Improving Amendment

49 Pages Posted: 25 Apr 2016 Last revised: 18 Oct 2017

Date Written: February 22, 2016

Abstract

State constitutional amendment rules are often criticized for their poor design. The most common criticism is that the frequent use of direct democracy bypasses the virtues of representative decision making and effectively surrenders constitutional politics to well-financed special interests. Indeed, many initiative states need to improve the democratic quality of their amendment procedures. They need effective ways to foster constructive public deliberation, incentivize meaningful citizen participation, and provide checks on the influence of special interests. In this essay, I consider whether states might achieve some of those improvements if they changed the process for ratifying citizen-initiative amendments to require debate and approval by locally-elected governing bodies rather than a public referendum. The specific proposal that I explore is whether initiative states could improve their amendment processes by changing amendment rules to require ratification of citizen-initiatives by some majority of existing county governing bodies rather than a statewide referendum. Sending amendment ratification decisions to locally-elected bodies could have the beneficial effect of keeping constitutional decision-making close to citizens while at the same time retaining many of the virtues associated with representative decision-making. It might also help undermine special-interest capture by dividing the amendment power across numerous independently elected bodies rather than centralizing it within a state legislature or popular majority vote.

Of course, a county-ratification model is not a panacea. There are many difficulties and costs associated with this approach. It might, for example, make the citizen-initiative too difficult to use, which would effectively shift all amendment power to the legislature. County representatives might also be ill-suited to decide statewide constitutional issues because of mismatched expertise and limited resources. A county-ratification model could also result in unconstitutional voter-dilution because of significant population differences between counties. These issues, among others, represent serious difficulties with the county-ratification model that cannot be overlooked. My goal in this essay is only to suggest that the county-ratification model deserves serious consideration as states struggle with how they might improve their amendment processes.

Keywords: constitutionnal law, constitutional design, state constitutional law, constitutional amendment, local government

Suggested Citation

Marshfield, Jonathan L., Improving Amendment (February 22, 2016). Arkansas Law Review, Vol. 69, 2016, Available at SSRN: https://ssrn.com/abstract=2769701 or http://dx.doi.org/10.2139/ssrn.2769701

Jonathan L. Marshfield (Contact Author)

University of Nebraska College of Law

103 McCollum Hall
P.O. Box 830902
Lincoln, NE 68583-0902
United States

HOME PAGE: http://https://law.unl.edu/jonathan-l-marshfield/

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