Improving Arkansas’ constitutional structure

Issue 2 is a ballot measure that would amend the Arkansas Constitution by changing the process governing the adoption of initiated acts and future amendments.

Under existing law, an initiated act or constitutional amendment passes when a majority of voters approve of the measure during an election. Issue 2 would raise the threshold for passage to 60 percent.

That is a positive change for constitutional amendments, but a negative change for initiated acts. As a result, I have mixed feelings about Issue 2. I will be voting for the amendment because the strengths of Issue 2 outweigh its weaknesses. But I concede that Issue 2 is not an unmitigated good.

There are two ways to place a constitutional amendment on the ballot in Arkansas. First, the state Legislature may propose up to three amendments during each election. To appear on the ballot, the amendment must be approved by a majority vote in both the House and Senate. Second, citizens may propose an amendment by obtaining signatures equal in amount to 10 percent of those who voted for the governor in the previous election.

Initiated acts are statutes rather than amendments to the Arkansas constitution. In most respects, they are legally equivalent to the laws the Legislature passes and the governor signs. To place an initiated act on the ballot, citizens must obtain signatures equal in amount to 8 percent of those who voted for the governor in the last election.

Issue 2 would change the next step once a proposal is on the ballot by raising the number of votes an initiated act or constitutional amendment must receive during the election to become law.

To explain why I favor the 60 percent threshold for constitutional amendments, but not for initiated acts, we need some background.

The United States and every individual state within our union are democracies. A fundamental principle of democracy is that the majority is entitled to govern in most areas of public policy simply because they are the majority. This means that decisions concerning legislation, whether voted on by our elected representatives or by the citizenry, normally should be decided by majority rule.

Raising the threshold for passage of initiated acts to 60 percent is thus inconsistent with our democratic ideals.

But this country and the states are not just democracies; they are constitutional democracies. The essence of constitutionalism is that certain principles of fundamental importance are enshrined in a constitution and placed beyond the reach of regular political majorities.

Some of those principles relate to the structure of government, such as separation of powers and an independent judiciary. Others concern individual rights, such as the freedom of speech, the free exercise of religion, and the right to bear arms.

Because constitutions are intended to serve as paramount laws beyond the control of majorities, only a supermajority should be authorized to amend a constitution. In other words, changing our form of government and eliminating or adding to our individual rights ought to require a supermajority.

If a mere majority has the power to alter the structure of government established by the constitution, then the political system can become unstable. And if a simple majority may remove constitutional rights, then those rights are not actually fundamental.

Former judge and constitutional scholar Robert Bork explained constitutionalism in this way: Constitutions are supermajoritarian checks on transient majorities.

To elaborate, political majorities come and go. Parties obtain and lose power in Washington, Little Rock, and other capitals. And the views of the population on matters of public policy are constantly shifting. That is what is meant by “transient” majorities.

According to Bork, in a constitutional democracy, the supermajority establishes a constitution to (a) create a sphere of authority for ever-changing majorities, (b) create a sphere of individual rights shielded from majority rule, and (c) establish courts that preserve the boundary separating the two spheres.

To be sure, the boundary can be altered; constitutions may be amended. But only the supermajority is entitled to make such a change. Only when a supermajority consents to an amendment can we consistently trust that the change to our structure of government or fundamental rights is warranted.

This reasoning justifies a vote in favor of Issue 2, which will install supermajoritarianism in the Arkansas constitution. And it explains why countries across the globe have been moving towards American-style constitutional democracy over the last century, rather than embracing other systems, such as pure democracy where all laws are subject to majority rule.

Some critics of Issue 2 claim that the measure permits “minority rule” because 41 percent of voters will be able to block an amendment favored by the other 59 percent. But remember, the very purpose of a constitution is to establish, by supermajoritarian consensus, the structure of government and our fundamental rights.

As a result, a minority should have the power to stop a mere majority from altering the constitution. For example, 41 percent ought to be able to prevent 59 percent from stripping away the freedom of speech, the freedom of religion, or the right to bear arms.

It is critical that we bring the Arkansas constitution into alignment with the core features of constitutionalism by making the document harder to amend. The process for changing our constitution is considerably more important than the process governing the approval of initiated acts, which are just statutes. Accordingly, while I wish that Issue 2 limited the 60 percent threshold to constitutional amendments, I still support the measure and will be voting for Issue 2.

But if Issue 2 fails, I hope that its sponsors come back with a proposal in 2024 that only changes the required number of votes for constitutional amendments, preserving majority rule for initiated acts.