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Abstract

This Article describes how reformers, who were often blocked by Congress, were able to achieve their policy aims through state constitutional initiatives. The Constitution grants the state and federal governments shared, concurrent constitutional powers. On concurrent powers matters, reformers might attempt either state or federal constitutional revision. Reformers might petition Congress for a federal amendment to dictate national policy or to bind or homogenize the states. But federal amendments rarely clear the two-thirds supermajorities needed to pass Congress or the three-quarters supermajorities needed for subsequent ratification by the states. Of the 11,790 proposed federal amendments, only thirty-three have been passed by Congress and twenty-seven ratified by the states. Scholars have thus deemed the Article V amendment process dead letter. Landmark federal judicial decisions can be similarly difficult, taking decades of coordinated litigation.

In contrast, state constitutions are easier to revise. All state constitutions impose lower bars to amendment passage and ratification—of the 11,635 amendments proposed to the fifty standing state constitutions, 7,695 have been ratified. Initiative amendments also face low bars to passage and ratification. In Massachusetts, for example, a proposed constitutional initiative needs only 25,000 petition signatures to make the ballot. Nearly all states use some form of simple majority vote to ratify constitutional initiatives. This has yielded long, detailed state constitutions, which in turn are subject to frequent reform by amendment. This frequent amendment, coupled with the federal Constitution’s relative brevity, lets states serve as subnational “laboratories of democracy,” testing diverse solutions to national constitutional problems. Federal judges have long refused to intervene in the states’ amendment and initiative processes, leaving the states to experiment with little interference.

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