Fifty Unique, Ever-Changing State Constitutions

It has been over 30 years since the U.S. Constitution was last amended. Prior to that, it had only been amended 16 times since the ratification of the Bill of Rights in 1791. Compare that to state constitutions, which were collectively amended nearly 70 times in 2022 alone. Yet, despite frequently voting on whether to amend their state constitutions, Americans pay comparatively little attention to the role state constitutions play in shaping government, promoting democracy, and granting rights.

State constitutions touch some of the most fundamental parts of our lives as citizens — voting, personal liberties, local governance, and much more. Furthermore, litigants are increasingly turning to state courts and constitutions to seek remedies that are not available under federal law. State constitutions are distinct documents, and it behooves scholars and litigants to engage with the unique features and histories of state constitutions.

One longstanding obstacle to state constitutional research — and one reason for the relative inattention to state constitutions among academics, advocates, and the public — is the comparative inaccessibility of these documents. Information about state constitutions can be difficult to find and its accessibility varies state to state. Whether someone can find a full list of amendments made to a state constitution or review the results of a vote on amendment depends on the state.

The State Democracy Research Initiative’s new resource, 50 Constitutions (50constitutions.org), makes the current text of all 50 state constitutions available and searchable on one site. The ability to view and search across the text of all 50 constitutions will allow users to see how states have borrowed and learned from each other and, in some cases, inherited a shared constitutional history.

For example, 27 state constitutions have some version of a Free Elections Clause mandating that elections be “free,” “equal,” or “open,” which has no federal counterpart and thus can offer unique rights and remedies that may not be available under federal law. A variety of claims have been brought under states’ Free Elections Clauses, including challenges to redistricting maps and ballot collection prohibitions.

The similarities among state constitutions, such as the presence of Free Elections Clauses, reflect how the constitutions were drafted. State constitutional drafters frequently looked to the constitutions of other states for insight and inspiration, adopting and modifying language from these constitutions to fit the needs of their own states.

Because they are easier to amend than the U.S. Constitution, state constitutions often reflect the changing will and interests of the people in ways that the U.S. Constitution does not. Consider, for example, the recent cases of Held v. Montana — where a state trial court ruled that a prohibition on agencies’ consideration of greenhouse gas emissions and corresponding climate change impacts during environmental reviews violated the Montana Constitution — and In re Hawaii Electric Light Co — holding that the state correctly considered greenhouse gas emissions when evaluating a biomass energy plant contract and that failing to do so would violate Hawaiians’ constitutional rights.

Both of these cases were predicated on state constitutional clauses that guarantee a right to a “clean and healthful environment.” Like Free Elections Clauses, these environmental clauses have no federal counterpart. However, while Free Elections Clauses have a long history stretching back to the English Bill of Rights, these environmental clauses are more recent developments. Only seven state constitutions include an explicit environmental rights provision. Rhode Island and Illinois were the first to introduce such provisions, in 1970, and New York was the most recent, in 2021. Voters and legislators in other states, such as Connecticut, Maine, and Texas, are pushing to add an environmental rights provision to their own constitutions.

State constitutions, in other words, are not static documents. The frequency of change reflects state constitutions’ commitment to popular sovereignty and majoritarianism. There are also implications for scholars and practitioners who are interested in interpreting constitutional provisions. With each amendment, either introducing a new provision or modifying an existing one, a new constitutional moment and group of framers and ratifiers becomes relevant to how a provision can be understood.

Recognizing this reality, the State Democracy Research Initiative has also launched Tracking Constitutional Change — a part of the 50 Constitutions project — which allows users to see just how frequently and drastically state constitutions have changed since their adoption. Wisconsin, the project’s pilot state, has amended its constitution 148 times, resulting in over 200 modifications to the constitutional text. With Tracking Constitutional Change, users can view the Wisconsin Constitution as it stood on any date after ratification, compare different versions of amended constitutional provisions, and read about key moments in Wisconsin constitutional history.

As attention continues to focus on state courts, the State Democracy Research Initiative will add constitutions to the Tracking Constitutional Change project and roll out other new features to 50 Constitutions.

Emily Lau is a staff attorney with the State Democracy Research Initiative at the University of Wisconsin Law School.

Suggested Citation: Emily Lau, Fifty Unique, Ever-Changing State Constitutions, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Nov. 15, 2023), https://statecourtreport.org/our-work/analysis-opinion/fifty-unique-ever-changing-state-constitutions.