Constitutional Amendment Procedures and the Informal Political Construction of Constitutions

Abstract

Recent public law studies demonstrate that the informal political construction of constitutional meaning—particularly by executive and legislative officials—manifests as an essential feature of American constitutionalism. A leading explanation of the phenomenon depends on the effect of formal amendment procedures. Given the inevitability of constitutional change over time, difficult and burdensome amendment procedures seem to require that political actors resort to informal means to pursue change and enshrine new constitutional meaning. While this explanation has been central to a number of studies of the federal constitution, it has also led to the exclusion of state constitutional experiences from the study of this phenomenon. This is likely because state amendment procedures are notably less difficult and (apparently) do not require the resort to informal means of change. I present evidence that informal political construction does occur in the states; it is as important there as it is at the federal l...