In this Essay, #JessicaBulman-Pozen & @MiriamSeifter explore the people’s right to amend state constitutions and threats to that right today. @YaleLJournal

ABSTRACT. This Essay explores the people’s right to amend state constitutions and threats to that right today. It explains how democratic proportionality review can help courts distinguish unconstitutional infringement of the right from legitimate regulation. More broadly, the Essay considers the distinctive state constitutional architecture that popular amendment illuminates.

INTRODUCTION

Nearly fifty years ago, Justice William J. Brennan, Jr. responded to the Burger Court’s weakening of federal constitutional rights by proposing a turn to the states. He celebrated state constitutions as “a font of individual liberties, their protections often extending beyond those required by the Supreme Court’s interpretation of federal law.”Today, as the Roberts Court weakens rights guarantees that even the Burger and Rehnquist Courts reaffirmed, commentators are again looking to state constitutional rights.

There remains much to be gained from attending to state constitutions, as Justice Brennan counseled, but we should not do so only in the way he advised or in the manner most attendant “new judicial federalism” scholarship has suggested. In keeping with Brennan’s recognition that “state courts are construing state constitutional counterparts of provisions of the Bill of Rights as guaranteeing citizens of their states even more protection than the federal provisions, even those identically phrased,”2 courts and scholars have focused on discrete clauses found in both state and federal constitutions.3 But this targeted approach overlooks significant state provisions and obscures fundamental differences between state and federal constitutions.

Read more  https://www.yalelawjournal.org/forum/the-right-to-amend-state-constitutions