The Arkansas Constitution: A Diamond in the Rough?

The current Arkansas Constitution was adopted in 1874 at the behest of “Redeemer Democrats” who desperately hoped to end the influence of the Republican Reconstruction Congress. In the hands of those Redeemers, the constitution soon became an instrument of disenfranchisement and oppression through Jim Crow policies. But the Redeemers also built a constitution that reflects great popular distrust in centralized state government. That distrust has persisted in Arkansas’s constitutional structure and culture, and it may help explain how a constitution produced by Redeemer politics has managed to evolve and survive for more than 150 years.

Four Prior Constitutions

Arkansas had four constitutions before 1874. The first was adopted in 1836 as part of a campaign for statehood. The Arkansas Territory, which included modern-day Arkansas and much of what is now Oklahoma, was annexed from the Missouri Territory in 1819 in preparation for Missouri’s admission into the union as a state. Although one vast territory, there was a growing social divide among the settlers in the rocky northern and western parts of the state and those who lived along the fertile Mississippi Delta in the southern and eastern parts. Notably, southern settlers desired to enshrine Arkansas’s status as a slaveholding state while some northern settlers did not.

As the territory grew, Arkansas eagerly looked towards statehood, creating a constitutional convention before Congress began the process of admission. This was not without pushback, however, as the territorial governor and the powerful group of Arkansas politicians known as The Family tried to slow the process to maintain power over the territory. Those efforts failed, and the first Arkansas Constitution was adopted in 1836.

The 1836 constitution was short, borrowing heavily from the U.S. Constitution with the notable exception that it explicitly included the right to enslave people. These slaveholding rights in the 1836 Arkansas Constitution stemmed in part from the Missouri Compromise — a federal law that maintained balance in the Senate between free and slave states. Michigan gained statehood as the corresponding “free state.”

Arkansas seceded from the Union in 1861 and adopted its second constitution in the same year to join the Confederacy. The second constitution changed very little from the first and was adopted by convention without a popular ratifying vote.

The Union reclaimed control of Arkansas in 1863 and, as a condition of rejoining, Arkansas adopted its third constitution in 1864. That one was ratified by a partial convention, with only about half of Arkansas’s 50-plus counties having delegates who satisfied the Union’s voting requirements. Arkansas’s third constitution was typical of Reconstruction documents: acknowledging the freedom of the previously enslaved, disenfranchising former Confederate soldiers, explicitly recognizing federal supremacy, and establishing military control of the state.

Most citizens viewed the 1863 constitution as an outside encroachment and were hostile to it. As a result, a coalition led by radical Republicans proposed a constitution that would continue with the spirit of the Reconstruction era but was grounded in state control and development, affirming the political and social equality of Black Arkansans and creating an active central state government with broad gubernatorial powers and a progressive social agenda on issues like public education and infrastructure. With great hope for the future, the people voted to adopt the fourth Arkansas Constitution in 1868.

But the next decade was nothing like the future Arkansas hoped for: Financial mismanagement caused the state’s debt to balloon to $17 million (which would be more than $400 million today) despite citizens paying higher taxes and the public services falling into disarray. This was capped by a highly contentious gubernatorial election in 1872 that led to the “Brooks-Baxter War” (between two Republican factions), which engulfed much of the state, required federal intervention to quiet, and led to the downfall of Arkansas’s Republican coalition.

In 1874, the federal government intervened to end the war, and local distrust of the centralized Republican state government was high. The recently re-enfranchised Democrats quickly called a constitutional convention based on a platform to end Reconstruction and reduce state government. They won great popular support and outnumbered Republicans 70 to 21 at the convention. It took just three months to produce a draft for ratification.

The 1874 constitution was “moderate” compared to later Redeemer constitutions, such as the Mississippi Constitution of 1890 and the Alabama Constitution of 1901. Those later documents explicitly sought to perpetuate white supremacy and undermine the 15th Amendment, which provides that “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” Arkansas’s 1874 constitution did not explicitly assail the rights of Black Americans (that would come later, through amendments like a poll tax). Instead, as stated in the convention’s address to voters, the principal focus of the 1874 constitution was to “restor[e] local self-government in Arkansas.” 

The 1874 constitution remains in effect today, albeit with 104 amendments as of January 2026. Those amendments reflect divergent chapters in Arkansas’s constitutional and political history. They span Jim Crow measures such as a poll tax, Progressive era reforms like the initiative and referendum, persistent public finance reforms, and various contemporary cultural issues like abortion, marijuana, and marriage rights.

Throughout these varied phases, Arkansans have continued to demonstrate a strong distrust of centralized and unaccountable power. Indeed, voters have approved numerous restrictions on state fiscal policy to curb spending and debt, maintained or expanded electoral accountability of various officials, including a stringent term limit amendment, and intervened on various discrete policy issues where state government went awry. Voters have also rejected proposals from three different constitutional conventions — in 1918, 1969, and 1979 — to remake or revise the 1874 constitution. The document persists, it seems, because despite its Redeemer origins, each generation has found ways to use it as an instrument of popular control over government.

Declaration of Rights

Arkansas’s Declaration of Rights has many provisions common to state constitutions. It begins with a strong declaration of the people’s collective political rights. Section 1 provides that “all political power is inherent in the people.” Section 2 extends this maxim by declaring that “governments” derive “their just powers from the consent of the governed.”

Those provisions frame the more discrete legal rights that follow — including free speech, jury trial, due process, and equal protection — but they also help explain some of the more idiosyncratic rights provisions. The Arkansas Declaration of Rights includes a prohibition on imprisonment for debt, which reflects a large-scale popular movement that began before the Civil War to ensure that state legislatures did not succumb to pressure from wealthy lenders to allow mistreatment of the poor. The Arkansas Constitution also includes a right to hunt and fish, adopted in 2010 and designed to preempt unpopular conservation regulation and litigation.

Compared to other state constitutions, the Arkansas Declaration of Rights is relatively short and generic. In 2022, I conducted a study of all state Bills of Rights and found that they averaged 1,216 words and contained significantly more detailed language per topic than the federal Bill of Rights. However, Arkansas’s explicit constitutional rights cover only 778 words — 36 percent less than average — and include 33 percent less detail than the average state Bill of Rights.

The Arkansas Supreme Court has also been relatively stingy in its extension of state constitutional rights beyond the baseline required by the federal Constitution. It has, for example, generally refused to extend state criminal procedure protections beyond the federal minimum. In Rainey v. Hartness, for example, it refused to interpret Arkansas’s constitutional protection against unreasonable searches as providing broader protection than the Fourth Amendment. It has strictly enforced the state action requirement in the free speech context, as opposed to some other state supreme courts, which have held that speech rights may be enforced against private entities in certain circumstances. In Aclin Ford Company v. Cordell, for example, the Arkansas Supreme Court casually remarked that “the guaranty of free speech is a restriction upon governmental action, not upon the action of individuals” without acknowledging that the Arkansas Constitution might extend protections to private interference with speech. A notable exception is Lake View School District No. 25 v. Huckabee, where the court held that the Arkansas Constitution requires an equitable and adequate funding system for all public school students.

Government Structure

The Arkansas Constitution is built around a conventional tripartite structure, with executive, legislative, and judicial branches. However, like many state constitutions, it also contains a variety of unorthodox institutional arrangements that reflect popular efforts to wrangle government back under voter control.

For example, a 1936 citizen-initiative amendment created an executive agency called the Board of Apportionment, which has jurisdiction over state legislative redistricting and consists of the governor, the secretary of state, and the attorney general. The board was intended to mitigate self-dealing by incumbent legislators by assigning the traditional legislative power of redistricting to an executive board.

In 1944, Arkansans adopted an amendment that created a constitutional Game and Fish Commission to ensure independence and expertise in conservation regulation. More recently, a 2016 medical marijuana amendment assigned rulemaking and administrative power to the Department of Health as a way to avoid legislative sabotage of marijuana legalization.

In general, the Arkansas Supreme Court has honored these unique institutional arrangements and protected constitutional commissions and popular administrative mandates from legislative encroachment.

Justices on the seven-member Arkansas Supreme Court run in nonpartisan statewide elections for eight-year terms. They are not subject to term limits but do in most cases lose their retirement benefits if they choose to seek reelection past the age of 70.

Policy Detail and Public Finance

The Arkansas Constitution also reflects lots of specific policy detail, much of which has been placed there by voters through the initiative process that was adopted in 1910. But some of it was adopted earlier, at the 1874 convention, such as policies regulating railways. The state legislature has also proposed various detailed policy provisions, such as an amendment adopted in 2014 that provides campaign finance and lobbying ethics reform.

Nowhere is policy detail more evident than on issues of public finance. Of the 104 amendments to the constitution since 1874, 43 explicitly address public finance in some manner. Indeed, the first amendment adopted in 1884 limited the legislature’s ability to repay certain infrastructure bonds, known as Holford Bonds. Since then, the public has continued to play an active role in regulating public finance. From setting stringent procedures for local government bond issuance to setting specific tax rates, the public has actively participated in public finance governance for more than 150 years.

Amendment Methods and Culture

The Arkansas Constitution provides at least two methods for its amendment. First, the legislature may propose amendments for voter ratification. This requires a majority of both houses to endorse the amendment and a majority of those voting in the ratification election to approve. Second, citizens may propose amendments directly through the initiative process. Of the 104 total amendments, only 37 have been by initiative, with the remaining 67 coming from the legislature.

Since the initiative and referendum was adopted in 1910, voters have protected their access to it and have frequently rejected legislative proposals to limit the initiative. Arkansas courts have both protected and intervened in initiative politics. Recently, an Arkansas circuit judge invalidated a statute that dramatically increased the number of counties required to qualify an initiative for the ballot from 15 to 50. However, the Arkansas Supreme Court has been active in striking initiatives from the ballot in dramatic and last-minute fashion. In 2024, for example, the court struck a marijuana initiative after voting had begun and also upheld a decision by the Secretary of State to disqualify an abortion rights amendment based on a technical filing error. And, in 2025, the Arkansas Supreme Court overturned a 74-year-old decision that prohibited the legislature from unilaterally amending initiative amendments — opening the door for a variety of legislative countermeasures to popularly ratified amendments.

Finally, it is also important to note that although the 1874 constitution does not include any explicit provision for calling a constitutional convention, both Arkansas constitutional law and custom recognize the people’s right to do so. Indeed, there were the three lawful constitutional conventions since 1874, even if voters rejected their proposals.

• • •

The Arkansas Constitution of 1874 is a dynamic and long-lasting text. Although its origins are tainted and its performance mixed, it has provided generations of Arkansas voters with effective processes and opportunities to intervene in governance. From that standpoint, it is something of a diamond in the rough.

Jonathan Marshfield is an expert in state constitutional law and a professor at University of Florida Levin College of Law.