Contesting the U.S. Constitution Through State Amendments: The 2011 and 2012 Elections

IN MARCH OF 2013, REPUBLICAN LEGISLATORS in North Dakota agreed to challenge Roe v. Wade by forwarding a “personhood” amendment to voters that will appear on the 2014 ballot. Such an amendment would change the state's legal definition of personhood to include unborn fetuses—a move that backers have explicitly discussed as part of a challenge to a Supreme Court decision they view as having been wrongly decided.1 The Court may pronounce itself the final arbiter of the Constitution, but Americans outside of Washington, DC do not necessarily agree.2 Such efforts by state actors to take the Constitution away from the courts mirror a recent shift in political-legal scholarship, in which court-centered accounts of constitutional interpretation and construction have been rightly condemned.3 Scholars have turned instead toward a renewed emphasis on the political contestation of non-judicial actors in enforcing the Constitution.4 As John Dinan has observed, state constitutional amendments have become a part of that conversation about the U.S. Constitution.5 This is not, of course, the first time in which federal and state constitutionalism have been in sustained conversation; in the 1980s, for example, the so-called “New Federalist” movement, based on a seminal address by Supreme Court Justice William Brennan, attempted to overcome the judicial conservatism of the Rehnquist Court by turning to state constitutions for more-expansive rights claims.6 State constitutions do more than offer such advantages to out-party judges, as their greater flexibility makes them more democratic, accountable, and more protective of positive rights.7 There are, of course, reasons to be concerned about the democratic quality of the initiative process, easily captured by interest groups and the wealthy.8 However, the public conversation about these high-salience, national constitutional issues assuages this fear somewhat, or at least as much as anything arguably can in American democracy. Moreover, the specificity of their amendment process arguably sends a clearer signal of popular understanding than do representative elections and other instruments favored by popular constitutionalists.9 Finally, to the extent that we view an active and well-informed citizenry as closer to the deliberative ideal of constitutional self-government, public campaigns on salient initiatives may help produce a better-informed body politic.10