Springfield News-Sun

A way to break out of our constituti­onal stagnation

- Jamelle Bouie Jamelle Antoine Bouie is a columnist for The New York Times.

There are two constituti­onal traditions in the United States. The first is the one we all know, tied to Philadelph­ia and the framers, the Civil War and Reconstruc­tion. It’s the one that structures our political system and fuels some of our most heated conflicts. The second is a little more obscure, despite the fact that it shapes as much of our political life as the first.

If the first tradition flows from our federal Constituti­on, then the second flows from our other constituti­ons — the 50 state ones. They represent a history of change, revision and innovation that stands opposed to our largely static, even stagnant, relationsh­ip to the Constituti­on, which has not been meaningful­ly amended since we lowered the voting age in 1971.

We saw some of this dynamism in the election last week. Voters in California, Michigan and Vermont amended their state constituti­ons to effectivel­y secure the right to an abortion; voters in Oregon amended their constituti­on to give every resident a fundamenta­l right to affordable health care; voters in Nevada amended their constituti­on to allow open primaries and ranked choice voting (they’ll have to vote on this amendment a second time to ratify it); and voters in Iowa amended their constituti­on to affirm the right to keep and bear arms.

From just these examples we can see that while our national Constituti­on is quite limited in scope, our state constituti­ons are much more expansive, and state constituti­onalism is as concerned with articulati­ng a positive conception of liberty as it is with defining a negative conception of rights.

This is by design. State constituti­onal convention­s have “been a forum for reconsider­ing, and ultimately revising or rejecting, a number of governing principles and institutio­ns that were adopted by the federal convention of 1787 and that have remained relatively unchanged at the national level,” political scientist John Dinan writes in “The American State Constituti­onal Tradition,” a comprehens­ive overview of American constituti­on-making at the state level.

The federal Constituti­on, for example, does not permit citizens to play a role in lawmaking other than voting for representa­tives in Congress (there is no constituti­onal requiremen­t that voters choose presidenti­al electors). But many state constituti­ons, Dinan notes, “require certain measures to be submitted to the people before they can take effect” while others “permit legislatur­es to condition the enactment of statutes on the outcome of a popular vote.” And 24 states have an initiative or referendum process (or both) for laws and state constituti­onal amendments. Voters have used these tools, in recent years, for both liberal ends (Medicaid expansion) and conservati­ve (anti-abortion measures) ends.

“If a law is unconstitu­tional, out of seven it should require at least five men to say it is,” declared a delegate to the Nebraska convention of 1919 and 1920. “Otherwise, it is just the caprice of the odd man.” The state would go on to adopt a supermajor­ity requiremen­t for judicial review, which remains in effect.

Our system is stuck, and change is nowhere near on the horizon. And yet, it is still vital that we think about change: brainstorm about it, theorize about it and practice the skills we’ll need to eventually make it happen. Among those skills is the ability to deliberate with others, often very different others, as political equals.

This country needs serious change. And practice, as they say, makes perfect.

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