015), 293. 122. This trend and various explanations are discussed in J. H. Snider, “Does the World Really Belong to the Living? The Decline of the Constitutional Convention in New York and Other US States, 1776– 2015,” American Political Thought 6 (2017): 256– 93. 123. These waves of convention activity are described in more detail in Dinan, The American State Constitutional Tradition, 9–10. 124. Ibid., 7– 9, tbl. 1-1. In addition to the 233 conventions listed in this table are three other conventions in Rhode Island held in 1824, 1834, and 1841. For a list that includes these three Rhode Island conventions and yields a total count of 236 conventions, see State Constitutional Convention Clearinghouse, “State ConCons since 1776,” http://concon.isolon.orginfo/state-data/590 -2 (accessed Apr. 20, 2017).

296

Notes to Pages 31–33

125. Thomas H. Ferrell, “The Louisiana Constitutional Convention of 1992,” State Constitutional Commentaries and Notes 3 (1992): 9–12; Dinan, “Accounting for Success and Failure of Southern State Constitutional Reform,” 505– 7. 126. Sturm, Thirty Years of State Constitution- Making: 1938–1968, 23. 127. As Sturm argued, although rural legislators had a clear interest in opposing convention calls, out of a fear “that the apportionment provision would be changed and thereby reduce their power,” urban legislators had their own reasons for opposing convention calls, because “legislators from urban areas, who comprised a minority of many state lawmaking bodies, have been unwilling to vote for a constitutional convention whose membership would have the same basis as that of inequitably apportioned lower houses” (ibid.). 128. Dinan, “The Political Dynamics of Mandatory State Constitutional Convention Referendums,” 421. 129. Albert L. Sturm and James B. Craig Jr., “State Constitutional Commissions: Fifteen Years of Increasing Use,” State Government 39 (1966): 56, 63, quoted in Williams, “Are State Constitutional Conventions Things of the Past?,” 20. 130. John Kincaid, “Early State History and Constitutions,” in Donald Haider-Markel, ed., Oxford Handbook of State and Local Government (New York: Oxford University Press, 2014), 239, 254. 131. Dinan, “Accounting for Success and Failure of Southern State Constitutional Reform,” 510. The efforts of Mississippi governors are discussed in ibid., 507– 8. 132. H. Bailey Thomson, “Constitutional Reform in Alabama: A Long Time in Coming,” in G. Alan Tarr and Robert F. Williams, eds., State Constitutions for the Twenty- First Century, vol. 1, The Politics of State Constitutional Reform (Albany: State University of New York Press, 2006), 113–43. 133. Dinan, “The Political Dynamics of Mandatory State Constitutional Convention Referendums,” 422– 23. 134. Benjamin and Gais, “Constitutional Conventionphobia,” 70. 135. Data for voter support and opposition regarding convention referenda in recent decades are supplied in Sanford V. Levinson and William D. Blake, “When Americans Think about Constitutional Reform: Some Data and Reflections,” Ohio State Law Journal 77 (2016): 211, 219. 136. On the 1996 Hawaii vote, see Gerald Benjamin, “The Mandatory Constitutional Convention Question Referendum: The New York Experience in National Context,” Albany Law Review 65 (2002): 1017, 1020. On the 2010 Maryland vote, see John Dinan, “State Constitutional Developments in 2010,” Book of the States 2011 (Lexington, KY: Council of State Governments, 2011), 5. 137. Dinan, “The Political Dynamics of Mandatory State Constitutional Convention Referendums,” 402– 3.

Notes to Page 34

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138. Kincaid, “Early State History and Constitutions,” 253; Robert F. Williams, “Evolving State Constitutional Processes of Adoption, Revision, and Amendment: The Path Forward,” Arkansas Law Review 69 (2016): 553, 574. 139. This explanation is discussed in, among other places, Tarr and Williams, “Getting from Here to There,” 1085; Galie and Bopst, “Changing State Constitutions,” 37– 38; and Dinan, “The Political Dynamics of Mandatory State Constitutional Convention Referendums,” 420. 140. Diane D. Blair, Arkansas Politics and Government: Do the People Rule? (Lincoln: University of Nebraska Press, 1988), 129; Tarr, Understanding State Constitutions, 2 n. 4. 141. Dinan, “The Political Dynamics of Mandatory State Constitutional Convention Referendums,” 418–19. 142. Benjamin, “The Mandatory Constitutional Convention Question Referendum,” 1036–41; Dinan, “The Political Dynamics of Mandatory State Constitutional Convention Referendums,” 412; Snider, “Does the World Really Belong to the Living?,” 279– 80. 143. In 1987 when Janice May took stock of the origins of all amendments that had been proposed to state constitutions, she found that 90 percent were proposed by legislatures, 4 percent were proposed via initiative processes, and 6 percent were proposed by conventions or by the Florida Constitution Revision Commission. Janice May, “Constitutional Amendment and Revision Revisited,” Publius 17 (Winter 1987): 153, 192. As becomes clear when comparing May’s data from 1987 with the data reported in this paragraph from 2008 to 2013, the proportion of legislature-referred amendments in the two periods is similar; the main differences are that convention-generated amendments played a greater role and citizen-initiated amendments played a lesser role in earlier years compared with the recent period. 144. Consider the 2008– 9, 2010–11, and 2012–13 election cycles. A total of 351 amendments were approved during this six-year period (104 in 2008– 9, 136 in 2010–11, and 111 in 2012–13). Of these 351 total amendments, 316 of them, or 90 percent, were legislature-generated amendments (88 in 2008– 9, 124 in 2010– 11, and 104 in 2012–13). John Dinan, “State Constitutional Developments in 2013,” Book of the States 2014 (Lexington, KY: Council of State Governments, 2014), 4, tbl. A. 145. Of the 351 amendments adopted in the 2008– 9, 2010–11, and 2012– 13 election cycles, only thirty-two of them, or 9 percent, were citizen-initiated amendments (thirteen in 2008– 9, twelve in 2010–11, and seven in 2012–13) (ibid.). 146. Of the 351 amendments adopted in the 2008– 9, 2010–11, and 2012–13 election cycles, only three of them were commission-generated amendments (in 2008) (ibid.).

298

Notes to Pages 37–38

Chapter Two 1. David A. Strauss, “The Irrelevance of Constitutional Amendments,” Harvard Law Review 114 (2001): 1457, 1469– 73. 2. Stephen M. Griffi n, American Constitutionalism: From Theory to Politics (Princeton, NJ: Princeton University Press, 1996), 45. 3. Bruce E. Cain, Democracy More or Less: America’s Political Reform Quandary (New York: Cambridge University Press, 2015), 101– 2. 4. Many of these types of changes in the design of governing institutions undertaken through state constitutional amendments are discussed in Sanford Levinson, Framed: America’s 51 Constitutions and the Crisis of Government (New York: Oxford University Press, 2012). 5. Jed Handelsman Shugerman, The People’s Courts: Pursuing Judicial Independence in America (Cambridge, MA: Harvard University Press, 2012). 6. The latter development is discussed in A. E. Buck, The Reorganization of State Governments in the United States (New York: Columbia University Press, 1938). 7. Thomas Goebel, A Government by the People: Direct Democracy in America, 1890–1940 (Chapel Hill: University of North Carolina Press, 2002). 8. Thad Kousser, Term Limits and the Dismantling of State Legislative Professionalism (New York: Cambridge University Press, 2005). 9. In an earlier book I examined the pattern, motivations, and debates surrounding adoption of a number of state constitutional amendments changing the design of state governing institutions. John J. Dinan, The American State Constitutional Tradition (Lawrence: University Press of Kansas, 2006), esp. chs. 3– 5. 10. In distinguishing between institutional-authority amendments in this way—that is, positing that changes in the way offices are structured and officials selected have to be undertaken through constitutional amendments whereas changes in distribution of authority among institutions can be undertaken either through constitutional amendments or via other means such as statutes—it should be acknowledged that this is not in all cases a bright-line distinction. This is especially true of the legislative term-limits movement of the 1990s. One might have thought that imposing a limit on legislative terms would require a constitutional amendment. In fact, this was the dominant method of enacting legislative term limits. But in a half dozen states, this change was adopted via statute. This change was achieved by citizen-initiated statute in Washington, Wyoming, Maine, Idaho, and Massachusetts, and by legislative statute in Utah. However, in all but one of these cases (in Maine), the statutes were repealed by a subsequent legislature or overturned by the state supreme court, generally on the grounds that the changes were of a kind that required a constitutional amendment. National Conference of State Legislatures, The Term-Limited States (updated

Notes to Pages 40–42

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Mar.  13, 2015), http://www.ncsl.org/research/about-state-legislatures/chart-of -term-limits-states.aspx. 11. Michigan Constitution (1850), art. IV, sec. 23. 12. Indiana Constitution (1851), art. IV, sec. 22. 13. Howard Lee McBain, The Law and the Practice of Municipal Home Rule (New York: Columbia University Press, 1916), 68– 92. 14. Ibid., 92. 15. Debates and Proceedings of the Constitutional Convention of the State of Illinois [1869], Ely, Burnham, & Bartlett, official stenographers, 2 vols. (Springfield, IL: E. L. Merritt & Brother, 1870), I: 592. 16. Illinois Constitution (1870), art. IV, sec. 22. 17. David O. Porter, “The Ripper Clause in State Constitutional Law: An Early Urban Experiment: Part I,” Utah Law Review (1969): 287, 300– 303. 18. Ibid., 307. 19. Pennsylvania Constitution (1873), art. II, sec. 20. 20. Approval of these amendments—in New Jersey (1875), Colorado (1876), California (1879), Montana (1889), South Dakota (1889), Wyoming (1889), and Utah (1896)—is discussed in McBain, The Law and the Practice of Municipal Home Rule, 46; Porter, “The Ripper Clause in State Constitutional Law,” 310–11. 21. Michael E. Libonati, “Local Government,” in G. Alan Tarr and Robert F. Williams, eds., State Constitutions for the Twenty- First Century, vol. 3, The Agenda of State Constitutional Reform (Albany: State University of New York Press, 2006), 123– 24. 22. Missouri Constitution (1875), art. IX, sec. 16. A thirteen-member board, elected by city residents for this purpose, would be responsible for drafting a charter, which would be submitted to voters and deemed ratified if it secured approval from four-sevenths of the voters. Additional details were provided regarding the process for amending a city charter. 23. California Constitution (1879), art. XI, sec. 8. For an acknowledgment that the California provision was modeled on the Missouri provision, see the comments of delegate John S. Hager at California’s 1878– 79 convention. Debates and Proceedings of the Constitutional Convention of the State of California [1878], E. B. Willis and P. K. Stockton, Official Stenographers, 3 vols. (Sacramento, CA: J. D. Young, 1880– 81), II: 1059, 1060. 24. Washington Constitution (1889), art. XI, sec. 10. 25. Minnesota Constitution (1858), art. IV, sec. 36 (amended 1896). 26. These early twentieth- century home-rule provisions generally followed an “imperium in imperio” approach embodied in the pioneering Missouri provision and the California provision, as modified by an 1896 amendment, in that they provided for local autonomy in municipal affairs and thereby immunized local acts from state preemption as long as they did not deal with matters of statewide

300

Notes to Page 42

concern. Kenneth Vanlandingham, “Constitutional Municipal Home Rule since the AMA (NLC) Model,” William & Mary Law Review 17 (1975): 1– 2. 27. Discussed in Benjamin Parke DeWitt, The Progressive Movement (1915; Seattle: University of Washington Press, 1968), 292– 98; Joseph D. McGoldrick, The Law and Practice of Municipal Home Rule, 1916–1930 (New York: Columbia University Press, 1933). The home-rule provisions adopted during this period—in Colorado (1902), Oregon (1906), Oklahoma (1907), Michigan (1908), Arizona (1912), Ohio (1912), Nebraska (1912), Texas (1912), and Maryland (1915)—are found at Colorado Constitution (1876), art. XX (adopted 1902); Oregon Constitution (1859), art. XI, sec. 2 (amended 1906); Oklahoma Constitution (1907), art. XVIII, sec. 3; Michigan Constitution (1908), art. VIII, sec. 21; Arizona Constitution (1912), art. XIII, sec. 2; Ohio Constitution (1851), art. XVIII, sec. 8 (amended 1912); Nebraska Constitution (1875), art. XI, sec. 2 (amended 1912); Texas Constitution (1876), art. XI, sec. 5 (amended 1912); Maryland Constitution (1867), art. XI-A (adopted 1915). 28. Pennsylvania Constitution (1873), art. XV, sec. 1 (amended 1922); New York Constitution (1895), art. XII, sec. 2 (amended 1923); Nevada Constitution (1864), art. VIII, sec. 8 (amended 1924); Wisconsin Constitution (1848), art. XI, sec. 3 (amended 1924). 29. Utah Constitution (1896), art. XI, sec. 5 (adopted 1932); West Virginia Constitution (1872), art. VI, sec. 39a (adopted 1936). In focusing on amendments guaranteeing home rule for cities, I leave aside amendments granting home rule to counties, as illustrated by Ohio’s 1933 county home-rule amendment, enacted two decades after Ohio’s 1912 municipal home-rule amendment. Ohio Constitution (1851), art. X, secs. 1–4 (amended 1933). 30. On the influence of this report, see Vanlandingham, “Constitutional Municipal Home Rule since the AMA (NLC) Model,” 3–4. In keeping with the NLC recommendation, many late-twentieth- century provisions were phrased differently than earlier provisions, in that they were particularly concerned with reducing the role of judges in distinguishing between issues of municipal and statewide concern. The earlier wave of home-rule provisions generally permitted municipalities to exercise powers “consistent with and subject to the Constitution and laws of this State,” as in the inaugural Missouri provision. Missouri Constitution (1875), art. IX, sec. 16. Later provisions were more likely to permit municipalities to exercise power in areas “not prohibited by law or by charter,” as in Alaska’s provision. Alaska Constitution (1959), art. X, sec. 11. 31. These amendments were adopted in Rhode Island (1951), Louisiana (1952), Tennessee (1953), Alaska (1959), Hawaii (1959), Kansas (1960), South Dakota (1962), Georgia (1966), North Dakota (1966), Massachusetts (1966), New Hampshire (1966), Florida (1968), Iowa (1968), Maine (1969), New Mexico (1970), Illinois (1971), and Montana (1972). The order and date of adoption

Notes to Pages 42–45

301

of home-rule amendments are noted in various sources, including Dale Krane, Platon N. Rigos, and Melvin B. Hill Jr., Home Rule in America: A Fifty- State Handbook (Washington, DC: CQ Press, 2001). 32. Kenneth E. Vanlandingham, “Municipal Home Rule in the United States,” William & Mary Law Review 10 (1968): 269, 270. 33. Debates of the Missouri Constitutional Convention of 1875, Isidor Loeb and Floyd C. Shoemaker, eds., 12 vols. (Columbia, MO: State Historical Society of Missouri, 1930–44), XII: 495. 34. Jon C. Teaford, The Unheralded Triumph: City Government in America, 1870–1900 (Baltimore, MD: Johns Hopkins University Press, 1984), 84– 85. 35. Ibid., 102. 36. Debates about home-rule provisions in late-nineteenth- century conventions, particularly Missouri’s 1875 convention and California’s 1878– 79 convention, are examined in ibid., 106–11; McBain, The Law and the Practice of Municipal Home Rule, 200– 202. 37. Debates of the Missouri Constitutional Convention of 1875, XII: 449– 50. 38. Ibid., XII: 476– 77. 39. Debates and Proceedings of the Constitutional Convention of the State of California [1878], II: 1060. 40. Ibid., II: 1062. 41. Ibid., III: 1407. 42. Proceedings and Debates of the Constitutional Convention of the State of Ohio [1912], 2 vols. (Columbus, OH: F. J. Heer Printing, 1912), II: 1483. 43. Ibid., II: 1484. 44. McBain, The Law and the Practice of Municipal Home Rule, 13–15. 45. People v. Hurlbut, 24 Mich. 44 (1871). 46. Clinton v Cedar Rapids and the Missouri River Railroad, 24 Iowa 455 (1868). 47. McBain, The Law and the Practice of Municipal Home Rule, 15. 48. Vanlandingham, “Municipal Home Rule in the United States,” 273– 75. 49. Vanlandingham, “Constitutional Municipal Home Rule since the AMA (NLC) Model,” 22. 50. The fi fteen states are Missouri (1875), California (1879), Washington (1889), Oklahoma (1907), Michigan (1908), Arizona (1912), Ohio (1912), Rhode Island (1951), Tennessee (1953), Alaska (1959), Hawaii (1959), New Hampshire (1966), Florida (1968), Illinois (1971), and Montana (1972). 51. Oregon Constitution (1859), art. XI, sec. 2 (adopted 1906); Colorado Constitution (1876), art. XX, sec. 6 (amended 1912). 52. Elliott v. City of Detroit, 121 Mich. 611 (1899); State ex rel. Mueller v. Thompson, 149 Wis. 488 (1912); Phillips v. City of Atlanta, 210 Ga. 72 (1953). 53. Howard Lee McBain, American City Progress and the Law (New York:

302

Notes to Pages 45–47

Columbia University Press, 1918), 27– 28; McGoldrick, The Law and Practice of Municipal Home Rule, 1916–1930, 290– 91; Vanlandingham, “Municipal Home Rule in the United States,” 275 n. 46. 54. Vanlandingham, “Municipal Home Rule in the United States,” 276. 55. Debates of the Missouri Constitutional Convention of 1875, XII: 470– 71. 56. Catherine Lovell and Charles Tobin, “The Mandate Issue,” Public Administration Review 41 (1981): 318. 57. Joseph F. Zimmerman, “State-Local Relations: The State Mandate Irritant,” National Civic Review 65 (1976): 548, 549. 58. Depending on how broadly one defi nes a mandate-relief amendment, one could add amendments in Alaska and Pennsylvania: Alaska Constitution (1959), art. II, sec. 19; Pennsylvania Constitution (1968), art. VIII, sec. 2. See Joseph F. Zimmerman, State-Local Relations: A Partnership Approach, 2nd ed. (Westport, CT: Praeger, 1995), 89, 92. 59. This was the case with amendments approved in Hawaii as part of a series of convention-referred amendments in 1978, in Tennessee as part of the 1978 Copeland Amendment, in Michigan as part of the 1978 Headlee Amendment, in California as part of the 1979 Gann Amendment, in Missouri as part of the 1980 Hancock Amendment, and in Colorado as part of the 1992 Taxpayers Bill of Rights Amendment. Hawaii Constitution (1959), art. VIII, sec. 5 (amended 1978); Tennessee Constitution (1870), art. II, sec. 24 (adopted 1978); Michigan Constitution (1964), art. IX, sec. 29 (adopted 1978); California Constitution (1879), art. XIII-B, sec. 6 (adopted 1979); Missouri Constitution (1945), art. X, sec. 21 (adopted 1980); Colorado Constitution (1876), art. X, sec. 20 (9) (adopted 1992). Discussed in Robert M. M. Shaffer, “Unfunded Mandates and Local Governments,” University of Cincinnati Law Review 64 (1996): 1057, 1061. 60. Massachusetts Constitution (1780), Articles of Amendment, art. CXV (adopted 1980); New Hampshire Constitution (1784), pt. I, art. 28-a (adopted 1984); Alabama Constitution (1901), Amendment 472 (adopted 1988), Amendment 621 (adopted 1999); New Mexico Constitution (1912), art. X, sec. 8 (adopted 1984); Florida Constitution (1969), art. VII, sec. 18 (adopted 1990); Louisiana Constitution (1975), art. VI, sec. 14(a) (adopted 1991); Maine Constitution (1820), art. IX, sec. 21 (adopted 1992); New Jersey Constitution (1948), art. VIII, sec. II, para. 5 (adopted 1995); Oregon Constitution (1859), art. XI, sec. 15 (amended 1996). 61. Tennessee Constitution (1870), art. II, sec. 24 (adopted 1978). 62. Maine Constitution (1820), art. IX, sec. 21 (adopted 1992). 63. New Hampshire Constitution (1784), pt. I, art. 28-a (adopted 1984). 64. Colorado Constitution (1876), art. X, sec. 20 (9) (adopted 1992). 65. State laws limiting unfunded mandates are discussed in Zimmerman, State-Local Relations, 92–100. 66. The context of the passage of the Florida amendment is discussed in Ja-

Notes to Pages 47–49

303

net M. Kelley, “Mandate Reimbursement Measures in the States,” American Review of Public Administration 24 (1994): 351– 73. 67. Zimmerman, State-Local Relations, 100. 68. US Advisory Commission on Intergovernmental Relations, Mandates: Cases in State-Local Relations, M-173 (Washington, DC: ACIR, 1990), 33. 69. “The general assembly shall pass laws to correct abuses and prevent unjust discrimination and extortion in the rates of freight and passenger tariffs on the different railroads in this State, and enforce such laws by adequate penalties.” Illinois Constitution (1870), art. XI, sec. 15. On the pioneering role of this Illinois provision, see Mark T. Kanazawa and Roger G. Noll, “The Origins of State Railroad Regulation: The Illinois Constitution of 1870,” in Claudia Goldin and Gary D. Libecap, eds., The Regulated Economy: A Historical Approach to Political Economy (Chicago: University of Chicago Press, 1994), 13– 54. 70. These provisions—adopted in Pennsylvania (1873), Missouri (1875), Nebraska (1875), Alabama (1875), Colorado (1876), Texas (1876), and Georgia (1877)—are found at Pennsylvania Constitution (1873), art. XVII, secs. 3, 7; Missouri Constitution (1875), art. XII, sec. 12; Nebraska Constitution (1875), art. XI, secs. 4, 7; Alabama Constitution (1875), art. XIII, sec. 22; Colorado Constitution (1876), art. XV, sec. 6; Texas Constitution (1876), art. X, sec. 2; Georgia Constitution (1877), art. IV, sec. 2, para. 1. On these constitutional provisions in the 1870s, see James W. Ely Jr., Railroads and American Law (Lawrence: University Press of Kansas, 2001), 89. 71. These provisions were adopted during this period in Washington (1889), North Dakota (1889), Texas (1890) Kentucky (1891), South Carolina (1896), Louisiana (1898), Virginia (1902), Nebraska (1906), Oklahoma (1907), Michigan (1908), Arizona (1912), and New Mexico (1912). 72. Ely, Railroads and American Law, 80– 87. 73. Solon Buck, The Granger Movement (Cambridge, MA: Harvard University Press, 1913), 13–14. 74. Ibid., 14. 75. Ibid. 76. George H. Miller, Railroads and the Granger Laws (Madison: University of Wisconsin Press, 1971), 19. 77. Ely, Railroads and American Law, 84– 85. This was followed by creation of railroad safety commissions in New Hampshire in 1844, Connecticut in 1853, Vermont in 1855, and Maine in 1855. Frederick C. Clark, State Railroad Commissions, and How They May Be Made Effective ([Baltimore, MD]: American Economic Association, 1891), 23– 24. 78. Clark, State Railroad Commissions, 32. On these functions, see Frank Hendrick, Railway Control by Commissions (New York: G. P. Putnam’s Sons, 1900), ch. IX. 79. Ely, Railroads and American Law, 86.

304

Notes to Pages 49–54

80. Debates in a few of these conventions are analyzed in Amy Bridges, Democratic Beginnings: Founding the Western States (Lawrence: University Press of Kansas, 2015), 83– 85 (on California), 125– 28 (on Arizona and New Mexico); Carl Brent Swisher, Motivation and Political Technique in the California Constitutional Convention, 1878– 79 (1930; New York: Da Capo Press, 1969), ch. IV (on California); Thomas Edward Gay Jr., “Creating the Virginia State Corporation Commission,” Virginia Magazine of History and Biography 78 (Summer 1970): 464– 80 (on Virginia). 81. Debates and Proceedings of the Constitutional Convention of the State of California [1878], I: 502. 82. Ibid., I: 530– 31. 83. Clark, State Railroad Commissions, 51. 84. Debates and Proceedings of the Constitutional Convention of the State of California [1878], I: 555. 85. Ibid. 86. Ibid. 87. Ibid., I: 512. 88. Ibid., I: 551. 89. See, for example, the comments of Henry Edgerton and Walter Van Dyke in California’s 1878– 79 convention. Ibid., I: 494, 529. 90. Report of the Proceedings and Debates of the Constitutional Convention, State of Virginia [1901–1902], 2 vols. (Richmond, VA: Hermitage Press, 1906), II: 2167. For a similar argument, see the remarks of J. C. Wysor at II: 2325. 91. Ibid., II: 2425. 92. Additional amendments creating, authorizing, or recognizing commissions were approved in later decades, as in the Georgia Constitution (1877), art. IV, sec. II, para. VIII (amended 1943); and Colorado Constitution (1876), art. XXV (adopted 1954). 93. These provisions—adopted in California (1879), Kentucky (1891), South Carolina (1896), Louisiana (1898), Virginia (1902), Oklahoma (1907), Arizona (1912), and New Mexico (1912)—are found at California Constitution (1879), art. XII, sec. 22; Kentucky Constitution (1891), sec. 205; South Carolina Constitution (1896), art. IX, sec. 14; Louisiana Constitution (1898), arts. 283– 89; Virginia Constitution (1902), art. XII, sec. 155; Oklahoma Constitution (1907), art. IX, sec. 15; Arizona Constitution (1912), art. XV; New Mexico Constitution (1912), art. XI. 94. North Dakota Constitution (1889), art. 3, secs. 82– 84. 95. Washington Constitution (1889), art. XII, sec. 18. The debates in Washington’s 1889 convention are analyzed in Robert F. Utter and Hugh D. Spitzer, The Washington State Constitution (New York: Oxford University Press, 2011), 203–4. 96. Michigan Constitution (1908), art. XII, sec. 7.

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97. Texas Constitution (1876), art. X, sec. 2 (amended 1890); Nebraska Constitution (1875), art. V, sec. 19a (adopted 1906). 98. See, for example, Idaho Constitution (1890), art. VII, sec. 12 (amended 1944). 99. See, for example, Arkansas Constitution (1874), Amendment 42 (adopted 1952). 100. See, for example, California Constitution (1879), art. XX, sec. 22 (amended 1954). 101. See, for example, Oregon Constitution (1859), art. XV, sec. 11 (adopted 2000). 102. Louisiana Constitution (1921), art. VI, secs. 1– 2. 103. The role of the Model Fish and Game Commission is noted in Barton H. Thompson Jr., “The Environment and Natural Resources,” in Tarr and Williams, State Constitutions for the Twenty- First Century, vol. 3, The Agenda of State Constitutional Reform, 333 n. 18. 104. These provisions—adopted in Missouri (1936), California (1940), Florida (1942), Georgia (1943), and Arkansas (1944)—are found at Missouri Constitution (1875), art. XIV, sec. 16 (adopted 1936); California Constitution (1879), art. IV, sec. 25½ (adopted 1940); Florida Constitution (1885), art. IV, sec. 30 (adopted 1942); Georgia Constitution (1877), art. V, sec. IV (adopted 1943); Arkansas Constitution (1874), Amendment 35 (adopted 1944). 105. Jim Low, “The Genesis of Conservation in Missouri,” Missouri Conservationist Magazine, Jan. 2, 2005, http://mdc.mo.gov/conmag/2005/01/genesis -conservation-missouri. 106. James F. Keefe, The First 50 Years (Jefferson City, MO: Missouri Department of Conservation, 1987), 7– 8. 107. Fish and Game Commission, California Proposition 8 (1940), http:// repository.uchastings.edu/ca _ballot _props/408 (accessed Sept. 21, 2017). 108. These approaches are discussed in James W. Fesler, “Independence of State Regulatory Agencies,” American Political Science Review 34 (Oct. 1940): 935, 944–45. 109. Low, “The Genesis of Conservation in Missouri.” 110. Ibid. 111. Fish and Game Commission, California Proposition 8 (1940). 112. Kay Collett Goss, The Arkansas State Constitution: A Reference Guide (Westport, CT: Greenwood Press, 1993), 160. 113. Keefe, The First 50 Years, 8. 114. Quoted in ibid., 8– 9. 115. Ibid., 15. 116. Daniel R. Ernst, Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900–1940 (New York: Oxford University Press, 2014), 78– 91.

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117. Revised Record of the Constitutional Convention of the State of New York [1938], 4 vols. (Albany: J. B. Lyon, 1938), III: 2044. 118. Ibid., III: 2060. 119. Ibid., III: 2104. 120. Ernst, Tocqueville’s Nightmare, 90– 91. 121. Revised Record of the Constitutional Convention of the State of New York [1938], III: 3080. 122. Ibid., III: 3081. 123. Winston W. Crouch, Dean E. McHenry, John C. Bollens, and Stanley Scott, State and Local Government in California (Berkeley: University of California Press, 1952), 129– 30. 124. Court Review of Acts of Administrative Officers, Boards and Commissions, California Proposition 6 (1940), http://repository.uchastings.edu/ca _ballot _props/406 (accessed Apr. 20, 2017). 125. L. Harold Levinson, “The Decline of the Legislative Veto: Federal/State Comparisons and Interactions,” Publius 17 (Winter 1987): 115. 126. L. Harold Levinson, “Legislative and Executive Veto of Rules of Administrative Agencies: Models and Alternatives,” William & Mary Law Review 24 (1982): 79, 81– 82. 127. These state court rulings are discussed in Kenneth D. Dean, “Legislative Veto of Administrative Rules in Missouri: A Constitutional Virus,” Missouri Law Review 37 (1992): 1157, 1169– 80; Jim Rossi, “Institutional Design and the Lingering Legacy of Antifederalist Separation of Powers Ideals in the States,” Vanderbilt Law Review 52 (1999): 1167, 1201–16; Marc D. Falcoff, “The Legislative Veto in Illinois: Why JCAR Review of Agency Rulemaking is Unconstitutional,” Loyola University of Chicago Law Review 47 (2016): 1055, 1083– 91. 128. Falcoff, “The Legislative Veto in Illinois,” 1089– 90. In addition, the Wisconsin Supreme Court in a 1992 decision upheld an arrangement whereby a joint committee for administrative review can vote to temporarily suspend a regulation. Rossi, “Institutional Design and the Lingering Legacy of Antifederalist Separation of Powers Ideals in the States,” 1210–12. 129. Illinois is one example among many that could be cited. See Falcoff, “The Legislative Veto in Illinois,” 1091. The current status of the legislative veto in each of the states is detailed in Book of the States 2015 (Lexington, KY: Council of State Governments, 2015), tbl. 3.25, 132– 35. 130. A number of these failed amendments are discussed in Levinson, “The Decline of the Legislative Veto,” 122. 131. Florida State Executive Regulation Nullification by Legislature, Amendment 7 (1996), Ballotpedia, https:// ballotpedia.org/ Florida _State_Executive _Regulation _Nullification _by_Legislature, Amendment _7_(1976); Texas Executive Rule Making Process, Proposition 2 (1979), Ballotpedia, https:// ballotpedia .org/ Texas _Executive_Rule_Making _Process, _Proposition _2 _(1979).

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132. Alaska Legislative Authority to Annul Regulations, Proposition 1 (1980), Ballotpedia, https:// ballotpedia.org/Alaska _Legislative_Authority_to _Annul _Regulations,Proposition _1_(1980); Alaska Legislative Annulment of Regulations Amendment (1984), Ballotpedia, https:// ballotpedia.org/Alaska _Legislative_Annulment _of _Regulations _Amendment _(1984); Alaska Legislative Annulment, Measure 2 (1986), Ballotpedia, https:// ballotpedia.org/Alaska _Legislative_Annulment, _Measure_2 _(1986). 133. Missouri Rescind Rules of Agencies, Amendment 4 (1976), Ballotpedia, https:// ballotpedia.org/ Missouri _Rescind _Administrative _Rules _of _Agencies, _Amendment _4 _(August _1976); Missouri Administrative Regulations, Amendment 2 (1982), Ballotpedia, https:// ballotpedia.org/ Missouri _Administrative _Regulations, _Amendment _2 _(1982). 134. Michigan Administrative Amendment, Proposal A (1984), Ballotpedia, https:// ballotpedia .org/ Michigan _Administrative _Amendment, _Proposal _A _ (1984); Michigan Administrative Rules Amendment, Proposal B (1986), Ballotpedia, https:// ballotpedia.org/ Michigan _Administrative_Rules _Amendment, _Proposal _B _(1986). 135. Michigan Constitution (1964), art. IV, sec. 37; South Dakota Constitution (1889), art. III, sec. 30 (adopted 1980). These provisions are discussed in Arthur Earl Bonfield, State Administrative Rule Making (Boston: Little, Brown, 1986), 498. 136. Connecticut Constitution (1965), Articles of Amendment, art. XVIII (adopted 1982); Iowa Constitution (1857), art. III, sec. 40 (amended 1984); New Jersey Constitution (1948), art. V, sec. IV, para. 6 (adopted 1992); Nevada Constitution (1864), art. III, sec. 1(1)(c) (adopted 1996); Arkansas Constitution (1874), art. V, sec. 42 (adopted 2014); Idaho Constitution (1890), art. III, sec. 29 (adopted 2016). A number of these amendments are discussed in Falcoff, “The Legislative Veto in Illinois,” 111. 137. The Connecticut Supreme Court ruling is Maloney v. Pac, 183 Conn. 313 (1981). 138. The ruling is General Assembly v. Byrne, 448 A.2d 438 (N.J. 1982). The failed 1985 amendment is New Jersey Public Question No. 7 (1985), Ballotpedia, https:// ballotpedia.org/ New_Jersey_Public _Question _No._7_(1985). 139. The 1968 attorney general opinion is discussed in Bonfield, State Administrative Rule Making, 502. 140. On the defeat of the 2014 amendment, see Idaho Legislative Delegation of Rulemaking, Amendment HJR 2 (2014), Ballotpedia, https:// ballotpedia.org/ Idaho_Legislative_Delegation _of _Rulemaking _Amendment, _HJR _2 _(2014). 141. Idaho Constitution (1890), art. III, sec. 29 (adopted 2016). 142. Arkansas Constitution (1874), art. V, sec. 42(a)(2) (adopted 2014). 143. A two-thirds rule in California was adopted through a 1933 amendment and then repealed by a 2010 amendment. A three-fourths rule in Arkansas

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was imposed through a 1934 amendment and is still in effect. It should be noted that Rhode Island also maintains a two-thirds rule for appropriating money for “local or private purposes” that dates to the state’s original 1843 constitution. In cases where the Rhode Island legislature approves a budget bill containing appropriations for public purposes as well as private or local purposes, as is often the case, this bill must meet the two-thirds requirement. The current provision is Rhode Island Constitution (1986), art. VI, sec. 11. 144. The origin and passage of item-veto, reduction-veto, and amendatoryveto constitutional amendments are treated in Dinan, The American State Constitutional Tradition, 113– 23. For a list of the forty-four provisions authorizing an item veto, see ibid., 337– 38 n. 99. For a list of the ten state provisions authorizing a reduction veto, see ibid., 338– 39 n. 102. 145. William F. Willoughby, The Movement for Budgetary Reform in the States (New York: D. Appleton, 1918), 5– 8. 146. On the influence of the Commission on Economy and Efficiency, see Frederick A. Cleveland, “Evolution of the Budget Idea in the United States,” Annals of the American Academy of Political and Social Sciences 62 (Nov. 1915): 15, 23– 29; William F. Willoughby, The Problem of a National Budget (New York: D. Appleton, 1918), 143–45. 147. Charles A. Beard, “The Budgetary Provisions of the New York Constitution,” Annals of the American Academy of Political and Social Sciences 62 (Nov. 1915): 64. 148. Fred Wilbur Powell, “The Recent Movement for State Budget Reform, 1911–1917,” Municipal Research (Nov. 1917), iv; Willoughby, The Movement for Budgetary Reform in the States, 176 n. 1. 149. Willoughby, The Movement for Budgetary Reform in the States, 158. 150. Maryland Constitution (1867), art. III, sec. 52 (amended 1916). In framing the nation’s fi rst executive-budget amendment to be approved by voters, Maryland legislators benefited from the report and recommendations of a commission chaired by Frank Goodnow. The report is printed at Journal of Proceedings of the Senate of Maryland, January Session, 1916 (Jan. 28, 1916), vol. 658, 128– 39. 151. West Virginia Constitution (1872), art. VI, sec. 51 (amended 1918); Massachusetts Constitution, Articles of Amendment LXIII (adopted 1918). 152. California Constitution (1879), art. IV, sec. 34 (amended 1922); New York Constitution (1895), art. VII (adopted 1927). 153. Missouri Constitution (1875), art. V, sec. 13 (amended 1932). 154. Georgia Constitution (1945), art. VII, sec. IX, para. 1. 155. Revised Record of the Constitutional Convention of the State of New York [1915], 4 vols. (Albany: J. B. Lyon, 1916), II: 1141, 1142. 156. Ibid., II: 1142–43. 157. Ibid., II: 1145.

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158. Ibid., II: 1145. 159. Ibid., II: 1145–46. 160. Ibid., II: 1147. 161. West Virginia Constitution (1872), art. VI, sec. 51 (amended 1918). 162. West Virginia Constitution (1872), art. VI, sec. 51 (amended 1968). 163. This issue is discussed in Jon C. Teaford, The Rise of the States: Evolution of American State Government (Baltimore, MD: Johns Hopkins University Press, 2002), 65– 67. 164. Maryland Constitution (1867), art. III, sec. 52(6) (amended 1916). 165. Debates in the Massachusetts Constitutional Convention, 1917–1918, 3 vols. (Boston: Wright & Potter, 1919), III: 1150. 166. Massachusetts Constitution (1780), Articles of Amendment, art. LXIII (adopted 1918). 167. Debates in the Massachusetts Constitutional Convention, 1917–1918, III: 1186. 168. Ibid., III: 1192. 169. Ibid., III: 1192. 170. Ibid., III: 1188. 171. Ibid., III: 1186– 87. 172. By the late twentieth century, all but three states had adopted an executive budget. Coleman B. Ransone Jr., The American Governorship (Westport, CT: Greenwood Press, 1982), 126. 173. Allen Schick, Budget Innovation in the States (Washington, DC: Brookings Institution, 1971), 18. 174. Revised Record of the Constitutional Convention of the State of New York [1915], II: 1691. 175. Debates in the Massachusetts Constitutional Convention, 1917–1918, III: 1192. 176. Ibid., III: 1205. 177. Fletcher M. Green, Constitutional Development in the South Atlantic States, 1776–1860: A Study in the Evolution of Democracy (Chapel Hill: University of North Carolina Press, 1930), 152; James A. Henretta, “Foreword: Rethinking the State Constitutional Tradition,” Rutgers Law Journal 22 (1991): 819, 827– 28. 178. On the origin of the Virginia conventions of 1829– 30 and 1850– 51, see John Dinan, The Virginia State Constitution, 2nd ed. (New York: Oxford University Press, 2014), 7–10, 12–15, 96. The origin of similar conventions in other states during this period is discussed in George Philip Parkinson Jr., “Antebellum State Constitution-Making: Retention, Circumvention, Revision” (PhD dissertation, University of Wisconsin, 1972). 179. Dinan, The Virginia State Constitution, 96. 180. Virginia Constitution (1851), art. IV, secs. 5– 6.

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Notes to Pages 65–66

181. Ohio Constitution (1851), art. XI. This board took on a greater role with passage of a 1967 legislature-referred constitutional amendment adding two additional members to produce a five-member board charged with drawing state legislative district lines. See Jonathan Winburn, The Realities of Redistricting: Following the Rules and Limiting Gerrymandering in State Legislative Redistricting (Lanham, MD: Lexington Books, 2008), 138– 39. 182. Reemelin’s original proposal did not provide for such a board. Report of the Debates and Proceedings of the Convention for the Revision of the Constitution of the State of Ohio, 1850– 51, J. V. Smith, Official Reporter to the Convention, 2 vols. (Columbus: S. Medary, 1851), I: 99. But later in the convention, a revised proposal called for creation of a board made up of the governor, secretary of state, and lieutenant governor (ibid., I: 271– 72); this set the stage for the eventual proposal for a board made up of the governor, secretary of state, and auditor (ibid., I: 460). 183. Ibid., I: 100. 184. Ibid., I: 102. 185. Ibid. 186. Michigan Constitution (1964), art. IV, sec. 6. The redistricting commission established by Michigan’s 1961– 62 convention was invalidated two decades later by the Michigan Supreme Court because it was deemed to be part of an overall redistricting system that did not comport with the US Supreme Court’s reapportionment rulings. See In re Apportionment of State Legislature—1982, 413 Mich. 96 (1982). 187. These provisions—adopted by conventions in New Jersey (1966), Pennsylvania (1967– 68), Hawaii (1968), and Montana (1971– 72)—are found at New Jersey Constitution (1948), art. IV, sec. 3 (amended 1966); Pennsylvania Constitution (1968), art. II, sec. 17; Hawaii Constitution (1959), art. III, sec. 4 (amended 1968); Montana Constitution (1973), art. V, sec. 14. Passage of the New Jersey, Pennsylvania, and Hawaii provisions is discussed in Robert G. Dixon Jr. and Gordon W. Hatheway Jr., “The Seminal Issue in State Constitutional Revision,” William & Mary Law Review 10 (1969): 888, 890– 93, 895– 96, 897– 99. Passage of the Montana provision is discussed in Caitlin Boland Aarab and the Honorable James Regnier, “Mapping the Treasure State: What States Can Learn from Redistricting in Montana,” Montana Law Review 76 (2015): 257, 260– 62. 188. Offi cial Record, State of Michigan Constitutional Convention, 1961, 2 vols. (Lansing, 1964), II: 2015. 189. Montana Constitutional Convention, 1971–1972: Verbatim Transcript, vols. III–VII (Helena: Montana Legislature, 1981), IV: 720, quoted in Aarab and Regnier, “Mapping the Treasure State,” 261. 190. Nicholas Stephanopolous, “Reforming Redistricting: Why Popular Initiatives to Establish Redistricting Commissions Succeed or Fail,” Journal of

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Law and Politics 23 (2007): 331– 91. Stephanopolous analyzes measures considered through 2005. The failed 2012 Ohio amendment is noted at Ohio Redistricting Amendment, Issue 2 (2012), Ballotpedia, https:// ballotpedia.org/ Ohio_Redistricting _Amendment, _Issue_2 _(2012). The failed 2016 South Dakota amendment is noted at South Dakota Redistricting Commission, Constitutional Amendment T (2016), Ballotpedia, https:// ballotpedia.org/South _Dakota _Redistricting _Commission, _Constitutional _Amendment _T_(2016). Regarding the amendments analyzed by Stephanopolous, the 1962 Oklahoma amendment secured a majority of voters voting on the amendment question. But the Oklahoma Supreme Court determined that the amendment needed to secure a majority of voters participating in the election. Because of voter drop- off, the amendment failed to meet this requirement and therefore was held invalid. Allen v. Burkhart, 377 P.2d 821 (Okla. 1963). 191. Todd Donovan, “Direct Democracy and Redistricting,” in Gary Moncrief, ed., Reapportionment and Redistricting in the West (Lanham, MD: Lexington Books, 2011), 111, 120. 192. Stephanopolous, “Reforming Redistricting,” 346–47. 193. Colorado Constitution (1876), art. V, sec. 48 (adopted 1974); Arizona Constitution (1912), art. IV, pt. II, sec. 1 (amended 2000); California Constitution (1879), art. XXI (adopted 2008 and amended 2010). 194. Florida Constitution (1969), art. III, secs. 20– 21 (adopted 2010). 195. Peverill Squire, “What the West Can Learn from Iowa,” in Moncrief, Reapportionment and Redistricting in the West, 61– 64. 196. These provisions—adopted in Texas (1948), Missouri (1966), Maine (1975), Washington (1983), Idaho (1994), New Jersey (1995), Alaska (1998), New York (2014), and Ohio (2015)—are found at Texas Constitution (1876), art. III, sec. 28 (amended 1948); Missouri Constitution (1945), art. III, secs. 2, 7 (amended 1966); Maine Constitution (1820), art. IV, pt. III, sec. 1-A (adopted 1975); Washington Constitution (1889), art. II, sec. 43 (adopted 1983); Idaho Constitution (1890), art. III, sec. 2 (amended 1994); New Jersey Constitution (1948), art. II, sec. II (amended 1995); Alaska Constitution (1959), art. VI (amended 1998); New York Constitution (1895), art. III, sec. 4 (amended 2014); Ohio Constitution (1851), art. XI (amended 2015). 197. Nathaniel Persily and Melissa Cully Anderson, “Regulating Democracy through Democracy: The Use of Direct Legislation in Election Law Reform,” Southern California Law Review 78 (2005): 997, 1011. 198. John Dinan, “State Constitutional Developments in 2015,” in The Book of the States 2016 (Lexington, KY: Council of State Governments, 2016), 5– 6. 199. A correlation between the availability of the initiative process and adoption of redistricting commissions is demonstrated in Donovan, “Direct Democracy and Redistricting,” 129.

312

Notes to Pages 73–76

Chapter Three 1. John J. Dinan, Keeping the People’s Liberties: Legislators, Citizens, and Judges as Guardians of Rights (Lawrence: University Press of Kansas, 1998), chs. 1– 3. 2. William J. Brennan Jr., “State Constitutions and the Protection of Individual Rights,” Harvard Law Review 90 (1977): 489– 504. 3. Jennifer Friesen, State Constitutional Law: Litigating Individual Rights, Claims, and Defenses, 4th ed. (Charlottesville, VA: LexisNexis, 2006), vol. 1, ch. 1, 2–4. 4. Janice C. May, “Constitutional Amendment and Revision Revisited,” Publius 17 (Winter 1987): 153– 79. See also John Dinan, “State Constitutions and Individual Rights in the Twenty-First Century,” Albany Law Review 76 (2013): 2105–40. 5. See, for instance, Robert F. Williams, “Equality Guarantees in State Constitutional Law,” Texas Law Review 63 (1985): 1195–1223; Ken Gormley and Rhonda G. Hartman, “Privacy and the States,” Temple Law Review 65 (1992): 1279–1323; Eugene Volokh, “State Constitutional Rights to Keep and Bear Arms,” Texas Review of Law and Politics 11 (2006): 191– 217. 6. Robert F. Williams, “Rights,” in G. Alan Tarr and Robert F. Williams, eds., State Constitutions for the Twenty- First Century, vol. 3, The Agenda of State Constitutional Reform (Albany: State University of New York Press, 2006), 7– 35. See also G. Alan Tarr, Understanding State Constitutions (Princeton, NJ: Princeton University Press, 1998), 12–13; Ronald K. L. Collins, “Foreword: Beyond the New Federalism,” University of Puget Sound Law Review 8 (1984): vi, xii–xiii. 7. Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States (New York: Basic Books, 2000). 8. Emily Zackin, Looking for Rights in All the Wrong Places: Why State Constitutions Contain America’s Positive Rights (Princeton, NJ: Princeton University Press, 2013). See also John J. Dinan, The American State Constitutional Tradition (Lawrence: University Press of Kansas, 2006), ch. 6. 9. Recent state court rulings along these lines include Prescott v. Oklahoma Capitol Preservation Commission, 2015 OK 54 (Okla. 2015); Taxpayers for Public Education v. Douglas County School District, No. 13SC233 (Colo. June 29, 2015). 10. These motives are stressed in Philip Hamburger, Separation of Church and State (Cambridge, MA: Harvard University Press, 2002), 335. 11. These motives are stressed in Steven K. Green, The Bible, the School, and the Constitution: The Clash That Shaped Modern Church- State Doctrine (New York: Oxford University Press, 2012), 231– 323. 12. Ibid., 89– 90, 233– 34. 13. Ibid., 7– 8.

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14. Michigan Constitution (1835), art. I, sec. 5. See Green, The Bible, the School, and the Constitution, 69. 15. The Michigan Constitutional Conventions of 1835– 36: Debates and Proceedings, Harold M. Dorr, ed. (Ann Arbor: University of Michigan Press, 1940), 285. 16. Ibid. 17. Green, The Bible, the School, and the Constitution, 230. 18. Adoption of these provisions is discussed in ibid., 87– 91. 19. Ibid., 190. 20. Hamburger, Separation of Church and State, 325. 21. Green, The Bible, the School, and the Constitution, 230. 22. Colorado Constitution (1876), art. IX, sec. 7. 23. New Hampshire Constitution (1784), pt. II, art. 83 (adopted 1876). 24. The existing provision is Minnesota Constitution (1858), art. I, sec. 16. The new provision is Minnesota Constitution (1858), art. VIII, sec. 3 (amended 1877). 25. Nevada Constitution (1864), art. XI, sec. 10. This provision joined an existing provision, art. XI, sec. 9. On the passage of this amendment, see Jay  S. Bybee and David W. Newton, “Of Orphans and Vouchers: Nevada’s ‘Little Blaine Amendment’ and the Future of Religious Participation in Public Programs,” Nevada Law Journal 2 (2002): 551, 565– 67. 26. Eric Biber, “The Price of Admission: Causes, Effects, and Patterns of Conditions Imposed on States Entering the Union,” American Journal of Legal History 46 (2004): 119, 157 n. 158; Robert F. Utter and Edward J. Lawson, “Church and State on the Frontier: The History of the Establishment Clauses in the Washington State Constitution,” Hastings Constitutional Law Quarterly 15 (1988): 451, 458– 67. 27. Green, The Bible, the School, and the Constitution, 230. 28. James N. G. Cauthen, “Referenda, Initiatives, and State Constitutional No-Aid Clauses,” Albany Law Review 76 (2012/2013): 2141, 2146. There is some disagreement about the current number of states with such amendments. The number is pegged at thirty-seven by some analysts (e.g., Institute of Justice and American Legislative Exchange Council, School Choice and State Constitutions: A Guide to Designing School Choice Programs [Apr. 2007], https://www .alec.org/app/uploads/2015/12/ IJ-ALEC -school-choice.pdf). But a review of all current state constitutional provisions indicates that thirty- eight state constitutions contain express limits on funding of religious schools or institutions. The difference seems to revolve primarily around how to classify Ohio. Although the School Choice and State Constitutions publication does not classify Ohio as containing a no-funding provision, the relevant provision of the Ohio Constitution (1851), art. VI, sec. 2, is sufficiently similar to other state no-funding provisions to warrant inclusion of Ohio in the list.

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The thirty- eight states currently maintaining no-funding provisions are Alabama, Alaska, Arizona, California, Colorado, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Kentucky, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Virginia, Washington, Wisconsin, and Wyoming. 29. For instance, in Michigan, whose inaugural 1835 no-funding provision barred use of the public treasury “for the benefit of religious societies, or theological or religious seminaries,” a citizen-initiated amendment in 1970 imposed additional limits on public aid in support of student attendance at any private schools, by specifically prohibiting any “payment, credit, tax benefit, exemption or deductions, tuition voucher, subsidy, grant or loan of public monies or property,” whether “directly or indirectly.” Michigan Constitution (1964), art. VIII, sec. 2 (amended 1970). On the passage of this amendment, which the Michigan Supreme Court declared invalid to the extent that it confl icted with federal constitutional guarantees, see Mark Edward DeForrest, “An Overview and Evaluation of State Blaine Amendments: Origins, Scope, and First Amendment Concerns,” Harvard Journal of Law and Public Policy 26 (2003): 551, 588– 89. 30. Oklahoma Constitution (1907), art. II, sec. 5. 31. 494 U.S. 872 (1990). 32. Christopher C. Lund, “Religious Liberty after Gonzales: A Look at State RFRAs,” South Dakota Law Review 55 (2010): 466– 97. 33. 521 U.S. 507 (1997). 34. National Conference of State Legislatures, State Religious Freedom Restoration Acts (updated Oct. 15, 2015), http://www.ncsl.org/research/civil-and -criminal-justice/state-rfra-statutes.aspx. 35. Alabama Constitution (1901), Amendment 662 (adopted 1998). 36. Thomas C. Berg and Frank Myers, “The Alabama Religious Freedom Amendment: An Interpretive Guide,” Cumberland Law Review 31 (2000): 47, 55– 56. 37. Ibid., 55. 38. North Dakota Religious Freedom Amendment, Measure 3 (June 2012), Ballotpedia, http:// ballotpedia.org/ North _Dakota _Religious _Freedom _Amend ment, _Measure_3_(June_2012). 39. Berg and Myers, “The Alabama Religious Freedom Amendment,” 56. 40. Ibid., 58. 41. See, for instance, Pennsylvania Constitution (1968), art. I, sec. 26; Nebraska Constitution (1875), art. 1, sec. 3 (amended 1998). 42. Williams, “Equality Guarantees in State Constitutional Law,” 1211. For a list of states with generally framed equal protection clauses of this sort, see Friesen, State Constitutional Law, vol. 1, ch. 3, 7 n. 7. As Friesen notes, Nebraska

Notes to Pages 81–83

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became the most recent state to adopt a constitutional amendment of this sort, in 1998. 43. These early gender- equity provisions are noted in Williams, “Equality Guarantees in State Constitutional Law,” 12; Paul Benjamin Linton, “State Equal Rights Amendments: Making a Difference or Making a Statement,” Temple Law Review 70 (1997): 907, 908– 9. 44. California Constitution (1879), art. XX, sec. 18. 45. Wyoming Constitution (1890), art. VI, sec. 1; Utah Constitution (1896), art. IV, sec. 1. Additionally, the Wyoming declaration of rights included a provision declaring, “Since equality in the enjoyment of natural and civil rights is only made sure through political equality, the laws of this State affecting the political rights and privileges of its citizens shall be without distinction of race, color, sex, or any circumstance or condition.” Wyoming Constitution (1890), art. I, sec. 3. 46. Illinois Constitution (1971), art. I, sec. 18. 47. Virginia Constitution (1971), art. I, sec. 11. The 1971 Illinois constitution also included a broad anti- discrimination provision, alongside of a genderdiscrimination provision, albeit dealing specifically with “hiring and promotion practices of any employer or in the sale of rental or property.” Illinois Constitution (1971), art. 1, sec. 17. 48. Pennsylvania Constitution (1968), art. I, sec. 28 (amended 1971). 49. Record of Proceedings: Sixth Illinois Constitutional Convention (1969): Verbatim Transcripts (Springfield, IL: John W. Lewis, 1972), 3670. 50. Ibid., 3675. 51. Ibid., 3669. 52. Ibid., 3670. 53. Ibid., 3669– 70. 54. Paul Benjamin Linton and Ryan S. Joslin, “The Illinois Equal Rights Provision at Twenty-Five: Has It Made a Difference?,” Southern Illinois University Law Review 21 (1997): 275, 277. 55. David E. Kyvig, Explicit and Authentic Acts: Amending the U.S. Constitution, 1776–1995 (Lawrence: University Press of Kansas, 1996), 406–19. 56. Motives for passage of state amendments in the early 1970s are discussed in Paul Benjamin Linton, “State Equal Rights Amendments,” 909–11. Adoption of state equal rights amendments is discussed in, among other articles, William Wayne Kilgarlin and Banks Tarver, “The Equal Rights Amendment: Government Action and Individual Liberty,” Texas Law Review 68 (1990): 1543, 1546–49. 57. New Jersey Public Question No. 2 (1975), Ballotpedia, http:// ballotpedia .org/ New_Jersey_Public _Question _No._2 _(1975); New York Equality of Rights, Amendment 1 (1975), Ballotpedia, http:// ballotpedia.org/ New_York _Equality _of _Rights, _Amendment _1_(1975). 58. Voter rejections of state ERAs from the mid-1970s through the mid-1980s

316

Notes to Pages 84–85

were not the fi rst voter rejections. Although most state ERAs on the ballot earlier in the 1970s were approved, some were rejected, as in Wisconsin in 1973. Wisconsin Equality of Sexes Amendment, Question 2 (Apr. 1973), Ballotpedia, https:// ballotpedia .org/ Wisconsin _Equality_of _Sexes _Amendment, _Question _2 _(April _1973). 59. Iowa voters defeated amendments in 1980 and 1992 but approved an amendment in 1998. Iowa Constitution (1857), art. I, sec. 1 (amended 1998). Florida voters rejected an amendment in 1978 but approved an amendment in 1998. Florida Constitution (1969), art. I, sec. 2 (amended 1998). 60. Oregon Constitution (1859), art. I, sec. 46 (adopted 2014). 61. A 2004 Congressional Research Service report identified twenty states with sex- discrimination constitutional provisions and provided the text of each state provision. Leslie W. Gladstone, Equal Rights Amendments: State Provisions (CRS Report for Congress, Aug. 23, 2004), 1, http://digital.library.unt.edu/ ark:/67531/metacrs7397/m1/1/ high _res _d/ RS20217_2004Aug23.pdf. To this list should be added Rhode Island’s 1986 amendment and Oregon’s 2014 amendment. It should be noted that in some cases, as in Hawaii, Illinois, Louisiana, and Wyoming, state constitutions include more than one provision that addresses gender equity. It should also be noted that in some cases, such as California, the state’s gender equity provision has been amended through the years. 62. Such is the case with provisions in the constitutions of Colorado, Hawaii, Illinois, Iowa, Maryland, New Mexico, Pennsylvania, Utah, Washington, and Wyoming. 63. Colorado Constitution (1876), art. II, sec. 29 (amended 1972). 64. Connecticut Constitution (1965), art. I, sec. 20 (amended 1974). 65. This point is discussed in Linda J. Wharton, “State Equal Rights Amendments Revisited: Evaluating Their Effectiveness in Advancing Protection against Sex Discrimination,” Rutgers Law Journal 36 (2005): 1201, 1229– 30. 66. Illinois Constitution (1971), art. I, sec. 17. 67. Montana Constitution (1973), art. II, sec. 4. 68. Rhode Island Constitution (1986), art. I, sec. 2. 69. Early adoption of these provisions is noted in Alan Meisel, “The Rights of the Mentally Ill under State Constitutions,” Law and Contemporary Problems 45 (summer 1982): 7, 37. 70. Among other acts, Congress enacted the Education of the Handicapped Act of 1970, Section 504 of the Rehabilitation Act of 1973, and the Developmentally Disabled Assistance and Bill of Rights Act of 1975. See Michael L. Perlin, “State Constitutions and Statutes as Sources of Rights for the Mentally Disabled: The Last Frontier,” Loyola of Los Angeles Law Review 20 (1987): 1249, 1254. 71. Illinois Constitution (1971), art. I, sec. 19.

Notes to Pages 85–89

317

72. Record of Proceedings: Sixth Illinois Constitutional Convention (1969): Verbatim Transcripts, 3683. 73. Ibid., 3686. 74. Florida Constitution (1969), art. 1, sec. 2 (amended 1974). 75. Louisiana Constitution (1975), art. I, sec. 3. 76. Massachusetts Constitution (1780), Articles of Amendment, art. CXIV (adopted 1980); Connecticut Constitution (1965), Articles of Amendment, art. XXI (adopted 1984); Rhode Island Constitution (1986), art. I, sec. 2. 77. Adoption of state privacy provisions in these two waves is discussed in Charles W. “Rocky” Rhodes, “State Constitutions, Privacy Provisions,” in Paul Finkelman, ed., Encyclopedia of American Civil Liberties, 3 vols. (New York: Routledge, 2006), III: 1531– 34. 78. Washington Constitution (1889), art. I, sec. 7. 79. Charles W. Johnson and Scott P. Beetham, “The Origin of Article I, Section 7 of the Washington State Constitution,” Seattle University Law Review 31 (2008): 431, 433 n. 10. 80. Ibid., 433. 81. 116 U.S. 616 (1886). 82. Johnson and Beetham, “The Origin of Article I, Section 7 of the Washington State Constitution,” 442. 83. Ibid., 433. 84. Ibid., 444. 85. Ibid., 447. 86. Ibid., 447. 87. Gormley and Harman, “Privacy and the States,” 1282. 88. 381 U.S. 479 (1965). 89. 410 U.S. 113 (1973). 90. Montana Constitutional Convention, 1971–1972: Verbatim Transcript, vols. III–VII (Helena: Montana Legislature, 1981), 1681. 91. Ibid. 92. California Constitution (1879), art. I, sec. 1 (amended 1972). See Gormley and Harman, “Privacy and the States,” 1282. 93. Alaska Constitution (1959), art. 1, sec. 22 (adopted 1972). See also Florida Constitution (1969), art. I, sec. 23 (amended 1980). 94. Hawaii Constitution (1959), art. 1, sec. 6 (amended 1978). See also Montana Constitution (1973), art. II, sec. 10. 95. 367 U.S. 643 (1961). 96. Hawaii Constitution (1959), art. 1, sec. 7 (amended 1968); Florida Constitution (1969), art. I, sec. 12. 97. Illinois Constitution (1971), art. 1, sec. 6; South Carolina Constitution (1896), art. I, sec. 10 (amended 1971); Louisiana Constitution (1975), art. I, sec. 5.

318

Notes to Pages 89–93

98. Illinois Constitution (1971), art. 1, sec. 6. 99. Record of Proceedings: Sixth Illinois Constitutional Convention (1969): Verbatim Transcripts, 1525. 100. Ibid. 101. Ibid. 102. Ibid., 1538. 103. Ibid., 1536. 104. Ibid., 1544. 105. New York Constitution (1895), art. I, sec. 12 (amended 1938). 106. Missouri Constitution (1945), art. I, sec. 15 (amended 2014). 107. On the passage of amendments since 1963 that have adopted such guarantees for the fi rst time or strengthened existing guarantees, see David B. Kopel, “What State Constitutions Teach about the Second Amendment,” Northern Kentucky Law Review 29 (2002): 827, 828. Eugene Volokh has performed the valuable service of compiling all additions and revisions to the text of state constitutional right-to-keep-and-bear-arms provisions up through the early twentyfi rst century. Volokh, “State Constitutional Rights to Keep and Bear Arms.” 108. 554 U.S. 570 (2008). 109. 561 U.S. 742 (2010). 110. Kopel, “What State Constitutions Teach About the Second Amendment,” 851. California, Iowa, Maryland, Minnesota, New Jersey, and New York are the only states lacking such a guarantee. 111. Virginia Constitution (1971), art. I, sec. 13. 112. North Dakota Constitution (1889), art. 1, sec. 1 (amended 1984); Nebraska Constitution (1875), art. I, sec. 1 (amended 1988); Illinois Constitution (1971), art. I, sec. 22; Nevada Constitution (1864), art. I, sec. 11 (amended 1982); New Hampshire Constitution (1784), pt. I, art. 2-a (adopted 1982); West Virginia Constitution (1872), art. III, sec. 22 (adopted 1986); Delaware Constitution (1897), art. I, sec. 20 (adopted 1987); Wisconsin Constitution (1848), art. I, sec. 25 (adopted 1998). 113. Alaska Constitution (1959), art. I, sec. 19 (amended 1994). 114. Utah Constitution (1896), art. I, sec. 6 (amended 1984). 115. Michigan Constitution (1964), art. I, sec. 6; Florida Constitution (1969), art. I, sec. 8; New Mexico Constitution (1912), art. II, sec. 6 (amended 1971); Kansas Constitution (1861), Bill of Rights, sec. 4 (amended 2010). 116. Pennsylvania Constitution (1776), Declaration of Rights, art. XIII. 117. State v. Friel, 508 A.2d 123 (Me. 1986). 118. Marshall J. Tinkle, The Maine State Constitution, 2nd ed. (New York: Oxford University Press, 2013), 56– 57. 119. Maine Constitution (1820), art. I, sec. 16 (amended 1987). 120. Utah Constitution (1896), art. I, sec. 6 (amended 1984). 121. Kansas Constitution (1859), Bill of Rights, sec. 4 (amended 2010).

Notes to Pages 93–96

319

122. Louisiana Constitution (1975), art. I, sect. 11 (amended 2012). 123. Alabama Constitution (1901), art. I, sec. 26 (amended 2014); Missouri Constitution (1945), art. I, sec. 23 (amended 2014). 124. Idaho Constitution (1890), art. I, sec. 11 (amended 1978). 125. Provisions of this sort were included in the constitutions of Tennessee (1870), Missouri (1875), North Carolina (1876), Texas (1876), Colorado (1876), Louisiana (1879), Montana (1889), Mississippi (1890), and Kentucky (1891). 126. Florida Constitution (1969), art. I, sec. 8(b)(c)(d). 127. Idaho Constitution (1890), art. I, sec. 11 (amended 1978). 128. Missouri Constitution (1945), art. I, sec. 23 (amended 2014). 129. Suzanne D. Lebsock, “Radical Reconstruction and the Property Rights of Southern Women,” Journal of Southern History 43 (1977): 195, 196. 130. Mississippi Constitution (1869), art. I, sec. 16. 131. For instance, Oregon voters in 2000 approved a citizen-initiated amendment, the Oregon Property Protection Act of 2000, which required a conviction and clear and convincing evidence that the property was used in a crime before it could be seized, and then in 2008 approved an amendment that relaxed both of these requirements, by permitting civil asset forfeiture for crimes similar to one for which someone has been convicted and by establishing a preponderance of evidence test. Oregon Constitution (1859), art. XV, sec. 10 (adopted 2000 and amended 2008). 132. The Illinois 1869– 70 convention approved the fi rst constitutional provision requiring compensation for damage to private property. Illinois Constitution (1870), art. II, sec. 13. On the pioneering role of this convention, see Carl H. Davis, “Constitutional Provisions against Damaging Private Property,” Virginia Law Register 8 (1902): 525, 526– 27. For citations to other state constitutional provisions adopted in the late nineteenth century requiring compensation for damage to, in addition to taking of, private property, see ibid., 527– 28. For an analysis of the motivations for these constitutional changes that draws on constitutional convention debates, see Maureen E. Brady, “Property’s Ceiling: State Courts and the Expansion of Takings Clause Property,” Virginia Law Review 102 (2016): 1167, 1190– 94. 133. See, for instance, Washington Constitution (1889), art. I, sec. 16 (amended 1920). 134. Berman v. Parker, 348 U.S. 26 (1954); Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984). 135. 545 U.S. 469 (2005). 136. Ilya Somin, The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain (Chicago: University of Chicago Press, 2015), 135. 137. 545 U.S. 469, 489. 138. County of Wayne v. Hathcock, 471 Mich. 445 (2004). 139. The cases are Norwood v. Horney, 110 Ohio St. 3d 353 (2006); Board

320

Notes to Pages 96–98

of County Commissioners of Muskogee County v. Lowery, 136 P.3d 639 (Okla. 2006). Discussed in Robert F. Williams, The Law of American State Constitutions (New York: Oxford University Press, 2009), 6– 7 n. 35. 140. For a comprehensive discussion of state responses after Kelo that takes note of state court decisions, legislative statutes, and constitutional amendments, see Castle Coalition, 50 State Report Card: Tracking Eminent Domain Reform Legislation since Kelo, http://castlecoalition.org/50 -state-report-card (accessed Jan. 20, 2017). 141. Andrew P. Morriss, “Symbol or Substance? An Empirical Assessment of State Responses to Kelo,” Supreme Court Economic Review 17 (2009): 237, 242–43. 142. Somin, The Grasping Hand, 145. 143. Ibid., 158. 144. Castle Coalition, 50 State Report Card: Tracking Eminent Domain Reform Legislation since Kelo. 145. These amendments, with the exception of the California amendment, are noted in Dinan, “State Constitutional Amendments and Individual Rights in the Twenty-First Century,” 2125– 26. 146. Florida Constitution (1969), art. X, sec. 6(c) (amended 2006); Georgia Constitution (1983), art. IX, sec. 2, para. VII (amended 2006); Louisiana Constitution (1975), art. I, sec. 4(B) (amended 2006); Michigan Constitution (1964), art. X, sec. 2 (amended 2006); New Hampshire Constitution (1784), pt. I, art. 12-a (adopted 2006); South Carolina Constitution (1896), art. I, sec. XIII (amended 2006); North Dakota Constitution (1889), art. 1, sec. 16 (amended 2006). 147. Nevada Constitution (1864), art. I, sec. 22 (adopted 2008). 148. California Constitution (1879), art. I, sec. 19(b) (amended 2008). The rejected amendment is noted at California Proposition 98, Eminent Doman and Rent Control (June 2008), Ballotpedia, https:// ballotpedia.org/California _Proposition _98, _Eminent _Domain _and _Rent _Control _(June_2008). 149. Texas Constitution (1876), art. I, sec. 17 (amended 2009); Mississippi Constitution (1890), art. 3, sec. 17-A (amended 2011); Virginia Constitution (1971), art. I, sec. 11 (amended 2012). 150. For a detailed assessment and comparison of these amendments, see Somin, The Grasping Hand, 157– 60. 151. Ibid., 157, 159. 152. Virginia Constitution (1971), art. I, sec. 11 (amended 2012). 153. North Dakota Constitution (1889), art. 1, sec. 16 (amended 2006). 154. Florida Constitution (1969), art. X, sec. 6(c) (adopted 2006). 155. Mississippi Constitution (1890), art. 3, sec. 17-A (amended 2011). 156. Jeanna M. Mastrocinque, “An Overview of the Victims’ Rights Movement: Historical, Legislative, and Research Developments,” Sociology Compass 4 (2010): 95, 85– 97.

Notes to Pages 98–99

321

157. Ibid., 97– 98; see Victoria Schwartz, “The Victims’ Rights Amendment,” Harvard Journal on Legislation 42 (2005): 525. 158. Schwartz, “The Victims’ Rights Amendment,” 526. 159. On these origins, see Paul Cassell, “Balancing the Scales of Justice: The Case for and the Effects of Utah’s Victims Rights Amendment,” Utah Law Review (1994): 1373, 1382; Leroy L. Lamborn, “Victim Participation in the Criminal Justice Process: The Proposals for a Constitutional Amendment,” Wayne Law Review 34 (1987): 125, 129– 32. 160. Schwarz, “The Victims’ Rights Amendment,” 529– 30. 161. Ibid. 162. These include the Victims of Crime Act of 1984 and, most important, the Crime Victims’ Rights Act of 2004. 163. Lamborn, “Victim Participation in the Criminal Justice Process,” 132. 164. This point is made in Schwartz, “The Victims’ Rights Amendment,” 526; and Cassell, “Balancing the Scales of Justice,” 1382. 165. Dates of enactment of each of the victims’ rights amendments are compiled on the National Victims’ Constitutional Amendment Passage website, http://www.nvcap.org/states/stvras.html (accessed Jan. 20, 2017). 166. Candace McCoy, “Crime as a Boogeyman: Why Californians Changed Their Constitution to Include a ‘Victims’ Bill of Rights’ (and What It Really Did),” in G. Alan Tarr, ed., Constitutional Politics in the States: Contemporary Controversies and Historical Patterns (Westport, CT: Greenwood Press, 1996), 133. 167. These amendments were approved in Rhode Island (through a convention-generated amendment) in 1986, Florida and Michigan in 1988, and Texas and Washington in 1989. 168. Arizona adopted an amendment in 1990, followed by New Jersey in 1991, followed by six states in 1992 (Colorado, Illinois, Kansas, Missouri, Nebraska, and New Mexico), Wisconsin in 1993, six states in 1994 (Alabama, Alaska,  Idaho,  Maryland, Ohio, and Utah), seven states in 1996 (Connecticut, Indiana, Nevada, Oklahoma, North Carolina, South Carolina, and Virginia), three states in 1998 (Louisiana, Mississippi, and Tennessee), and Oregon in 1999. It should be noted that in approving the 1999 amendment, Oregon voters were readopting a portion of a wide-ranging 1996 amendment that also included various changes in rights of criminal defendants but was invalidated by the state supreme court in a 1998 decision on the grounds that each of the nine sections of the wide-ranging amendment should have been advanced as a separate amendment. A number of these original measures were resubmitted as separate amendments and some were approved, including the victims’ rights measure, in 1999. 169. In 2016 voters in South Dakota, North Dakota, and Montana approved amendments adding victims’ rights provisions to their state constitutions. Some scholarly accounts viewed Montana as having already adopted victims’ rights

322

Notes to Pages 99–102

language, via a 1998 amendment. See, for instance, Michael E. Solimine and Kathryn Elvey, “Federalism, Federal Courts, and Victims’ Rights,” Catholic University Law Review 64 (2015): 909, 913. But other analysts did not consider this earlier generally phrased Montana provision as a victims’ rights amendment as such, given that it simply states, “Laws for the punishment of crime shall be founded on the principles of prevention, reformation, public safety, and restitution for victims.” Montana Constitution (1973), art. II, sec. 28 (amended 1998). In any case, the 2016 Montana amendment clearly sets out specific provisions intended to “preserve and protect a crime victim’s right to justice.” Montana Constitution (1973), art. II, sec. 36 (adopted 2016). 170. For a comprehensive review of the specific guarantees in state amendments adopted prior to the twenty-fi rst century, see Mastrocinque, “An Overview of the Victims’ Rights Movement,” 100–101. 171. Florida Constitution (1969), art. I, sec. 16(a) (amended 1988). 172. Rhode Island Constitution (1986), art. I, sec. 23. 173. Wisconsin Constitution (1848), art. I, sec. 9 (amended 1993). 174. “Measure 51 Arguments,” Oregon Secretary of State, Offi cial 2008 Primary Election Voters’ Pamphlet, 43. 175. Oregon Constitution (1859), art. I, sec. 42(3)(a) (amended 2008). 176. California Constitution (1879), art. I, sec. 28 (amended 2008). 177. Illinois Constitution (1971), art. I, sec. 8.1 (amended 2014). 178. As Fritz Snyder has noted, other state constitutional provisions could be considered precursors to these more general right-to-know amendments in requiring that certain information be made public. Fritz Snyder, “The Right to Participate and the Right to Know in Montana,” Montana Law Review 66 (2005): 297, 298– 99 n. 10. For instance, Michigan’s 1963 constitution included a provision declaring, “All fi nancial records, accountings, audit reports and other reports of public moneys shall be public records and open to inspection. A statement of all revenues and expenditures of public moneys shall be published and distributed annually, as provided by law.” Michigan Constitution (1964), art. IX, sec. 23. 179. For an account of Montana’s 1971– 72 convention debates, see Fritz Snyder and Mae Nan Ellingson, “The Lawyer-Delegates of the Montana 1972 Constitutional Convention: Their Influence and Importance,” Montana Law Review 72 (2011): 53, 67– 71. 180. Montana Constitutional Convention, 1971–1972: Verbatim Transcript, vols. III–VII (Helena: Montana Legislature, 1981), 1670. 181. Ibid. 182. Montana Constitution (1973), art. I, sec. 9. 183. Journal of the Convention to Revise the (New Hampshire) Constitution, May 1974 (Concord, NH: Evans Printing, 1974), 173. 184. New Hampshire Constitution (1784), pt. I, art. 8 (amended 1976).

Notes to Pages 102–105

323

185. Journal of the Convention to Revise the (New Hampshire) Constitution, May 1974, 174. 186. Ibid., 175. 187. Louisiana Constitution (1975), art. XII, sec. 3. 188. Florida Constitution (1969), art. I, sec. 24 (amended 1992). 189. Florida Constitution (1969), art. I, sec. 24(c) (amended 2002). 190. California Constitution (1879), art. I, sec. 3(b)(1) (amended 2004). 191. California Constitution (1879), art. I, sec. 3(b)(2) (amended 2004). 192. Jeffrey Omar Usman, “The Game Is Afoot: Constitutionalizing the Right to Hunt and Fish in the Tennessee Constitution,” Tennessee Law Review 77 (2009): 57, 72– 74. 193. Ibid., 62– 67. 194. Ibid., 72– 74. 195. Pennsylvania Constitution (1776), Frame of Government, sec. 43. 196. Vermont Constitution (1777), sec. XXXIX. 197. Vermont Constitution (1793), sec. 67. 198. Charter of Rhode Island and Providence Plantations (1663), reprinted in Frances N. Thorpe, The Federal and State Constitutions, Colonial Charters, and Other Organic Laws, 7 vols. (Washington, DC: Government Printing Office, 1909), VI: 3219. 199. Rhode Island Constitution (1843), art. I, sec. 17. 200. California Constitution (1879), art. I, sec. 25 (amended 1910). 201. Quoted in Joseph R. Grodin, Darien Shanske, and Michael B. Salerno, The California State Constitution, 2nd ed. (New York: Oxford University Press, 2015), 97. 202. Stephen P. Halbrook, “The Constitutional Right to Hunt: New Recognition of an Old Liberty in Virginia,” William & Mary Bill of Rights Law Journal 19 (2010): 197, 203–4. 203. Usman, “The Game Is Afoot,” 82. 204. Arian Campo-Flores, “More States Aim to Protect Hunting,” Wall Street Journal, Apr. 27, 2014, http://www.wsj.com/articles/SB10001424052702304 78 8 4 0 4579519821058576310. 205. North Dakota and Virginia in 2000; Wisconsin in 2003; Louisiana and Montana in 2004; Georgia in 2006; Oklahoma in 2008; Arkansas, South Carolina, and Tennessee in 2010; Idaho, Kentucky, Nebraska, and Wyoming in 2012; Mississippi in 2014; Texas in 2015; and Indiana and Kansas in 2016. The dates of enactment are supplied in National Conference of State Legislatures, State Constitutional Right to Hunt and Fish (updated Nov. 9, 2016), http://www.ncsl.org/ research/environment-and-natural-resources/state -constitutional-right-to -hunt -and-fish.aspx. 206. Georgia Constitution (1983), art. I, sec. 1, para. XXVIII (adopted 2006). 207. Virginia Constitution (1971), art. XI, sec. 4 (amended 2000).

324

Notes to Pages 105–110

208. Louisiana Constitution (1975), art. I, sec. 27 (adopted 2004). 209. Wisconsin Constitution (1848), art. I, sec. 26 (adopted 2003). 210. California Constitution (1879), art. I, sec. 2(b) (adopted 1980). 211. North Dakota Constitution (1889), art. 11, sec. 29 (adopted 2012); Missouri Constitution (1945), art. I, sec. 35 (adopted 2014).

Chapter Four 1. The Eleventh Amendment barring federal lawsuits against unconsenting state governments was adopted in response to Chisholm v. Georgia, 2 U.S. 419 (1793). The Fourteenth Amendment declaring that all persons born in the United States are citizens was passed in response to Dred Scott v. Sandford, 60 U.S. 393 (1857). The Sixteenth Amendment authorizing a federal income tax was enacted in response to Pollock v. Farmers’ Loan & Trust Co., 158 U.S. 601 (1895). The Twenty- Sixth Amendment setting a voting age of eighteen in state and local elections was passed in response to Oregon v. Mitchell, 400 U.S. 112 (1970). 2. David E. Kyvig, Explicit and Authentic Acts: Amending the U.S. Constitution, 1776–1995 (Lawrence: University Press of Kansas, 1996), 384– 85; Edward Keynes, with Randall K. Miller, The Court vs. Congress: Prayer, Busing, and Abortion (Durham, NC: Duke University Press, 1989), 191– 95; John R. Vile, Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues, 1789– 2002, 2nd ed. (Santa Barbara, CA: ABC- CLIO, 2003), 352– 53. 3. Keynes and Miller, The Court vs. Congress, 225– 27. 4. Ibid., 280– 85. 5. These efforts are discussed in Vicki C. Jackson, “The (Myth of Un)amendability of the US Constitution and the Democratic Component of Constitutionalism,” International Journal of Constitutional Law 13 (2015): 575, 588– 90. On the 2006 Senate vote, see Carl Hulse and John Holusha, “Amendment on Flag Burning Fails by One Vote in Senate,” New York Times, June 27, 2006, http:// www.nytimes.com/2006/06/27/washington/27cnd-flag.html. 6. The initial reluctance to pursue a court- overturning amendment, along with the Senate’s eventual consideration and defeat of such an amendment, which was primarily intended to overturn Citizens United v. FEC, 558 U.S. 310 (2010), are discussed in Jackson, “The (Myth of Un)amendability of the US Constitution and the Democratic Component of Constitutionalism,” 585– 88. 7. On statutes seeking to limit federal court desegregation orders, see Keynes and Miller, The Court vs. Congress, 223. Passage of the Hyde Amendment is discussed in Harris v. McRae, 448 U.S. 297 (1980).

Notes to Pages 110–113

325

8. The twelve states in which judges on the state’s highest court do not stand for election are Connecticut, Delaware, Hawaii, Massachusetts, Maine, New Jersey, New Hampshire, New York, Rhode Island, South Carolina, Vermont, and Virginia. Judicial selection mechanisms in the fi fty states are detailed in National Center for State Courts, “Methods of Judicial Selection,” http://www .judicialselection .us/ judicial _selection/methods/selection _of _judges .cfm?state (accessed Apr. 20, 2017). 9. Michael L. Buenger and Paul J. De Muniz, American Judicial Power: The State Court Perspective (Northampton, MA: Edward Elgar, 2015), 102. 10. Rhode Island judges enjoy life tenure. Massachusetts and New Hampshire judges serve until the age of seventy. In New Jersey, judges who serve an initial term and are reappointed can serve until the age of seventy. 11. James M. Fischer, “Ballot Propositions: The Challenge of Direct Democracy to State Constitutional Jurisprudence,” Hastings Constitutional Law Quarterly 11 (1983): 43– 90; Donald E. Wilkes Jr., “First Things Last: Amendomania and State Bills of Rights,” Mississippi Law Journal 54 (1984): 223– 59. 12. Candace McCoy, “Crime as a Boogeyman: Why Californians Changed Their Constitution to Include a ‘Victims’ Bill of Rights’ (and What It Really Did),” and Barry S. Latzer, “California’s Constitutional Counter-Revolution,” in G. Alan Tarr, ed., Constitutional Politics in the States: Contemporary Controversies and Historical Patterns (Westport, CT: Greenwood Press, 1996), 128–46, 149– 77. 13. For a comprehensive treatment of amendments of this kind from the 1970s through the mid-1980s, see Janice May, “Constitutional Amendment and Revision Revisited,” Publius 17 (Winter 1987): 153, 175– 79. For an article focusing on amendments responding to religious liberty decisions, in particular, through the early twenty-fi rst century, see James N. G. Cauthen, “Referenda, Initiatives, and State Constitutional No-Aid Clauses,” Albany Law Review 76 (2013): 2141– 87. 14. Douglas S. Reed, “Popular Constitutionalism: Toward a Theory of State Constitutional Meanings,” Rutgers Law Journal 30 (1999): 871, 926– 27; John Dinan, “Court- Constraining Amendments and the State Constitutional Tradition,” Rutgers Law Journal 38 (2007): 983–1039; Kenneth Miller, Direct Democracy and the Courts (New York: Cambridge University Press, 2009), ch. 7; Kenneth Miller, “Defi ning Rights in the States: Judicial Activism and Popular Response,” Albany Law Review 61 (2013): 2061– 2103. 15. Some state constitutional amendments have run afoul of federal constitutional provisions. For instance, a 1984 West Virginia amendment sought, in part, to require an opportunity at the start of the school day for “personal and private contemplation, meditation, or prayer.” West Virginia Constitution (1872), art. III, sec. 15a (amended 1984). But a federal district judge held this require-

326

Notes to Pages 113–114

ment unconstitutional in Walter v. W. Va. Board of Educ., 610 F. Supp. 1169 (S.D. W. Va. 1985). 16. Washington Constitution (1889), art. I, sec. 11. 17. Washington Constitution (1889), art. I, sec. 11 (amended 1904). 18. Washington Constitution (1889), art. I, sec. 11 (amended 1957). 19. Washington Constitution (1889), art. I, sec. 11 (amended 1993). 20. South Carolina Constitution (1896), art. XI, sec. 9. 21. Quoted in James Lowell Underwood, The Constitution of South Carolina, vol. 3, Church and State, Morality and Free Expression (Columbia: University of South Carolina Press, 1992), 173– 74. The new provision is South Carolina Constitution (1896), art. XI, sec. 4 (amended 1972). It is true that in the period between the issuance of the West Committee Report in 1969 and voter ratification of the amendment in 1972, the South Carolina Supreme Court issued a decision, Hartness v. Patterson, 179 S.E.2d 907 (S.C. 1971), holding that a 1970 state statute providing tuition grants to students at religious schools violated the existing constitutional provision. Therefore, voter ratification of this 1972 amendment had the effect of overturning this 1971 decision. But unlike other amendments proposed in response to state court decisions, this South Carolina amendment was proposed a few years prior to this decision. 22. Nebraska Constitution (1875), art. VII, sec. 11 (amended 1972). The constitutional revision commission also recommended another change in this section to permit state or local governments to enter into contracts with non-public schools to provide for the education of handicapped students. This recommendation was later approved by the legislature and ratified by voters in 1976. Nebraska Constitution (1875), art. VII, sec. 11 (amended 1976). For an explanation, see Robert D. Miewald and Peter J. Longo, The Nebraska State Constitution: A Reference Guide (Westport, CT: Greenwood, 1993), 127. 23. On the motivation for this change, see Miewald and Longo, Nebraska State Constitution, 127; Lenstrom v. Thone, 311 N.W.2d 884 (Neb. 1981), 887. Although there is some debate about the intentions of the commission in suggesting this revised language, the Nebraska Supreme Court interpreted this change as requiring a shift in the court’s approach to religious establishment question and led to various programs being sustained that would have likely been invalidated in the absence of such an amendment. 24. Cauthen, “Referenda, Initiatives, and State Constitutional No-Aid Clauses.” 25. The initial 1944 ruling by the New Jersey Supreme Court is Everson v. Board of Education, 39 A.2d 75 (N.J. Sup. Ct. 1944). The 1945 ruling by the state appellate court, the New Jersey Court of Errors and Appeals, is Everson v. Board of Education, 44 A.2d 333 (N.J. 1945). The 1947 US Supreme Court ruling is Everson v. Board of Education, 330 U.S. 1 (1947). See the discussion in

Notes to Pages 114–116

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Dinan, “Court- Constraining Amendments and the State Constitutional Tradition,” 1003. 26. New Jersey Constitution (1948), art. VIII, sec. IV, para. 3. 27. The 1966 Delaware Supreme Court advisory opinion is Opinion of Justices, 216 A.2d 868 (De. 1966). This 1966 opinion reaffi rmed the holding of a 1934 Delaware Superior Court opinion: State ex rel. Traub v Brown, 172 A. 835 (Del. Super. Ct. 1934). 28. Delaware Constitution (1897), art. X, sec. 5 (amended 1967). The origin of this amendment is discussed in Randy J. Holland, The Delaware State Constitution (New York: Oxford University Press, 2011), 234– 35. 29. State ex rel. Reynolds v. Nusbaum, 115 N.W.2d 761 (Wis. 1962). 30. Wisconsin Constitution (1848), art. I, sec. 23 (amended 1967). The amendment’s origin is discussed in Jack Stark, The Wisconsin State Constitution: A Reference Guide (Westport, CT: Greenwood Press, 1997), 71– 72. 31. Cert. of Question from US Dist. Court, 372 N.W.2d 113 (S.D. 1985). This opinion reaffi rmed McDonald v. School Board of Yankton Independent School Dist. No. 1, 90 S.D. 599 (1976). 32. South Dakota Constitution (1889), art. VIII, sec. 20 (amended 1986). 33. Wisconsin Constitution (1848), art. I, sec. 24 (amended 1972). Discussed in Stark, The Wisconsin State Constitution, 72. 34. Milwaukee County v. Carter, 45 N.W.2d 90 (Wis. 1950). 35. Wisconsin Constitution (1848), art. X, sec. 3 (amended 1972). 36. Stark, The Wisconsin State Constitution, 185. When this policy was challenged a few years later, in Ex rel. Holt v. Thompson, 225 N.W.2d 678 (Wis. 1975), the Wisconsin Supreme Court made clear that this state constitutional provision eliminated any state constitutional infi rmities regarding the statute. 37. Seegers v. Parker, 241 So. 2d 213 (La. 1970). 38. Lee Hargrave, The Louisiana State Constitution: A Reference Guide (Westport, CT: Greenwood Press, 1991), 33. The new constitution eliminated the prior provision in article 4, section 8, which declared, “No money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof.” The new constitution also eliminated the prior provision in article 12, section 13, which declared, “No appropriation of public funds shall be made to any private or sectarian school.” 39. Cauthen, “Referenda, Initiatives, and State Constitutional No-Aid Clauses.” 2165. 40. Ibid., 2165– 66. 41. Ibid., 2169– 70. 42. Board of Education v. Allen, 392 U.S. 236 (1968). 43. Board of Education v. Allen, 20 N.Y.2d 109 (1967), 115.

328

Notes to Pages 117–120

44. Ibid., 115–16. 45. Ibid. 46. See, for instance, the dissenting opinion of Justice Frank Summers in the 1970 Louisiana Supreme Court case that prompted elimination of the state’s nofunding provisions, and in particular Justice Summer’s claim that the majority opinion represented a significant and unwarranted change in the court’s jurisprudence in a more separationist direction. Seegers v. Parker, 231. 47. Mapp v. Ohio, 367 U.S. 643 (1961). 48. See especially U.S. v. Leon, 468 U.S. 897 (1984). 49. Jennifer Friesen, State Constitutional Law: Litigating Individual Rights, Claims, and Defenses, 4th ed. (Charlottesville, VA: LexisNexis, 2006), ch. 11, 5. 50. Ibid., ch. 11, 8– 9; Barry Latzer, State Constitutions and Criminal Justice (Westport, CT: Greenwood Press, 1991), 37– 38. 51. People v. Marxhausen, 204 Mich. 559 (1919). This decision is discussed in Ronald J. Bretz, “170 Years of a Balancing Act: A Brief History of Criminal Justice in Michigan,” in Paul Finkelman and Martin J. Hershock, eds., The History of Michigan Law (Athens: Ohio University Press, 2006), 178. 52. People v. Stein, 265 Mich. 610 (1933). 53. Michigan Constitution (1908), art. II, sec. 10 (amended 1936). 54. Michigan Constitution (1908), art. II, sec. 10 (amended 1952). 55. Michigan Constitution (1964), art. I, sec. 11. 56. Susan Fino, The Michigan State Constitution: A Reference Guide (Westport, CT: Greenwood, 1995), 84. 57. Latzer, “California’s Constitutional Counter-Revolution,” 159– 62; Kenneth P. Miller, “The California Supreme Court and the Popular Will,” Chapman Law Review 19 (2016): 151, 174– 75. 58. State v. Sarmiento, 397 So. 2d 643 (1981), 645. The Florida Supreme Court had on other occasions interpreted the state constitution as providing broader protection for search-and-seizure rights than was guaranteed by the US Constitution. But the Sarmiento decision was the precipitating event for the 1982 courtoverturning amendment. See Christopher Slobogin, “State Adoption of Federal Law: Exploring the Limits of Florida’s ‘Forced Linkage’ Amendment,” University of Florida Law Review 39 (1987): 655, 670– 71. 59. California Constitution (1879), art. I, sec. 28(d) (adopted 1982). See Latzer, “California’s Constitutional Counter-Revolution,” 164– 66, for an analysis. 60. Florida Constitution (1969), art. I, sec. 12 (amended 1982). 61. Oregon Crime Victims’ Rights, Measure 40 (1996), Ballotpedia, http:// ballotpedia.org/Oregon _Crime_Victims’_Rights, _Measure_40 _(1996). 62. Armatta v. Kitzhaber, 959 P.2d 49 (Ore. 1998). 63. Friesen, State Constitutional Law, ch. 11, 8– 9 n. 26. 64. See the discussion of these rulings in Armatta v. Kitzhaber, 66– 67. 65. Ibid., 65.

Notes to Pages 120–123

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66. The US Supreme Court seemed to indicate as much in its decision in Schilb v. Juebel, 404 U.S. 357 (1971). This was confi rmed in a footnote in McDonald v. Chicago, 561 U.S. 742 (2012), 764 n. 12, where “prohibition against excessive bail” was included in a list of provisions of the Bill of Rights held applicable to the states. 67. Ariana Lindermayer, “What the Right Hand Gives: Prohibitive Interpretations of the State Constitutional Right to Bail,” Fordham Law Review 78 (2009): 267, 274. 68. Wilkes, “First Things Last,” 250. 69. The fi rst three amendments are discussed in Janice C. May, The Texas State Constitution (New York: Oxford University Press, 2011), 66– 67. 70. Texas Constitution (1876), art. I, sec. 11a (adopted 1956). 71. Texas Constitution (1876), art. I, sec. 11a (amended 1977). 72. Texas Constitution (1876), art. I, sec. 11a (amended 1993). 73. Texas Constitution (1876), art. I, sec. 11b (adopted 2005). 74. As Wilkes showed, amendments were passed in nine other states between 1970 and 1984: in Arizona (1970 and 1982), Utah (1972), Michigan (1978), Nebraska (1978), New Mexico (1980), Wisconsin (1981), Vermont (1982), California (1982), and Florida (1982). Wilkes, “First Things Last,” 234. 75. These amendments are discussed in ibid., 250. 76. In re Underwood, 9 Cal. 3d 345 (1973), 351. 77. Ibid., 350. 78. California Constitution (1879), art. I, sec. 12 (amended 1982). 79. State v. Pray, 346 A.2d 227 (Vt. 1975). 80. Vermont Constitution (1793), ch. II, sec. 40 (amended 1982 and 1994). 81. Williams v. Florida, 399 U.S. 78 (1970). 82. Connecticut Constitution (1965), Articles of Amendment, art. IV (adopted 1972). Discussed in Wilkes, “First Things Last,” 241. 83. State v. Perrella, 129 A.2d 226 (Conn. 1957). 84. State v. Hamm, 423 N.W.2d 379 (Minn. 1988). 85. Ibid. 86. Minnesota Constitution (1858), art. I, sec. 6 (amended 1988). Noted in Friesen, State Constitutional Law, ch. 12, 98 n. 437. 87. California Constitution (1879), art. I, sec. 28(f)(4) (adopted 1982). 88. People v. Beagle, 492 2d. 1 (Cal. 1972). 89. McCoy, “Crime as a Boogeyman,” 137. 90. Harris v. New York, 401 U.S. 222 (1971). 91. These state court rulings are discussed in Friesen, State Constitutional Law, ch. 12, 27– 28. 92. Commonwealth v. Triplett, 462 Pa. 244 (1975), 248–49. 93. Pennsylvania Constitution (1968), art. I, sec. 9 (amended 1984). 94. Latzer, State Constitutions and Criminal Justice, 203–4.

330

Notes to Pages 123–127

95. Maryland v. Craig, 497 U.S. 836 (1990). 96. Friesen, State Constitutional Law, ch. 12, 153– 54. 97. People v. Fitzpatrick, 633 N.E.2d 685 (Ill. 1994). 98. Illinois Constitution (1971), art. I, sec. 8 (amended 1994). This is discussed in Thomas Conklin, “People v. Fitzpatrick: The Path to Amending the Illinois Constitution to Protect Child Witnesses in Criminal Sexual Abuse Cases,” Loyola University of Chicago Law Journal 26 (1995): 321– 50. 99. Commonwealth v. Ludwig, 527 Pa. 472 (1991). 100. Commonwealth v. Louden, 536 Pa. 180 (1994). 101. Bergdoll v. Kane (1999). 102. Pennsylvania Constitution (1968), art. I, sec. 9 (amended 2003). 103. Pennsylvania Constitution (1968), art. V, sec. 10(c) (amended 2003). 104. This paragraph draws on John Dinan, “State Constitutions and Individual Rights in the Twenty-First Century,” Albany Law Review 76 (2013): 2105, 2116. 105. State v. Chun, 76 P.3d 935 (Haw. 2003). 106. Hawaii Constitution (1959), art. I, sec. 24 (amended 2004). 107. State v. Peseti, 65 P.3d 119 (Haw. 2003). 108. The amendment declares that “the legislature may provide by law for the inadmissibility of privileged confidential communications between an alleged crime victim and the alleged crime victim’s physician, psychologist, counselor or licensed mental health professional.” Hawaii Constitution (1959), art. I, sec. 14 (amended 2004). 109. Friesen, State Constitutional Law, ch. 12, 111–12. 110. State v. Rabago, 81 P.3d 1151 (Haw. 2003). 111. Taomae v. Lingle, 118 P.3d 1188 (Haw. 2005). 112. The amendment authorizes the legislature to defi ne what behavior constitutes “continuous sexual assault crimes against minors younger than fourteen years of age” and what constitutes jury unanimity required for conviction in such cases. Hawaii Constitution (1959), art. I, sec. 25 (amended 2006). 113. State v. Burns, 978 S.W.2d 759 (Mo. 1998). 114. Missouri Constitution (1945), art. I, sec. 17, 18(a). 115. State v. Ellison, 239 S.W.3d 603 (Mo. 2007). 116. Missouri Constitution (1945), art. I, sec. 18(c) (adopted 2014). 117. Hawkins v. Superior Court, 22 Cal. 3d 584 (1978). Other California Supreme Court rulings overturned via this amendment are noted in Miller, “The California Supreme Court and the Popular Will,” 170– 71, tbl. 2. 118. Miller, Direct Democracy and the Courts, 205. 119. Raven v. Deukmejian, 52 Cal. 3d 336 (1990). The court nevertheless upheld each of the other specific changes contained in the 1990 amendment. 120. Oregon Constitution (1859), art. I, sec. 36 (adopted 1914). 121. Oregon Constitution (1859), art. I, secs. 36– 38 (amended 1920).

Notes to Pages 127–131

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122. Oregon Constitution (1859), art. I, secs. 37– 38 (amended 1964). 123. Michigan Constitution (1964), art. IV, sec. 46. 124. Arizona Constitution (1912), art. XXII, sec. 22 (adopted 1933 and amended 1992). 125. Ohio Constitution (1851), art. IV, secs. 2– 3 (amended 1992). 126. Furman v. Georgia, 408 U.S. 238 (1972). 127. Gregg v. Georgia, 428 U.S. 153 (1976). 128. Kennedy v. Louisiana, 554 U.S. 407 (2008). 129. Atkins v. Virginia, 536 U.S. 304 (2002); Roper v. Simmons, 543 U.S. 551 (2008). 130. The origin of this amendment is discussed in Latzer, “California’s Constitutional Counter-Revolution,” 155– 57; Miller, Direct Democracy and the Courts, 201–4. 131. People v. Anderson, 6 Cal. 3d 628 (1972). 132. California Constitution (1879), art. I, sec. 27 (adopted 1972). 133. Miller, Direct Democracy and the Courts, 204. 134. Commonwealth v. O’Neal, 369 Mass. 242 (1975); Opinions of the Justices to the House of Representatives, 372 Mass. 912 (1977); District Attorney for the Suffolk District v. Watson, 381 Mass. 648 (1980). 135. Massachusetts Constitution (1780), Articles of Amendment, art. CXVI (adopted 1982). 136. State v. Gerald, 113 N.J. 40 (1988). 137. New Jersey Constitution (1948), art. I, para. 12 (amended 1992). 138. Oregon Constitution (1859), art. I, sec. 40 (adopted 1984). As the ballot summary for the 1984 amendment explained, referring to two other clauses that voters sought to prohibit the court from invoking, “Article I, section 15 requires that the laws for punishment of crime shall be founded on principles of reformation and not vindictive justice; Article I, section 16 prohibits cruel, unusual, and disproportionate punishments. The measure would exempt aggravated murder statutes requiring the death penalty on unanimous jury fi ndings from these constitutional guarantees.” Oregon Secretary of State, Offi cial 1984 General Election Voters’ Pamphlet (State of Oregon General Election, Nov. 6, 1984), 28. 139. Armstrong v. Harris, 773 So. 2d 7 (Fla. 2000). 140. Provenzano v. Moore, 744 So. 2d 413 (Fla. 1999). 141. Florida Constitution (1969), art. I, sec. 17 (amended 2002). 142. Heide Brandes, “Oklahoma High Court Clears Way for Two Inmates’ Executions,” Reuters, Apr. 23, 2014, http://www.reuters.com/article/usa -execution-oklahoma-idUSL2N0NG05820140424. 143. Oklahoma Constitution (1907), art. II, sec. 9a (adopted 2016). 144. Massachusetts Constitution (1780), Articles of Amendment, art. CXVI (adopted 1982). 145. Commonwealth v. Colon- Cruz, 393 Mass. 150 (1984), 157.

332

Notes to Pages 132–135

146. Ibid., 163. 147. Latzer, “California’s Constitutional Counter-Revolution,” 157. 148. In Tennessee, where state supreme court justices also stand for retention elections, supporters of the death penalty also worked to unseat unsympathetic state supreme court justices and were in one case successful, in 1996, with the defeat of Justice Penny White. Traciel V. Reid, “The Politicization of Retention Elections: Lessons from the Defeat of Justices Lanphier and White,” Judicature 83 (1999): 68– 77. 149. Latzer, “California’s Constitutional Counter-Revolution,” 157, 166; Miller, “The California Supreme Court and the Popular Will,” 181– 82. 150. Latzer, “California’s Constitutional Counter-Revolution,” 158. 151. Colorado Constitution (1876), art. IX, sec. 8 (amended 1974); Massachusetts Constitution (1780), Articles of Amendment, art. CXI (adopted 1978). 152. Robert F. Williams, “Equality Guarantees in State Constitutional Law,” Texas Law Review 63 (1985): 1195, 1219– 20 n. 162; Miller, “Defi ning Rights in the States,” 2084– 85. 153. Crawford v. Board of Education, 7 Cal. 3d 280 (1976), 289. 154. California Constitution (1879), art. I, sec. 7(a) (amended 1979). 155. Rhode Island Paramount Right to Life, Constitutional Amendment 14 (1986), Ballotpedia, http:// ballotpedia.org/ Rhode_Island _Paramount _Right _to _Life, _Constitutional _Amendment _14 _(1986); Oregon Prohibition of Abortion and Exceptions, Measure 8 (1990), Ballotpedia, http:// ballotpedia.org/Oregon _Prohibition _of _Abortion _and _Exceptions, _Measure_8 _(1990). 156. These failed amendments are noted at Colorado Defi nition of Persons, Initiative 48 (2008), Ballotpedia, https:// ballotpedia.org/Colorado_Defi nition _of _Person, _Initiative_48 _(2008); Colorado Fetal Personhood, Initiative 62 (2010), Ballotpedia, https:// ballotpedia.org/Colorado_Fetal _Personhood, _Initiative_62 _(2010); Colorado Defi nition of “Personhood” Initiative, Amendment 67 (2014), Ballotpedia, https:// ballotpedia.org/Colorado_Defi nition _of _%22Personhood %22 _Initiative, _Amendment _67_(2014); Mississippi Life Begins at the Moment of Fertilization Amendment, Initiative 26 (2011), Ballotpedia, https:// ballotpedia .org/ Mississippi _Life _Begins _at _the _Moment _of _Fertilization _Amendment, _Initiative_26 _(2011); North Dakota “Life Begins at Conception” Amendment, Measure 1 (2014), Ballotpedia, https:// ballotpedia.org/ North _Dakota _%22Life _Begins _at _Conception%22 _Amendment, _Measure_1_(2014). The 2014 Colorado personhood amendment differed from the others in that it would have declared that a fetus should be considered a person simply for purposes of the Colorado Criminal Code and the Colorado Wrongful Death Act. 157. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). 158. Maher v. Roe, 432 U.S. 464 (1977); Harris v. McRae, 448 U.S. 297 (1980). 159. American Civil Liberties Union, “Public Funding for Abortion,” https://

Notes to Page 135

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www.aclu.org/other/public-funding-abortion (accessed Apr. 20, 2017); Friesen, State Constitutional Law, ch. 2, 58– 63; Miller, “Defi ning Rights in the States,” 2074– 75. 160. Paul Benjamin Linton, Abortion under State Constitutions: A State- byState Analysis, 2nd ed. (Durham, NC: Carolina Academic Press, 2012), 5– 6. On state court decisions regarding parental consent and notification in particular, see Friesen, State Constitutional Law, ch. 2, 64– 67. 161. On two other occasions, in Colorado and Arkansas, voters approved citizen-initiated amendments restricting public funding of abortions. But these amendments were not adopted in response to state court rulings. Rather, they were adopted through the constitutional initiative process in circumstances where state legislators were not inclined to impose such restrictions. In Colorado, voters approved a 1984 amendment and then rejected a 1988 citizeninitiated amendment that would have repealed the original amendment. The approved amendment is at Colorado Constitution (1876), art. V, sec. 50 (adopted 1984). The rejected amendment is noted at Colorado Abortion Funding, Initiative 7 (1988), Ballotpedia, http:// ballotpedia.org/Colorado_Abortion _Funding, _Initiative_7_(1988). Meanwhile, in Arkansas, voters initially defeated such an amendment in 1986 but approved such an amendment in 1988. The defeated amendment is noted at Arkansas Limitation on Public Funding for Abortion, Proposed Amendment 65 (1986), Ballotpedia, http:// ballotpedia.org/Arkansas _Limitation _on _Public _Funding _for_Abortion, _Proposed _Amendment _65 _ (1986). The approved amendment is at Arkansas Constitution (1874), Amendment 68 (adopted 1988). It should be noted that when Congress in the early 1990s modified slightly the language of the federal Hyde Amendment, both of these state constitutional amendments—the 1984 Colorado amendment and 1988 Arkansas amendment— were challenged in federal court and deemed by federal judges to be stricter than permissible under congressional statutes and therefore unenforceable to the extent that they were preempted by these statutes. In particular, in a decision upheld by the US Court of Appeals for the Tenth Circuit, in Hern v Beye, 57 F.3d 906 (10th Cir. 1995), a federal district judge held the 1984 Colorado amendment invalid to the extent that it confl icted with federal Medicaid law. Regarding the 1988 Arkansas amendment, in a ruling affi rmed by the US Court of Appeals for the Eighth Circuit, a federal district judge ruled that the amendment was permanently invalid, at least as long as the state participated in the federal-state Medicaid program. But on appeal the US Supreme Court in Dalton v. Little Rock Family Planning Services, 516 U.S. 474 (1996), modified the original holding and determined that the amendment was preempted only to the extent that it confl icted with federal Medicaid law. 162. Moe v. Secretary of Administration and Finance, 382 Mass. 629 (1981). 163. Quoted in Sara Terry, “Abortion Funding on Three State Ballots,”

334

Notes to Pages 136–137

Christian Science Monitor, Sept. 10, 1986, http://m.csmonitor.com/1986/0910/ ababy.html. 164. Massachusetts State Legislature to Regulate Abortions, Question 1 (1986), Ballotpedia, http:// ballotpedia.org/ Massachusetts _State_Legislature_to _Regulate_Abortion, _Question _1_(1986). 165. Oregon Limited State Funding of Abortions, Measure 6 (1986), Ballotpedia, http:// ballotpedia.org/Oregon _Limited _State_Funding _of _Abortions, _Measure_6 _(1986). 166. Planned Parenthood Association v. Department of Human Resources, 687 2d 785 (Or. 1984). It should be noted that the Oregon Supreme Court decision was not grounded in an interpretation of state constitutional provisions. In reaching its decision, the Oregon Supreme Court noted that the state court of appeals had relied on the state constitution in invalidating the state’s restriction on public funding for abortions. But the state supreme court rested its decision on an alternative grounds: because the administrative rule exceeded the administrative agency’s statutory authority. Ibid., 787. 167. Rhode Island Constitution (1986), art. I, sec. 2. 168. American Academy of Pediatrics v. Lungren, 16 Cal. 4th 307 (1997). 169. Miller, “The California Supreme Court and the Popular Will,” 186– 87. 170. The origin of the campaigns surrounding these amendments is discussed in David O. Weber, “Prop. 4: Third Try for Parental Notification of Abortion,” California Healthline, Oct. 20, 2008, http://californiahealthline.org/news/prop -4 -third-try-for-parental-notification-of-abortion/. 171. In re T. W., 551 So. 2d 1186 (Fla. 1989). 172. Maya Bell, “Amendment 1 Stirs Passions about Abortion,” Orlando Sentinel, Oct. 24, 2004, http://articles.orlandosentinel.com/2004 -10 -24/news/ 0410240346 _1_parental-notification-florida-supreme-court-florida-constitution. 173. North Florida Women’s Health Services v. State, 866 So. 2d 612 (Fla. 2003). 174. On this motivation for the amendment, see the comments of Florida house speaker Johnnie Byrd: “It is the only way to trump the liberal majority on Florida’s Supreme Court.” Quoted in Bell, “Amendment 1 Stirs Passions about Abortion.” 175. Florida Constitution (1969), art. X, sec. 22 (adopted 2004). 176. Lizette Alvarez, “Voters in Florida Are Set to Weigh In on Two Contentious Ballot Questions,” New York Times, Oct. 6, 2012, http://www.nytimes .com/ 2012/ 10/ 07/ us/ floridians -face -initiatives -on -abortion -and -church -and -state.html. 177. Florida Abortion, Amendment 6 (2012), Ballotpedia, http:// ballotpedia .org/ Florida _Abortion, _Amendment _6 _(2012). 178. Ibid.

Notes to Pages 137–141

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179. Planned Parenthood of Middle Tennessee v. Sundquist, 38 S.W.3d 1 (Tenn. 2000). 180. Justice William Barker wrote in his dissent in the Sundquist case, “Plainly stated, the effect of the Court’s holding today is to remove from the people all power, except by constitutional amendment, to enact reasonable regulations of abortion.” Ibid., 39. 181. Tennessee Constitution (1870), art. I, sec. 36 (adopted 2014). 182. Baehr v. Lewin, 74 Haw. 530 (1993). See also 74 Haw. 645 (1993). 183. Baehr v. Miike, No. 91-1394 (Haw. Cir. Ct. Dec. 3, 1996). 184. David Orgon Coolidge, “The Hawaii Marriage Amendment: Its Origins, Meaning, and Fate,” University of Hawaii Law Review 22 (2000): 19, 20– 21. 185. Ibid., 35– 38. 186. Reed, “Popular Constitutionalism,” 926– 27. 187. Quoted in Coolidge, “The Hawaii Marriage Amendment,” 82. 188. Hawaii Constitution (1959), art. I, sec. 23 (adopted 1998). 189. Coolidge, “The Hawaii Marriage Amendment,” 108–12. 190. Brause v. Bureau of Vital Statistics, 1998 WL 88743 (Alaska Superior Court, Feb. 27, 1998). 191. Kevin G. Clarkson, David Orgon Coolidge, and William C. Duncan, “The Alaska Marriage Amendment: The People’s Choice on the Last Frontier,” Alaska Law Review 16 (1999): 213, 219– 20. 192. Ibid., 227– 36, 244. 193. Alaska Constitution (1959), art. I, sec. 25 (adopted 1998). 194. Baker v. Vermont, 744 A.2d 864 (Vt. 1999). 195. Carey Goldberg, “Vermont Moves Step Closer to Same- Sex Civil Unions,” New York Times, Apr. 19, 2000, http://www.nytimes.com/2000/04/19/ us/vermont-moves-step -closer-to -same-sex-civil-unions.html. 196. Robert J. Hume, Courthouse Democracy and Minority Rights (New York: Oxford University Press, 2013), 75. 197. Nebraska Constitution (1875), art. I, sec. 29 (adopted 2000). On the prominent role of the Vermont Supreme Court ruling in the campaign, see Pam Belluck, “Nebraskans to Vote on Most Sweeping Ban on Gay Unions,” New York Times, Oct. 21, 2000, http://www.nytimes.com/2000/10/21/us/nebraskans -to -vote-on-most-sweeping-ban-on-gay-unions.html. 198. Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003). 199. Opinions of the Justices to the Senate, 802 N.E.2d 565 (Mass. 2004). 200. Amendments were approved in 2004 in Arkansas, Georgia, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, North Dakota, Ohio, Oklahoma, Oregon, and Utah. 201. Amendments were approved in 2005 in Kansas and Texas. 202. Amendments were approved in 2006 in Alabama, Colorado, Idaho, South Carolina, South Dakota, Tennessee, Virginia, and Wisconsin.

336

Notes to Pages 141–145

203. The New Jersey Supreme Court issued a 2006 decision in Lewis v. Harris, 188 N.J. 415 (2006), interpreting the state constitution as requiring recognition of same-sex civil unions. But no other state supreme court during this period issued a decision requiring recognition of same-sex marriage. Hume, Courthouse Democracy, 86– 87. 204. Hume, Courthouse Democracy, 171– 72. 205. Ibid., 81– 82. 206. Pam Belluck, “Massachusetts Rejects Bill to Eliminate Gay Marriage,” New York Times, Sept. 15, 2005, http://www.nytimes.com/2005/09/15/us/ massachusetts-rejects-bill-to -eliminate-gay-marriage.html. 207. Ibid. 208. John Dinan, “State Constitutional Developments in 2007,” in The Book of the States 2008, vol. 40 (Lexington, KY: Council of State Governments, 2008), 5. 209. Ibid. 210. Ibid. 211. These efforts are discussed in Miller, Direct Democracy and the Courts, 208– 9. 212. Strauss v. Horton, 46 Cal. 4th 364 (2009). 213. On two occasions voters rejected same-sex marriage ban amendments. Arizona voters rejected an amendment in 2006 but then approved a different version of the amendment in 2008. Minnesota voters rejected such an amendment in November 2012, marking the last time a same-sex marriage ban amendment was considered by voters in the United States. 214. Kerrigan v. Commissioner of Public Health, 289 Conn. 135 (2008). 215. On the court-preempting motivation of the 2012 North Carolina amendment, for instance, see Campbell Robertson, “North Carolina Voters Pass Same- Sex Marriage Ban,” New York Times, May 8, 2012, http://www.nytimes .com/2012/05/09/us/north-carolina-voters-pass-same-sex-marriage-ban.html. 216. These judicial-retention elections in Iowa are discussed in Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same- Sex Marriage (New York: Oxford University Press, 2013), 150– 53; Hume, Courthouse Democracy, 102. 217. Obergefell v. Hodges, 135 S. Ct. 2071 (2015). 218. Arizona Constitution (1912), art. II, sec. 31. 219. Arizona voters rejected amendments of this sort appearing on the ballot in 1986, 1990, and 1994. Toni McClory, Understanding the Arizona Constitution (Tucson: University of Arizona Press, 2001), 162– 63. 220. Friesen, State Constitutional Law, ch. 6, 13– 27. 221. See Anthony Champagne, “Tort Reform and Judicial Selection,” Loyola of Los Angeles Law Review 38 (2005): 1483–1515. 222. Among the key decisions are Morris v. Savoy, 61 Ohio St. 3d 684 (1991),

Notes to Pages 145–154

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and State ex re. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St. 3d 451 (1999). 223. Arbino v. Johnson & Johnson, 116 Ohio St. 3d 468 (2007). For an analysis of this 2007 ruling in the context of prior Ohio Supreme Court rulings, see Kara Monahan, “State Constitutional Law—Tort Reform—Supreme Court of Ohio Reverses Course and Upholds Limits on Noneconomic and Punitive Damages as Constitutional: Arbino v. Johnson & Johnson, 880 N.E.2d 420 (Ohio 2007),” Rutgers Law Journal 40 (2009): 955– 69. 224. On the discussion in the Wyoming legislature in 2004, see Mead Gruver, “Tort Reform Constitutional Amendment Fails,” Billings Gazette, Feb. 24, 2004, http:// billingsgazette.com/news/state-and-regional/wyoming/tort-reform -constitutional -amend ment -fails/ article _1bfad478 -82ce -5705 -864b -e40776 cd40a6.html. On discussion in the Arkansas legislature in 2013, see Rob Moritz, “Lawmakers Struggle with Tort Reform,” Arkansas News, Apr. 15, 2013, http:// arkansasnews.com/sections/news/ law makers-struggle-tort-reform.html. 225. Smith v. Department of Insurance, 507 So. 2d 1080 (Fla. 1987), 1087– 89. The proposed amendment is Florida Tort Reform Amendment (1988), Ballotpedia, http:// ballotpedia.org/ Florida _Tort _Reform _Amendment _(1988). 226. The decision is Lucas v. United States, 757 S.W.2d 687 (Tex. 1988). 227. The proposed amendment is Oregon Legislatively Authorized Limits on Damages in Civil Actions, Measure 81 (May 2000), Ballotpedia, https:// ballotpedia .org/ Oregon _Legislatively_Authorized _Limits _on _Damages _in _Civil _Actions, _Measure_81_(May_2000). 228. The proposed amendment is Oregon Healthcare Damage Limit, Measure 35 (2004), Ballotpedia, https:// ballotpedia.org/Oregon _Healthcare _Damage_Limit, Measure_35_(2004). 229. The decision is Lakin v. Senko Products, Inc., 987 P.2d 463 (Ore. 1999). 230. Texas Constitution (1876), art. III, sec. 66(b) (adopted 2003). 231. Ralph Blumenthal, “Malpractice Suits Capped at $750,000 in Texas Vote,” New York Times, Sept. 15, 2003, A12. 232. Texas Constitution (1876), art. III, sec. 66(c), sec. 66(e) (adopted 2003).

Chapter Five 1. Other scholars have also suggested the need to look beyond this conventional explanation. To this end, Alan Tarr has stressed the degree to which amendments in this and other areas “represent free choices” in response to experience with and concerns about effectiveness of governance. G. Alan Tarr, “Explaining State Constitutional Change,” Wayne Law Review 60 (2014): 9, 11. Amy Bridges has argued, similarly, that in explaining why state constitutions “contain provisions limiting the reach of the governments they created,” one

338

Notes to Pages 154–158

reason “follows from constitutional theory” regarding the differences between governments of plenary powers and governments of delegated powers, but there have also been “additional reasons to limit legislative discretion” emerging from experiences with legislative behavior in the mid-nineteenth century especially. Amy Bridges, Democratic Beginnings: Founding the Western States (Lawrence: University Press of Kansas, 2015), 16. 2. See especially John Joseph Wallis, “Constitutions, Corporations, and Corruption: American States and Constitutional Change, 1842 to 1852,” Journal of Economic History 65 (2005): 211– 56. These theoretical concerns are also discussed in Stewart E. Sterk and Elizabeth S. Goldman, “Controlling Legislative Shortsightedness: The Effectiveness of Constitutional Debt Limitations,” Wisconsin Law Review (1991): 1301– 67; Richard Briffault, “Foreword: The Disfavored Constitution: State Fiscal Limits and State Constitutional Law,” Rutgers Law Journal 34 (2003): 907– 57. 3. This analysis of lottery-ban amendments draws in part on John J. Dinan, The American State Constitutional Tradition (Lawrence: University Press of Kansas, 2006), 248– 53. 4. Charles T. Clotfelter and Philip J. Cook, Selling Hope: State Lotteries in America (Cambridge, MA: Harvard University Press, 1991), 34– 37. 5. Ann Fabian, Card Sharps and Bucket Shops: Gambling in NineteenthCentury America (New York: Routledge, 1999), 114– 25. 6. Report of the Trial of Charles N. Baldwin for a Libel (New York: C. N. Baldwin, 1818). 7. Herbert Asbury, Sucker’s Progress: An Informal History of Gambling in America from the Colonies to Canfi eld (New York: Dodd, Mead, 1938), 81– 82. 8. John Samuel Ezell, Fortune’s Merry Wheel: The Lottery in America (Cambridge, MA: Harvard University Press, 1960), 187. 9. See the discussion in Report of the Debates and Proceedings of the Convention of the State of New York (1821), by L. H. Clarke (New York: J. Seymour, 1821), 364– 65. 10. Ibid., 364. 11. Ibid. 12. Ibid., 365. 13. Ibid., 300. 14. On this vote, see ibid., 234. 15. On this vote, see ibid., 301– 2. 16. On adoption of these amendments in Tennessee in 1835, Michigan in 1835, Maryland in 1835, and Arkansas in 1836, see Ezell, Fortune’s Merry Wheel, 216– 20. On adoption of amendments in the 1840s and 1850s, see ibid., 225– 29. 17. Dan Friedman, The Maryland State Constitution (New York: Oxford University Press, 2011), 178 n. 672.

Notes to Pages 158–160

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18. Ernst Freund, The Police Power, Public Policy, and Constitutional Rights (Chicago: Callaghan, 1904), 181. 19. The lottery-ban constitutional provisions in effect at the close of the nineteenth century are listed in Dinan, The American State Constitutional Tradition, 398 n. 155. 20. Official Report of the Proceedings and Debates of the Convention . . . To Adopt a Constitution for the State of Utah [1895], 2 vols. (Salt Lake City, UT: Star Printing, 1898), I: 937. 21. Ibid. 22. Ibid. 23. On the development of corporate charters in New York in particular, see Howard Bodenhorn, “Bank Chartering and Political Corruption in Antebellum New York. Free Banking as Reform,” in Edward L. Glaeser and Claudia Goldin, eds., Corruption and Reform: Lessons from America’s Economic History (Chicago: University of Chicago Press, 2006), 233– 34. 24. Silvana R. Siddali, Frontier Democracy: Constitutional Conventions in the Old Northwest (New York: Cambridge University Press, 2016), 361– 63. 25. Jessica L. Hennessey and John Joseph Wallis, “Corporations and Organizations in the United States after 1840,” in Naomi R. Lamoreaux and William J. Novak, eds., Corporations and American Democracy (Cambridge, MA: Harvard University Press, forthcoming). 26. L. Ray Gunn, The Decline of Authority: Public Economic Policy and Political Development in New York State, 1800–1860 (Ithaca, NY: Cornell University Press, 1988), 112. 27. Ibid. 28. Ibid. 29. Proceedings and Debates of the Convention of Louisiana (1845) (New Orleans: Besancon, Ferguson, 1845), 858. 30. Ibid. 31. Ibid. 32. This is not a comprehensive list of the approaches that were taken. One might also take note of a provision in Delaware’s 1831 constitution requiring all incorporation acts to be renewed or to expire after twenty years and also providing, in a measure later borrowed by many other states, that the legislature retained the power of revocation of all corporate charters. Delaware Constitution (1831), art. II, sec. 17. 33. New York Constitution (1822), art. I, sec. 9. Discussed in Ronald E. Seavoy, The Origins of the American Business Corporation, 1784–1855 (Westport, CT: Greenwood Press, 1982), 95. 34. Delaware Constitution (1831), art. II, sec. 17; Michigan Constitution (1835), art. XII, sec. 2; Florida Constitution (1838), art. XIII, sec. 2; Texas Constitution (1845), art. VII, sec. 31.

340

Notes to Pages 160–162

35. Florida Constitution (1838), art. XIII, sec. 2. 36. Rhode Island Constitution (1843), art. IV, sec. 17. 37. Louisiana Constitution (1845), art. 123; Iowa Constitution (1846), art. VIII, sec. 2; New York Constitution (1846), art. VIII, sec. 1. 38. New York Constitution (1846), art. VIII, sec. 1. 39. Provisions were adopted in the 1840s in Louisiana, Iowa, New York, Illinois, Wisconsin, and California; in the 1850s in Michigan, Maryland, Ohio, Indiana, Minnesota, Oregon, and Kansas; in the 1860s in West Virginia, Nevada, Missouri, Nebraska, Alabama, North Carolina, and Arkansas; in the 1870s in Tennessee, Pennsylvania, New Jersey, Maine, Texas, Colorado, and Georgia; in the 1880s in North Dakota, South Dakota, Montana, Washington, Idaho, and Wyoming; in the 1890s in Mississippi, Kentucky, Utah, South Carolina, and Delaware; and in the 1900s and 1910s in Florida, Virginia, Oklahoma, New Mexico, Arizona, and Vermont. Dates of adoption and citations for these provisions are provided in George Heberton Evans Jr., Business Incorporation in the United States, 1800–1943 (New York: National Bureau of Economic Research, Inc., 1948), tbl. 5, 11. 40. James Roger Sharp, The Jacksonians versus the Banks: Politics in the States after the Panic of 1837 (New York: Columbia University Press, 1970), 40. 41. Bray Hammond, Banks and Politics in America from the Revolution to the Civil War (Princeton, NJ: Princeton University Press, 1957), 612. 42. Reginald C. McGrane, Foreign Bondholders and American State Debts (New York: MacMillan, 1935), 6. 43. Sharp, The Jacksonians versus the Banks, 41–45. 44. Walter Hugins, Jacksonian Democracy and the Working Class: A Study of the New York Workingmen’s Movement, 1829–1837 (Stanford, CA: Stanford University Press, 1960), 172. 45. Howard Bodenhorn, State Banking in Early America: A New Economic History (New York: Oxford University Press, 2003), 14–15. 46. Ibid., 14. 47. Ibid., 15. 48. See, for example, Indiana Constitution (1816), art. X; Mississippi Constitution (1817), art. VI, sec. 6; Illinois Constitution (1818), art. VIII, sec. 20; Alabama Constitution (1819), “Establishment of Banks.” 49. Hammond, Banks and Politics in America from the Revolution to the Civil War, 612–18. 50. Report of the Proceedings and Debates in the Convention to Revise the Constitution of the State of Michigan, 1850 (Lansing, MI: R. W. Ingals, 1850), 559– 60. 51. Louisiana Constitution (1845), art. 122; Texas Constitution (1845), art. VII, sec. 30. 52. Iowa Constitution (1846), art. 8; California Constitution (1849), art. IV,

Notes to Pages 163–165

341

sec. 34; Oregon Constitution (1859), art. XI, sec. 1. On the debates in California’s 1849 convention and Oregon’s 1857 convention, see Bridges, Democratic Beginnings, 47–48; David Alan Johnson, Founding the Far West: California, Oregon, and Nevada, 1840–1890 (Berkeley: University of California Press, 1992), 122– 25, 181– 82. 53. Arkansas Constitution (1836), Amendments, art. I (adopted 1846). 54. Siddali, Frontier Democracy, ch. 10. 55. See, for example, Alabama Constitution (1819), “Establishment of Banks.” 56. Illinois Constitution (1848), art. X, sec. 5; Wisconsin Constitution (1848), art. XI, sec. 5. 57. Michigan Constitution (1850), art. XV; Ohio Constitution (1851), art. XIII, sec. 7. 58. Illinois Constitution (1848), art. X, sec. 5. 59. Wisconsin Constitution (1848), art. XI, sec. 5. 60. Report of the Proceedings and Debates in the Convention to Revise the Constitution of the State of Michigan, 1850, 561. 61. Ibid., 583. 62. Ibid., 562– 63. 63. John Lauritz Larson, Internal Improvement: National Public Works and the Promise of Popular Government in the Early United States (Chapel Hill: University of North Carolina Press, 2001), chs. 3, 6. 64. Missouri Constitution (1820), art. VII. Other provisions include Alabama Constitution (1819), art. VI, sec. 21; Tennessee Constitution (1835), art. XI, sec. 9; Michigan Constitution (1835), art. XII, sec. 3; Florida Constitution (1838), art. XI. 65. B. U. Ratchford, American State Debts (Durham, NC: Duke University Press, 1941), 89. 66. The totals are for the year 1838. This amounted to nearly two-thirds of total state debt. Investments in banks, primarily among southern states, accounted for most of the remaining debt. Ibid., 88. 67. Henry Carter Adams famously referred to a “revulsion” of public sentiment against state involvement in these projects. Henry Carter Adams, Public Debts: An Essay in the Science of Finance (New York: D. Appleton, 1887), 339. In an influential article, Carter Goodrich undertook a reexamination of this period, with an eye toward showing that this rejection of state involvement in internal improvements during the 1840s “was by no means as complete or as fi nal” as suggested by earlier studies. Carter Goodrich, “The Revulsion against Internal Improvements,” Journal of Economic History 10 (1950): 145–46. In undertaking this reexamination, Goodrich provided an exhaustive table showing the evolution of state constitutional provisions targeting internal improvement projects. Ibid., 156– 61.

342

Notes to Pages 165–168

68. On the connection between failure of these internal improvement projects and calling these conventions, see Wallis, “Constitutions, Corporations, and Corruption.” 69. Debates and Proceedings in the New York State Convention, for the Revision of the Constitution (1846), by S. Croswell and R. Sutton, reporters for the Argus (Albany, NY: Office of the Albany Argus, 1846), 949. 70. Report of the Debates and Proceedings of the Convention for the Revision of the Constitution of the State of Indiana, 1850, H. Fowler, official reporter, 2 vols. (Indianapolis, IN: A. H. Brown, 1850), I: 645. 71. Ibid., I: 651. 72. Ibid., I: 652. 73. Ibid., I: 653. 74. Quoted in Gunn, The Decline of Authority, 156. 75. Mississippi Constitution (1832), art. VII, sec. 8. This provision is cited by Goodrich as the fi rst constitutional provision constraining legislative support for internal improvements. Goodrich, “The Revulsion against Internal Improvements,” 156. 76. Texas Constitution (1845), art. VII, sec. 8. 77. Maryland Constitution (1776), amendment proposed by act of 1840 (special session), ch. 55 (adopted 1841). 78. Goodrich, “The Revulsion against Internal Improvements,” 146. 79. Florida Constitution (1838), art. XI, sec. 2. 80. Florida Constitution (1838), art. XIII, sec. 13. Goodrich identifies this provision as the fi rst such provision to appear in a state constitution. Goodrich, “The Revulsion against Internal Improvements,” 156. 81. New Jersey Constitution (1844), art. VI, sec. 3. 82. Louisiana Constitution (1845), art. 121; Texas Constitution (1845), art. VII, sec. 31. Goodrich identifies these provisions as the fi rst such provisions in state  constitutions. Goodrich, “The Revulsion against Internal Improvements,” 156. 83. Wisconsin Constitution (1848), art. VIII, sec. 10; Michigan Constitution (1850), art. XIV, sec. 9. The pioneering role of these states in adopting these internal-improvement bans is noted in Goodrich, “The Revulsion against Internal Improvements,” 156. 84. Michigan Constitution (1850), art. XIV, sec. 9. 85. Robert M. Ireland, “The Problem of Local, Private, and Special Legislation in the Nineteenth- Century United States,” American Journal of Legal History 46 (2004): 271, 285– 86; James W. Ely Jr., Railroads and American Law (Lawrence: University Press of Kansas, 2001), 20– 29. 86. Indiana Constitution (1851), art. X, sec. 6; Ohio Constitution (1851), art. VIII, sec. 6. Adoption of these initial provisions barring local governments from investing in internal improvements is discussed in Howard Lee McBain, The

Notes to Pages 168–170

343

Law and the Practice of Municipal Home Rule (New York: Columbia University Press, 1916), 56. 87. Carter Goodrich, Government Promotion of American Canals and Railroads, 1800–1890 (New York: Columbia University Press, 1960), 247. 88. Ratchford, American State Debts, 98. 89. Ibid., 99–100. 90. Arthur Rolston, “Capital, Corporations, and Their Discontents in Making California’s Constitutions, 1849–1911,” Pacifi c Historical Review 80 (2011): 521, 530– 31; Wallis, “Constitutions, Corporations, and Corruption,” 230. 91. Wallis, “Constitutions, Corporations, and Corruption,” 234. 92. Ibid. 93. Sterk and Goldman, “Controlling Legislative Shortsightedness,” 1324. 94. Briffault, “Foreword: The Disfavored Constitution,” 917–18. 95. Debates and Proceedings in the New York State Convention, for the Revision of the Constitution (1846), 723, 724. 96. “History of Constitutional Reform in the United States,” Democratic Review 18 (June 1846): 403. 97. See, for example, the comments of James Guthrie, president of Kentucky’s 1849 convention. Report of the Debates and Proceedings of the Convention for the Revision of the Constitution of the State of Kentucky, 1849, R. Sutton, official reporter to the convention (Frankfort, KY: A. G. Hodges, 1850), 758. 98. Gunn, The Decline of Authority, 184. 99. Journal of the Convention to Form a Constitution for the State of Wisconsin (1847–1848) (Madison, WI: W. T. Tenney, Smith, and Holt, Printers, 1848), 203. 100. A. James Heins, Constitutional Restrictions against State Debt (Madison: University of Wisconsin Press, 1963), 8. 101. On the order and dates of adoption of these provisions, see Ratchford, American State Debts, 122. 102. Convention-framed provisions were adopted in New Jersey in 1844, Louisiana and Texas in 1845, New York and Iowa in 1846, Illinois and Wisconsin in 1848, California in 1849, Kentucky in 1850, and Indiana, Maryland, and Ohio in 1851. 103. Legislature-generated amendments were approved in Michigan in 1843 and Maine in 1848. 104. Indiana Constitution (1851), art. X, sec. 5. 105. Sterk and Goldman, “Controlling Legislative Shortsightedness,” 1315 n. 80. 106. Ibid., 1315–16. 107. Texas Constitution (1845), art. VII, sec. 33. 108. Rhode Island Constitution (1843), art. IV, sec. 13; Michigan Constitution (1835), Amendment II (adopted 1843); New York Constitution (1846), art.

344

Notes to Pages 170–172

VII, sec. 12. On the crafting of these early referendum requirements, see Susan P. Fino, “A Cure Worse Than the Disease? Taxation and Finance Provisions in State Constitutions,” Rutgers Law Journal 34 (2003): 959, 975– 76. 109. Texas Constitution (1845), art. VII, sec. 33. 110. Louisiana Constitution (1845), art. 114. 111. Ratchford, American State Debts, 383– 95. 112. Ibid., 396. 113. Wallis, “Constitutions, Corporations, and Corruption,” 213. 114. Ibid., 248. 115. Ibid., 222– 23. 116. Wisconsin Constitution (1848), art. VIIII, secs. 3– 5. 117. Ohio Constitution (1851), art. XII, sec. 4; Nevada Constitution (1864), art. IX, sec. 2. Provisions inserted in constitutions in later decades include Idaho Constitution (1890), art. VII, sec. 11; Montana Constitution (1889), art. XII, sec. 12; Utah Constitution (1896), art. XIII, sec. 5; Arizona Constitution (1912), art. IX, sec. 3. 118. Balanced-budget amendments during this period were adopted in Alabama in 1933, Oklahoma in 1941, and Texas in 1942. See Alabama Constitution (1901), Amendment 26 (adopted 1933); Oklahoma Constitution (1907), art. X, sec. 23 (amended 1941); Texas Constitution (1876), art. III, sec. 49-a (adopted 1942). 119. Balanced-budget amendments were framed by conventions and approved in New Jersey in 1947, Rhode Island in 1951, Michigan in 1963, Florida in 1968, and Illinois in 1971. 120. Tennessee Constitution (1870), art. II, sec. 24 (amended 1978); Hawaii Constitution (1959), art. VII, sec. 5 (amended 1978). 121. North Carolina Constitution (1871), art. III, sec. 5(3) (amended 1977). 122. The Maryland provision is Maryland Constitution (1867), art. III, sec. 52(5)(a) (adopted 1974). On adoption of this provision, see Friedman, The Maryland State Constitution, 201– 2. The Virginia provision is at Virginia Constitution (1971), art. X, sec. 7 (amended 1984). On adoption of this provision, see John Dinan, The Virginia State Constitution, 2nd ed. (New York: Oxford University Press, 2014), 236. 123. The challenges in counting balanced-budget provisions and the confl icting totals reported in various studies are noted in National Conference of State Legislatures, NCSL Fiscal Brief: State Balanced Budget Provisions (updated Oct. 2010), 2– 5, http://www.ncsl.org/documents/fiscal/StateBalanced Budget Provisions2010.pdf. On the difficulty of distinguishing balanced-budget provisions from debt-limitation provisions, see US General Accounting Office, Balanced Budget Requirements: State Experiences and Implications for the Federal Government (Mar. 1993), 11; Richard Briffault, Balancing Acts: The Reality Behind State Balanced Budget Requirements (New York: Twentieth Century Fund, 1996), 8– 9; Yilin Hou and Daniel L. Smith, “A Framework for Understanding

Notes to Pages 173–174

345

State Balanced Budget Requirement Systems: Reexamining Distinctive Features and Operational Defi nition,” Public Budgeting and Finance 26 (2006): 22, 44. 124. A 1993 General Accounting Office report identified thirty-five states as maintaining constitutional balanced-budget requirements. US General Accounting Office, Balanced Budget Requirements, 13. 125. Vermont has long been identified as the only state lacking either a constitutional or statutory balanced-budget requirement. National Conference of State Legislatures, NCSL Fiscal Brief: State Balanced Budget Provisions, 2. But some have argued that North Dakota also lacks any constitutional or statutory requirement. Hou and Smith, “A Framework for Understanding State Balanced Budget Requirement Systems,” 44. 126. These and other ways of distinguishing among various balanced-budget requirements are discussed in National Conference of State Legislatures, NCSL Fiscal Brief: State Balanced Budget Provisions; and Hou and Smith, “A Framework for Understanding State Balanced Budget Requirement Systems.” 127. Richard Briffault, “State and Local Finance,” in G. Alan Tarr and Robert F. Williams, eds., State Constitutions for the Twenty- First Century, vol. 3, The Agenda of State Constitutional Reform (Albany: State University of New York Press, 2006), 222. 128. Several other state bills of rights in the founding era included general mentions of the need for each person to contribute his “proportion” toward the expense of the state. Wade J. Newhouse, Constitutional Uniformity and Equality in State Taxation, 2nd ed., 2 vols. (Buffalo, NY: W. S. Hein, 1984) II: 1703– 04. 129. Maryland Constitution (1776), Declaration of Rights, art. XIII. 130. Illinois Constitution (1818), art. VIII, sec. 20. 131. Missouri Constitution (1820), art. XIII, sec. 20. 132. Although the provision in Tennessee’s 1796 constitution marks the fi rst appearance in a state constitution of the “equal and uniform” language that became prominent in later decades, the Tennessee provision differed from later provisions in its phrasing and effect. The provision in its entirety stated, “All lands liable to taxation in this State, held by deed, grant, or entry, shall be taxed equal and uniform, in such manner that no one hundred acres shall be taxed higher than another, except town-lots, which shall not be taxed higher than two hundred acres of land each; no freeman shall be taxed higher than one hundred acres, and no slave higher than two hundred acres on each poll.” Tennessee Constitution (1796), art. I, sec. 26. When Tennessee’s 1834 convention drafted a new constitution, this provision was substantially revised, in part by adding the nowstandard language that property “shall be taxed according to its value” in an “equal and uniform” manner. Tennessee Constitution (1835), art. II, sec. 28. 133. Maine Constitution (1820), art. IX, sec. 8; Alabama Constitution (1819), art. VI, sec. 8; Florida Constitution (1838), art. VIII, sec. 1.

346

Notes to Pages 174–177

134. Arkansas Constitution (1836), Revenue Article, Sec. 2; Louisiana Constitution (1845), art. VI, sec. 127; Texas Constitution (1845), art. VII, sec. 27. 135. Arkansas Constitution (1836), Revenue Article, Sec. 2. 136. Robin L. Einhorn, American Taxation, American Slavery (Chicago: University of Chicago Press, 2006), 203–4. On the debates in Virginia’s 1829– 30 convention, see ibid., 236– 39. 137. William L. Matthews Jr., “The Function of Constitutional Provisions Requiring Uniformity in Taxation,” Kentucky Law Journal 38 (1949– 50): 31, 44. 138. Newhouse, Constitutional Uniformity and Equality in State Taxation, 1730–40. 139. Ibid., 1735. 140. Ibid., 1736. 141. Ibid. 142. Sumner Benson, “A History of the General Property Tax,” in George C. S. Benson, Sumner Benson, Harold McClelland, and Procter Thomson, The American Property Tax: its History, Administration, and Economic Impact (Claremont, CA: Institutes for Studies in Federalism, Claremont Men’s College, 1965), 35. For statements in support of uniformity provisions expressed in convention debates held during this period, see ibid., 31–47. 143. The convention debates leading to adoption of this Wisconsin provision are discussed in Robin L. Einhorn, “Species of Property: The American Property-Tax Uniformity Clauses Reconsidered,” Journal of Economic History 61 (2001): 974, 1000–1001. 144. Journal of the Convention to Form a Constitution for the State of Wisconsin (1847–1848), 196. 145. The pattern of adoption of state uniformity provisions is traced in Newhouse, Constitutional Uniformity and Equality in State Taxation, 1702– 22; Glenn W. Fisher, The Worst Tax? A History of the Property Tax in America (Lawrence: University Press of Kansas, 1996), 51– 58. 146. This scholarly focus on Ohio’s 1850– 51 convention debates is noted in Einhorn, American Taxation, American Slavery, 243. 147. Report of the Debates and Proceedings of the Convention for the Revision of the Constitution of the State of Ohio, 1850– 51, J. V. Smith, official reporter to the convention, 2 vols. (Columbus, OH: S. Medary, 1851), II: 37. 148. Ibid., II: 37– 38. 149. Ibid., II: 49. 150. Ibid., II: 51. 151. California Constitution (1879), art. XIII-A (amended 1978). 152. On passage of amendments in the 1930s in particular, see Briffault, “State and Local Finance,” 223; Jon C. Teaford, The Rise of the States: Evolution of American State Government (Baltimore, MD: Johns Hopkins University Press, 2002), 132.

Notes to Pages 177–179

347

153. Arkansas Constitution (1874), Amendment 19 (adopted 1934). 154. Tennessee Constitution (1870), art. II, sec. 24 (adopted 1978). 155. Journal and Proceedings of the Limited Constitutional Convention, State of Tennessee (1977) (Nashville: Limited Constitutional Convention, State of Tennessee, 1977), 1141. 156. Ibid., 1164. 157. Ibid., 1177. 158. Alvin Rabushka and Pauline Ryan, The Tax Revolt (Stanford, CA: Hoover Institution, 1982), 186– 87. 159. See, among other sources, Daniel A. Smith, Tax Crusaders and the Politics of Direct Democracy (New York: Routledge, 1998), ch. 4; David O. Sears and Jack Citrin, Tax Revolt: Something for Nothing in California (Cambridge, MA: Harvard University Press, 1982); David Lowery and Lee Sigelman, “Understanding the Tax Revolt: Eight Explanations,” American Political Science Review 75 (1981): 963– 74. 160. Smith, Tax Crusaders and the Politics of Direct Democracy, 61. 161. Ibid. 162. Ibid., 61– 62. 163. Lowery and Sigelman, “Understanding the Tax Revolt,” 969. 164. Briffault, “The Disfavored Constitution,” 930– 32; Daniel R. Mullins and Bruce A. Wallin, “Tax and Expenditure Limitations: Introduction and Overview,” Public Budgeting & Finance 24 (Dec. 2004): 2, 11–12, tbl. 4. 165. Rabushka and Ryan, The Tax Revolt, 187– 89. 166. In other cases, groups secured passage of initiated statutes, as with Proposition 2½ in Massachusetts in 1980. 167. Hawaii Constitution (1959), art. VII, sec. 9 (amended 1978). 168. Michigan Constitution (1964), art. IX, sec. 25– 34 (amended 1980); California Constitution (1879), art. XIII-B (amended 1979); Missouri Constitution (1945), art. X, sec. 16 (amended 1980). 169. These provisions—adopted in Arizona, South Dakota, and Texas in 1978, Delaware in 1980, Alaska in 1982, South Carolina in 1984, and Oklahoma in 1985—are found at Arizona Constitution (1912), art. IX, sec. 17 (amended 1978); South Dakota Constitution (1889), art. XI, sec. 13 (adopted 1978); Texas Constitution (1876), art. VIII, sec. 22 (adopted 1978); Delaware Constitution (1897), art. VIII, sec. 10 (adopted 1980); Alaska Constitution (1959), art. IX, sec. 16 (adopted 1982); South Carolina Constitution (1896), art. X, sec. 7 (amended 1984); Oklahoma Constitution (1907), art. X, sec. 23 (amended 1985). 170. Colorado Constitution (1876), art. X, sec. 20 (adopted 1992). 171. These amendments—adopted in 1990 in Oregon; in 1992 in Arizona, Colorado, and Oklahoma; in 1996 in California, Nevada, and Oregon (a different measure than the 1990 measure); and in 1998 in Montana—are found at Oregon Constitution (1859), art. XI, sec. 11 (amended 1990); Arizona Constitution (1912),

348

Notes to Pages 179–180

art. IX, sec. 22 (adopted 1992); Colorado Constitution (1876), art. X, sec. 20 (adopted 1992); Oklahoma Constitution (1907), art. V, sec. 33 (amended 1992); California Constitution (1879), art. XIII- C, art. XIII-D (adopted 1996); Nevada Constitution (1864), art. IV, sec. 18(2) (amended 1996); Oregon Constitution (1859), art. XI, sec. 11(g-j) (adopted 1996). The 1998 Montana amendment, invalidated by the Montana Supreme Court as a violation of the separate-vote requirement in the state constitution, is noted at Montana Voter Approval for Tax Increases, CI- 75 (1998), Ballotpedia, https:// ballotpedia.org/ Montana _Voter_Approval _for _Tax _Increases, _CI-75_(1998). 172. These amendments—adopted in Connecticut in 1992, Louisiana in 1993, Florida in 1994, and Missouri, and South Dakota in 1996—are found at Connecticut Constitution (1965), Articles of Amendment, art. XXVIII (adopted 1992); Louisiana Constitution (1975), art. VII, sec. 6(F), sec. 10(C) (amended 1993); Florida Constitution (1969), art. VII, sec. 1 (amended 1996); Missouri Constitution (1945), art. X, sec. 18(e) (adopted 1996); South Dakota Constitution (1889), art. XI, sec. 14 (adopted 1996). 173. Such is the case in California, by virtue of amendments in 1978 and 1996; in Oregon, by virtue of amendments in 1990 and 1996; and in Colorado, by virtue of a 1992 amendment. 174. Tennessee Constitution (1870), art. II, sec. 24 (amended 1978). 175. Arizona Constitution (1912), art. IX, sec. 17(3) (amended 1978). 176. Bert Waisanan, State Tax and Expenditure Limits—2010, National Conference of State Legislatures, http://www.ncsl.org/research/fi scal-policy/state-tax -and-expenditure-limits-2010.aspx (accessed Sept. 21, 2017). 177. For a discussion of state constitutional provisions limiting various tax rates in the mid-twentieth century, see Glenn D. Morrow, “State Constitutional Limitations on the Taxing Authority of State Legislatures,” National Tax Journal 9 (1956): 126, 132. 178. Michigan Constitution (1964), art. IX, sec 8. 179. Florida Constitution (1969), art. VII, sec. 5 (amended 1972). 180. Nevada Constitution (1864), art. X, sec. 5 (amended 1989). 181. Georgia Constitution (1983), art VII, sec. 3, para. IV (amended 2014). 182. In considering pre-1970s amendments of this sort, one might note, among other examples, a 1924 Florida amendment prohibiting imposition of an individual income tax. Florida Constitution (1885), art. 9, sec. 11 (amended 1924). 183. Michigan Constitution (1964), art. IX, sec. 8 (amended 1974). 184. South Dakota Constitution (1889), art. XI, sec. 15 (adopted 2000). 185. Nevada Constitution (1864), art. X, sec. 1(9) (amended 1990). On the concerns about the legislature reversing a statutory ban on such a tax, see Michael W. Bowers, The Nevada State Constitution: A Reference Guide (Westport, CT: Greenwood, 1993), 111. 186. Tennessee Constitution (1870), art. II sec. 28 (amended 2014).

Notes to Pages 180–182

349

187. Missouri Constitution (1945), art. X, sec. 26 (adopted 2016). 188. These provisions—adopted in Colorado (1992), Arizona (2008), Missouri (2010), Montana (2010), Oregon (2010), Louisiana (2011), North Dakota (2014), and Texas (2015)—are found at Colorado Constitution (1876), art. X, sec. 20(8) (a) (adopted 1992); Arizona Constitution (1912), art. IX, sec. 24 (adopted 2008); Missouri Constitution (1945), art. X, sec. 25 (adopted 2010); Montana Constitution (1973), art. VIII, sec 17 (adopted 2010); Oregon Constitution (1859), art. IX, sec. 15 (adopted 2010); Louisiana Constitution (1975), art. VII, sec. 2.3 (adopted 2011); North Dakota Constitution (1889), art. 10, sec. 27 (adopted 2014); Texas Constitution (1876), art. VIII, sec. 29 (amended 2015). For the most part, these amendments prevent imposition of taxes not yet in place. But the Louisiana amendment overturned a real- estate transfer tax in effect in New Orleans. And in Colorado, the amendment left undisturbed existing real- estate transfer taxes but banned any new taxes or increases in these taxes. 189. This practice, along with additional illustrations and concerns about this practice, are discussed in John Dinan, “State Constitutional Initiative Processes and Governance in the 21st Century,” Chapman Law Review 19 (2016): 61, 84– 88. 190. California Constitution (1879), art. XIII-B (amended 1988). 191. Colorado Constitution (1876), art. IX, sec. 17 (adopted 2000). 192. New York Constitution (1895), art. VII, sec. 17 (adopted 1943). 193. Yilin Hou, State Government Budget Stabilization: Policy, Tools, and Impacts (New York: Springer, 2013), 27– 28. 194. Ibid., 48–49. 195. South Carolina Constitution (1896), art. III, sec. 36 (amended 1978). 196. Delaware Constitution (1897), art. VIII, sec. 6 (amended 1980); Oklahoma Constitution (1907), art. X, sec. 23 (amended 1985); Texas Constitution (1876), art. III, sec. 49(g) (amended 1988). 197. Louisiana Constitution (1975), art. VII, sec. 10.3 (amended 1990); Alaska Constitution (1959), art. IX, sec. 17 (amended 1990); Rhode Island Constitution (1986), art. IX, sec. 17 (adopted 1992); Virginia Constitution (1971), art. X, sec.  8 (amended 1992); Florida Constitution (1969), art. III, sec. 19 (amended 1992). 198. Missouri Constitution (1945), art. IV, sec. 27(a) (amended 2000); Alabama Constitution (1901), Amendment 709 (amended 2002); Oregon Constitution (1859), art. XV, sec. 4(4) (amended 2002); California Constitution (1879), art. XVI, sec. 20 (amended 2004); Washington Constitution (1889), art. VII, sec. 12 (amended 2007); Hawaii Constitution (1959), art. VII, sec. 6 (amended 2010). 199. Oklahoma Constitution (1907), art. X, sec. 23 (amended 2010); South Carolina Constitution (1896), art. III, sec. 36(A) (amended 2010); Virginia Constitution (1971), art. X, sec. 8 (amended 2010). 200. Report of the Joint Legislative Audit and Review Commission, Proposal

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for a Revenue Stabilization Fund in Virginia, Senate Document No. 24 (Richmond: Commonwealth of Virginia, 1991), http://jlarc.virginia.gov/pdfs/reports/ Rpt127.pdf, 2. 201. Ibid., 3. 202. Barry G. Rabe and Rachel L. Hampton, “Trusting in the Future: The Re- emergence of State Trust Funds in the Shale Era,” CLOSUP Working Paper Series, No. 38 (Aug. 2015), http://closup.umich.edu/working-papers/38/trusting -in-the-future-the-re-emergence-of-state-trust-funds-in-the-shale-era, 5. 203. Montana Constitution (1973), art. IX, sec. 2 (amended 1974), Wyoming Constitution (1890), art. XV, sec. 19 (amended 1974). 204. New Mexico Constitution (1912), art. VIII, sec. 10 (adopted 1976); Alaska Constitution (1959), art. XI, sec. 15 (amended 1976). 205. North Dakota Constitution (1889), art. 10, sec. 26 (adopted 2010); Utah Constitution (1896), art. XIII, sec. 5(9) (adopted 2012). 206. Rabe and Hampton, “Trusting in the Future: The Re- emergence of State Trust Funds in the Shale Era,” 7. 207. Ibid. 208. Utah Constitution (1896), art. XXII, sec. 4 (adopted 2000); Montana Constitution (1973), art. XII, sec. 4 (adopted 2000); Oklahoma Constitution (1907), art. X, sec. 40 (adopted 2000).

Chapter Six 1. 247 U.S. 251 (1918). 2. 312 U.S. 100 (1941). David A. Strauss, “The Irrelevance of Constitutional Amendments,” Harvard Law Review 114 (2001): 1457, 1476. 3. Paul Chen, “The Constitutional Politics of Roads and Canals: Inter-Branch Dialogue over Internal Improvements, 1800–1828,” Whittier Law Review 28 (2006): 625– 62. 4. John R. Vile, Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues, 1789– 2002, 2nd ed. (Santa Barbara, CA: ABC- CLIO, 2003), 9; Bruce Ackerman, We the People, vol. 2, Transformations (Cambridge, MA: Belknap Press, 2000), 316, 338– 39; David E. Kyvig, Explicit and Authentic Acts: Amending the U.S. Constitution, 1776–1995 (Lawrence: University Press of Kansas, 1996), 291. 5. William Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (New York: Oxford University Press, 1996), ch. 4; Kyvig, Explicit and Authentic Acts, ch. 13. 6. Quoted in Kyvig, Explicit and Authentic Acts, 304. 7. John Dinan, “Court- Constraining Amendments and the State Constitutional Tradition,” Rutgers Law Journal 38 (2007): 983, 991– 97; Emily Zackin,

Notes to Pages 189–191

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Looking for Rights in All the Wrong Places: Why State Constitutions Contain America’s Positive Rights (Princeton, NJ: Princeton University Press, 2013), ch. 6. 8. Several of these amendments are discussed in Susan M. Sterett, Public Pensions: Gender and Civil Service in the States, 1850–1937 (Ithaca, NY: Cornell University Press, 2003). 9. A number of these amendments are discussed in Wade J. Newhouse, Constitutional Uniformity and Equality in State Taxation, 2nd ed., 2 vols. (Buffalo, NY: W. S. Hein, 1984). 10. In addition to the worker-protection amendments discussed in this section, others were passed almost exclusively in order to overcome intransigent legislatures and were clear cases of policy- enacting amendments. These include amendments barring companies from paying workers in scrip. For instance, in response to the Kentucky “legislature’s failure to outlaw this practice, reformers called for a constitutional mandate on the subject.” Robert M. Ireland, The Kentucky State Constitution (New York: Oxford University Press, 2011), 223. This led to inclusion of a provision in the 1891 Kentucky constitution requiring payment in “lawful money.” Kentucky Constitution (1891), sec. 244. Additionally, reformers who supported restrictions on child labor frequently found their efforts blocked in legislatures and therefore pressed for passage of amendments that banned the practice or directed the legislature to ban employment of persons below a certain age in mines or other hazardous occupations. Sister M. Barbara McCarthy, The Widening Scope of American Constitutions (Washington, DC: Catholic University of America, 1928), 106. See Colorado Constitution (1876), art. XVI, sec. 2; Idaho Constitution (1890), art. XIII, sec. 4; North Dakota Constitution (1889), art. 17, sec. 209; Wyoming Constitution (1890), art. IX, sec. 3; Kentucky Constitution (1891), sec. 243; Utah Constitution (1896), art. XVI, sec. 3(1); Montana Constitution (1889), art. XVIII, sec. 3 (adopted 1904); Oklahoma Constitution (1907), art. XXIII, secs. 3–4; Arizona Constitution (1912), art. XVIII, sec. 2; New Mexico Constitution (1912), art. XVII, sec. 2. 11. Lochner v. New York, 198 U.S. 45 (1905); Adair v. U.S., 208 U.S. 161 (1908); Coppage v. Kansas, 236 U.S. 1 (1915); Adkins v. Children’s Hospital, 261 U.S. 525 (1923). 12. In re Jacobs, 98 N.Y. 98 (1885); Godcharles v. Wigeman, 113 Pa. 431 (1886); Ritchie v. The People, 155 Ill. 98 (1895); In re Morgan, 26 Colo. 415 (1899); Ives v. South Buffalo Railway Co., 201 N.Y. 271 (1911). 13. The standard account of judicial decision-making regarding workerprotection measures has undergone two main revisions in recent years. One stream of scholarship has reconsidered the motivations of judges in issuing decisions overturning state labor laws, by showing that these decisions can be viewed

352

Notes to Pages 191–194

as part of a long tradition of court decisions invalidating “class” legislation not seen as serving a public purpose. This is the main argument of Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham, NC: Duke University Press, 1993). Another stream of scholarship, particularly important for present purposes, has reconsidered the extent of judicial interference with worker-protection laws and argued that courts did not erect significant barriers to passage of these policies. See Melvin I. Urofsky, “State Courts and Protective Legislation during the Progressive Era: A Reexamination,” Journal of American History 72 (1985): 63– 91; Melvin I. Urofsky, “Myth and Reality: The Supreme Court and Protective Legislation in the Progressive Era,” Yearbook of the Supreme Court Historical Society (1983): 53– 72; Michael J. Phillips, The Lochner Court, Myth and Reality: Substantive Due Process from the 1890s to the 1930s (Westport, CT: Greenwood, 2001); Claudio J. Katz, “Protective Labor Legislation in the Courts: Substantive Due Process and Fairness in the Progressive Era,” Law and History Review 31 (2013): 275– 323. 14. Paul Kens, “The Source of a Myth: Police Powers of the States and Laissez-Faire Constitutionalism 1900–1937,” American Journal of Legal History 35 (1991): 70– 98, William G. Ross, A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890–1937 (Princeton, NJ: Princeton University Press, 1994). 15. Georgia Constitution (1868), art. I, sec. 30; North Carolina Constitution (1868), art. XIV, sec. 4; Texas Constitution (1869), art. XII, sec. 47. 16. Louisiana Constitution (1879), art. 175; California Constitution (1879), art. XX, sec. 15. 17. Florida Constitution (1885), art. XVI, sec. 22; Minnesota Constitution (1858), art. I, sec. 12 (amended 1888); Idaho Constitution (1890), art. XIII, sec. 6. 18. Ohio Constitution (1851), art. II, sec. 33 (amended 1912). 19. Georgia Constitution (1868), art. I, sec. 30. 20. Proceedings and Debates of the Constitutional Convention of Idaho, 1889, ed. I. W. Hart, 2 vols. (Caldwell: Caxton Printers, 1912), II: 1389. 21. Meyer v. Berlandi, 39 Minn. 438 (1888); Sprey Lumber v. Sault St. Marie Savings Bank, 77 Mich. 199 (1889); Palmer v. Tingle, 55 Oh. St. 423 (1896). 22. Minnesota Constitution (1858), art. I, sec. 12 (amended 1888). Discussed in Mark R. Wild, “Notice of Commencement and Completion: A Recommendation for the Minnesota Mechanics’ Lien Statute,” William Mitchell Law Review 13 (1987): 193, 197– 98. 23. Proceedings and Debates of the Constitutional Convention of the State of Ohio [1912], 2 vols. (Columbus: F. J. Heer, 1912), II: 1413. 24. Ibid., II: 1418. 25. Ohio Constitution (1851), art. II, sec. 33 (adopted 1912). 26. See, for instance, Arkansas Constitution (1874), art. XIX, sec. 13; Colo-

Notes to Pages 194–197

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rado Constitution (1876), art. XVI, sec. 2; New Mexico Constitution (1912), art. XVII, sec. 2. 27. Zackin, Looking for Rights in All the Wrong Places, 1– 2. 28. Debates and Proceedings of the Constitutional Convention of the State of Illinois [1869], Ely, Burnham, & Bartlett, official stenographers, 2 vols. (Springfield: E. L. Merritt & Brother, 1870), I: 269. 29. Ibid., I: 271. 30. Ibid. 31. Illinois Constitution (1870), art. IV, sec. 29. 32. Lawrence M. Friedman and Jack Ladinsky, “Social Change and the Law of Industrial Accidents,” Columbia Law Review 67 (Jan. 1967): 50, 63. 33. Ibid. 34. Ibid., 64. 35. Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge, MA: Belknap Press, 1992), 288. 36. Ibid., 288; Friedman and Ladinsky, “Social Change and the Law of Industrial Accidents,” 61– 62. 37. McCarthy, The Widening Scope of American Constitutions, 103. 38. On the crafting of this pioneering Colorado provision, see Gordon Morris Bakken, Rocky Mountain Constitution Making, 1850–1912 (Westport, CT: Greenwood Press, 1987), 77; Amy Bridges, Democratic Beginnings: Founding the Western States (Lawrence: University Press of Kansas, 2015), 92. 39. Colorado Constitution (1876), art. XV, sec. 15. 40. Montana Constitution (1889), art. XV, sec. 16; Wyoming Constitution (1890), art. XIX, Labor Contracts, sec. 1. 41. Mississippi Constitution (1890), art. 7, sec. 193; Virginia Constitution (1902), sec. 162; Oklahoma Constitution (1907), art. IX, sec. 36; Arizona Constitution (1912), art. XVIII, secs. 3–4. 42. Report of the Proceedings and Debates of the Constitutional Convention, State of Virginia (1901–1902), 2 vols. (Richmond: Hermitage Press, 1906), II: 2839. 43. Ibid., II: 2841. 44. John Fabian Witt, The Accidental Republic: Crippled Workingmen, Destitute Widows, and the Remaking of American Law (Cambridge, MA: Harvard University Press, 2004), 175– 76. 45. Ibid., 177. 46. Ibid., 177– 78. 47. Ibid., 179. 48. William J. Nancarrow, “The Voters Speak: The Ohio Judicial Election of 1910 and Progressive Era Jurisprudence,” Ohio Academy of History Proceedings (2001): 35, 42, http://www.ohioacademyofhistory.org/wp -content/uploads/ 2013/04/ Nancarrow.pdf.

354

Notes to Pages 197–200

49. Witt, The Accidental Republic, 180. 50. New York Constitution (1895), art. I, sec. 19 (adopted 1913). 51. State ex rel. Yaple v. Creamer, 85 Ohio St. 349 (1912). 52. Steven H. Steinglass and Gino J. Scarselli, The Ohio State Constitution (New York: Oxford University Press, 2011), 164. 53. Ohio Constitution (1851), art. II, secs. 34– 35 (adopted 1912). 54. Proceedings and Debates of the Constitutional Convention of the State of Ohio [1912], II: 1346. 55. Arizona Constitution (1912), art. XVIII, sec. 8; California Constitution (1879), art. XX, sec. 21 (amended 1911); Vermont Constitution (1793), ch. II, sec. 70 (amended 1914); Wyoming Constitution (1890), art. X, sec. 4 (amended 1914); Pennsylvania Constitution (1873), art. III, sec. 21 (amended 1915). 56. The Records of the Arizona Constitutional Convention of 1910, ed. John S. Goff (Phoenix: Supreme Court of Arizona, 1991), 545. 57. Zackin, Looking for Rights in All the Wrong Places, 132. 58. Voter Information Guide for [California] 1918, General Election, 56, http:// repository.uchastings .edu/cgi/ viewcontent .cgi?article =1127& context= ca _ballot _props (accessed Sept. 21, 2017). 59. Zackin, Looking for Rights in All the Wrong Places, 119– 20. 60. Louisiana Constitution (1864), art. 135. 61. California Constitution (1879), art. XX, sec. 17; Idaho Constitution (1890), art. XIII, sec. 2. 62. 155 Ill. 98 (1895). 63. 189 N.Y. 131 (1907). 64. These decisions are highlighted in Nancy Woloch, A Class by Herself: Protective Laws for Women Workers, 1890s–1990s (Princeton, NJ: Princeton University Press, 2015), 39–43, 51– 52. 65. Ibid., 53. 66. Katz, “Protective Labor Legislation in the Courts,” 295 n. 77. 67. Michigan Constitution (1908), art. V, sec. 29. 68. Proceedings and Debates of the Constitutional Convention of the State of Michigan (1907), official report by Joseph H. Brewer, Chas. H. Bender, and Chas. H. McGurrin, 2 vols. (Lansing, MI: Wynkoop, Hallenbeck, Crawford, State Printers, 1908), II: 1003–4 (comments of delegates Archibald Broomfield and Benjamin Heckert). 69. Ibid., II: 1004. 70. Ibid. 71. Ibid., II: 1004– 5. 72. Ibid., II: 1005. 73. Ex parte Kubach, 85 Cal. 274 (1890). 74. California Constitution (1879), art. XX, sec. 17 (adopted 1902). 75. People ex rel. Cossey v. Grout, 179 N.Y. 417 (1904). This was one of a com-

Notes to Pages 200–202

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plex series of rulings on this subject issued by the New York Court of Appeals, and it followed a similar decision in People v. Orange County Road Construction Co., 175 N.Y. 84 (1903). For background, see Stanley K. Hornbeck, “The Eight Hour Day on Public Work in New York,” American Political Science Review 3 (1909): 214–17. 76. New York Constitution (1895), art. XVII, sec. 1 (adopted 1905). 77. City of Cleveland v. Clement Bros. Constr. Co., 67 Ohio St. 197 (1902). 78. Ohio Constitution (1851), art. II, sec. 37 (adopted 1912). 79. Proceedings and Debates of the Constitutional Convention of the State of Ohio [1912], II: 1339. 80. Utah Constitution (1896), art. XVI, sec. 6; Montana Constitution (1889), art. XVIII, sec. 4 (amended 1904); Oklahoma Constitution (1907), art. XXIII, sec. 1; Arizona Constitution (1912), art. XVIII, sec. 1; New Mexico Constitution (1912), art. XX, sec. 19. 81. Colorado Constitution (1876), art. V, sec. 25 (amended 1902). 82. In re Morgan, 26 Colo. 415 (1899). 83. Holden v. Hardy, 169 U.S. 366 (1898). 84. Idaho Constitution (1890), art. XIII, sec. 2 (amended 1902); Montana Constitution (1889), art. XVIII, sec. 4 (amended 1904); Oklahoma Constitution (1907), art. XXIII, sec. 4. 85. Michigan Constitution (1908), art. V, sec. 29 (amended 1920). 86. State ex rel. Kern v. Arnold, 100 Mont. 346 (1935). 87. Zackin, Looking for Rights in All the Wrong Places, 130. 88. Montana Constitution (1889), art. XVIII, sec. 4 (amended 1936). Discussed in Zackin, Looking for Rights in All the Wrong Places, 129– 31. 89. Groat, “The Eight Hour Movement in New York,” Political Science Quarterly 21 (1906): 414, 431, cited in Zackin, Looking for Rights in All the Wrong Places, 125– 26. 90. The earliest provision regarding payment of wages actually appeared in Louisiana’s 1864 constitution, well before any state court decisions blocked minimum-wage policies; it stated, in part, “The Legislature may establish the price and pay of foreman, mechanics, laborers, and others employed on the public works.” Louisiana Constitution (1864), art. 134. 91. People ex rel. Rodgers v. Coler, 166 N.Y. 1 (1901). 92. New York Constitution (1895), art. XII, sec. 14 (amended 1905). 93. The Oregon Supreme Court rulings are Stettler v. O’Hara, 69 Ore. 519 (1914); Simpson v. O’Hara, 70 Ore. 261 (1914). The US Supreme Court decision is Stettler v. O’Hara and Simpson v. O’Hara, 243 U.S. 629 (1917). 94. California Constitution (1879), XX, sec. 17½ (adopted 1914); Louisiana Constitution (1921), art. IV, sec. 7; Utah Constitution (1896), art. XVI, sec. 8 (adopted 1933). 95. California Constitution (1879), art. XX, sec. 17½ (adopted 1914).

356

Notes to Pages 202–204

96. Voter Information Guide for [California] 1914, General Election, 29, http:// repository.uchastings .edu/cgi/ viewcontent .cgi?article =1081& context= ca _ballot _props, quoted in Zackin, Looking for Rights in All the Wrong Places, 138. 97. Utah Constitution (1896), art. XVI, sec. 8 (adopted 1933). Discussed in Jean Bickmore White, The Utah State Constitution: A Reference Guide (Westport, CT: Greenwood Press, 1998), 177. 98. Ohio Constitution (1851), art. II, sec. 34 (amended 1912). 99. Convention delegates took particular note of Low v. Rees Printing Co., 41 Neb. 127 (1894), a ruling issued in the context of a maximum-hours law but seen as casting doubt on the legitimacy of other labor reforms such as minimumwage laws. 100. Nebraska Constitution (1875), art. XV, sec. 8 (amended 1920). 101. Journal of the Nebraska Constitutional Convention [1919], 2 vols. (Lincoln, NE: Kline, 1921), II: 1707. 102. John Dinan, “State Constitutional Amendment Processes and the Safeguards of American Federalism,” Penn State Law Review 115 (2011): 1007, 1018. 103. Florida Constitution (1969), art. X, sec. 24 (amended 2004); Colorado Constitution (1876), art. XVIII, sec. 15 (amended 2006 and 2016); Nevada Constitution (1864), art. XV, sec. 16 (amended 2006); Ohio Constitution (1851), art. II, sec. 34a (amended 2006). Discussed in Dinan, “State Constitutional Amendment Processes and the Safeguards of American Federalism,” 1019. 104. Salvador Rizzo and Jenna Portnoy, “Minimum Wage Question Goes to Voters in November over Republican Objections,” Star-Ledger, Feb. 14, 2013, http://www.nj.com/politics/index.ssf/ 2013/02/minimum _wage _question _goes _to .html. 105. New Jersey Constitution (1948), art. I, sec. 23 (amended 2013). 106. North Dakota Constitution (1889), art. 17, sec. 212; Utah Constitution (1896), art. XII, sec. 20. 107. New York Constitution (1895), art. I, sec. 17 (amended 1938); Florida Constitution (1885), art. I, sec. 12 (amended 1944); Missouri Constitution (1945), art. I, sec. 29; New Jersey Constitution (1948), art. I, para. 19; Hawaii Constitution (1959), art. XII, secs. 1– 2 (amended 1968). 108. The legislature-referred Florida amendment was unusual, in that its primary purpose was to protect the ability for workers to secure employment without being required to join a union. But one clause in this right-to-work amendment also stipulated, to a very different end, that “the right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged.” Florida Constitution (1885), art. I, sec. 12 (amended 1944). 109. Revised Record of the Constitutional Convention of the State of New York [1938], 4 vols. (Albany: J. B. Lyon, 1938), II: 1246.

Notes to Pages 204–207

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110. [New Jersey] Constitutional Convention of 1947, vol. 1 (Bayonne, NJ: Jersey Printing, 1949), I: 325. 111. Revised Record of the Constitutional Convention of the State of New York [1938], II: 1217. 112. Ibid., II: 1219. 113. Ibid., II: 1218. 114. Ibid., II: 1222. 115. Nevada Constitution (1864), art. XIII, sec. 3. These Reconstruction- era amendments are noted in John J. Dinan, The American State Constitutional Tradition (Lawrence: University Press of Kansas, 2006), 211–12. See, for instance, Florida Constitution (1868), art. XI, sec. 3. 116. Frank Edward Horack Jr., “Federal- State Cooperation for Social Security: The Grant-in-Aid,” Illinois Law Review 30 (1935): 292, 308. 117. Carl A. Heisterman, “Constitutional Limitations Affecting State and Local Relief Funds,” Social Service Review 6 (1932): 1, 2. 118. Sterett, Public Pensions, 22. 119. Ibid., 23. This was the key concern that prompted members of an 1872 New York constitutional commission to recommend adoption of an amendment that was eventually approved by New York voters in 1874. See Peter J. Galie and Christopher Bopst, “Anything Goes: A History of New York’s Gift and Loan Clauses,” Albany Law Review 75 (2011–12): 2005, 2019. 120. New York’s constitution included both types of provisions: New York Constitution (1895), art. VII, sec. 1; art. VIII, sec. 9. 121. California Constitution (1879), art. IV, sec. 22. 122. New York Constitution (1895), art. VIII, sec. 9. 123. Sterett, Public Pensions, 27– 28, 62– 63. 124. State ex rel. Griffi th v. Osawkee Township, 14 Kan. 418 (1875). 125. Mead v. Acton, 139 Mass. 341 (1885). 126. Sterett, Public Pensions, 130– 31. 127. 75 Oh. St. 114 (1906). 128. Sterett, Public Pensions, 119. 129. 18 Ariz. 277 (1916). 130. In re Opinion of the Justices, 100 A. 49 (1917). See Sterett, Public Pensions, 209 n. 28. 131. 282 Pa. 440 (1925). See Sterett, Public Pensions, 155– 58. 132. Louisiana Constitution (1921), art. XVIII, sec. 5. 133. Missouri Constitution (1875), art. III, sec. 38(a) (amended 1916 and 1932). 134. California Constitution (1879), art. IV, sec. 22 (amended 1920). 135. California Constitution (1879), art. IV, sec. 22 (amended 1928). 136. Authorizing State Aid to Needy Blind Persons, California Proposition  19 (1928), http://repository.uchastings.edu/ca _ballot _props/248 (accessed Sept. 21, 2017).

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Notes to Pages 208–210

137. Sterett, Public Pensions, 146. 138. Ibid., 151. 139. Requirements imposed on states as a condition of participating in these public-assistance programs are discussed in Martha Derthick, The Infl uence of Federal Grants: Public Assistance in Massachusetts (Cambridge, MA: Harvard University Press, 1970), 18– 20; Karen M. Tani, States of Dependency: Welfare, Rights, and American Governance, 1935–1972 (New York: Cambridge University Press, 2016), 40–43. 140. Florida Constitution (1885), art. XIII, sec. 3 (amended 1936). 141. Missouri Constitution (1875), art. III, sec. 38(a) (amended 1938). 142. Pennsylvania Constitution (1873), art. III, sec. 18 (amended 1933). 143. Pennsylvania Constitution (1873), art. III, sec. 18 (amended 1937). 144. Kentucky Constitution (1891), sec 244a (amended 1935) (authorizing old-age assistance); Texas Constitution (1876), art. III, sec. 51-b (adopted 1935) (authorizing old-age assistance). 145. Kansas Constitution (1861), art. 7, secs. 4– 5 (amended 1936) (authorizing old-age assistance and unemployment benefits); Oklahoma Constitution (1907), art. XXV (amended 1936) (authorizing old-age assistance). The amendment to South Carolina’s constitution authorizing old-age assistance and assistance to the blind and mothers of dependent children and the amendment to Louisiana’s constitution authorizing old-age assistance, unemployment benefits, and aid to mothers of dependent children are noted in George H. Trafton, “New Labor Laws of 1936,” American Labor Legislation Review 26 (1936): 177, 181. 146. Texas Constitution (1876), art. III, sec. 51- c (adopted 1937) (authorizing assistance to the blind); Texas Constitution (1876), art. III, sec. 51- d (adopted 1937) (authorizing assistance to needy children). 147. In each of these cases, voters approved amendments adding or revising language. But in one other case, in Nevada in 1937, voters simply repealed a provision, also found in other state constitutions, that obligated counties to care for the poor, disabled, and elderly; this provision was seen as inconsistent with the requirement in the Social Security Act that a statewide program be established. Michael W. Bowers, The Nevada State Constitution: A Reference Guide (Westport, CT: Greenwood, 1993), 123. 148. Colorado Constitution (1876), art. XXIV (amended 1936). On the origin and purpose of this amendment, see Richard Collins and Dale A. Oesterle, The Colorado State Constitution (New York: Oxford University Press, 2011), 434. 149. California Constitution (1879), art. XXV (amended 1948). An amendment adopted the next year repealed this 1948 amendment and revised the policy it put in place. California Constitution (1879), art. XXVII (adopted 1949). 150. New York Constitution (1895), art. XVII; art. XVIII (adopted 1938). 151. New York Constitution (1895), art. XVII, sec. 1 (adopted 1938).

Notes to Pages 210–214

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152. Revised Record of the Constitutional Convention of the State of New York [1938], III: 2126. 153. Ibid., III: 2141–42. 154. Ibid., III: 2142. 155. Ibid. 156. Horack, “Federal- State Cooperation for Social Security: The Grant-inAid,” 308. 157. New York Constitution (1895), art. VII, secs. 13–14 (amended 1923). 158. 132 N.E.2d 241 (N.Y. App. Ct. 1921). 159. The legal issues and resulting court decisions associated with veterans’ bonus payments after World War I are discussed in B. U. Ratchford, American State Debts (Durham, NC: Duke University Press, 1941), 320, 328– 32. 160. Several states increased taxes to cover payments to veterans, but most states “borrowed all or substantially all of the funds used for this purpose.” Ibid., 321. 161. Charles Kettleborough, “Soldiers’ Bonus,” American Political Science Review 16 (1922): 455– 56. 162. Maine Constitution (1820), art. IX, secs. 14, 19 (amended 1920); Michigan Constitution (1908), art. X, sec. 20 (adopted 1920); Missouri Constitution (1875), art. IV, sec. 44b (adopted 1920); South Dakota Constitution (1889), art. 13, sec.  18 (adopted 1920); Ohio Constitution (1851), art. VIII, sec. 2a (amended 1921); Oregon Constitution (1859), art. XI- c (adopted 1921). 163. Ohio Constitution (1851), art. VIII, sec. 2a (amended 1921). Steinglass and Scarselli, The Ohio State Constitution, 62– 63, 237. 164. Maine Constitution (1820), art. IX, sec. 14 (amended 1920). 165. Maine Constitution (1820), art. IX, sec. 19 (amended 1920). 166. West Virginia Constitution (1872), Amendment 6 (adopted 1950); Amendment 7 (adopted 1956); Amendment 12 (adopted 1973); Amendment 14 (adopted 1992); Amendment 17 (adopted 2004). 167. Wisconsin Constitution (1848), art. VIII, sec. 10 (amended 1908). 168. Ratchford, American State Debts, 251, 255, 263– 64, 278– 312. 169. New York Constitution (1895), art. VII, sec. 12 (amended 1905 and 1912). Jon C. Teaford, The Rise of the States: Evolution of American State Government (Baltimore, MD: Johns Hopkins University Press, 2002), 33; Michael R. Fein, Paving the Way: New York Road Building and the American State, 1880–1956 (Lawrence: University Press of Kansas, 2008), 53– 56, 63– 64. 170. Maine Constitution (1820), art. IX, secs. 14, 17 (amended 1912); sec. 14 (amended 1919); sec. 17 (amended 1925); sec. 17 (amended 1925); sec. 17 (amended 1929); sec. 17 (amended 1929). 171. Proceedings and Debates of the Constitutional Convention of the State of Ohio [1912], I: 212.

360

Notes to Pages 214–218

172. Ibid., I: 278. 173. Ohio Constitution (1851), art. VIII, sec. 2c (adopted 1953); sec. 2g (adopted 1964); sec. 2h (adopted 1965); sec. 2i (adopted 1968); sec. 2k (adopted 1987); sec. 2m (adopted 1995). Steinglass and Scarselli, The Ohio State Constitution, 234. 174. Edward M. Kresky, “Taxation and Finance,” in John P. Wheeler Jr., ed., Salient Issues of Constitutional Revision (New York: National Municipal League, 1961), 141. 175. Richard Briffault, “Foreword: The Disfavored Constitution: State Fiscal Limits and State Constitutional Law,” Rutgers Law Journal 34 (2003): 907, 918–19. 176. Beverly S. Bunch, “The Effect of Constitutional Debt Limits on State Governments: Use of Public Authorities,” Public Choice 68 (1991): 57– 69. 177. Virginia Constitution (1971), art. X, sec. 9(c). Discussed in John Dinan, The Virginia State Constitution, 2nd ed. (New York: Oxford University Press, 2014), 242–43. 178. Arkansas Constitution (1874), Amendment 65 (adopted 1986). 179. Richard Briffault, “State and Local Finance,” in G. Alan Tarr and Robert F. Williams, eds., State Constitutions for the Twenty- First Century, vol. 3, The Agenda of State Constitutional Reform (Albany: State University of New York Press, 2006), 229. 180. Quoted in ibid. 181. NJ Sports & Exposition Authority v. McCrane, 61 N.J. 1 (1972), 25. 182. Ibid., 30. 183. Newhouse, Constitutional Uniformity and Equality in State Taxation, II: 1764. 184. On the history of state inheritance taxes, see Arthur W. Blakemore and Hugh Bancroft, The Inheritance Tax Law: Containing All American Decisions and Existing Statutes (Boston: Boston Book Company, 1912), 13. 185. Ibid., 34 n. 2 (referring to court rulings in Michigan, Minnesota, Missouri, New Hampshire, Ohio, Pennsylvania, and Wisconsin). 186. Curry v. Spencer, 61 NH 624 (1882). 187. State ex rel. Davidson v. Gorman, 40 Minn. 232 (1889); State ex rel. Schwartz v. Ferris, 53 Ohio St. 314 (1895). 188. The Missouri Supreme Court invalidated a graduated inheritance tax in State ex rel. Garth v. Switzler, 143 Mo. 287 (1898), but then sustained such a tax in State ex rel. Faith v. Henderson, 160 Mo. 190 (1901). 189. Minnesota Constitution (1858), art. IX, sec. 32(a) (amended 1871). 190. Minnesota Constitution (1858), art. IX, unnumbered (amended 1896). 191. Minnesota Constitution (1858), art. IX, sec. 1 (amended 1894). 192. Newhouse, Constitutional Uniformity and Equality in State Taxation, I: 696.

Notes to Pages 218–221

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193. Delegates at New Hampshire’s 1902 convention were in broad agreement about the need to overcome the state supreme court’s disapproval of an inheritance tax that was expressed in an 1882 Curry v. Spencer ruling. The only question was how best to craft an amendment to overcome the obstacles imposed by the state court ruling and thereby authorize an inheritance tax. See Journal of the [New Hampshire] Constitutional Convention of 1902 (Concord: Rumford Press, 1903), 595– 601. The convention eventually framed and voters approved an amendment. New Hampshire Constitution (1784), pt. II, art. 6 (adopted 1903). 194. Although the Ohio Supreme Court invalidated an early inheritance-tax statute in State ex rel. Schwartz v. Ferris, 53 Ohio St. 314 (1895), by the time delegates assembled for Ohio’s 1912 convention, the Ohio Supreme Court had issued a decision indicating its approval of a revised inheritance-tax statute with a certain amount of the estate exempted from taxation. But still in doubt was “the validity of a graduated rate schedule.” Newhouse, Constitutional Uniformity and Equality in State Taxation, II: 1112. The convention crafted and voters approved an amendment authorizing a graduated inheritance tax. Ohio Constitution (1851), art. XII, sec. 7 (amended 1912). 195. The Records of the Arizona Constitutional Convention of 1910, ed. John S. Goff (Phoenix: Supreme Court of Arizona, 1991), 467. 196. Arizona Constitution (1912), art. 9, sec. 12. 197. Edward R. A. Seligman, The Income Tax: A Study of the History, Theory, and Practice of Income Taxation at Home and Abroad, 2nd ed. (New York: MacMillan, 1914), 388–429. 198. Louisiana Constitution (1845), art. VI, sec. 127; Texas Constitution (1845), art. VII, sec. 27. 199. Other amendments authorizing income taxes during this period are Virginia Constitution (1851), art. IV, sec. 24; North Carolina Constitution (1868), art. V, sec. 3; California Constitution (1879), art. XIII, sec. 11; Utah Constitution (1896), art. XIII, sec. 12; South Carolina Constitution (1896), art. X, sec. 1; Oklahoma Constitution (1907), art. X, sec. 12. The provisions in the South Carolina and Oklahoma constitutions were the fi rst provisions to explicitly authorize a graduated income tax. 200. 157 U.S. 424 (1895). 201. John O. Stark, “The Establishment of Wisconsin’s Income Tax,” Wisconsin Magazine of Biography 71 (Autumn 1987): 21, 28. 202. Ibid., 29. 203. Wisconsin Constitution (1848), art. VIII, sec. 1 (amended 1908). 204. Arizona Constitution (1912), art. 9, sec. 12; Ohio Constitution (1851), art. XII, sec. 8 (amended 1912); South Dakota Constitution (1889), art. XI, sec. 2 (amended 1918). 205. Louisiana Constitution (1921), art. X, sec. 1. A provision authorizing an income tax had been adopted in Louisiana’s 1845 constitution but fell out of sub-

362

Notes to Pages 221–222

sequent Louisiana constitutions. This history and context for the readoption of a provision in Louisiana’s 1921 constitution is discussed in Newhouse, Constitutional Uniformity and Equality in State Taxation, I: 568– 69. 206. Utah Constitution (1896), art. XIII, sec. 3 (amended 1930). The Utah Constitution already included a provision, art. XIII, sec. 12, stipulating that no provision in the constitution should be understood to prohibit imposition of an income tax. The purpose of the 1930 amendment was to add a provision explicitly authorizing an income tax and permitting income-tax rates to be graduated and also allowing for deductions and exemptions. 207. West Virginia Constitution (1872), art. X, sec. 1 (amended 1932); Indiana Constitution (1851), art. X, sec. 8 (amended 1932); Kansas Constitution (1861), art. XI, sec. 2 (amended 1932); Montana Constitution (1889), art. XII, sec. 1a (amended 1934); Colorado Constitution (1876), art. X, sec. 17 (amended 1936). 208. O’Connell v. State Board of Equalization, 95 Mont. 91 (1933). Discussed in Newhouse, Constitutional Uniformity and Equality in State Taxation, II: 1980. 209. The dates of enactment of income-tax statutes in the states are found in Scott Drenkard and Richard Borean, “When Did Your State Adopt Its Income Tax?,” Tax Foundation blog, June 10, 2014, http://taxfoundation.org/ blog/when -did-your-state-adopt-its-income-tax. 210. Eliasberg Bros. Mercantile Co. v. Grimes, 188 So. 2d 56 (Ala. 1920). 211. Alabama Constitution (1901), art. XXII (amended 1933). 212. Opinion of the Justices, 220 Mass. 613 (1915). 213. Massachusetts Constitution (1780), Articles of Amendment, art. XLIV (adopted 1915). The relationship between this 1915 amendment and the court’s 1915 advisory opinion is discussed in Newhouse, Constitutional Uniformity and Equality in State Taxation, II: 1949– 52. 214. Opinion of the Justices, 266 Mass. 583 (1929). 215. Schira Schoenberg, “Coalition Would Raise Taxes on Massachusetts Residents Earning More Than $1 Million Annually,” MassLive, Aug. 2, 2015, http:// www.masslive .com/ politics/ index .ssf/ 2015/ 08/ coalition _wants _to _up _taxes _on.html. 216. Alaska, Florida, Nevada, South Dakota, Texas, Washington, and Wyoming do not currently tax individual income. Tennessee and New Hampshire only tax income from dividends and interest. 217. The Washington Supreme Court invalidated a 1932 citizen-initiated income-tax statute in Culliton v. Chase, 174 Wash. 363 (1933). After the legislature enacted another income-tax statute in 1935, the court issued a similar decision invalidating this tax in Jensen v. Henneford, 185 Wash. 209 (1936). 218. Hugh D. Spitzer Jr., “A Washington State Income Tax—Again?,” University of Puget Sound Law Review 16 (1993): 515, 516 n. 5. 219. In Michigan, delegates to Michigan’s 1961– 62 convention approved a

Notes to Pages 222–223

363

provision for inclusion in the state’s new 1963 constitution, art. IX, sec. 7, providing that “no income tax graduated as to rate or base shall be imposed by the state or any of its subdivisions.” In the decade after the legislature enacted a flat-rate income-tax law in 1967, voters rejected three amendments, including one legislature-referred amendment and two citizen-initiated amendments, that would have authorized a graduated-rate income tax. Jonathan Oosting, “In Wake of Prop 1 Fail, Michigan Lawmaker Renews Call for Graduated Income Tax,” MLive, May 11, 2015, http://www.mlive.com/ lansing-news/index.ssf/2015/ 05/in _wake_of _prop_1_fail _michiga.html. In Illinois, the state supreme court invalidated an income-tax law on the grounds that it violated the state’s uniformity guarantee in Bachrach v. Nelson, 349 Ill. 579 (1932). Nearly four decades later, in 1969, the Illinois legislature reenacted an income tax, with a flat rate, and with an eye toward determining whether the state supreme court would be more receptive to sustaining it. When this 1969 law was challenged, the state supreme court reversed its holding in Bachrach and upheld the income tax. Thorpe v. Mahin, 43 Ill. 2d 36 (1969). Around this time, meanwhile, delegates to Illinois’s 1969– 70 convention charged with framing a new constitution approved a provision declaring that “a tax on or measured by income shall be at a nongraduated rate.” Illinois Constitution (1971), art. IX, sec. 3a. Any effort to adopt a progressive income tax in Illinois would require an amendment changing this provision. 220. Kelley v. Kalodner, 320 Pa. 180 (1935). Discussed in Newhouse, Constitutional Uniformity and Equality in State Taxation, I: 530– 31. 221. Amidon v. Kane, 444 Pa. 38 (1971). 222. Robert Swift, “Pennsylvania’s Income Tax Shaped by Constitution,” Scranton Times-Tribune, June 22, 2009, http://thetimes-tribune.com/news/ pennsylvania-s-income-tax-shaped-by-constitution-1.78136. 223. Ibid. 224. Ajay K. Mehrotra, “‘To Lay and Collect’: Governors, Fiscal Federalism, and the Political Economy of Twentieth- Century Tax Policy,” in Ethan G. Sribnick, ed., A Legacy of Innovation: Governors and Public Policy (Philadelphia: University of Pennsylvania Press, 2008), 52– 53. 225. Provisions requiring taxes to be uniform upon the same class of subjects were fi rst adopted in the Pennsylvania Constitution (1873), art. IX, sec. 1; Missouri Constitution (1875), art. X, sec. 3; Colorado Constitution (1876), art. X, sec.  3; Georgia Constitution (1877), art. VII, sec. 2, para. 1. Discussed in Newhouse, Constitutional Uniformity and Equality in State Taxation, II: 1713–14. 226. Ajay K. Mehrotra, Making the Modern American Fiscal State: Law, Politics, and the Rise of Progressive Taxation, 1877–1929 (New York: Cambridge University Press, 2013), 212, 213. 227. Minnesota Constitution (1858), art. IX, sec. 1 (amended 1906).

364

Notes to Pages 223–225

228. Teaford, The Rise of the States, 48; Newhouse, Constitutional Uniformity and Equality in State Taxation, I: 700– 702; Charles J. Bullock, The State Income Tax and the Classifi ed Property Tax (New York: National Tax Association, 1916), 9–10. 229. Arizona Constitution (1912), art. IX, sec. 1. 230. Maine Constitution (1820), art. IX, sec. 8 (amended 1913); North Dakota Constitution (1889), art. 11, sec. 176 (amended 1914); New Mexico (1912), art. VIII, secs. 1– 7 (amended 1914); Maryland Constitution (1867), Declaration of Rights, art. XV (amended 1915); Kentucky Constitution (1891), sec. 171 (amended 1915); Oregon Constitution (1859), art. I, sec. 32; art. IX, sec. 1 (amended 1917); South Dakota Constitution (1889), art. XI, sec. 2 (amended 1918). 231. Maine Constitution (1820), art. IX, sec. 8 (amended 1913). 232. North Dakota Constitution (1889), art. 11, sec. 176 (amended 1914). 233. Newhouse, Constitutional Uniformity and Equality in State Taxation, II: 1718– 20; Simeon E. Leland, The Classifi ed Property Tax in the United States (Boston: Houghton Miffl in, 1928), 85– 87. 234. Newhouse, Constitutional Uniformity and Equality in State Taxation, II: 1722– 24. 235. As Newhouse wrote regarding the motivation for enacting propertyclassification amendments from the 1910s to the 1930s, “In most all cases, the amendments were responsive to judicial interpretations of strict provisions.” Newhouse, Constitutional Uniformity and Equality in State Taxation, II: 1719– 20. 236. Nebraska Constitution (1875), art. VIII, sec. 1 (amended 1984). 237. Kearney Convention Center Inc. v. Buffalo County Board of Equalization, 216 Neb. 292 (1984). 238. Rocky Mountain Oil and Gas Association v. State Board of Equalization, 749 P.2d 221 (Wyo. 1987). 239. Wyoming Constitution (1890), art. I, sec. 28 (amended 1988); art. XV, sec. 11 (amended 1988). Discussed in Robert B. Keiter and Tim Newcomb, The  Wyoming State Constitution (New York: Oxford University Press, 2011), 245–46. 240. Texas Constitution (1876), art. 8, sec. 1-b (amended 2015). 241. Tennessee Constitution (1870), art. II, sec. 29 (amended 2006); Texas Constitution (1876), art. VIII, sec. 1-b (amended 2007); Virginia Constitution (1971), art. X, sec. 6(b) (amended 2010); Florida Constitution (1969), art. VII, sec. 6 (amended 2012). 242. Florida Constitution (1969), art. VII, sec. 3 (amended 2010). 243. Florida Constitution (1969), art. VII, sec. 6 (amended 2006); Colorado Constitution (1876), art. X, sec. 3.5 (amended 2006); Texas Constitution (1876), art. VIII, sec. 1-b (amended 2007); Oklahoma Constitution (1907), art. X, sec. 8d

Notes to Pages 225–226

365

(amended 2008); Virginia Constitution (1971), art. X, sec. 6-A (amended 2010); Louisiana Constitution (1975), art. VII, sec. 21 (amended 2014); Missouri Constitution (1945), art. X, sec. 6 (amended 2010). 244. New Mexico Constitution (1912), art. VIII, sec. 15 (amended 2002); Oklahoma Constitution (1907), art. X, sec. 8e (amended 2004); Texas Constitution (1876), art. VIII, sec. 1-b (amended 2011). 245. Florida Constitution (1969), art. VII, sec. 6 (amended 2012); Louisiana Constitution (1975), art. VII, sec. 21 (amended 2012 and 2016); Texas Constitution (1876), art. VIII, sec. 1-b (amended 2013); Oklahoma Constitution (1907), art. X, sec. 8f (amended 2014); Virginia Constitution (1971), art. X, sec. 6-A (amended 2014); art. X, sec. 6-B (adopted 2016). 246. Charles T. Clotfelter and Philip J. Cook, Selling Hope: State Lotteries in America (Cambridge, MA: Harvard University Press, 1991), 38. 247. Ibid., 43. 248. Ibid., 142. 249. States adopting lotteries in the early 1970s via statute (occasionally via statutes referred to the people for approval) include Massachusetts (1971), Pennsylvania (1971), Connecticut (1971), and Maine (1973). 250. New York Constitution (1895), art. I, sec. 9 (amended 1966). 251. New Jersey Constitution (1948), art. IV, sec. 7 (amended 1969). 252. When voters approved Virginia’s 1971 constitution, they also approved a separate amendment repealing a lottery ban that had been included in the prior constitution. Dinan, The Virginia State Constitution, 35. The 1971 Illinois constitution repealed a lottery-ban provision included in the state’s 1870 constitution: Illinois Constitution (1870), art. IV, sec. 27. The other amendments adopted in the 1970s include Iowa Constitution (1857), Amendment 34 (adopted 1972) (repealing art. III, sec. 28); Montana Constitution (1973), art. III, sec. 9 (revising an outright ban on lotteries); Washington Constitution (1889), art. II, sec. 24 (amended 1972) (revising an outright ban on lotteries); Michigan Constitution (1964), art. IV, sec. 41 (amended 1972); Maryland Constitution (1867), art. III, sec. 36 (amended 1972); Rhode Island Constitution (1843), art. IV, sec. 12 (amended 1973); Delaware Constitution (1897), art. II, sec. 17 (amended 1973); Ohio Constitution (1851), art. XV, sec. 6 (amended 1973). 253. Colorado Constitution (1876), art. XVIII (amended 1980); Oregon Constitution (1859), art. XV, sec. 4 (amended 1984); California Constitution (1879), art. IV, sec. 19 (amended 1984); West Virginia Constitution (1872), art. VI, sec. 36 (amended 1984); Missouri Constitution (1945), art. III, sec. 39(b) (amended 1984); South Dakota Constitution (1889), art. III, sec. 25 (amended 1986); Kansas Constitution (1861), art. 15, sec. 3(c) (amended 1986); Wisconsin Constitution (1848), art. IV, sec. 24(6) (amended 1987); Kentucky Constitution (1891), sec. 226 (amended 1988); Indiana Constitution (1851), art. XV, sec. 8 (repealed 1988);

366

Notes to Pages 226–229

Idaho Constitution (1890), art. III, sec. 20 (amended 1988); Florida Constitution (1969), art. X, sec. 15 (adopted 1988); Minnesota Constitution (1858), art. XIII, sec. 5 (amended 1988). 254. Louisiana Constitution (1975), art. XII, sec. 6 (amended 1990); Texas Constitution (1876), art. III, sec. 47 (amended 1991); Nebraska Constitution (1875), art. III, sec. 24 (amended 1992). 255. South Carolina Constitution (1896), art. XVII, sec. 7 (amended 2000); Tennessee Constitution (1870), art. XI, sec. 5 (amended 2002); North Dakota Constitution (1889), art. 11, sec. 25 (amended 2002); Arkansas Constitution (1874), art. XIX, sec. 14 (amended 2008). 256. The Montana and Washington amendments took a slightly different approach than was taken in the other four states that simply eliminated constitutional provisions concerning lotteries. In Montana, the convention voted to replace a lottery ban with a provision stipulating that “all forms of gambling, lotteries, and gift enterprises are prohibited unless authorized by acts of the legislature or by the people through initiative or referendum.” Montana Constitution (1973), art. III, sec. 9. In Washington, the legislature voted to replace a lottery ban with a provision, ratified by voters, stating, “Lotteries shall be prohibited except as specifically authorized upon the affi rmative vote of sixty percent of the members of each house of the legislature or, notwithstanding any other provision of this Constitution, by referendum or initiative approved by a sixty percent affi rmative vote of the electors voting thereon.” Washington Constitution (1889), art. II, sec. 24 (amended 1972). 257. The dates of adoption of state lotteries are provided in Daniel L. Fay and Jeffrey B. Wenger, “The Political Structure of Policy Diffusion,” Policy Studies Journal 44 (2016): 349, 355, tbl. 1. The delays in Iowa and Washington are documented in Clotfelter and Cook, Selling Hope, 145–46, tbl. 8.1. On the delay in Virginia, see Dinan, The Virginia State Constitution, 236. 258. Florida Constitution (1969), art. X, sec. 7. 259. Florida Constitution (1969), art. X, sec. 15(a) (amended 1988). 260. Tennessee Constitution (1870), art. XI, sec. 5 (amended 2002). 261. Arkansas Constitution (1874), art. XIX, sec. 14 (amended 2008). 262. New York Constitution (1895), art. I, sec. 9 (amended 1957 and 1966); New Jersey Constitution (1948), art. IV, sec. VII (amended 1953 and 1969). 263. Wisconsin Constitution (1848), art. IV, sec. 24 (amended 1973, 1977, and 1987). 264. Kansas Office of the Governor, “Message from the Governor” (May 23, 2013), http:// kslegislature.org/ li _2014/ b2013_14/measures/documents/ hb2120 _enrolled.pdf. 265. Kansas Constitution (1861), art. 15, sec. 3(d) (amended 2014). 266. New York Constitution (1895), art. I, sec. 9.

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267. The New Jersey amendment, a legislature-referred amendment, prohibited “pool-selling, book-making or gambling of any kind.” New Jersey Constitution (1844), art. IV, sec. 7 (amended 1897). Delaware’s 1897 constitution, crafted by a constitutional convention, barred “pool selling and all other forms of gambling.” Delaware Constitution (1897), art. II, sec. 17. 268. Delaware Constitution (1897), art. II, sec. 17 (amended 1934); New Jersey Constitution (1844), art. IV, sec. 7 (amended 1939); New York Constitution (1895), art. I, sec. 9 (amended 1939). 269. New York Constitution (1895), art. I, sec. 9 (amended 1939). 270. See, for instance, Commonwealth v. Kentucky Jockey Club, 238 Ky. 739 (Ky. Ct. App. 1931); People v. Monroe, 349 Ill. 270 (1932); Rohan v. Detroit Racing Association, 314 Mich. 326 (1946); Gandolfo v. Louisiana State Racing Commission, 227 La. 45 (1954). 271. The ruling regarding horse racing is Longstreth v. Cook, 215 Ark. 72 (1949). The ruling regarding greyhound racing is Scott v. Dunaway, 311 S.W.2d 305 (Ark. 1958). 272. Nebraska Constitution (1875), art. III, sec. 21. 273. State ex rel. Sorenson v. Aksarben Position Company, 118 Neb. 851 (1929). 274. Nebraska Constitution (1875), art. III, sec. 21 (amended 1934). 275. Missouri Constitution (1945), art. III, sec. 39(c) (amended 1984); Kansas Constitution (1861), art. 15, sec. 3(b) (amended 1986); Wisconsin Constitution (1848), art. IV, sec. 24(5) (amended 1987). 276. Arkansas Constitution (1874), Amendment 46 (adopted 1956). 277. This motivation for the amendment is discussed in Christian Civic Action Committee v. McCuen, 884 S.W.2d 605 (Ark. 1994), 613. 278. Michael Nelson, “The Politics of Sovereignty and Public Policy toward Gambling,” in Alan Wolfe and Erik C. Owens, eds., Gambling: Mapping the American Moral Landscape (Waco, TX: Baylor University Press, 2009), 48. 279. New Jersey Constitution (1948), art. IV, sec. VII(2)(d) (amended 1976). 280. See, for instance, South Dakota Constitution (1889), art. III, sec. 25 (amended 1988). Discussed in Nelson, “The Politics of Sovereignty and Public Policy toward Gambling,” 48. 281. New York Constitution (1895), art. I, sec. 9 (amended 2013). 282. Ohio Constitution (1851), art. XV, sec. 6(c) (adopted 2009). 283. For an example of an amendment that authorized certain types of casino games, in this case video lottery terminals, for the purpose of overcoming a state court interpretation of a state constitutional provision, see South Dakota Constitution (1889), art. III, sec. 25 (amended 1994), which explicitly authorized video lottery games and was approved less than a year after the South Dakota Supreme Court, in Poppen v. Walker, 520 N.W.2d 238 (S.D. 1994), reached

368

Notes to Pages 236–239

a contrary interpretation of the long-standing state constitutional prohibition on “games of chance” and held that video lottery games were not encompassed by a 1986 amendment authorizing a state lottery.

Chapter Seven 1. For treatments of policy- enacting amendments, see G. Alan Tarr, Understanding State Constitutions (Princeton, NJ: Princeton University Press, 1998), 20– 23; Christopher W. Hammons, “State Constitutional Reform: Is It Necessary?,” Albany Law Review 64 (2001): 1327– 53; Robert F. Williams, The Law of American State Constitutions (New York: Oxford University Press, 2009), 20– 25. Reliance on legislature-bypassing mechanisms to secure policies that are unattainable through the legislature is discussed in detail in Emily Zackin, Looking for Rights in All the Wrong Places: Why State Constitutions Contain America’s Positive Rights (Princeton, NJ: Princeton University Press, 2013), esp. 14, 57. 2. The passage of statewide prohibition measures, and the reliance on statutes and constitutional amendments in these various instances, is charted in D. Leigh Colvin, Prohibition in the United States (New York: George H. Doran, 1926), 435. 3. Kyle G. Volk, Moral Minorities and the Making of American Democracy (New York: Oxford University Press, 2014), 3, 168. 4. Jack S. Blocker Jr., American Temperance Movements: Cycles of Reform (Boston: Twayne, 1989), 51– 58; Norman H. Clark, Deliver Us from Evil: An Interpretation of American Prohibition (New York: W. W. Norton, 1976), 45–48. Ernest H. Cherrington, The Evolution of Prohibition in the United States of America (Westerville, OH: American Issue Press, 1920), 136– 39. 5. In addition to the eleven statewide prohibition laws passed in states in the 1850s, territorial legislatures adopted prohibition in Minnesota in 1852 and Nebraska in 1855. Dates of enactment of each of these laws are provided in Colvin, Prohibition in the United States, 47. 6. State court rulings sustaining prohibition statutes are listed in Ernst Freund, The Police Power, Public Policy, and Constitutional Rights (Chicago: Callaghan, 1904), 202. 7. The Indiana Supreme Court decision is Beebe v. State, 6 Ind. 501 (1855). The New York Court of Appeals decision is Wynehamer v. People, 13 N.Y. 378 (1856). 8. John W. Compton, The Evangelical Origins of the Living Constitution (Cambridge, MA: Harvard University Press, 2014), 64– 67, 76. 9. Colvin, Prohibition in the United States, 39; Cherrington, The Evolution of Prohibition in the United States of America, 139–40; Richard F. Hamm, Shaping

Notes to Pages 239–241

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the Eighteenth Amendment: Temperance Reform, Legal Culture, and the Policy, 1880–1920 (Chapel Hill: University of North Carolina Press, 1995), 20. Dates of the repeal of each of these statutes—several were in effect for only two or three years—are provided in Freund, The Police Power, 202. 10. Anne-Marie E. Szymanski, Pathways to Prohibition: Radicals, Moderates, and Social Movement Outcomes (Durham, NC: Duke University Press, 2003), 35. 11. John J. Dinan, The American State Constitutional Tradition (Lawrence: University Press of Kansas, 2006), 266. 12. Ibid., 267. 13. Colvin, Prohibition in the United States, 137. Some consideration was given to framing constitutional prohibition amendments as early as the 1850s in New York. But the late 1870s and early 1880s brought the fi rst sustained attention to the possibility and virtues of enacting prohibition amendments, which led to the publication and circulation of amendment manuals for accomplishing this goal. Szymanski, Pathways to Prohibition, 96– 97, 100. 14. Kansas Constitution (1861), art. 15, sec. 10 (adopted 1880). Passage of this amendment is discussed in Colvin, Prohibition in the United States, 137– 38. 15. Iowa Constitution (1857), art. I, sec. 26 (adopted 1882); Maine Constitution (1820), art. XXVI (adopted 1884); Rhode Island Constitution (1843), Articles of Amendment, art. V (adopted 1886). 16. South Dakota Constitution (1889), art. XXIV; North Dakota Constitution (1889), art. 20. 17. Koehler & Lange v. Hill, 60 Iowa 541 (1883). 18. Colvin, Prohibition in the United States, 211–12, 215–16. 19. Ibid., 36. 20. Szymanski, Pathways to Prohibition, 35. 21. Colvin, Prohibition in the United States, 136. 22. Ibid., 435. 23. Arizona Constitution (1912), art. XXIII (adopted 1914); Colorado Constitution (1876), art. XXII (adopted 1914); Oregon Constitution (1859), art. I, sec. 36 (adopted 1914); Michigan Constitution (1908), art. XVI, sec. 11 (adopted 1916); Nebraska Constitution (1875), art. XV, sec. 10 (adopted 1916); South Dakota Constitution (1889), art. XXIV (adopted 1916); Ohio Constitution (1851), art. XV, sec. 9 (adopted 1918). 24. West Virginia Constitution (1872), art. VI, sec. 46 (adopted 1912); Idaho Constitution (1890), art. III, sec. 26 (adopted 1916); New Mexico Constitution (1912), art. XIII (adopted 1917); Utah Constitution (1896), art. XXII, sec. 23 (amended 1918); Wyoming Constitution (1890), art. XIX, sec. 20 (adopted 1918); Florida Constitution (1885), art. XIX (adopted 1918); Texas Constitution (1876), art. XVI, sec. 20 (adopted 1919); Kentucky Constitution (1891), sec. 226a (adopted 1919).

370

Notes to Pages 242–244

25. Kathleen Ferraiolo, “State Policy Innovation and the Federalism Implications of Direct Democracy,” Publius 38 (2008): 488, 502– 3. 26. “29 Legal Medical Marijuana States and DC,” ProCon.org (updated Apr.  20, 2017), http://medicalmarijuana.procon.org/view.resource.php?resource ID = 000881. 27. Ibid. 28. Nevada Constitution (1864), art. IV, sec. 38 (adopted 2000); Colorado Constitution (1876), art. XVIII, sec. 14 (adopted 2000). 29. Arkansas Constitution (1874), Amendment 98 (adopted 2016); Florida Constitution (1969), art. X, sec. 29 (adopted 2016). 30. Colorado Constitution (1876), art. XVIII, sec. 16 (adopted 2000). 31. John Dinan, “State Constitutional Initiative Processes and Governance in the 21st Century,” Chapman Law Review 19 (2016): 61, 105. This changed after passage of a 2016 amendment that imposed a geographic distribution requirement for constitutional initiatives and a 55 percent threshold for voter approval of constitutional amendments but left unchanged the rules for qualifying and approving statutory initiatives. 32. States vary in whether they permit the legislature to modify or repeal statutes that are approved through the initiative process. A majority of states, including Colorado, do not insulate initiated statutes from repeal or modification. But some other states limit the ability of legislatures to repeal or modify initiated statutes in various ways. California prohibits legislative modification or repeal of initiated statutes, unless permitted by the initiated statute. Other states permit legislative modification or repeal only upon a supermajority legislative vote, as in Arkansas and Nebraska. Still other states permit legislative modification or repeal only after a certain time has elapsed, as in Nevada. Dinan, “State Constitutional Initiative Processes and Governance in the 21st Century,” 105– 6; Henry S. Noyes, The Law of Direct Democracy (Durham, NC: Carolina Academic Press, 2014), 337. 33. Dinan, “State Constitutional Initiative Processes and Governance in the 21st Century,” 106– 7. 34. Gray Rohrer, “Medical Pot Amendment Makes Fall Ballot,” Orlando Sentinel, Jan. 27, 2016, http://www.orlandosentinel.com/news/politics/florida -medical-marijuana/os-medical-marijuana-makes-ballot-20160127-story.html. 35. Mark Lane, “Deceptive Solar Proposal, Medical Pot Do- Over Proposal on Ballot,” Daytona Beach News- Journal, Oct. 22, 2016, http://www.news -journalonline.com/news/ 20161022/ lane -deceptive -solar-proposal-medical-pot -do -over-on-ballot. 36. On this reluctance and cross-pressures, see Jennifer L. Hochschild, “The Strange Career of Affi rmative Action,” Ohio State Law Journal 59 (1998): 997, 1014– 27. 37. California Constitution (1879), art. I, sec. 31 (adopted 1996).

Notes to Pages 244–246

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38. Michigan Constitution (1964), art. I, sec. 26 (adopted 2006); Nebraska Constitution (1875), art. I, sec. 30 (adopted 2008). 39. Colorado Discrimination and Preferential Treatment by Governments, Initiative 46 (2008), Ballotpedia, https:// ballotpedia.org/Colorado_Discrimination _and _Preferential _Treatment _by_Governments, _Initiative_46 _(2008). 40. Daniel C. Lewis, Direct Democracy and Minority Rights: A Critical Assessment of the Tyranny of the Majority in the American States (New York: Routledge, 2013), 42–43. 41. On the failed Oklahoma effort, see Oklahoma State Question No. 737 (2008), Ballotpedia, https:// ballotpedia.org/Oklahoma _State_Question _No. _737_(2008). On the failed Arizona effort, see Arizona Proposition 104 (2008), Ballotpedia, https:// ballotpedia.org/Arizona _Proposition _104 _(2008). 42. Arizona Constitution (1912), art. 2, sec. 36 (adopted 2010); Oklahoma Constitution (1907), art. II, sec. 36 (adopted 2012). 43. This section draws on John Dinan, “State Constitutional Amendment Processes and the Safeguards of American Federalism,” Penn State Law Review 115 (2011): 1007, 1020– 21; John Dinan, “Policy Provisions in State Constitutions: The Standards and Practice of State Constitution-Making in the Post-Baker v. Carr Era,” Wayne Law Review 60 (2014): 155, 191. 44. Christine Vestal, “Embryonic Stem Cell Research Divides States,” Stateline, June 21, 2007, http://www.pewtrusts.org/en/research-and-analysis/ blogs/ stateline/2007/06/21/embryonic-stem-cell-research-divides-states. 45. Judith A. Johnson and Erin D. Williams, Stem Cell Research: State Initiatives, Congressional Research Service Report for Congress (May 19, 2006), 4– 5. 46. Ferraiolo, “State Policy Innovation and the Federalism Implications of Direct Democracy,” 504– 6. 47. California Constitution (1879), art. XXXV (amended 2004). 48. Vestal, “Embryonic Stem Cell Research Divides States.” 49. Ibid. 50. Missouri Constitution (1945), art III, sec. 38(d) (amended 2006); Michigan Constitution (1964), art. I, sec. 27 (amended 2008). 51. Joseph Lubinski, “The Cow Says Moo, the Duck Says Quack, and the Dog Says Vote! The Use of the Initiative to Promote Animal Protection,” University of Colorado Law Review 74 (2003): 1109, 1128–41. 52. Wayne Pacelle, “The Animal Protection Movement: A Modern-Day Model Use of the Initiative Process,” in M. Dane Waters, ed., The Battle Over Citizen Lawmaking (Durham, NC: Carolina Academic Press, 2001), 111. 53. Ibid., 113. 54. Florida Constitution (1969), art. X, sec. 16 (adopted 1994). 55. Florida Constitution (1969), art. X, sec. 21 (adopted 2002). 56. California Constitution (1879), art. X-B (adopted 1990). 57. Proposition 132, “Voter Information Guide for [California] 1990 Gen-

372

Notes to Pages 246–248

eral Election,” http://repository.uchastings.edu/ca _ballot _props/1057 (accessed Sept. 21, 2017), 38. 58. Pacelle, “The Animal Protection Movement,” 113. 59. Daniel A. Smith, “Representation and the Spatial Bias of Direct Democracy,” University of Colorado Law Review 78 (2008): 1395, 1419. 60. Colorado Constitution (1876), art. XVIII, sec. 12b (amended 1996). 61. Tom McArthur, “English Language Amendment,” Concise Oxford Companion to the English Language (1998), Encyclopedia.com, http://www .encyclopedia.com/doc/1O29 -ENGLISHLANGUAGEAMENDMENT.html. 62. Alabama Constitution (1901), Amendment 509 (adopted 1990); Arizona Constitution (1912), art. 28 (adopted 2006); Missouri Constitution (1945), art. I, sec. 34 (adopted 2008); Oklahoma Constitution (1907), art. XXX (adopted 2010). 63. Nebraska Constitution (1875), art. I, sec. 27 (adopted 1920). 64. Joseph Liebowicz, “The Proposed English Language Amendment: Shield or Sword?,” Yale Law and Policy Review 3 (1985): 519– 20. 65. California Constitution (1879), art. III, sec. 6 (amended 1986); Colorado Constitution (1876), art II, sec. 30a (amended 1988); Florida Constitution (1969), art. II, sec. 9 (adopted 1988). The state supreme court decision invalidating the Arizona amendment—the amendment also encountered challenges in federal courts—is Ruiz v. Hull, 191 Ariz. 441 (1998). 66. Colorado English Language Education, Initiative 31 (2002), Ballotpedia, https:// ballotpedia.org/Colorado _English _Language _Education, _Initiative _31 _(2002). 67. Florida Constitution (1885), art. I, sec. 12 (amended 1944); Arkansas Constitution (1874), Amendment 34 (adopted 1944). 68. Arizona Constitution (1912), art. XXV (amended 1946); Nebraska Constitution (1875), art XV, sec. 13 (amended 1946); South Dakota Constitution (1889), art. VI, sec. 2 (amended 1946). 69. Gilbert J. Gall, The Politics of Right to Work: The Labor Federations as Special Interests, 1943–1979 (Westport, CT: Greenwood Press, 1988), 20, 69. 70. Kansas Constitution (1861), art 15, sec 12 (amended 1958); Mississippi Constitution (1890), art. 7, sec. 198-A (amended 1960). 71. Oklahoma Constitution (1907), art XXIII, sec. 1-A (amended 2001); Alabama Constitution (1901), Amendment 913 (adopted 2016). 72. The votes on these citizen-initiated amendments are recorded in Gall, The Politics of Right to Work, 234. Right-to-work measures were submitted to voters in two main periods, in the mid-1940s and then again in the late 1950s, and were submitted either as legislature-referred amendments, citizen-initiated amendments, or citizen-initiated statutes. In addition to the failed citizeninitiated amendments noted in the paragraph, one might also take note of New Mexico voters’ rejection of a legislature-referred amendment in 1948, as well as voter rejections of citizen-initiated statutes in Idaho and Washington in 1958.

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73. States adopting right-to-work policies on a statutory basis are listed at “State Right to Work Timeline,” National Right to Work Committee, https:// nrtwc.org/facts-issues/state-right-to -work-timeline-2016 (accessed Apr. 20, 2017). 74. William F. Swindler, “The Right to Work: A Decade of Development,” Nebraska Law Review 36 (1957): 276, 299. 75. John G. Shott, How Right- to-Work Laws Are Passed: Florida Sets the Pattern (Washington, DC: Public Affairs Institute, 1956), 4. 76. Gall, The Politics of Right to Work, 69, 80– 81. 77. William Canak and Berkeley Miller, “Gumbo Politics: Unions, Business, and Louisiana Right-to-Work Legislation,” Industrial and Labor Relations Review 43 (1990): 258, 264– 65. 78. Shott, How Right- to-Work Laws Are Passed, 21. The initial decision to proceed through the amendment process was influenced in part by the composition of various legislative committees. Florida legislators introduced both a right-to-work statute and a right-to-work amendment in the 1943 session. Unable to move the statute out of the House Labor Committee, supportive legislators secured a favorable vote in the House Constitutional Amendments Committee and ultimately prevailed upon the House and Senate to approve a constitutional amendment for placement on the 1944 ballot. In considering additional reasons why Florida and several other state legislatures chose to frame right-to-work policies as constitutional amendments, one would also have to take account of the desire of legislators to insulate these policies from state court reversal. In defending the need for a constitutional amendment in the course of the legislative debate, a leading supporter, Florida attorney general Tom Watson, argued that an amendment was needed, in part, “to protect the public from court decisions that ignore and disregard the right to enjoy property, including the right to work on an equal basis.” Quoted in ibid., 22. Still another reason for proceeding through the amendment process, at least in the mid-1940s, was offered by state constitutional scholar William F. Swindler, who argued that prior to congressional passage of the 1947 Taft-Hartley Act, state legislators were conscious that this was “an area in which the federal government had been delegated authority and had exercised it broadly and/or exclusively,” in which case “the states could do little more than pronounce a strong public policy on the subject. The strongest pronouncement of public policy being a constitutional one, the amendments were the result.” Swindler, “The Right to Work: A Decade of Development,” 296. 79. On the South Dakota and Mississippi amendments, see R. Alton Lee, “Reining in the ‘Union Threat’: Right-to-Work Laws in South Dakota,” South Dakota History 26 (1996): 121, 128– 30; Gall, The Politics of Right to Work, 69, 144. 80. Martin Halpern, Unions, Radicals, and Democratic Presidents: Seeking Social Change in the Twentieth Century (Westport, CT: Praeger, 2003), 150– 52.

374

Notes to Pages 250–252

81. Judith L. King and Laurel C. Catlett-King, “Cowboy Campaigning: Patriotism, ‘Freedom,’ and Right-to-Work in Oklahoma,” Labor Studies Journal 32 (2007): 5, 12. 82. “Right to Work: Let’s Have a Vote of the People,” Tulsa World, Feb. 9, 2001. 83. Amendments have also been a vehicle for enacting other political reforms in situations where legislators’ interests were not seen as compatible with the public interest. For instance, Colorado voters in 1918 approved a citizen-initiated civil-service reform amendment requiring offices and employment in the state personnel system to be allocated based on merit and objective criteria. Colorado Constitution (1876), art. XII, sec. 13 (amended 1918). In Rhode Island, voters in 1986 approved a convention-framed amendment establishing an ethics commission to regulate the conduct of all state and local officials. Rhode Island Constitution (1986), art. III, sec. 8. 84. For discussions of campaign-fi nance amendments, see James A. Gardner, “Voting and Elections,” in G. Alan Tarr and Robert F. Williams, eds., State Constitutions for the Twenty- First Century, vol. 3, The Agenda of State Constitutional Reform (Albany: State University of New York Press, 2006), 171; John Kincaid, “Early State History and Constitutions,” in Donald Haider-Markel, ed., Oxford Handbook of State and Local Government (New York: Oxford University Press, 2014), 260. 85. Nathaniel Persily and Melissa Cully Anderson, “Regulating Democracy through Democracy: The Use of Direct Legislation in Election Law Reform,” Southern California Law Review 78 (2005): 997, 1011–18. 86. Oklahoma Constitution (1907), art. XXIX, sec. 3 (amended 1990). 87. Oklahoma Constitution (1907), art. XXIX, sec. 4 (amended 1990). 88. Arizona Constitution (1912), art. VII, sec. 16. 89. Rhode Island Constitution (1843), Articles of Amendment, art. XXXXVIII, sec. 2 (amended 1973), renumbered in 1986 and currently found at Rhode Island Constitution (1986), art. IV, sec. 9; Minnesota Constitution (1858), art. VII, sec. 9 (amended 1980). 90. Florida Constitution (1969), art. II, sec. 8 (amended 1976). 91. Swett v. Bradbury, 43 P.3d 1094 (Ore. 2002). 92. Hawaii Constitution (1959), art. II, sec. 5 (amended 1978). 93. Rhode Island Constitution (1986), art. IV, sec. 10; Florida Constitution (1969), art. VI, sec. 7 (amended 1998). 94. Vannatta v. Keisling, 151 F.3d 1215 (9th Cir. 1998). 95. Nevada Constitution (1864), art. II, sec. 10 (amended 1996). 96. Anne G. Campbell, “Direct Democracy and Constitutional Reform: Campaign Finance Initiatives in Colorado,” in G. Alan Tarr and Robert F. Williams, eds., State Constitutions for the Twenty- First Century, vol. 1, The Poli-

Notes to Pages 252–255

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tics of State Constitutional Reform (Albany: State University of New York Press, 2006), 180. 97. Ibid. 98. Ibid., 181. 99. Quoted in ibid., 181. 100. Ibid., 182. 101. Colorado Constitution (1876), art. XXVIII (amended 2002). 102. These developments are discussed in Steve Kraske, “Proposal to Cap Political Donations in Missouri May Be Headed to Voters,” Kansas City Star, May  5, 2016, http://www.kansascity.com/news/ local/news-columns-blogs/the -buzz/article75921112 .html. 103. Missouri Constitution (1945), art. VIII, sec. 23 (adopted 2016). 104. John D. Hicks, The Populist Revolt: A History of the Farmers’ Alliance and the People’s Party (Minneapolis: University of Minnesota Press, 1931), 70– 71; Solon Buck, The Granger Movement (Cambridge, MA: Harvard University Press, 1913), 13; Amy Bridges, Democratic Beginnings: Founding the Western States (Lawrence: University Press of Kansas, 2015), 125. 105. For instance, the Wisconsin legislature submitted and voters in 1902 ratified such an amendment. Wisconsin Constitution (1848), art. XIII, sec. 11 (amended 1902). 106. The initial wave of amendments in the 1870s is discussed in James W. Ely  Jr., Railroads and American Law (Lawrence: University Press of Kansas, 2001), 4– 85. 107. Pennsylvania Constitution (1873), art. XVII, sec. 8. 108. Arkansas Constitution (1874), art. XVII, sec. 7. 109. Journal of the [New Hampshire] Constitutional Convention of 1902 (Concord: Rumford Press, 1903), 689. 110. Ibid., 749– 50. 111. Ibid., 690. 112. Ibid., 685. 113. Ibid., 686– 87. 114. In addition to the already noted provisions in the constitutions of Pennsylvania (1873) and Arkansas (1874), convention- drafted provisions banning free rail passes to legislators and other public officials also appeared in the Alabama Constitution (1875), art. XIII, sec. 23; Missouri Constitution (1875), art. XII, sec.   24; California Constitution (1879), art. XII, sec. 19; Florida Constitution (1885), art. XVI, sec. 31; Washington Constitution (1889), art. II, sec. 39; art. XII, sec. 20; Mississippi Constitution (1890), art. 7, sec. 188; Kentucky Constitution (1891), sec. 197; Virginia Constitution (1902), sec. 161; Oklahoma Constitution (1907), art. IX, sec. 13; Arizona Constitution (1912), art IV, part 2, sec. 23; New Mexico Constitution (1912), art. IV, sec. 37.

376

Notes to Pages 255–258

115. Colorado Constitution (1876), art. XXIX (amended 2006). 116. Arkansas Constitution (1874), art. XIX, secs. 28– 30 (adopted 2014). 117. To provide an example of an unsuccessful effort, in Oregon in 2007 legislators sought to increase the cigarette tax but did not have enough support to satisfy the state’s three-fi fths legislative-vote requirement for adopting statutes increasing taxes. But backers of the tax increase commanded a majority in both houses of the legislature, and this was sufficient to satisfy the state’s majority legislative-vote requirement for passing most amendments. The legislature approved a 2007 cigarette-tax-increase amendment for submission to voters, but voters defeated it. John Dinan, “State Constitutional Developments in 2007,” Book of the States 2008 (Lexington, KY: Council of State Governments, 2008), 8. 118. On the origin of this amendment, see Howard Fischer, “Brewer Talking Tough on Budget,” Yuma Sun, Jan. 10, 2010, http://www.yumasun.com/ brewer -talking-tough-on-budget/article_e8749f7f-e55d-5dbf-ab3f-37ca8595d533.html. 119. California Constitution (1879), art. XIII, sec. 36 (amended 2012 and 2016). On the motivation for proceeding through the constitutional initiative  process, see Adam Nagourney, “In California, Asking Voters to Raise Taxes,” New York Times, Nov. 30, 2011, http://www.nytimes.com/2011/12/01/us/ in-california-a-push-for-tax-increases-on-the-2012-ballot.html. 120. Louisiana Constitution (1975), art. VII, sec. 4.1 (amended 2011). 121. On this motivation for proceeding through the constitutional amendment process, see Jan Moller, “Gov. Bobby Jindal ‘Not Fighting’ Cigarette Tax Extension Engrafted onto Bill,” Times- Picayune, June 22, 2011, http://www.nola .com/politics/index.ssf/2011/06/gov_bobby_jindal _not _fighting.html. 122. The Colorado amendment is at Colorado Constitution (1876), art. X, sec. 21 (amended 2004). The California measure was in part an initiated statute and in part an initiated amendment. The portion of the measure that changed the  state constitution, largely for the purpose of dedicating the revenue, is codified at California Constitution (1879), art. XVI, sec. 23; art. XIIIB, sec. 14 (adopted 2016). 123. Missouri Constitution (1945), art. IV, sec. 43(a) (amended 1976). 124. Missouri Constitution (1945), art. IV, sec. 47(a) (amended 1984). 125. Arkansas Constitution (1874), Amendment 75 (adopted 1996); Minnesota Constitution (1858), art. XI, sec. 15 (amended 2008). 126. Colorado Constitution (1876), art. XXVII (adopted 1992). 127. See, for instance, New Hampshire Constitution (1784), pt. II, art. 6-b (adopted 1990). 128. Minnesota Constitution (1858), art. IX, sec. 14 (amended 1990). The origin of this amendment is discussed in John Wilkinson, Gambling in Minnesota: A Short History (St. Paul: Minnesota House Research Department, 2005), 38, http://www.house.leg.state.mn.us/ hrd/pubs/gambhist.pdf.

Notes to Pages 258–259

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129. Virginia Constitution (1971), art. X, sec. 7-A (amended 2000). 130. John Dinan, The Virginia State Constitution, 2nd ed. (New York: Oxford University Press, 2014), 238. 131. Maine Constitution (1820), art. IX, sec. 22 (adopted 1991); Iowa Constitution (1857), art. VII, sec. 9 (adopted 1996); West Virginia Constitution (1872), art. VI, sec. 55 (adopted 1996). 132. John Kincaid, “The Constitutional Frameworks of State and Local Government Finance,” in Robert D. Ebel and John E. Petersen, eds., The Oxford Handbook of State and Local Government Finance (New York: Oxford University Press, 2012), 71. 133. Minnesota Constitution (1858), art. 9, sec. 5 (adopted 1928); Kansas Constitution (1861), art. 11, sec. 10 (adopted 1928). 134. Many of these amendments barring diversion of gas-tax revenue for nonroad spending were adopted after Congress passed the 1934 HaydenCartwright Act, which offered states additional federal highway funding but threatened to withhold a portion of money from any states that diverted revenue from road-user taxes to other purposes. This federal requirement is noted in Michael R. Fein, Paving the Way: New York Road Building and the American State, 1880–1956 (Lawrence: University Press of Kansas, 2008), 149– 50. Passage of amendments in response to this act is noted in Marshall J. Tinkle, The Maine State Constitution: A Reference Guide (Westport, CT: Greenwood Press, 1992), 151. 135. Colorado Constitution (1876), art. X, sec. 18 (amended 1934); Michigan Constitution (1908), art. X, sec. 22 (adopted 1938); North Dakota Constitution (1889), art. 10, sec. 11 (adopted 1940); Ohio Constitution (1851), art. XII, sec. 5a (amended 1947). 136. California Constitution (1879), art. XXVI (adopted 1938); New Hampshire Constitution (1784), pt. II, art. 6-a (adopted 1938); Idaho Constitution (1890), art. VII, sec. 17 (adopted 1940); Nevada Constitution (1864), art. IX, sec. 5 (adopted 1940); South Dakota Constitution (1889), art. 11, sec. 8 (adopted 1940); Oregon Constitution (1859), art. IX, sec. 3 (amended 1942); Iowa Constitution (1857), art. VII, sec. 8 (adopted 1942); West Virginia Constitution (1872), art. VI, sec. 52 (adopted 1942); Washington Constitution (1889), art. II, sec. 40 (adopted 1944); Maine Constitution (1820), art. IX, sec. 19 (adopted 1944); Pennsylvania Constitution (1873), art. IX, sec. 18 (amended 1945); Kentucky Constitution (1891), sec. 230 (amended 1945); Massachusetts Constitution (1780), Articles of Amendment, art. LXXVIII (adopted 1948); Wyoming Constitution (1890), art. XV, sec. 16 (adopted 1954); Montana Constitution (1889), art. XII, sec. 1(b) (amended 1956); Arizona Constitution (1912), art. IX, sec. 14 (amended 1970). 137. These debates in the Maine legislature in 1943 are noted in Tinkle, The Maine State Constitution, 151. 138. Maine Legislative Record—Senate (Mar. 25, 1943), 603.

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Notes to Pages 259–274

139. Ibid., 608. 140. Maine Legislative Record—Senate (Mar. 26, 1943), 655. 141. Maine Legislative Record—Senate (Mar. 25, 1943), 608. 142. Florida Constitution (1969), art. X, sec. 20 (adopted 2002). 143. Florida Constitution (1969), art. I, sec. 6 (amended 2004). 144. Florida Constitution (1969), art. X, secs. 25– 26 (adopted 2004). 145. Florida Constitution (1969), art. IX, sec. 1(a), 1(b) (amended 2002).

Chapter Eight 1. Leading works include John R. Vile, Constitutional Change in the United States: A Comparative Study of the Role of Constitutional Amendments, Judicial Interpretations, and Legislative and Executive Actions (Westport, CT: Praeger, 1994), ch. 6; Kathleen M. Sullivan, “What’s Wrong with Constitutional Amendments?,” in Alan Brinkley, Nelson W. Polsby, and Kathleen M. Sullivan, New Federalist Papers: Essays in Defense of the Constitution (New York: Twentieth Century Fund, 1997), 61– 67; Brannon P. Denning and John R. Vile, “The Relevance of Constitutional Amendments: A Response to David Strauss,” Tulane Law Review 77 (2002): 247– 82; John O. McGinnis and Michael B. Rappaport, Originalism and the Good Constitution (Cambridge, MA: Harvard University Press, 2013), ch. 5; Gerard N. Magliocca, “Constitutional Change,” in Mark Tushnet, Mark A. Graber, and Sanford Levinson, eds., The Oxford Handbook of the U.S. Constitution (New York: Oxford University Press, 2015), 909– 20; Vicki C. Jackson, “The (Myth of Un)amendability of the US Constitution and the Democratic Component of Constitutionalism,” International Journal of Constitutional Law 13 (2015): 575– 605. 2. See, for example, Stephen Holmes and Cass R. Sunstein, “The Politics of Constitutional Revision in Eastern Europe,” in Sanford Levinson, ed., Responding to Imperfection: The Theory and Practice of Constitutional Amendment (Princeton, NJ: Princeton University Press, 1995), 275– 306; Rosalind Dixon, “Constitutional Amendment Rules: A Comparative Perspective,” in Tom Ginsburg and Rosalind Dixon, eds., Comparative Constitutional Law (Northampton, MA: Edward Elgar, 2011), 96–111; Xenophon Contiades and Alkmene Fotiadou, “Models of Constitutional Change,” in Xenophon Contiades, ed., Engineering Constitutional Change: A Comparative Perspective on Europe, Canada, and the USA (New York: Routledge, 2013), 417– 68. 3. In focusing on the virtues of stability and legitimacy, I am aware that analysts have identified other possible criteria for assessing the consequences of relying on the amendment process versus legislative and judicial processes. In fact, John Vile identifies over twenty criteria, in his Constitutional Change in the United States, chapter 6. However, many (though not all) of the important con-

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siderations are encompassed by an inquiry into the effects on stability and legitimacy broadly understood. For instance, although some analysts treat as separate considerations the extent to which certain processes permit deliberation and promote consensus (e.g., McGinnis and Rappaport, Originalism and the Good Constitution, ch. 5), I treat the virtues of deliberation and consensus as primarily important insofar as they contribute to stability. Additionally, although some analysts treat as separate inquiries the degree to which certain processes promote publicity, secure popular consent, and ensure legitimacy (e.g., Denning and Vile, “The Relevance of Constitutional Amendments,” 278– 81), I treat the virtues of publicity and consent as linked with and a means to an ultimate end of ensuring legitimacy.

Index Page numbers in italics refer to figures. abortion: amendments restricting, 134– 38, 333n161; state court decisions regarding, 110, 133– 34, 135– 37, 334n166; US Supreme Court decisions regarding, 87, 333n161 Adair v. US, 191 Adams, Charles Francis, Jr., 49 Adkins v. Children’s Hospital, 191 administrative agencies: judicial review of, 56– 58; legislative veto and, 58– 59 affi rmative action, amendments limiting, 243–44 Alabama: amendments, high number of, 24; balanced-budget amendment, 344n118; constitutional revision, support for in 2000s, 32– 33; constitutions, number of, 24; debt, default on, 168; English-language policy, 247; hunting and fi shing rights, 105; income tax, 221; local amendments, 24; lottery, lack of, 226; rainy- day fund, 182; religious freedom amendment, 80; right to bear arms, 93; right-to-work policy, 248, 249; state supreme court, 80, 221; taxuniformity provision, 174 Alaska: conventions, limits on, 22; conventions, periodic referendum on calling, 21; equal rights amendment, 83; home rule, 300n30; income tax, 362n216; legislative veto, 58; lottery, lack of, 226; mandates, limits on, 302n58; marijuana legalization, 242; privacy rights, 83; rainy- day fund, 182; redistricting

commission, 67; right to bear arms, 92; same- sex marriage, 138–40; trust fund, 183 alcohol. See prohibition amendment process: legitimacy of changes secured through, 277– 79; outcomes of compared with legislation, 267– 70; outcomes of compared with litigation, 270– 73; stability of changes secured through, 274– 77 amendment rates, 23– 30; amendment rules and, 24– 28; explanations for variation in, 24– 30, 293– 94n109; political culture and, 29– 30, 294– 95nn114–16; for state constitutions, 25– 26; for US Constitution, 23, 30 amendments, citizen-initiated, 16–19; geographic- distribution requirements and, 17, 286– 87nn34– 35; history of adoption of, 16; indirect initiative process and, 17–18; limits on subject matter of, 18, 288n45; signatures required to place on ballot and, 17; states permitting, 17; voter ratification requirements for, 18, 287nn40–41 amendments, commission-generated, 22– 23; advisory commissions and, 22; periodic commissions in Florida and, 22– 23; preparatory commissions and, 22 amendments, convention-generated, 19– 22, 30– 34; decline of in recent decades, 31– 34; limits on work of conventions

382 amendments, convention-generated (continued) and, 21– 22; periodic referendum on calling conventions and, 20– 21; procedures for calling conventions and, 20– 21, 289– 90n64 amendments, legislature-generated, 12–16, 26– 27; limits on, 16; local amendments, 24; procedures for placement on ballot of, 14; voter ratification requirements for, 13–15, 284– 85nn11–13, 285n17 American Association for Labor Legislation (AALL), 197 American Civil Rights Institute (ACRI), 244 animal-welfare policies, 105, 245–47 Arizona: affi rmative action, limits on, 244; campaign-fi nance regulation, 251; citizen-initiated amendments, 16, 17, 18, 288n45; convention of 1910, 198, 218, 251; corporation commission, 53; death penalty, 127; employer-liability rules, 195; English-language policy, 247, 248; income tax, 221; inheritance tax, 218; pensions, 206– 7; privacy rights, 86; prohibition, 241; property tax, 223; real- estate transfer tax, 180; redistricting commission, 67; right-towork policy, 248; sales tax, 256; samesex marriage, limits on, 142, 336n213; state supreme court, 206– 7, 247, 372n65; tax-and- expenditure limitation, 179; tort suits, 144; workday, limit on hours of, 200; workers’ compensation, 197– 98 Arkansas: abortion, amendment limiting, 333n161; amendments, limits on, 16, 285n21; appropriations, legislative supermajority needed to pass, 307n143; banks, restrictions on, 163; campaignfi nance regulation, 255; citizen-initiated amendments, 16; conservation commission, 54, 55; convention of 1874, 253– 54; debt, default on, 168, 171; legislative veto, 59; lobbying regulation, 255; lottery, 158, 227, 229; marijuana legalization, 242; racetrack betting, 229, 230; railroad passes, limits on, 253– 54; redistricting commission, 67; revenue bonds, 215; right-to-work policy, 248, 249; sales

index tax, 177, 257; state supreme court, 229, 230; tax-uniformity provision, 174 assumption- of-risk- doctrine. See employerliability rules Atkins, Henry, 194 Atkins v. Virginia, 128 Avery, Nathan, 63 Avila, Dan, 135 Baerh v. Miike (originally Baehr v. Lewin), 138– 39 bail, right to, 120– 21 Baker v. Vermont, 140 Balch, Francis, 62 Baldwin, Charles, 156 banks: amendments banning, 162– 63; chartering of, 163– 64; opposition to, 161– 62 Barbour, Clitus, 43 Barnett, David, 176 Beard, Charles, 60 Beetham, Scott P., 86, 87 Benjamin, Judah, 160 Benson, Sumner, 175 Berg, Thomas C., 80 bingo games, 227– 28 Bird, Rose, 132 Black, Charles M., 199 Blackmer, Eli, 51 Blaine, James G., 75, 77 Blaine amendments: anti- Catholic sentiment and, 76– 77; federal amendment considered, 75– 76, 77– 78, 106, 107; state amendments adopted, 75– 79, 106; state court rulings interpreting, 76, 114–17 Board of Education v. Allen, 116 Bodenhorn, Howard, 162 Boerne v. Flores, 79, 80 Bradfield, George, 42 Brause v. Bureau of Vital Statistics, 139 Braxton, Allen Caperton, 52– 53 Brennan, William, Jr., 6, 73 Brewer, Jan, 256 Briffault, Richard, 169, 215 Brown, George, 259 Brown, Jerry, 256 Brownback, Sam, 228 Buck, Solon, 48 budgeting: amendments earmarking

index revenue and, 258– 60; balanced-budget amendments and, 171– 73, 344n118, 345n125; ballot-box budgeting, 181; executive-budget systems, 60– 64; lineitem veto and, 60; rainy- day funds and, 181– 83; supermajority requirement to pass appropriations and, 307– 8n143; supermajority requirement to raise taxes and, 256, 376n117; taxand- expenditure limitation (TEL) amendments and, 177– 81; tax-increase amendments and, 256– 57; trust funds and, 183– 84 Busser v. Snyder, 207 Cain, Bruce, 27, 28– 29, 30 California: abortion, limits on, 136; affi rmative action, limits on, 243–44; amendments, high number of, 28, 29– 30; bail, denial of, 121; banks, restrictions on, 162; cigarette tax, 257; citizeninitiated amendments, 16; conservation commission, 55; convention of 1878– 79, 41, 43–44, 48, 49– 52; Crime Victims Justice Reform Act of 1990, 126; death penalty, 128– 29, 132; eminent domain, 97; English-language policy, 247–48; equal protection, 133; evidence used to impeach a defendant, 122– 23; exclusionary rule, 119; fi shing rights, 104; gill nets, limits on, 246; home rule, 41, 43–44; income tax, 256; judicial review of agency rulings, 56– 58; mandates, limits on, 46; marijuana legalization, 242; Marsy’s Law, 100; mechanics’ liens, 192; minimum wage, 202; pensions, 207, 209; privacy rights, 88; property rights, 97; Proposition 13, 177– 78; railroad commission, 48– 53; rainy- day fund, 182; redistricting commission, 66, 67; religious schools, textbooks for students, 116; right to know, 102– 3; rightto-work policy, 248; ripper laws barred, 41; sales tax, 256; same- sex marriage, 138, 142, 143; search and seizure, 119; school desegregation, 133; school spending, 181; state supreme court, 57, 119, 121, 122– 23, 126, 128, 132, 133, 136, 138, 142, 148, 200; stem- cell research, 244–45; tax-and- expenditure limita-

383 tions, 177– 78, 179, 181; tax-uniformity provision, 174; victims’ rights, 99, 100; women’s rights, 81; workday, limit on hours of, 200; workers’ compensation, 197– 98 campaign-fi nance regulations, amendments instituting, 250– 53 Campbell, Bob, 88 canals, government funding of, 159, 164– 65, 174, 188 capital punishment. See death penalty Cardozo, Benjamin, 197 Carleton, Mark, 29 casino gaming, 230– 31 Cauthen, James N. G., 114, 115 Chandler, William, 254 Chang, Kevin, 138 Christie, Chris, 204 citizen-initiated amendments. See amendments, citizen-initiated citizen-initiated statutes: absence of in various states, 16, 237, 243, 260; changes in governance achieved through, 68, 203, 241, 242, 244, 245–46, 248, 250, 252, 259, 298n10, 372n72; legislative modification of, 243, 370n32; procedures for enacting, 242, 286n35 civil asset forfeiture, 95, 319n131 Colfax, Schuyler, 166 collective bargaining, amendments authorizing, 204– 5 Colorado: abortion, limits on, 134, 333n161; affi rmative action, limits on, 244; amendments, limit on number, 16; amendments, supermajority of voters needed to ratify, 13, 16, 18, 285n17; bear hunting, limits on, 246; campaign-fi nance regulation, 252– 53, 262; cigarette tax, 257; citizen-initiated amendments, 16; citizen-initiated statutes, 242–43; Common Cause, 252– 53; employer-liability rules, 195; Englishlanguage policy, 247, 248; equal rights amendment, 83; Great Outdoors Colorado program, 258; home rule, 45; income tax, 221; League of Women Voters, 252– 53; lobbying regulation, 255; mandates, limits on, 46, 47; marijuana legalization, 242; pensions, old-age, 209; prohibition, 241; property tax,

index

384 Colorado (continued) 225; real- estate transfer tax, 180; redistricting commission, 67; religious institutions, ban on funding, 78; right-towork policy, 248; ripper laws barred, 41; school desegregation, 133; school spending, 181; state supreme court, 191, 200; Taxpayer Bill of Rights (TABOR) Amendment, 179, 180, 181; workday, limit on hours of, 191, 200 Colvin, D. Leigh, 240–41 commissions, constitutional revision: advisory commissions, 22; changes in governance achieved through, 83– 84, 182, 252, 261; Florida Constitution Revision Commission, 22– 23; Florida Taxation and Budget Reform Commission, 23; periodic commissions in Florida, 22– 23, 34; preparatory commissions, 22 Connecticut: constitution of 1818, 13; conventions, periodic referendum on calling, 21; disabled, ban on discrimination against, 85; equal rights amendment, 83, 84; juries, size of, 122; legislative veto, 59; prohibition, 239; same- sex marriage recognized, 142; state supreme court, 59, 122, 142 Connelly, Patrick, 198 Connerly, Ward, 243–44 conservation commissions, 54– 56 constitutional initiative. See amendments, citizen-initiated contributory-negligence doctrine. See employer-liability rules conventions: citizen-initiated, 21; declining frequency of, 30– 34; interest group opposition to, 33; legislative opposition to, 31– 32; limits on, 21– 22; number of, 31; periodic referendum on calling, 20– 21; procedures for calling, 19– 22, 289– 90n64; procedures for ratifying changes recommended by, 19; voter rejection of convention referenda and, 33– 34 Cooley, Thomas, 44 Coppage v. Kansas, 191 Cordes, Henry, 197 corporations: commissions for regulating, 48– 54; procedures for chartering, 159– 61; special incorporation acts prohibited, 160– 61

Corsi, Edward, 210 council of censors, 12, 19– 20 court, state. See judiciary, state Craig, James B., Jr., 32 Crosser, Robert, 44 Danforth, Ephraim, 163 Dealey, James Q., 1, 6 death penalty, 126– 32; amendments authorizing, 128– 31; amendments limiting, 127; judges unseated after issuing decisions regarding, 132, 332n148; state court decisions limiting, 128– 32; US Supreme Court decisions regarding, 127– 28 debt: amendments authorizing, 211–16; amendments restricting, 168– 71; borrowing for road construction and, 213– 14; borrowing for veterans’ bonuses and, 211–13; default on, 168, 171; revenue bonds and, 215–16 Delaware: amendments, procedures for enacting, 12; amendments, voter approval not required for, 13; constitution of 1776, 12, 13; constitution of 1792, 20; conventions, procedures for calling, 20; corporations, procedure for chartering, 160, 339n32; prohibition, 239, 240; racetrack betting, 229; rainy- day fund, 182; religious schools, public funds for busing students, 114; right to bear arms, 92; right-to-work policy, 249; state supreme court, 114 Dillon, John, 44 disability, amendments banning discrimination on basis of, 84– 85 District Attorney v. Watson, 129 District of Columbia v. Heller, 91 Dix, John, 166 Dixon, Rosalind, 26, 27 Dodge, William, 157 Duer, John, 156, 157 Dvorak, John, 89 Eck, Dorothy, 101 Eggers, Frank, 204 eight-hour day. See maximum-hours requirements Einhorn, Robin L., 174 Ellis, Edward D., 77

index eminent domain power: amendments restricting, 96– 97; state court decisions regarding, 96; state statutes restricting, 96; US Supreme Court decisions regarding, 95– 96 employer-liability rules, 194– 96 Employment Division of Oregon v. Smith, 79, 80 English-language policies, 247– 48 equal protection. See disability, amendments banning discrimination on basis of; equal rights amendments (ERAs); schools, desegregation equal rights amendments (ERAs): federal, 73, 81– 82, 83, 84; state, 81– 84 Ernst, Daniel R., 56 Evans, Abel, 158 Evans, Anne, 90 Everson v. Board of Education, 114 exclusionary rule, 118– 20 executive-budget system, 60– 64 Ezell, John Samuel, 156 Fairlie, John, 199 fellow- servant doctrine. See employerliability rules Ferejohn, John, 27 fi sh and game commissions, 54– 56 fi shing gill nets, amendments banning, 246 Florida: abortion, limits on, 136– 37; affi rmative action, limits on, 244; amendments, supermajority of voters needed to ratify, 15, 18, 285n17, 293n197; campaign-fi nance regulations, 252; citizen-initiated amendments, 16, 18, 237, 260; collective bargaining, 204; conservation commission, 54; constitutional revision commissions, 22– 23, 34, 261, 267; constitutions, number of, 24; corporate tax, 180; corporations, procedures for chartering, 160; credit of state, ban on loaning and, 167; death penalty, 130– 31; debt, default on, 168; disabled, ban on discrimination against, 85; eminent domain, 97; English-language policy, 247; equal rights amendment, 83– 84; exclusionary rule, 119; gill nets, limits on, 246; internal improvements, 167; legislative veto, 58; lottery, 227; mandates, limits on,

385 47; marijuana legalization, 242–43; mechanics’ liens, 192; minimum wage, 203; pensions, old-age, 209; privacy rights, 88, 89, 90; prohibition, 240, 241; property rights, 97; property tax, 225; rainyday fund, 182; redistricting reforms, 67; religious institutions, ban on funding, 116; right to bear arms, 92, 94; right to know, 102; right-to-work policy, 248, 249, 373n78; same- sex marriage, limits on, 142; schools, limits on class size, 260; search and seizure, 119; smoking limited in workplace, 260; state supreme court, 119, 130– 31, 136– 37; Sunshine Amendment, 251; tax-uniformity provision, 174; tort suits, 145, 260; victims’ rights, 99 Friend, Francis H., 259– 60 Furman v. Georgia, 127, 128 Fusaro, Carlo, 282n11 gambling. See bingo games; casino gaming; lotteries; racetrack betting; raffles Gann Amendment, 179, 181 George, Samuel, 63 Georgia: amendments, number of, 29; conservation commission, 54; constitution of 1777, 20, 21; constitution of 1945, 61; constitution of 1983, 23, 29; constitutions, number of, 24; conventions, procedures for calling, 20, 21; eminent domain, 97; employer-liability rules, 195; executive-budget system, 61; home rule, 45; hunting and fi shing rights, 105; income tax, 180; local amendments, 24, 29, 292n95; mechanics’ liens, 192; property rights, 94, 97; state supreme court, 45 Gertz, Elmer, 85 Ginsburg, Tom, 29, 283n19 Godcharles v. Wigeman, 191 Goldman, Elizabeth S., 169 Goodridge v. Department of Public Health, 140 Gootrad, Murray, 205 Gormley, Ken, 87 Gottschalk, Louis, 43 Graber, Mark A., 5 Granger movement, 48, 51 Grant, Ulysses S., 77

386 Green, Steven K. 76, 78 Gregg v. Georgia, 127 Griswold v. Connecticut, 87, 88 Grodin, Joseph, 132 Gunn, L. Ray, 159, 170 guns. See right to bear arms Hale, John B., 42 Halfi ll, James, 193 Hammer v. Dagenhart, 187 Hampton, Rachel L., 183 Hancock Amendment, 179 Hannah, John, 66 Hanscom, Alfred, 162 Harris v. McRae, 135 Harris v. New York, 123 Hartman, Rhonda G., 87 Hawaii: amendments, majority of voters in election needed to ratify, 13; balancedbudget amendment, 172; campaignfi nance regulations, 252; collective bargaining, 204; conventions, periodic referendum on calling, 21, 33; equal rights amendment, 83; lottery, lack of, 226; mandates, limits on, 46; marijuana legalization, 242; privacy rights, 88– 89, 90; rainy- day fund, 182; redistricting commission, 66; same- sex marriage, 138– 39; sex offenses, 124– 25; state supreme court, 124– 25, 138, 147; tax-andexpenditure limitation, 178 Headlee Amendment, 179 Hinman, Harold, 64 Holden, Richard, 26, 27 home rule, 41–45 Horack, Frank E., Jr., 210 Howard, Volney, 43, 49 Hubbard, Eugene, 254 Humane Society of the United States (HSUS), 105, 245, 262 hunting and fi shing fees, nondiversion of, 258 hunting and fi shing rights, 103– 5 Hurst, J. Willard, 81 Hyder, Oris, 177 Idaho: citizen-initiated statutes, 286n35, 298n10, 372n72; legislative veto, 58– 59; mechanics’ liens, 192; prohibition, 241; redistricting commission, 67; religious

index schools, public funds for busing students, 116; right to bear arms, 93– 94; right-to-work policy, 372n72; state supreme court, 58, 59, 116; workday, limit on hours of, 198, 200 Illinois: amendments, limits on, 16, 18; amendments, voter ratification requirements for, 15, 16; banks, restrictions on, 163; citizen-initiated amendments, 16, 18, 237; citizen-initiated statutes, lack of, 237; constitution of 1818, 174; constitution of 1848, 163; constitution of 1870, 194; constitution of 1971, 82, 84; convention of 1869– 70, 40, 48, 194; convention of 1969– 70, 82– 83, 85, 89– 90, 226, 363n219; conventions, periodic referendum on calling, 21; debt, 168; disabled, ban on discrimination against, 84– 85; equal rights amendment, 82– 83, 84; home rule, 45; income tax, 362n219; local legislation limited, 40–41; lottery, 226– 27; Marsy’s Law, 100; mine safety, 194; pensions, mothers’, 206; privacy rights, 89– 90; property rights, 319n132; railroad regulation, 48, 49; right to bear arms, 92; right to confront witnesses, 123– 24; search and seizure, 89– 90; state supreme court, 123– 24, 191, 199, 362n219; tax-uniformity provision, 174; victims’ rights, 100; workday, limit on hours of, 191, 199 Indiana: constitution of 1851, 40, 170; convention of 1851, 165– 66, 168; conventions, periodic referendum on calling, 290n69; debt, 168, 170; income tax, 221; internal improvements, 165– 66, 168; local legislation, 40; lottery, 226– 27; prohibition, 239; religious institutions, ban on funding, 77; state supreme court, 239; tax-uniformity provision, 174 Ingraham, Fred, 218 INS v. Chadha, 58 internal improvements: amendments encouraging, 164– 65; amendments restricting, 167– 68, 206, 213, 214; concerns about after Panic of 1837, 165– 67 Iowa: banks, restrictions on, 162; conventions, periodic referendum on calling, 21; corporations, procedures for chartering, 161; employer-liability rules,

index 195; equal rights amendment, 83; hunting and fi shing fees, nondiversion of, 258; judges defeated in retention election, 143; legislative veto, 59; lottery, 226– 27; prohibition, 239, 240; redistricting, 68; same- sex marriage recognized, 142; state supreme court, 44, 142, 143, 240 Ives v. South Buffalo Railway Co., 191, 196 Jacobs, In re, 191 Jaskula, William, 90 Jefferson, Thomas, 21, 187– 88 Jindal, Bobby, 256 Johnson, Charles W., 86, 87 Jones, Edwin, 254 Jones, Humphrey, 214 Joslin, Ryan, 83 Judd v. Board of Education, 116, 117 judiciary, state: decisions by, over turning state constitutional amendments, 119, 124, 125, 126, 130– 32, 133, 240, 348n171; decisions by, prompting passage of amendments, 45, 59, 93, 99, 114– 16, 118–19, 121, 122, 123– 24, 125– 26, 128– 29, 135– 37, 138–42, 145, 191, 192– 93, 196– 97, 199– 203, 206– 7, 212, 217– 22, 224, 229– 30; election of judges and, 38, 110, 112, 132, 144–45, 273; judges unseated in elections and, 132, 143, 145, 196– 97, 332n148; tenure of judges and, 110–11, 325n10 jury, trial by, 121– 22 Kansas: amendments, limits on, 16; conventions, limits on, 22; employerliability rules, 195; income tax, 221; legislative veto, 58; lottery, 228; prohibition, 240; racetrack betting, 230; raffles, 228; religious institutions, ban on funding, 77; right to bear arms, 92, 93; right-to-work policy, 248, 249; Social Security program and, 209 Katz v. U.S., 89 Kelo v. City of New London, 95– 97, 107 Kennedy v. Louisiana, 127– 28 Kent, James, 157 Kentucky: amendment process, rigidity of, 293n108; amendments, limits on, 16; corporation commission, 53; prohibi-

387 tion, 240, 241; property tax, 223; Social Security program and, 209; workerprotection policies, 351n10 Keyssar, Alexander, 74 Kinney, Augustus, 170 Kinney, Helen, 89– 90 Kirkwood, Samuel, 176 Knuppel, John, 85 Larwill, John, 176 Latzer, Barry, 132 Leet, Ernest, 56 legislation, compared with amendments as vehicle for changes in governance, 37, 44–45, 50– 53, 55– 56, 63– 64, 69– 70, 80, 101– 2, 107– 8, 176, 182– 84, 185– 86, 195– 96, 240–41, 248– 50, 254– 55, 259– 60, 261– 62, 267– 70, 274– 77, 278, 279 legislative veto, 58– 59 legislature-generated amendments. See amendments, legislature-generated legislatures, state: legislative veto and, 58– 59; local legislation in, 40–41; mandates and, limits on unfunded, 45–47; opposition of, to calling conventions, 31– 33; redistricting processes and, 64– 68; role of, in proposing amendments, 12–15, 26– 27; term limits and, 38 Lehman, Herbert H., 57 Libonati, Michael, 41 line-item veto, 60 Linton, Paul, 83 litigation, compared with amendments as vehicle for changes in governance, 44, 80, 89– 90, 108, 121, 122, 208, 215–16, 233, 270– 73, 277, 278– 79 lobbying regulations, 253– 55 local governments, 39–47 local legislation, 40–41 Lochner v. New York, 191, 196 Loomis, Arphaxed, 169 lotteries: amendments authorizing, 226– 27; amendments banning, 157– 59, 225– 26; amendments earmarking revenue from, 258; opposition to state operating, 155– 57, 158– 59 Louisell, Medor, 199 Louisiana: amendments, number of, 29; banks, restrictions on, 162; cigarette tax, 256– 57; citizen attitudes toward

388 Louisiana (continued) constitutional change, 29; conservation commission, 54; constitution of 1845, 162, 167; constitution of 1921, 29; constitution of 1974, 29; constitutions, number of, 24; convention of 1845, 160; convention of 1864, 198; convention of 1921, 54; convention of 1973– 74, 115; corporation commission, 53; corporations, ban on state purchasing stock in, 167; corporations, procedures for chartering, 160, 161; debt, 168; disabled, ban on discrimination against, 85; eminent domain, 97; equal rights amendment, 83; hunting and fi shing rights, 105; income tax, 219, 221; limited convention in 1992, 31; mechanics’ liens, 192; minimum wage, 202; pensions, mothers’, 207; privacy rights, 89; property rights, 97; property tax, 225; rainy- day fund, 182; real- estate transfer tax, 180, 349n188; religious schools, public funding of permitted, 115; right to bear arms, 93; right to know, 102; right-to-work policy, 229; search and seizure, 89; Social Security program and, 209; state supreme court, 115; taxuniformity provision, 174; workday, limit on hours of, 198 Lovell, Catherine, 45 Lowery, David, 178 Lucas County v. State, 206 Lutz, Donald, 24, 26, 28 Madison, James, 188 Maher v. Roe, 135 Maine: constitutional revision commission, 22; constitution of 1820, 13, 174; debt, 212, 213; equal rights amendment, 83; gas tax, nondiversion of, 259; hunting and fi shing fees, nondiversion of, 258; mandates, limits on, 46; marijuana legalization, 242; prohibition, 239, 240; property tax, 223; redistricting commission, 67, 68; right to bear arms, 93; right-to-work policy, 249; road construction, 212, 213; tax-uniformity provision, 174; veterans’ bonuses, 212 mandates, limits on unfunded, 45–47 Mapp v. Ohio, 88, 118, 119

index marijuana legalization, 242–43 Marriage Cases, In re, 142 Marsy’s Law, 100 Maryland: amendment procedure, 12, 284n4; balanced-budget amendment, 172; constitution of 1776, 12; conventions, periodic referendum on calling, 21, 33; credit of state, ban on loaning and, 167; debt, 168; equal rights amendment, 83, 84; executive-budget system, 61, 62; lottery, 158; property tax, 223; tax-uniformity provision, 173– 74 Maryland v. Craig, 123 Massachusetts: abortion restrictions, 135– 36; citizen-initiated amendments, 16, 17, 18, 286n34, 287n41, 288n45; constitution of 1780, 20, 23; conventions, 19, 20; death penalty, 129, 131– 32; disabled, ban on discrimination against, 85; English-language policy, 248; equal rights amendment, 83; executivebudget system, 61, 62– 63, 64; income tax, 221– 22; prohibition, 239; railroad commission, 49, 50, 51; religious institutions, ban on funding, 76, 77, 116; same- sex marriage recognized, 140– 42; school desegregation, 133; state supreme court, 129, 131– 32, 135, 140–41, 148, 221; tax-and- expenditure limitation, 347n166 Master Settlement Agreement (MSA), 184 Matthews, William L., Jr., 174 maximum-hours requirements: amendments authorizing, 199– 201; amendments instituting, 198– 99; state court rulings overturning, 199, 200 May, Janice, 74, 297n143 McBain, Howard Lee, 44 McClelland, Robert, 164 McDonald v. City of Chicago, 91 McGinnis, John O., 283n19 McLaughlin, Clifford, 259 mechanics’ liens, 192– 93 Medill, Joseph, 194 Melton, James, 29 Meredith, Charles, 196 Meyer v. Berlandi, 191 Michalski, Peter A., 139 Michels, John, 102 Michigan: affi rmative action, limits on,

index 244; banks, restrictions on, 162, 163– 64; citizen-initiated amendments, 16; constitutional revision commission, 22; constitution of 1835, 76– 77; constitution of 1850, 40, 167, 240; convention of 1850, 162, 163– 64; convention of 1907– 8, 199; convention of 1961– 62, 66, 119, 127, 180; conventions, periodic referendum on calling, 21, 33; corporations, procedures for chartering, 160; death penalty restrictions, 127; debt, 168, 170, 212; eminent domain, 96, 97; exclusionary rule, 118–19; Headlee Amendment, 179; home rule, 45; income tax, 362n219; internal improvements, 167; legislative veto, 58; local legislation, 40; lottery, 158; mandates, limits on, 46; mechanics’ liens, 192; prohibition, 239, 240, 241; property rights, 96, 97; railroad commission, 54; redistricting commission, 66, 310n186; religious institutions, ban on funding, 76– 77, 314n29; right to bear arms, 92; right to know, 322n178; sales tax, 180; search and seizure, 118–19; state supreme court, 44, 45, 96, 118–19, 192, 310n186, 314n29; stem- cell research, 245; taxand- expenditure limitation, 179; taxuniformity provision, 174; veterans’ bonuses, 212; workday, limit on hours of, 199, 200– 201 Miller, George H., 48 miners: safety of work conditions of, 194; workday of, limit on hours of, 191, 200 minimum-wage: amendments authorizing, 202– 3; amendments increasing, 203–4; state court rulings blocking, 202– 3 Minnesota: amendments, majority of voters in election needed to ratify, 13, 285n16; campaign-fi nance regulation, 251; home rule, 42; hunting and fi shing rights, 105; inheritance tax, 217–18; juries, size of, 122, 147; lottery proceeds, 258; mechanics’ liens, 192; prohibition, 368n5; property tax, 223; religious institutions, ban on funding, 77, 78; sales tax, 257; same- sex marriageban amendment defeated, 336n213; state supreme court, 122, 147, 192; taxuniformity provision, 174, 218, 223

389 Mississippi: abortion restrictions, 134; citizen-initiated amendments, 16, 17, 18, 237, 286n34, 287n41, 288n45; citizen-initiated statutes, absence of, 237; constitutional revision, support for in 1980s, 32; constitution of 1832, 167; debt, 168; eminent domain, 96, 97; employer-liability rules, 195; internal improvements, 167; lottery, absence of, 226; property rights, 94, 96, 97; rightto-work policy, 248, 249; state supreme court, 16 Missouri: campaign-fi nance regulation, 253; citizen-initiated amendments, 16, 18, 288n45; collective bargaining, 204; conservation commission, 54, 55– 56; conservation programs, 257; constitution of 1820, 164, 174; convention of 1875, 41–43, 45; conventions, periodic referendum on calling, 21, 33; debt, 212; English-language policy, 247; executive-budget system, 61; Hancock Amendment, 179; home rule, 41–43, 45, 299n22, 299n36, 300n30; inheritance tax, 217; internal improvements, 164; legislative veto, 58; lottery, 230; mandates, limits on, 46; pensions, 207, 209; property tax, 225; racetrack betting, 230; rainy- day fund, 182; real- estate transfer tax, 180; redistricting commission, 67; religious schools, ban on funding, 116; right to bear arms, 93, 94; right to farm, 106; right-to-work policy, 248; sales tax, 180, 257; search and seizure, 91; sex crimes, prosecution of, 125– 26; state supreme court, 125– 26; stem- cell research, 245; tax-and- expenditure limitation, 179, 180; tax-uniformity provision, 174; veterans’ bonuses, 212 Model State Constitution, 90 Monroe, James, 188 Montana: citizen-initiated amendments, 16, 286– 87n35; citizen-initiated conventions, 21; constitution of 1889, 195; convention of 1971– 72, 66, 87– 88, 101; conventions, periodic referendum on calling, 21; employer-liability rules, 195; equal rights amendment, 83, 84; home rule, 45; income tax, 221; lottery, 226, 227, 366n256; privacy rights, 87– 88;

390 Montana (continued) real- estate transfer tax, 180; redistricting commission, 66; religious schools, ban on funding, 78; right to know, 101; ripper laws barred, 41; state supreme court, 201, 221, 348n171; trust fund, 183, 184; victims’ rights, 321n169; workday, limit on hours of, 200, 201 Morgan, In re, 191 Morrison, John, 166 Myers, Frank, 80 National League of Cities (NLC), 42, 300n30 National Victims’ Constitutional Amendment Network (NVCAN), 98, 99 Nebraska: affi rmative action, limits on, 244; amendments, procedures for ratifying, 284n11; citizen-initiated amendments, 16, 18, 287n40; corporation commission, 54; English-language policy, 247; minimum wage, 203; prohibition, 241, 368n5; property tax, 224; racetrack betting, 230; religious schools, ban on funding, 113–14, 326nn22– 23; right to bear arms, 92; right-to-work policy, 248; same- sex marriage, 140; state supreme court, 203, 224, 230, 326n23; taxuniformity provision, 224 Nevada: balanced-budget amendment, 172; campaign-fi nance regulation, 252; casino gaming, 230– 31; citizen-initiated amendments, 16, 18, 286– 87n35; constitution of 1864, 205; convention of 1864, 172; eminent domain, 96, 97; legislative veto, 59; lottery, absence of, 226; marijuana legalization, 242; minimum wage, 203; property rights, 96, 97; religious institutions, ban on funding, 78; right to bear arms, 92; right-to-work policy, 249; same- sex marriage, 140; severance tax, 180; Social Security program and, 358n147; social-welfare policy, 205 New Hampshire: amendment procedure, 289n60; amendments, two-thirds of voters needed to ratify, 15; constitution of 1776, 12; constitution of 1784, 20, 23; convention of 1902, 218, 254– 55, 361n193; convention of 1974, 102; convention of 1984, 31, 33; conven-

index tions, number of, 33; conventions, periodic referendum on calling, 20, 21, 31, 33, 289n60; eminent domain, 97; equal rights amendment, 83; inheritance tax, 218, 361n193; lottery, 226; mandates, limits on, 46; pensions, old-age, 207; prohibition, 239; property rights, 97; railroad passes, limits on, 254– 55; religious institutions, ban on funding, 78; right to bear arms, 92; right to know, 101– 2; right-to-work policy, 249; state supreme court, 207, 218, 361n193 Newhouse, Wade J., 175 New Jersey: amendment procedures, 284n2; bingo games, 228; casino gaming, 231; collective bargaining, 204; constitutional revision commission, 22; constitution of 1776, 12, 19; constitution of 1844, 167; convention of 1947, 114, 204; credit of state, ban on loaning, 167; death penalty, 129; debt, 215– 16; equal rights amendment, 83; legislative veto, 59; lottery, 226; minimum wage, 203–4; racetrack betting, 229; redistricting commission, 66, 67, 68; religious schools, public funds for busing students, 114; ripper laws barred, 41; same- sex civil unions, 336n203; state supreme court, 59, 114, 129, 215–16, 336n203 new judicial federalism, 73, 118 New Mexico: amendments, procedures for approving, 285n18; corporation commission, 53; equal rights amendment, 83; prohibition, 241; property tax, 223, 225; right to bear arms, 92; right-towork policy, 372n72; trust fund, 183; workday, limit on hours of, 200 New York: agencies, judicial review of, 56– 57; banks, chartering of, 162; bingo, 228; casino gaming, 232; collective bargaining, 204– 5; constitutional revision commissions, 22; constitution of 1846, 161; constitution of 1894, 229; convention of 1821, 156– 58, 160, 268; convention of 1846, 165, 169; convention of 1915, 60, 61– 62, 64; convention of 1938, 56– 57, 204– 5, 210; convention of 1967, 116; conventions, periodic referendum on calling, 21, 33; corporations, proce-

index dures for chartering, 160, 161; debt, 168, 169– 70, 212, 213; equal rights amendment, 83; executive-budget system, 60, 61– 62, 64; internal improvements, 165, 166– 67; lottery, 156– 58, 226, 268; minimum wage, 202; privacy rights, 90– 91; prohibition, 239, 369n13; racetrack betting, 229; rainy- day fund, 181; redistricting commission, 67, 68; religious institutions, ban on funding, 76, 116–17; road construction, 213; search and seizure, 90– 91; social-welfare policy, 210; state court of appeals, 116–17, 191, 196, 197, 199– 200, 202, 239; veterans’ bonuses, 212; workday, limit on hours of, 199, 200, 201; workers’ compensation, 191, 196, 197 Nicholson, Odas, 82 North Carolina: balanced-budget amendment, 172; conventions, limits on, 22; mechanics’ liens, 192; property rights of married women, 94; same- sex marriage, 142 North Dakota: abortion, limits on, 134; citizen-initiated amendments, 16; citizen-initiated conventions, 21; convention of 1889, 204, 240; eminent domain, 96– 97; labor unions, protection for, 204; prohibition, 240; property rights, 96– 97; property tax, 223– 24; railroad commission, 53; real- estate transfer tax, 180; redistricting commission, 66; religious freedom amendment defeated, 80; religious institutions, ban on funding, 78; right to bear arms, 92; right to farm, 106; trust fund, 183; victims’ rights, 321n169 Obergefell v. Hodges, 143 Oehmig, Dan, 177 Ohio: balanced-budget amendment, 171, 172; banks, restrictions on, 163; casino gaming, 231; citizen-initiated amendments, 16, 18, 286n34, 288n45; constitution of 1851, 65, 163, 171; convention of 1850– 51, 65– 66, 168, 172, 174, 214, 240; convention of 1912, 44, 193, 197, 200, 203, 214, 218, 361n194; conventions, periodic referendum on calling, 21, 33; death penalty, 127; debt, 168, 212,

391 214; eminent domain, 96; home rule, 44, 300n29; income tax, 221; inheritance tax, 217, 218, 361n194; internal improvements, 168; judicial elections, 145, 197; mechanics’ liens, 192– 93; minimum wage, 203; pensions, blind, 206; prohibition, 240, 241; property rights, 96; redistricting commission, 65– 66, 67, 68, 310nn181– 82; religious institutions, ban on funding, 77, 313n28; rightto-work policy, 248; road construction, 214; state supreme court, 96, 145, 193, 197, 200, 203, 206, 217, 218, 361n194; tax-uniformity provision, 174, 176, 217, 218, 361n194; tort suits, 145; veterans’ bonuses, 212; workday, limit on hours of, 200; workers’ compensation, 197 Oklahoma: affi rmative action, limits on, 244; amendments, procedures for ratifying, 285n15, 311n190; citizen-initiated amendments, 16, 17; conventions, periodic referendum on calling, 21; corporation commission, 53; death penalty, 131; eminent domain, 96; employerliability rules, 195; English-language policy, 247; ethics commission, 251; income tax, 361n199; prohibition, 241; property rights, 96; property tax, 225; rainy- day fund, 182; redistricting commission, 66, 311n190; religious institutions, ban on funding, 78– 79; rightto-work policy, 248, 249– 50; Social Security program and, 209; state supreme court, 96, 131, 311n190; trust fund, 184; workday, limit on hours of, 200 Oliver, Dawn, 282n11 Oregon: abortion, limits on, 134, 135– 36, 334n166; banks, restrictions on, 162; campaign-fi nance regulations, 251, 252; cigarette tax, 376n117; citizen-initiated amendments, 16; civil asset forfeiture, procedures governing, 95, 319n131; death penalty, 127, 129– 30, 331n138; equal rights amendment, 84; exclusionary rule, 119; home rule, 45; marijuana legalization, 242; minimum wage, 202; prohibition, 241; property rights, 95, 319n131; property tax, 223; rainy- day fund, 182; real- estate transfer tax, 180;

392 Oregon (continued) religious institutions, ban on funding, 77, 116; search and seizure, 119, 147; state supreme court, 119, 129– 30, 136, 145, 147, 202, 321n168, 334n166; taxuniformity provision, 174; tort suits, 145; veterans’ bonuses, 212; victims’ rights, 100, 119, 321n168 Pacelle, Wayne, 245 Palmer v. Tingle, 193 Panic of 1837, 161, 162, 164– 65, 168, 171, 185, 206, 219, 269 Panic of 1873, 168 Parkman, Henry, 64 Peck, Hiram, 214 Pennsylvania: constitution of 1776, 12, 19, 92, 103; convention of 1790, 104; convention of 1872– 73, 41, 223, 253; conventions, procedures for calling, 19; council of censors, 12, 19; debt, 168; equal rights amendment, 82; evidence used to impeach a defendant, 123; hunting and fi shing rights, 103–4; income tax, 222; mandates, limits on, 302n58; pensions, 207, 209; property tax, 223; railroad passes, limits on, 253; redistricting commission, 66; right to bear arms, 92; right to confront witnesses, 124; ripper laws barred, 41; state supreme court, 123, 124, 147, 148, 191, 207, 222; tax-uniformity provision, 223, 363n225; workers’ compensation, 197 pensions for the blind, mothers, and elderly, 205– 9 People v. Anderson, 128 People v. Westchester County National Bank v. Peekskill, 212 People v. Williams, 199 personhood amendments. See abortion Pierce, John, 164 Planned Parenthood v. Casey, 135 Pollock v. Farmer’s Loan and Trust Co., 187, 219 Porter, David O., 41 Posner, Eric, 283n19 Powell, Alden L., 29 press, freedom of, 106 privacy rights, 86– 91; amendment pioneered by Washington in late 1800s

index and, 86– 87; amendments adopted in 1960s and 1970s and, 87– 90; electronic surveillance and, 89– 91; personal autonomy and, 87– 88; US Supreme Court decisions regarding, 86– 89 Progressive Era, 16, 31, 32, 104, 190– 91, 196– 98, 233, 270 prohibition: federal amendment regarding, 238; state amendments regarding, 239– 41; state court decisions blocking, 239, 240; state statutes regarding, 239 property rights: eminent domain and, 95– 97; married women and, 94– 95; state takings clauses and, 96– 97, 319n132; US Constitution and, 95; US Supreme Court Kelo decision and, 95– 96 Proposition 13, 177, 178, 179, 181, 268 Rabe, Barry G., 183 racetrack betting, 229– 30 raffles, 227– 28 railroads: employer-liability rules and, 195– 96; free passes on, restricted, 253– 55, 375n114; government investment in barred, 167– 68; regulatory commissions and, 48– 54, 303n77; worker injuries and, 195– 96 rainy- day funds, 181– 83 Ranney, Rufus, 176 Rappaport, Michael B., 283n19 Read, Daniel, 165 Reagan, Ronald, 98, 99 redistricting: independent commissions and, 64– 68; US Supreme Court decisions regarding, 31, 32, 66 Reemelin, Charles, 65 regulatory commissions: amendments authorizing, 47– 56; benefits of addressing in constitution, 51– 53, 55– 56; disadvantages of addressing in constitution, 50– 51 Reid, James, 192 religion: federal Blaine amendment and, 75, 77– 78; federal Religious Freedom Restoration Act (RFRA) and, 79; free exercise of, 79– 80; religious establishment, 75– 79, 112–17; state amendments barring public funding of religious institutions, 75– 79; state court decisions concerning, 76, 114–17; state religious

index freedom amendments, 80; state religious freedom statutes, 79– 80 Reynolds, James S., 43 Reynoso, Cruz, 132 Rhode Island: abortion, limits on, 134, 135– 36; appropriations, legislative supermajority needed to pass, 307– 8n143; campaign-fi nance regulations, 251, 252; constitution of 1986, 23, 31, 33; convention of 1842, 104, 170, 268; convention of 1986, 31, 33; conventions, number of, 295n124; conventions, periodic referendum on calling, 21, 22, 31, 33; corporations, procedures for chartering, 160– 61; debt, 170, 268; disabled, ban on discrimination against, 85; equal rights amendment, 83, 84; ethics commission, 374n83; fi shing rights, 104; prohibition, 239, 240; railroad commission, 49; rainy- day fund, 182; victims’ rights, 99, 100 rights of criminal defendants, 117– 26; bail, denial of, 120– 21; evidence used to impeach a defendant, 122– 23; exclusionary rule and, 118– 20; juries, size of, 121– 22; right to confront witnesses, 123– 24; search and seizure and, 118– 20; sex offenses and, prosecution of, 124– 26 right to bear arms: amendments defi ning, 91– 94; state court decisions interpreting, 93; US Supreme Court decisions regarding, 91 right to farm, 106 right to hunt and fi sh, 103– 5 right to know, 101– 3 right-to-work policy, 248– 50 ripper laws barred, 41 Ritchie v. The People, 191, 199 road construction, amendments authorizing debt to pay for, 213–14 Roe v. Wade, 87, 135 Roosevelt, Franklin, 188 Roosevelt, Theodore, 196 Roper v. Simmons, 128 Rountree, John, 175 same- sex marriage, 138–43; Alaska court decision supporting, 139; amendments banning, 139–40, 141–42; California

393 court decision legalizing, 142; Hawaii court decisions supporting, 138; Iowa judges defeated after decision legalizing, 143; Massachusetts court decision legalizing, 140–41; US Supreme Court decision legalizing, 143; Vermont court decision regarding, 140 Sanborn, Lauren, 259 Saunders, Cheryl, 283n19 Sawyer, Eugene, 200 Schick, Allen, 63 Schlitz, John, 66 schools: desegregation of, 132– 33; Englishlanguage instruction in, 247–48; minimum level of spending required for, 181; religious, ban on public funding for, 75– 79, 113–17 search and seizure protection, 118– 20 sex discrimination. See equal rights amendments (ERAs) Sharp, James Roger, 161 Shepard, Lorenzo, 165 Shoup, George, 192 Sigelman, Lee, 178 Smith, Daniel A., 178 Social Security Act, 208–10 Somin, Ilya, 95– 96 South Carolina: constitution of 1776, 12, 19; constitutions, number of, 24; corporation commission, 53; eminent domain, 97; local amendments, 24, 292n95; lottery, 228; privacy rights, 89, 90; property rights, 94, 97; raffles, 228; rainy- day fund, 181– 82; religious institutions, ban on funding, 113, 326n21; search and seizure, 89, 90; Social Security program and, 209; state supreme court, 326n21 South Dakota: citizen-initiated amendments, 16; citizen-initiated conventions, 21; citizen-initiated statutes, 16; debt, 212; income tax, 221; inheritance tax, 180; legislative veto, 58– 59; lottery, 367n283; prohibition, 240, 241; property tax, 223; redistricting commission considered, 66; religious institutions, ban on funding, 78; religious schools, textbooks for students of, 115; rightto-work policy, 248, 249; ripper laws barred, 41; state supreme court, 115,

394 South Dakota (continued) 367n283; veterans’ bonuses, 212; victims’ rights, 321n169 Spillman, Ora, 203 Stark, John O., 220 State Board of Control v. Buckstegge, 206– 7 statutory initiative. See citizen-initiated statutes stem- cell research, amendments supporting, 244–45 Stephanopolous, Nicholas, 66 Stephens, E. Sydney, 55– 56 Sterett, Susan M., 206, 207, 208 Sterk, Stewart E., 169 Stevens, John Paul, 96 Stilwell, Stephen, 193 Stimson, Henry, 61 Stone, George, 254 Sturm, Albert, 31, 32, 296n127 Sutherland, Arthur E., 56 Szymanski, Anne-Marie E., 239 Taft, William Howard, 60 Taft-Hartley Act, 248, 249 Tarr, G. Alan, 27, 29 taxation: cigarette tax, 256– 57; gas tax, 258– 60; income tax, 180, 219– 22; inheritance tax, 180, 217–19; propertytax classification, 222– 24; propertytax exemptions, 224– 25; property-tax limitations, 178; Proposition 13 and, 178; real- estate transfer tax, 180; sales tax, 180, 256, 257; severance tax, 180, 183; tax-and- expenditure limitation (TEL) amendments, 177– 81; Taxpayer Bill of Rights (TABOR) Amendment, 179, 181; tax-uniformity requirements, 173– 76 Teaford, Jon C., 42 Tennessee: abortion, limits on, 137– 38; amendment procedures, 13, 20; amendments, majority of votes cast for governor needed to ratify, 13; balancedbudget amendment, 172; constitution of 1796, 13, 174, 345n132; convention of 1977, 177– 78; conventions, limits on, 22, 290n76; Copeland amendment, 177; death penalty, 332n148; income tax, 180; lottery, 158, 227; mandates, limits

index on, 46; raffles, 228; sales tax, 225; state supreme court, 137, 332n148; tax-andexpenditure limitation amendment, 177– 78, 179; tax-uniformity provision, 174, 345n132 Tetlow, Percy, 200 Texas: bail, denial of, 120; banks, restrictions on, 162; constitution of 1845, 160, 162, 167, 170; constitution of 1876, 240; corporations, procedures for chartering, 160; debt, 170; eminent domain, 97; equal rights amendment, 83; income tax, 219; internal improvements, 167; legislative veto, 58; mechanics’ liens, 192; prohibition, 240, 241; property rights, 97; property tax, 225; railroad commission, 54; rainy- day fund, 182; real- estate transfer tax, 180; redistricting commission, 67; Social Security program and, 209; state supreme court, 145; tax-uniformity provision, 174; tort suits, 145 Thornton, Judson, 177– 78 Tincher, John, 40 Tobin, Charles, 45 Todd, Albert, 45 tort suits, limits on damages: amendments authorizing, 145; state court decisions overturning, 144–45 trust funds, 183– 84 Unz, Ron, 247 US Advisory Commission on Intergovernmental Relations (ACIR), 47 US Constitution: amendment authorizing New Deal programs considered for, 188– 89; amendment procedures of, 11, 15; amendment rate of, 23; balancedbudget amendment considered for, 153; Blaine Amendment considered for, 73, 76, 77– 78, 106, 107; Equal Rights Amendment proposed for, 81– 82, 83; income-tax amendment and, 187, 220; prohibition amendment and, 235; victims’ rights amendment considered for, 97– 98 Usman, Jeffrey Omar, 103 US Supreme Court. See specifi c judicial decisions US v. Boyd, 86

index US v. Darby, 187 Utah: constitutional revision commission, 291n81; convention of 1895, 158– 59, 204; income tax, 221, 362n206; labor unions, protection for, 204; lottery ban adopted, 158– 59; minimum wage, 202– 3; prohibition, 241; right to bear arms, 92, 93; ripper laws barred, 41; trust fund, 183, 184; women’s rights, 81; workday, limit on hours, 200 Van Horne, William Grant, 158 Vanlandingham, Kenneth, 44 Vermont: amendments, limits on, 16; bail, denial of, 121; balanced-budget requirement, lack of, 345n125; constitution of 1777, 19, 103; constitution of 1793, 23, 104; council of censors, 19– 20; equal rights amendment, 83; hunting and fi shing rights, 103–4; prohibition, 239; same- sex civil unions recognized, 140; state supreme court, 121, 140, 147; workers’ compensation, 197– 98 Versteeg, Mila, 282n16 veterans: bonuses, 206, 209, 211–13; property-tax exemptions for, 225; raffles benefiting, 227– 28 victims’ rights, 97–100; federal amendment regarding, considered, 97– 98; Marsy’s law and, 100; state amendments regarding, 99–100 Vile, John, 378n3 Virginia: balanced-budget amendment, 172; constitution of 1776, 12, 19; constitution of 1851, 65; constitution of 1971, 82, 91, 215; constitutions, number of, 24; convention of 1829– 30, 174; convention of 1901– 2, 51– 53, 196; conventions, limits on, 22; conventions, periodic referendum on calling, 290n69; corporation commission, 51, 52– 53; debt, 215; eminent domain, 96, 97; employer-liability rules, 195– 96; equal rights amendment, 82; hunting and fi shing rights, 105; Joint Legislative Audit and Review Commission (JLARC), 182; lottery, 226, 227, 258; property rights, 96, 97; property tax, 225; rainy- day fund, 182– 83; redistricting, 65; revenue bond, 215; right

395 to bear arms, 91– 92; tax-uniformity provision, 174 Wagner, Robert F., 57, 204 Walker, Joseph, 64 Wallis, John, 154, 168, 171 Washburn, Charles, 63 Washington State: affi rmative action, limits on, 244; equal rights amendment, 83; home rule, 42; income tax, 222, 362n217; lottery, 227, 366n256; marijuana legalization, 242; privacy rights, 86– 87; railroad commission, 54; rainy- day fund, 182; redistricting commission, 67, 68; religious institutions, ban on funding, 78, 113; rightto-work policy, 372n72; search and seizure, 86– 87; state supreme court, 222, 362n217 Weeks v. US, 118 Werner, William, 196 West Virginia: executive-budget system, 61, 62; hunting and fi shing fees, nondiversion of, 258; income tax, 221; prayer in schools, 325n15; prohibition, 241; right to bear arms, 92; veterans’ bonuses, 213 Wickes, John, 49– 50 Wilkes, Donald, 120 Williams, Robert F., 74, 81 Williams v. Florida, 121 Wilson, Samuel, 50– 51 Wisconsin: balanced-budget amendment, 171– 72; banks, restrictions on, 163; commission to consider old-age pensions, 207– 8; constitution of 1848, 163, 167, 171– 72; convention of 1847– 48, 170, 175; debt, limits on, 170, 213; employer-liability rules, 195; home rule, 45; hunting and fishing rights, 105; income tax, 219– 20; internal improvements, 167; legislative veto, 306n128; lottery, 228; pensions, old-age, 207– 8; prohibition, 240; racetrack betting, 230; raffles, 228; railroad regulation, 51; religious institutions, ban on funding, 77; religious schools, public support for students of, 114–15; right to bear arms, 92; road construction, 213; state supreme court, 45, 114–15, 306n128;

396 Wisconsin (continued) tax-uniformity provision, 174, 175; victims’ rights, 100 women: equal rights amendments and, 81– 84, 315n47; minimum wage and, 191, 202– 3; property rights of married, 94; workday and, limit on hours of, 191, 199– 200 Woodbridge, William, 77 worker-protection policies, 190– 205; childlabor restrictions, 351n10; collectivebargaining, 204– 5; employer-liability rules, 194– 96; mechanics’ liens, 192– 93; mine safety and, 194; minimum wage, 201–4; state court rulings blocking, 191, 196, 199– 203, 351n13; workday, limit on hours of, 198– 201; workers’ compensation, 196– 98

index workers’ compensation acts: amendments authorizing, 196– 98; state court decision overturning, 191, 196 Wyatt, N. G., 52 Wyoming: amendments, majority of voters in election needed to ratify, 13; employer-liability rules, 195; prohibition, 241; property tax, 224; ripper laws barred, 41; state supreme court, 224; tax-uniformity provision, 224; tort suits, 337n224; trust funds, 183; women’s rights, 81, 315n45; workers’ compensation, 197 Zackin, Emily, 74, 198, 282n16, 283n21 Zimmerman, Joseph, 46, 47