The Florida Constitution: For the People?

This essay is part of a 50-state series about the nation’s constitutions. We’ve asked an expert from each state to dive into their constitution, narrate its history, identify its quirks, and summarize its most essential components for our readers.

Florida’s constitution, like those of many states, has some peculiar features. Possibly best-known is the variety of ways to amend it — five methods, including two revision commissions.

But it was not always so flexible. The malleability of the state’s current constitution, drafted and ratified in 1968, is explicitly a reaction to the lack of popular input available to amend the prior constitution, adopted in 1885. Amendments to that constitution could be placed on the ballot only through the legislature, which led to acute problems in representation and growth management in the mid-20th century.

Florida’s current constitution is its sixth as a state, counting an 1865 constitution the U.S. Congress did not approve because its drafters could not bring themselves to include suffrage for nonwhite men.

The first Florida Constitution was adopted in 1838 as one of the requirements for the Territory of Florida to achieve statehood. Florida was then, and remained for decades, a relatively undeveloped and inhospitable land. Most of its few hundred thousand inhabitants lived within 50 miles of Georgia or Alabama and maintained livelihoods mostly from agriculture, similar to other southerners.

Twenty-three years later, Florida adopted a new constitution to reflect its secession from the United States. Then, after the Confederacy lost the Civil War, Florida was required to create another new constitution. The first iteration of this was the failed 1865 constitution. The next version, created under Reconstruction in 1868, provided for suffrage for men of color, and even for members of the Seminole Tribe to have one (non-voting) seat in each house of the legislature.

But 17 years later, another, post-Reconstruction convention dominated by white segregationists created a constitution that repudiated the 1868 version. In this 1885 constitution, the executive consisted of seven positions independently elected statewide. One of these, the governor, could not succeed himself, but many of the others were re-elected for decades.

The 1885 constitution also forbade desegregated schooling and marriages between Black and white people and allowed a poll tax. The judicial system was not uniform, and the legislature met only for 60 days every two years. It restricted how legislative districting could be apportioned and limited the amendment process to the legislature. The apportionment strictures meant that a group of rural northern legislators could maintain power over the increasingly urban state, even as the population shifted to southern cities.

Reapportionment was desperately needed, but tight constitutional restrictions and entrenched legislators made that task nearly impossible. However, after the U.S. Supreme Court in 1962 decided Baker v. Carr, which allowed federal courts to intervene in state apportionment schemes and which eventually led to the one-person-one-vote standard within electoral districts, the jig was up.

Acknowledging, grudgingly, the inevitability of reapportionment, the legislature in 1965 approved the formation of a Constitution Revision Commission. Its members would draft a new constitution for the legislature to approve for the ballot. Before the legislature could examine the draft, however, the U.S. Supreme Court invalidated the legislature’s apportionment scheme, and a federal district court created a new scheme. The newly fairly apportioned legislature approved the draft constitution with few changes and the people adopted it in 1968.

Declaration of Rights

The Florida Constitution’s Declaration of Rights contains a few rights not explicitly present in the U.S. Constitution, but, curiously, also contains some that have since been amended to track U.S. Supreme Court jurisprudence.

The right that has received the most attention in recent years is the right to privacy, found in Article I, Section 23. That section provides: “Every natural person has the right to be let alone and free from governmental intrusion.” The right was approved by voters in 1980, placed on the ballot by joint resolution of the legislature. In 1989, the Supreme Court of Florida held in In re T.W. that the Florida Constitution’s right to privacy encompassed a woman’s right to choose whether to continue her pregnancy to term (before viability), creating public controversy. Though the court was divided on the narrow question before it — whether a minor needed parental consent before obtaining an abortion — the court was unanimous in holding that the privacy amendment protected that right in an adult.

After the U.S. Supreme Court overturned Roe v. Wade in 2022, declaring there is no federal constitutional right to an abortion, the Florida legislature passed a 15-week abortion ban; one year later, it passed a 6-week ban with the proviso that it would become effective if the 15-week ban survived a court challenge. (Each of the laws included narrow exceptions.) That challenge came, and on April 1, 2024, the Supreme Court of Florida, in a 6–1 opinion, upheld the 15-week ban, reversing In re T.W. and holding that the 1980 right to privacy had never been meant to protect a woman’s right to choose whether to continue a pregnancy.

A citizen initiative that would have constitutionally protected the ability of a woman to decide whether to continue her pregnancy up to viability was defeated in November 2024. It received 57 percent of the vote, but Florida requires 60 percent for constitutional amendments; thus, a minority of voters carried the day. Florida is one of only three states that requires amendments to receive more than a simple majority vote when placed on the ballot.

Multiple Methods to Amend

That the Florida Constitution can be amended through so many different methods is rare as well. Amendments to the 1885 constitution could be placed on the ballot only by the legislature (or by calling for a constitutional convention). The drafters of the 1968 document saw that this restrictive view of revision failed to include amendments that people, rather than special interests, wanted. The result was a new constitution that could be amended four ways: by voter approval of amendments proposed by constitutional convention and the legislature, but also by citizens’ initiatives and by a method unique to Florida then and now — an automatically occurring Constitution Revision Commission comprised of appointed citizens with power to place proposed amendments directly on the ballot. Florida later approved its fifth method, an automatically occurring Taxation and Budget Reform Commission. Both commissions meet every 20 years, in alternating decades.

Separation of Powers

Florida’s separation of powers provisions are stricter than those in the U.S. Constitution. Article II, Section 3 provides that “no person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.” Nevertheless, Florida’s current governor, Ron DeSantis (R), has tested the limits of gubernatorial power, demanding, for example, that the legislature adopt his 2022 congressional apportionment map under threat of veto. The executive branch, however, is diffuse, with the attorney general, chief financial officer, and commissioner of agriculture elected independently statewide and not beholden to the governor.

The Judiciary

The judicial branch provides for appellate judges — district court of appeal judges and supreme court justices — to be appointed by the governor. For each jurisdiction, a Judicial Nominating Commission (the members of which are chosen or approved by the governor) reviews all applicants, determines who is qualified, and nominates three to six applicants for the governor’s consideration. Trial judges, of which there are two levels, are elected on a nonpartisan basis. However, if a vacancy occurs during a judicial term, the trial judge’s successor is chosen by a nominating commission in the same manner as appellate judges.

Power Struggles

Over its more than 50 years, Florida’s constitution, designed to transfer power from the government to the people, has instead seen this power diffused. The legislature has steadily passed laws making the initiative process more difficult and typically has legislated difficulty into implementing constitutional amendments passed as a result of initiatives. One example is the amendment voters adopted in 2018 that restored the right to vote to people who had been convicted of felonies but had completed “all terms of their sentence including parole or probation.” (Those convicted of certain felonies, such as murder, were ineligible for rights restoration.) The legislature enacted a law that defined “all terms” as including even so-called legal financial obligations, which can involve hard-to-determine court costs assessed to the defendant, many of which are typically converted to civil judgments. Thus, restoration of voting rights has been legislated to demand financial ability to pay civil judgments.

The legislature’s subversion of the people’s will effectively shifted power from Florida’s citizens to its government. Power shifts mean power struggles. So far, the government’s power grab has gone unchecked.

Mary E. Adkins is a professor emerita at the University of Florida Levin College of Law. She has written extensively on the Florida Constitution and is the author of Making Modern Florida: How the Spirit of Reform Shaped a New Constitution.

Suggested Citation: Mary E. Adkins, The Florida Constitution: For the People?, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Apr. 29, 2025), https://statecourtreport.org/our-work/analysis-opinion/florida-constitution-people