Constitutional Change and Direct Democracy: Modern Challenges and Exciting Opportunities

Abstract

A description of today’s symposium announced that “[c]ontributors will focus on the structural, normative and contextual factors that distinguish state constitutions from their federal counterpart and the effects that these differences may have on the nature and significance of state constitutional change.” I want to broaden the focus just a bit, to discuss how the differences between state constitutions and their federal counterpart can affect the course of federal constitutional change, for I think the interplay (rather than just a comparison) between the two kinds of constitutions is an important but underappreciated topic of inquiry within American democracy.

When we speak of federal constitutional change, we are, of course, talking about a very wide subject. Many people are inclined to think of federal constitutional change in terms of landmark Supreme Court rulings. To be sure, seminal cases like Brown v. Board of Education, Roe v. Wade, and New York Times Co. v. Sullivan, concerning, respectively, racial equality, reproductive autonomy, and free political speech, are important. But our instinctive recognition of the centrality of path-breaking Supreme Court decisions sometimes causes us to overlook equally important (if not more so) constitutional change that takes place outside of courts and that may or may not even generate enforceable judicial doctrine. These developments include what I and other participants in this conference sometimes refer to as “formal” and “informal” constitutional amendments. Both kinds of federal amendments have tended to be very populist in character, a populism that has been reinforced by other legal trends.