Consequences of Flexible Amendment Processes: The Politics of Policy Entrenchment

• In Event: Law, Politics, and Development of State Constitutions in the U.S. Federal System

Abstract

My purpose is to contribute to ongoing scholarly analysis and assessment of distinctive features of state constitutions, focusing particularly on the consequences of flexible state constitutional amendment processes. One leading effect is to permit passage of amendments that entrench policy commitments, often by prohibiting enactment of certain policies. At the same time, flexible amendment processes also facilitate passage of amendments overturning or carving out exceptions to these policy prohibitions. Flexible amendment processes at the state level can therefore be understood as facilitating “moderate entrenchment” of policy commitments, in that constraints are imposed on policymaking, but these constraints are far from insurmountable and are relaxed on a regular basis. My purpose in this paper is to describe this approach to constitutionalism that prevails at the state level, by analyzing state constitutional amendments regarding three major policies -- debt, taxes, and gambling – and consider the consequences of this approach to constitutionalism.

Author

• John Dinan, Wake Forest University