The Endurance of State Constitutions: Preliminary Thoughts and Notes on the New Hampshire Constitution
17 Pages Posted: 11 Mar 2015
Date Written: Spring, 2014
Abstract
I prepared this essay for the Wayne Law Review’s 2013 symposium on state constitutional change, celebrating, in particular, the golden anniversary of the Michigan Constitution. Fifty years is a milestone, to be sure, but there are other state constitutions that have endured in something resembling their original form for many more years. The people of New Hampshire, for example, ratified a constitution in 1784 that in its structure and much of its detail has remained unchanged to this day. In this essay I explore some of the facets of state constitutions that may make them more or less likely to endure — why, in other words, has the New Hampshire Constitution lasted relatively unchanged for more than two centuries, while the people of Michigan saw fit to replace their constitution fifty years ago? And, given the constitutions currently in force in these states, can we make any predictions about how much longer either of them is likely to endure? This essay represents a preliminary effort to explore these questions in a purely anecdotal way — it is much more a thought-experiment than a conclusive study. I take as my framework for thinking about the endurance of state constitutions the one developed by political scientists Zachary Elkins, Tom Ginsburg, and James Melton in their magisterial work, "The Endurance of National Constitutions". Some of the elements of that framework, which as the book’s title suggests focuses on national organic documents, need to be adapted to the state constitutional context and others may have little application in that context; at a minimum, however, the work of these scholars gives us a place to begin to think about some of the basic questions surrounding the endurance of state constitutions.
Keywords: State constitutions, constitutional change, constitutional amendment, New Hampshire Constitution
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