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Sunday, February 10, 2013

Amend This

I read this while researching "reverse incorporation":

Even when state constitutions are not replaced entirely, they are amended with dizzying frequency. According to one estimate, there were 4700 state constitutional amendments between 1776 and 1980. It should be noted, though, that a handful of states bear disproportionate responsibility for those numbers. By 1982, the Alabama Constitution had been amended more than 500 times, the California and South Carolina Constitutions each more than 400 times, and the Texas Constitution more than 200 times. If anything, the pace has accelerated since then. By 2006, Alabama was up to 772 amendments, California to 514, South Carolina to 485, and Texas to 432. But they are by no means the only states to amend their constitutions frequently; most have averaged more than one amendment per year of their existence.

Given my interest in the amendment process, I was curious as to how many times Vermont has changed its constitution:

The amending process has itself been amended three times. From 1777 until 1870 amendments could be proposed every seven years by a 13-member body, elected statewide, known as the Council of Censors. From 1870 to 1974 proposals had to go through the legislative/popular ratification process outlined above, though proposals could only be made every ten years. In 1974 the ten-year “time lock” was reduced to the current four-year period, beginning in 1975.
...
From 1880 to 2010, there have been 187 [amendment] proposals. Eighty-three of those proposals (44%) were made since the four-year time lock went into effect in 1975 (from 1880 to 1974 a ten-year time lock was in effect). Twenty-nine of the 187 proposals (16%) were put before the voters and twenty-seven were ratified. Seven of the eighty-three (8%) made under the four-year time lock were submitted to the voters and six were ratified.

Add to that total 27 before we abolished the Censors, and that doubles the total to 54.  More than the US with its high bar for alteration, but well below the State average.

The last one we voters approved was to allow citizens who would be 18 by the general election to vote in primaries back in 2010.  Twice we've given the SCOV permission to revise the constitution without a vote on the precise language: to make the document gender neutral (1994); to incorporate amendments into the body of the document (1913).  I voted for the inclusive language and lowered primary voting age amendments.  And I think it's pretty nifty that we used to tack amendments on to the end of our constitution until it seemed unwieldy.

In the US Constitution, of course, we still tack amendments on the end.  Even this was cause for debate in the First Congress, right from the beginning when the House considered changing the Preamble:

The House then resolved itself into a Committee of the Whole, Mr. BOUDINOT in the Chair, and took the amendments under consideration. The first article ran thus: "In the introductory paragraph of the Constitution, before the words 'We the people,' add 'Government being intended for the benefit of the people, and the rightful establishment therof being derived from their authority alone.'"

MR. SHERMAN.—I believe, Mr. Chairman, this is not the proper mode of amending the Constitution. We ought not to interweave our propositions into the work itself, because it will be destructive of the whole fabric. We might as well endeavor to mix brass, iron, and clay, as to incorporate such heterogeneous articles, the one contradictory to the other. Its absurdity will be discovered by comparing it with a law.

Would any Legislature endeavor to introduce into a former act a subsequent amendment, and let them stand so connected? When an alteration is made in an act, it is done by way of supplement; the latter act always repealing the former in every specified case of difference.
...
Mr. MADISON.—Form, sir, is always of less importance than the substance; but on this occasion I admit that form is of some consequence, and it will be well for the House to pursue that which, upon reflection, shall appear to be the most eligible. Now it appears to me, that there is a neatness and propriety in incorporating the amendments into the Constitution itself; in that case, the system will remain uniform and entire; it will certainly be more simple when the amendments are interwoven into those parts to which they naturally belong, than it will if they consist of separate and distinct parts. We shall then be able to determine its meaning without references or comparison; whereas, if they are supplementary, its meaning can only be ascertained by a comparison of the two instruments, which will be a very considerable embarrassment.

It will be difficult to ascertain to what parts of the instrument the amendments particularly refer; they will create unfavorable comparisons; whereas, if they are placed upon the footing here proposed, they will stand upon as good foundation as the original work. Nor is it so uncommon a thing as gentlemen suppose; systematic men frequently take up the whole law, and, with its amendments and alterations, reduce it into one act. I am not, however, very solicitous about the form, provided the business is but well completed. 

Yadayadayada, Madison lost (but the Tea Partying House decided to go his way to skip the slavery parts in 2011).  Presumably Vermont simply followed suit in 1793 and it took another 120 years to change tack.  Form over substance?  You be the judge.

ntodd

February 10, 2013 in Constitution, Schmonstitution | Permalink

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