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Article Preview: Courts and Informal Constitutional Change in the States

The Constitution is at the heart of our state and individual rights and is the foundation of our very nation.  When considering constitutional law, the Federal Constitution is the document that most frequently comes to mind.  However, each individual state has its own state constitution that governs its residents simultaneously with the Federal Constitution.  As Professor Marshfield indicates, “[s]tate constitutions are often lost in the shadow of the Federal Constitution.”  Although this may accurately describe society’s general understanding of constitutional law, a state’s constitution is an equally important mechanism providing protections of constitutional rights to state residents.  The progression of judicial rulings by the Supreme Court of the United States as a form of constitutional change may sound familiar.  Comparably, state constitutions also experience constitutional change, as illustrated in Professor Marshfield’s forthcoming article Courts and Informal Constitutional Change in the States.

Professor Marshfield states that “constitutional change occurs when the supreme rules that bind political actors are modified.”  He further references two differing methods of constitutional change: informal and formal amendment.  The process of formal amendment occurs through explicit change to the text of the constitution, in and of itself.  Conversely, informal amendment occurs through a change in a constitutional law that does not result in a change to the text itself.  The judicial rulings of the Supreme Court of the United States, discussed above, are one example of informal amendment as a method of constitutional change.  Another example of constitutional change through informal amendment is a “super-statute,” which is legislatively created and separate from the text of the Constitution, such as the Civil Rights Act of 1964.  Constitutional change by way of formal or informal amendment occurs at the state level at a much more frequent ratio than at the Federal level.

Professor Marshfield conducted a study of informal and formal amendments to state constitutions through the creation of an original database of constitutional changes across all fifty states between the years 1970 and 2004.  He began this study by reviewing opinions of the highest courts in all fifty states through a Westlaw search and by narrowing his search to cases revealing a “red flag,” indicating that the case is no longer “good law.”  This type of search allowed him to review judicial opinions that have been overturned by the same state high court on a point of constitutional law.  Professor Marshfield admits that this method of study may be inconclusive in revealing informal constitutional change because a state court may bring about significant constitutional change without actually overturning its own precedent.  Nevertheless, this method captures countless instances of informal amendment by state high courts.  He additionally reviewed the reports created by the Council of State Governments in order to identify formal amendments to state constitutions.

Marshfield’s study reveals that state constitutions have been formally amended approximately 2,887 times, compared to the Federal Constitution which has only been formally amended twenty-seven times.  Further, the study identified 589 cases in which state courts have informally changed state constitutional law.  Professor Marshfield’s study also analyzed the subject-matter of state judicial rulings by coding the cases overturning state constitutional law by the category of constitutional law, which illustrates that the leading subject-matter resulting in change is individual rights.  Approximately half of the cases address criminal procedure issues including double jeopardy and state limitations on the right to a jury trial.  Other cases address civil rights such as gender classifications and equal protection.

Despite the common misconception that state constitutional change occurs minimally through informal amendment because of the high frequency of change through formal amendment, reality indicates that state constitutions are frequently amended through judicial rulings.  Professor Marshfield’s study raises several important questions regarding the correlation between constitutional rights and informal amendment by state courts and the interaction between formal and informal amendment.  One potential theory is that courts are “comfortable” developing jurisprudence on constitutional rights because doing so seems to fit within the role of the judiciary.  Moreover, it is evident that voters generally support judicial decisions regarding individual rights and prefer state court rulings on such issues rather than formal amendments.  One may reasonably conclude, based on the evidence within Professor Marshfield’s study, that state courts “remain active in the evolution of constitutional rights.”

Contributing Editor: Raquel Muscioni 

Be sure to read Professor Marshfield’s article Courts and Informal Constitutional Change in the States, which will appear in Volume 51, Issue 3 of the New England Law Review.

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