The Varieties of Constitutional Change

Abstract

While federal constitutional law has changed over the two hundred plus years since the framing, relatively little of that development was the result of the formal amendment process prescribed by Article V. Rather, significantly more change to our understanding of numerous constitutional provisions has come about through litigation over the meaning of the text. Regardless of the source of constitutional alteration, we regard the result as valid constitutional law. But that difference in source has fueled a great many efforts to legitimize judicial interpretation as a mode of constitutional change—to legitimize, that is, constitutional development by the least representative, least accountable department of the federal government. State constitutions, on the other hand, tell a different story. In the state constitutional context, the tension between litigation-driven change and amendment-driven change is diminished by the fact that formal amendment is a more realistic proposition that it is under the U.S. Constitution. This piece is an introduction to a Symposium on the relationship between state courts and constitutional change under state constitutions. The Symposium focuses on Jonathan Marshfield’s article, “Courts and Informal Constitutional Change in the States,” and includes responsive essays by Massachusetts Supreme Judicial Court Associate Justice Scott Kafker, Justin Long, James Gardner, Yaniv Roznai, and Robert Williams.

Keywords: State constitutional law, constitutional amendment

JEL Classification: K40, K41