Complexity and Contradiction in Florida Constitutional Law

Abstract

This is not a short work. I take up in some detail two of the three principal judge-made limitations – more or less understood to be part of Florida constitutional law – addressing constitutional amendments: the distinction between self-executing and non self-executing constitutional provisions, and the ballot summary accuracy requirement. I have discussed a third such limitation – the initiative single subject requirement – in a previous article (I summarize that analysis in the appendix at the close of the manuscript.) These limitations are not unique to Florida, of course, but they are applied either with notable frequency in Florida or appear to have special significance in the state's constitutional law, in part because constitutional amendment is such a prominent and recurring part of the Florida scheme. Notably, although there is much good writing about state constitutional amendments, direct democracy, and the like, Florida law receives very little attention in that literature (which tends to be more West Coast focused.) The approach that I pursue is distinctive – if it is – because I treat amendment questions as presenting problems of constitutional organization, as opposed to, say, questions as to what voters need to know. I group drafters, voters, and subsequent interpreters as all engaged in one level in the same project (albeit at different stages.) As a result I am able to sketch three models of constitutional organization and associate the models with questions about Florida constitutional amendments that presented themselves at various points in time. I use the third model – complex organization – as a starting point for developing an approach to both the self-executing and ballot summary problems (as well as the single subject problem as sketched in the appendix.) The last part of the article connects the Florida discussion with issues evident in the larger academic discussion nationally.

Keywords: constitutional law, constitutional amendments, Florida Law, constitutional organization, ballot summary problems, state constitutional law