State constitutional amendments and individual rights in the twenty-first century.

• Author: Dinan, John

Protecting rights is generally viewed as the responsibility of the U.S. Supreme Court and seen as taking place primarily through decisions interpreting the U.S. Constitution. Scholars have occasionally taken note of the role of Congress in deliberating about rights by passing laws giving effect to constitutional provisions or responding to judicial construction of statutes. (1) Also at times scholars have taken note of occasions when the federal constitutional amendment process has served as a vehicle for securing rights, such as through the passage of the Bill of Rights and the Civil War Amendments. (2) But the rigidity of the Article V amendment process ensures that amendments are enacted infrequently, such that deliberation about rights, at least at the federal level, takes place primarily in Supreme Court decisions and only rarely through passage of constitutional amendments. (3)

The renaissance of state court interpretation of state constitutions in the 1970s led scholars to broaden their studies to attend not only to the federal level but also to the state level, and to view state courts as well as federal courts as agents of rights protection. Encouraged by Supreme Court Justice William Brennan's 1977 call for state courts to rediscover state bills of rights, (4) state judges turned more frequently to interpret state constitutions in order to secure more protection of rights than is guaranteed by Supreme Court rulings. (5) As a consequence, the last four decades have brought an outpouring of scholarship focused on state court rulings regarding individual rights. (6)

In contrast with the situation at the federal level, however, the flexibility of state constitutions affords ample opportunity for state constitutional amendment processes, alongside state judicial processes, to serve as forums for deliberating about rights. The U.S. Constitution can only be amended with approval of two-thirds of both houses of Congress or upon a petition for a convention by two-thirds of state legislatures and, in either case, upon ratification by three-fourths of the states. (7) Although state constitutions vary in the difficulty of their amendment procedures, no constitution is more difficult to amend than the U.S. Constitution. Many states permit amendments to be proposed by a bare legislative majority, although some require approval by a three-fifths or two-thirds supermajority, and some require approval in consecutive legislative sessions. (8) All but a handful of states permit ratification of amendments by a bare popular majority. (9) Slightly over one-third of the states also provide for citizen-initiated amendments. (10) In part as a consequence, the U.S. Constitution has been amended twenty-seven times, whereas state constitutions have been revised and amended periodically so that as of 2012, the fifty current state constitutions have been amended 7378 times, for an average of about 147 amendments per state. (11)

Scholars have paid some attention to the reliance on state constitutional amendment processes to determine the scope and limits of individual rights. In the early 1980s, after amendments were approved in Florida and California in response to expansive state court interpretations of criminal procedure rights, (12) Donald Wilkes and James Fischer highlighted the ways state amendment processes can be used to restrict rights. (13)

In the late 1980s, Janice May, a long-time chronicler of state constitutional developments for The Book of the States, conducted a comprehensive review of rights-related amendments enacted in the decade-and-a-half from 1970 to 1985. (14) She found that "the bill of rights is the target of fewer changes than the other substantive provisions [of state constitutions, and as a result] state bills of rights have not been changed a great deal [during this period]." (15)

Regarding the general effect of rights-related amendments during this time period, May concluded "that the scales are tipped toward restriction rather than expansion." (16) Along these lines, she noted that some rights-restrictive amendments were passed for the purpose of "overturning court rulings, [while others] struck down any attempt to develop a body of law independent of the U.S. Constitution." (17) At the same time, she stressed that "while it is true that a large number of proposals were restrictive, ... a new role involving the expansion of rights is also apparent [in that m]ost of the new rights adopted at the polling place ... are neither expressly protected by the U.S. Constitution nor fully protected by the federal courts." (18) Finally, May concluded "It]he net result is a bifurcation of new roles for state constitutions: one that tends to reduce rights in criminal justice and one that tends to expand rights in such matters as anti-discrimination, privacy, environmental protection, and the right-to-know. (19)

In the decades since May's analysis, scholars have taken particular note of the reliance on state constitutional amendments to constrain expansive state court decisions. Kenneth Miller demonstrated in a recent book that state court decisions interpreting state bills of rights have in several instances been followed by court-overturning constitutional amendments, most notably in California in 2008 when Proposition 8, a citizen-initiated amendment, overturned a state supreme court decision legalizing same-sex marriage. (20) Other scholars have noted (and at times criticized) various court-preempting amendments that have been enacted in order to prevent issuance of rights-expansive state court rulings, as seen especially with passage of many amendments intended to forestall state court legalization of same-sex marriage. (21) Still other scholars have taken note of recent rights-expanding amendments intended to provide more protection for certain rights than the Supreme Court has guaranteed, especially regarding the eminent domain power. (22)

Despite these welcome analyses of various particular amendments bearing on individual rights, we do not yet have a comprehensive study of the full range of recent rights-related amendments of the sort May provided several decades ago. In this article, I conduct such an analysis for the period from 2000 to 2012, paying particular attention to elements of continuity and change between the late twentieth century and early twenty-first century.

I draw four main conclusions about the ways state amendment processes have served as a forum for deliberating about rights in the twenty-first century. First, a sizable number of rights-related amendments were enacted from 2000 to 2012. To be sure, in the first several years of the new century, rights-related amendments were passed infrequently, as was typical of prior decades when such amendments were relatively scarce. But during the entirety of the period from 2000 to 2012, rights-related amendments were the second most prevalent type of state constitutional amendment, surpassed only by finance and taxation amendments. (23)

Second, as in prior years, twenty-first century rights-related amendments have frequently constrained expansive state court rulings. However, in contrast with earlier periods when rights-restrictive amendments generally targeted criminal procedure rulings, recent amendments have often targeted state court decisions regarding other rights. There is, to be sure, some continuity over time, in that amendments targeting criminal procedure and death penalty rulings continue to be enacted in the twenty-first century. But the recent period has more often featured amendments restricting state court rulings regarding abortion and especially same-sex marriage. At times, these court-constraining amendments have overturned expansive state court rulings. At other times they have preempted state courts from issuing rulings that would expand rights. (24)

Third, again continuing a pattern seen in prior years, recent rights-related amendments have in a number of instances expanded rights beyond federal constitutional guarantees. However, in contrast with earlier periods when such amendments generally expanded anti-discrimination and privacy rights, recent amendments have focused on protecting a range of other rights. (25) At times in recent years, amendments have been enacted in response to Supreme Court rulings seen as providing inadequate protection for rights, as with limitations on the eminent domain power. At other times, amendments have been enacted to protect rights with no counterpart in the federal Constitution or Supreme Court case-law, such as regarding victims' rights and hunting and fishing rights.

Finally, in a development that is in one respect continuous with prior decades and in another respect has little precedent, recent rights-related amendments have been proposed and occasionally enacted to facilitate challenges to congressional statutes or Supreme Court precedents. (26) At times, as with proposed personhood measures defining a fetus as a person, these amendments have been proposed with the intent of creating conflicts between state constitutional provisions and Supreme Court precedents for the purpose of generating cases that might give the current Court an occasion to reverse or modify earlier rulings. There is some precedent for these sorts of amendments intended to present the Supreme Court with the occasion to reconsider prior rulings. But there is little precedent for another set of recent rights-related amendments intended to create conflicts between state constitutional provisions and congressional statutes, such as the 2010 federal health reform law, (27) and thereby aid lawsuits designed to challenge their legitimacy.

1. THE PREVALENCE OF RIGHTS-RELATED AMENDMENTS

   The most striking feature of rights-related amendment activity in the twenty-first century is that rights-related amendments are considered and enacted more often than in prior decades. In particular, when we consider the...