Kansas’s Constitution Is a Source of Expanded Rights 

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.  

The Kansas Constitution has remained largely the same since it was approved by Congress in 1861, when Kansas was still a territory. (Territorial governing documents require Congressional approval before a territory may be admitted as a state.) The Kansas territory produced four draft constitutions in the late 1850s and early 1860s — two were pro-slavery, two banned slavery. In a period known as “Bleeding Kansas,” both pro- and anti-slavery groups committed acts of violence and vied for political control of the territory, which became a battleground over whether slavery would be extended into new states. The abolitionists prevailed, and the only constitution Congress approved prohibited slavery.

Kansas’s Bill of Rights

The document begins with an extensive Bill of Rights containing 20 provisions, including virtually every protection in the U.S. Bill of Rights (sometimes with more expansive language) and more. The Kansas Constitution does not place Bill of Rights provisions beyond the reach of constitutional amendment, like some state constitutions do.

Notable is Section 1, which provides that “all men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.” The Kansas Supreme Court has in one recent and extremely important instance relied on that section to protect individual rights of autonomy and reproductive freedom. In doing so, the court read Section 1 to include the protection of natural rights, relying on the theory that every human is born with certain rights that cannot be abridged by any state. Those rights include a right of personal autonomy that protects reproductive choices from state interference.

Section 2 is an unusual and potentially important provision that the Kansas Supreme Court has interpreted as an “equal protection clause” even though it reads nothing like the 14th Amendment. Section 3 is a right to assemble and petition that includes rights “to consult for the common good” and for the people “to instruct their representatives,” though the Kansas courts have yet to give these provisions meaning or substance.

The Kansas right to bear arms was expanded in 2010 to explicitly include a variety of activities and purposes after the U.S. Supreme Court held the Second Amendment creates an individual right but failed to define the right’s scope with clarity.

Another notable provision is Section 18, titled “Justice without delay.” The provision is also known as an “open courts” or “right to a remedy” clause. Similar clauses appear in about two-thirds of state constitutions and trace their roots to the Magna Carta. These clauses have been important in many states, including Kansas, in litigation over the constitutionality of tort reform measures that attempt to limit common law causes of action and remedies. The U.S. Constitution has no similar provision.

Government Structure in Kansas

The Kansas Constitution has 15 articles laying out the structure of the state’s government. Like the federal Constitution, the document creates three branches of government and recognizes a separation of powers doctrine. But the similarities largely end there. Most of Kansas’s articles differ significantly from those in the U.S. Constitution.

For starters, Article 1 addresses executive power, not legislative power like its federal counterpart. Kansas divides the executive power between several state level elected officials, including the governor, lieutenant governor, attorney general, and secretary of state. By statute, Kansas also has a statewide elected treasurer and insurance commissioner. The governor has typical executive powers like enforcing laws and overseeing state agencies, as well as the power to call a special session of the legislature, which Kansas governors have done at times. One unique limitation on executive power in Kansas is that the pardon power is subject to legislative regulation, and the legislature has created a process for the exercise of the pardon power which does restrict the governor.

The judicial branch, outlined in Article 3, has an interesting history. Currently, Kansas Supreme Court justices are selected using a merit system under which a nominating commission — made up of four lawyers elected by the lawyers of the Kansas bar and three non-lawyers appointed by the governor — accepts applications for a vacancy and submits three nominee names to the governor. The governor must choose one within a certain time. If the governor fails to choose within the timeframe, the chief justice of the Kansas Supreme Court must choose one of the nominees, though this has never happened. This system, however, does not apply to the Kansas Court of Appeals, which is solely a creature of statute. For appointments to that court, the legislature has adopted the federal model of executive nomination and senate confirmation.

The merit system for choosing Kansas Supreme Court justices was adopted by constitutional amendment in the 1950s after a scandal known as “the Kansas triple play.” Prior to that time, governors simply appointed Kansas Supreme Court justices. But in 1956, an unpopular incumbent governor lost in the primary election and the other party’s nominee won the general election later that year. The chief justice of the Kansas Supreme Court was of the same party as the outgoing governor and resigned at the end of 1956 (Play 1). The lame-duck governor also resigned, leaving his lieutenant governor to become governor (Play 2). The new governor then appointed the former governor to the Kansas Supreme Court (Play 3), all within a very short time. Kansans were not pleased. In response, they adopted the merit system by constitutional amendment in 1958.

There are 12 articles in addition to the three creating the branches of government. They include topics such as elections, suffrage, education, public institutions and welfare, the militia, county and township organization, legislative apportionment, finance and taxation, corporations, banks, and constitutional amendment and revision. In general, they mirror similar articles in other state constitutions, with a few distinctions noted below.

Unique Constitutional Provisions

The Kansas Constitution explicitly recognizes the right to vote. Nonetheless, the Kansas Supreme Court recently rejected efforts to provide greater protection than federal law does of the right to vote under the Kansas Constitution. Instead, in a 4–3 vote, the court adopted minimal federal standards and upheld laws limiting the number of absentee ballots any one person could collect and deliver, as well as legislation authorizing election officials to decide whether a signature on an absentee ballot is genuine. The Kansas Supreme Court also recently rejected partisan gerrymandering claims under the Kansas Constitution.

Like virtually every other state constitution, the Kansas Constitution includes an article on education. As a result of multi-year litigation — Montoy v. Kansas and Gannon v. Kansas — the supreme court issued numerous opinions about school finance, holding that the constitution includes an individual right to an education and requiring the legislature to provide more funding to public schools. By contrast, the U.S. Supreme Court has held that the federal constitution contains no right to education. The Kansas Constitution also contains a “little Blaine Amendment,” buried in the education article, that prohibits any “religious sect” from controlling “any part of the public education funds.”

Finally, Article 15, titled “Miscellaneous,” is like the island of misfit toys. It contains provisions allowing lotteries, locating the state capital, authorizing the sale of liquor by the drink, mandating the oaths of state officers, creating victims-rights in criminal cases, defining “marriage” as a civil contract between one man and one woman, and more.

Amending Kansas’s Constitution

The Kansas Constitution requires a two-thirds vote of each legislative branch to propose a constitutional amendment. A simple majority vote of the people then approves or rejects the amendment.

In August 2022, voters considered a legislature-proposed amendment to allow lawmakers to regulate or prohibit abortion. A strong majority of Kansans rejected the amendment. An interesting question is how Kansans as a whole might vote on other topics such as Medicaid expansion and legalization of marijuana if given an opportunity to do so.

Absent from the Kansas Constitution is any provision for initiatives by the people, either to create statutory laws or amend the constitution.

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The Kansas Constitution contains many provisions that provide a basis to argue for expanded individual rights in a variety of situations. Plaintiffs in recent years have made such efforts, with mixed success. Litigation over the scope of rights enshrined in the state constitution will no doubt continue.

Stephen R. McAllister is the E.S. & Tom W. Hampton Distinguished Professor at the University of Kansas School of Law. He was previously the U.S. Attorney for Kansas and the state solicitor general. 

Suggested citation: Stephen R. McAllister, Kansas’s Constitution Is a Source of Expanded Rights, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Nov. 22, 2024), https://statecourtreport.org/our-work/analysis-opinion/kansass-constitution-source-expanded-rights