Document Type
Article
Publication Date
2018
Abstract
Conventional theories of constitutional design suggest that frequent formal amendment of a constitution’s text likely has a restraining effect on the practice of judicial review. On these theories, courts are more likely to favor the status quo when construing a constitution that is amended frequently, and more likely to issue transformative rulings when a constitution is difficult to amend. This Article investigates these claims by analyzing an original data-set of hand-coded opinions from state high courts in the United States. Because state constitutional amendment rates vary widely, these data provide a meaningful opportunity to explore how judges practice judicial review when operating under constitutions of varying degrees of flexibility. The findings suggest that prevailing theories fail to fully capture the complex factors influencing the pathways of constitutional change. Many states with high amendment rates also experience high rates of judicial activism, and many states with low amendment rates experience low rates of judicial activism. After accounting for other influences on judicial decision-making (such as methods of judicial selection and retention, docket size, constitution age and length, etc.), the data suggest a tipping point where judicial activism begins to accelerate as amendment frequency increases. Contrary to prevailing theories, the data indicate that high amendment rates are reliably associated with high rates of judicial activism. These findings have implications for constitutional design because they underscore the highly contextual nature of constitutional change and challenge the notion that amendment flexibility is an effective strategy for constraining courts.
Recommended Citation
Jonathan L. Marshfield, The Amendment Effect, 98 B.U. L. Rev. 55 (2018)