By Alicia Bannon
April 18, 2023
*This is the sixth article in our series The Promise of an Amendable Constitution in an Uncertain Era. You can view the rest of the pieces in the series here.*
It is well-trodden territory to say that the U.S. Constitution is difficult to amend. A thirty-year-old today has not seen the ratification of a single amendment. But Americans actually have broad experience with constitutional amendments: every state has its own constitution, and these state governing documents have seen far more amendment and revision than the federal constitution. This essay gives a brief overview of state constitutions, and reflects on how they can inform and be in conversation with movements to amend the federal constitution.
State constitutions today are often treated as a legal afterthought, but in the Founding era they were understood as the principal source of protection for individual rights. Indeed, for the first 150 years of U.S. history, most constitutional rights litigation took place in the states. The Reconstruction Amendments and the subsequent federal rights revolution made federal constitutional protections far more expansive and important, but structurally, state constitutions continue to have independent force both in designing state government and as a source of individual rights.
It’s worth understanding some of the ways that state constitutions differ from their federal counterpart. On average, state constitutions are nearly four times the length of the federal constitution, with the Alabama constitution clocking in at more than 350,000 words, with hundreds of amendments.1Neal Devins, How State Supreme Courts Take Consequences Into Account: Toward a State-Centered Understanding of State Constitutionalism, 62 Stan. L. Rev. 1629, 1641-42 (2010). State constitutions often look much more like statutes than a high-level framework for governing. The Ohio Constitution, for example, provides intricate rules for drawing legislative and congressional district lines. The Michigan Constitution has lengthy provisions on voter registration and absentee ballots. The Texas Constitution has detailed banking provisions, down to authorizing the use of ATM machines.
State constitutions also provide for a wide-ranging set of rights – some of which parallel the federal constitution but many of which are distinct. For example, every state constitution but Arizona’s confers an explicit affirmative right to vote.2 Jessica Bulman-Pozen & Miriam Seifter, The Democracy Principle in State Constitutions, 119 Mich. L. Rev. 859, 870-71 (2021). Twenty-six state constitutions contain “free” elections provisions.
State constitutions are also far more often subject to amendment, revision, and reconstitution. While the federal constitution has been amended 27 times, state constitutions contain an average of 115 amendments. Collectively, state constitutions contain more than 7,000 amendments. And while the United States’s founding document dates to 1787, Massachusetts is the only one of the thirteen original states to still operate under its original constitution. In total, more than thirty states have had more than one constitution, and most have had at least three. These constitutional rewrites have tended to proceed in waves. Between 1964 and 1982, ten states adopted new or revised constitutions. No state has rewritten its constitution in the past thirty years.
Looking to state experiences is important in its own right, to give an often under-appreciated source of law and rights its due. But state constitutions can also sharpen our understanding of both the challenges and potential opportunities for federal constitutional reform.
Most obviously, state constitutions offer a striking contrast with the federal constitution in the prevalence of constitutional amendments, and highlight some of the structural and practical difficulties in amending the U.S. Constitution. Amending the U.S. Constitution is not easy. Proposing an amendment requires a two-thirds vote by both houses of Congress, or a convention called by two-thirds of the states. Ratification requires the approval of three-fourths of state legislatures or state conventions. Current polarization in Congress and across the political parties poses severe hurdles, as does the state-based structure of the amendment process (and the Senate).
On the whole, states’ amendment processes are both less burdensome and closer to the people. While processes vary, in every state, the state legislature can propose constitutional amendments, which, in every state but Delaware, must then go on the ballot for approval by the public. Most states require a two-thirds or three-quarters vote by the legislature, although a substantial minority of states allow amendments to be proposed with a simple majority vote. (Some states also require legislatures to act in successive sessions). Notably, even in states that have supermajority requirements, their processes are far more majoritarian than the federal amendment process because state senates, unlike the U.S. Senate, are equally apportioned according to one-person one-vote requirements, and state amendments are put to a popular vote, not ratified by localities.
Perhaps the biggest difference between federal and state constitutional amendment processes, however, is that in 18 states, voters can bypass state legislatures to place constitutional amendments directly on the ballot through an initiative process. While these processes can be subject to abuse, they can also provide a pathway to bypass gerrymandered legislatures that may not be responsive to the will of the people. In particular, initiatives can overcome democratic failures: In states like Michigan, for example, ballot initiatives have been used to reform the redistricting process, overcoming entrenched interests in the state legislature by going straight to the people.
Another significant difference between state and federal constitutional change is the relative prevalence of state constitutional conventions. Collectively, states have held 233 constitutional conventions, and have adopted 147 different constitutions. In fourteen states, the state constitution requires periodically placing a vote on the ballot as to whether to hold a state constitutional convention to propose revisions and amendments to the state constitution. Over the next decade, voters in Rhode Island, Michigan, Connecticut, Hawaii, Illinois, Iowa, Maryland, Montana, Alaska, New Hampshire, and Ohio will all consider whether to call a constitutional convention.
Beyond a source of contrast, however, state constitutions can also offer lessons for the future of federal constitutional amendments. For example, federal reformers might consider implementing advisory referenda on federal constitutional amendments as an organizing and public education tool. States offer a wealth of experience to help think through the practical questions of how to implement such a process, from who should write the ballot language (and how misleading language should be addressed) to the money in politics challenges that a national referendum might pose. Likewise, while state constitutional conventions have fallen into disuse in recent decades, they could be a site to develop procedures and best practices in the event that a federal constitutional convention comes to pass.
Finally, state constitutions can also be in dialog with federal constitutional reform movements, both as sites of protest against the constitutional status quo and as laboratories for innovation.
Abortion rights is one area where advocates have contested the federal constitution through state constitutional amendment campaigns. When Roe v. Wade was still on the books, anti-abortion advocates used state constitutional amendments as an organizing tool against the federal constitution as it was interpreted at the time. Four states passed constitutional amendments that were illegal under federal law but made a public case for banning abortion – and which took effect as operative law after the Supreme Court overruled Roe. Post-Dobbs, pro-choice state constitutional campaigns have gained momentum to bolster state constitutions as alternative sources of abortion rights. In 2022, three states passed constitutional amendments that explicitly secure the right to abortion.
State constitutional amendments can also directly support campaigns for federal constitutional amendments – building public support and establishing proof of concept. For example, while the fight for a federal Equal Rights Amendment is ongoing, 22 state constitutions have their own ERAs, with active campaigns in four additional states. One could imagine state constitutional amendments playing an even more significant role: from reforming state supreme courts as a precursor to federal court reform, to passing state-level amendments opposing Citizens United.
At a moment when there is increasing focus on the limits of the U.S. Constitution as it is currently constituted, we shouldn’t forget that there are 51 constitutions in the United States. State constitutions offer promising models for reform and opportunities for constitutional dialogue.
Alicia Bannon is the director of the Judiciary Program at the Brennan Center for Justice. Her work focuses on promoting a fair judicial system and an inclusive democracy.
Suggested Citation: Alicia Bannon, Learning from State Constitutional Amendments, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2023).
- 1Neal Devins, How State Supreme Courts Take Consequences Into Account: Toward a State-Centered Understanding of State Constitutionalism, 62 Stan. L. Rev. 1629, 1641-42 (2010).
- 2Jessica Bulman-Pozen & Miriam Seifter, The Democracy Principle in State Constitutions, 119 Mich. L. Rev. 859, 870-71 (2021).