This Essay explores the people’s right to amend state constitutions, particularly in states that recognize the constitutional initiative. Together with other democratic rights that appear in state constitutions but not the federal charter, the right to amend recognizes popular sovereignty as an active commitment. After describing the right to amend and canvassing current threats, the Essay considers practical and theoretical implications. It argues that democratic proportionality review can help courts distinguish valid regulation of the initiative process from subversion of it. And it explores the distinctive constitutional architecture to which popular amendment contributes.
Nearly fifty years ago, Justice William J. Brennan, Jr. responded to the Burger Court’s weakening of federal constitutional rights by proposing a turn to the states. He celebrated state constitutions as “a font of individual liberties, their protections often extending beyond those required by the Supreme Court’s interpretation of federal law.” Today, as the Roberts Court weakens rights guarantees that even the Burger and Rehnquist Courts reaffirmed, commentators are again looking to state constitutional rights.
There remains much to be gained from attending to state constitutions, as Justice Brennan counseled, but we should not do so only in the way he advised or in the manner most attendant “new judicial federalism” scholarship has suggested. In keeping with Brennan’s recognition that “state courts are construing state constitutional counterparts of provisions of the Bill of Rights as guaranteeing citizens of their states even more protection than the federal provisions, even those identically phrased,” courts and scholars have focused on discrete clauses found in both state and federal constitutions. But this targeted approach overlooks significant state provisions and obscures fundamental differences between state and federal constitutions.
In this Essay, we focus on a state constitutional right that has no federal analogue and that both informs and illuminates the distinctive state tradition: the right to amend the state constitution.