Change that Matters: An Essay on State Constitutional Development
By Daniel B. Rodriguez.
A sharp focus on state constitutional change brings into relief many related matters of state constitutionalism—how should we think about state constitutional development in a world in which state constitutions are frequently amended or revised? What political struggles take place on a battleground in which formal change may be the ultimate prize? How effectively do courts enforce procedural rules which purport to regulate processes of change? What light do positive theories of state politics, judicial behavior, and constitutional design shed on our normative perspectives on state constitutionalism in either a first or a second-best world? These are, of course, interrelated issues. And the emerging (and converging) fields of state constitutional law and American constitutional development promise to help us better negotiate these issues.
What we learn from modern scholarly perspectives on American constitutional development is essentially this: the relationship between law and politics is unavoidable and essential to understanding the dynamics of constitutionalism and constitutional change. Therefore, whatever focal point we have in mind in our consideration of state constitutional matters, we must attend to the ubiquitous considerations of both law and politics. In this symposium essay, I consider how this advised focus on law and politics—or what I call constitutional law/politics in high fidelity—illuminates the complex matter of state constitutional change.
While the relevance of this inquiry is not unique to state constitutions and constitutionalism, some special characteristics of state law and politics in the American constitutional system make this a topic of compelling importance. First, state constitutions are famously more malleable than is the U.S. Constitution; hence the circumstances in which change takes place—through formal means, to say nothing about informal means—are much more common in the state constitutional context. Second, and relatedly, the dynamics of social movements and direct political action are magnified given the real possibilities of implementing constitutional change. Third, elected state judges ignore powerful political pressures at their peril. They need to be—and likely are in reality—more closely attuned to the connection between legal judgments and political ramifications. Fourth, the availability of direct constitutional change through the initiative system in many states obviously amplifies the persistent political considerations in the law. Fifth, and finally, politics at the sub-national level implicate more conspicuously democratic values and circumstances.
Framed around the argument that state constitutional change is simultaneously about both law and politics, my essay has two distinct objectives. The first, and more ambitious of the two objectives, is to explain how and why theories of state constitutional development flounder unless they are conspicuously attentive to considerations of politics and political strategy and the positive political theory of legal decision-making. My second objective is to reinforce this abstract argument with a specific doctrinal example, the distinction in state constitutional law between revisions and amendments. While this distinction implicates key constitutional values, judicial interpretations have been incoherent and vexing. That courts have lurched toward and away from particular lodestars in implementing this distinction suggests the difficulties of undertaking state constitutional interpretation without due account of the peculiar dynamics of state constitutional politics.