A way to break out of our constitutional stagnation
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.