State Constitutional Amendments and State Conventions

The following is a transcript of the panel “State Constitutional Amendments and State Conventions,” which took place at Thorne Auditorium, Northwestern Pritzker School of Law, Chicago, Illinois, on Friday, Nov. 7, 2025, as part of the symposium, The Power of State Constitutional Rights. The transcript is edited for clarity.

State constitutions are famously more easily amended than the federal constitution. In this session, panelists discussed the benefits and also the challenges that amendments bring in understanding rights.

Speakers:

• Derek Clinger, Senior Staff Attorney, State Democracy Research Initiative
• Marcus Gadson, Assistant Professor of Law, University of North Carolina School of Law
• Hon. Elizabeth M. Welch, Associate Justice, Michigan Supreme Court

Moderator:

• Wilfred Codrington, Walter Floersheimer Professor of Constitutional Law, Co-Director of Floersheimer Center for Constitutional Democracy, Cardozo Law School

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Wilfred Codrington: Well, thank you, everyone. It is great to be here. I got in today. A little confusion at the airport. So to you, who are leaving afterwards, good luck. (Panelists and audience laughing.) And everybody else who’s staying, well, good job. (Panelists and audience laughing.) Thank you for continuing the day for this final panel to talk about state constitutional change, state conventions, and state amendments.

I am Wilfred Codrington. I’m a professor at Cardozo Law School. I’m also a fellow at the Brennan Center. And I’m happy to be moderating this panel with three illustrious panelists. You see two of them at least up here with me. And we have a professor who is on the screen right now. So I will introduce to my left, we have the Honorable Elizabeth Welch, who is an associate justice on the Michigan Supreme Court. To her left, we have Derek Clinger, who is a senior staff attorney, at the State Democracy Research Initiative at Wisconsin. And on the screen is Marcus Gadson. He is an assistant professor of law at the University of North Carolina.

We are told that Marcus couldn’t make it here in person because of the same air traffic stuff that we’re all going to be dealing with, or probably, hopefully not. But thank you, Marcus, for being so flexible, and for participating nevertheless.

And so this panel, again, we’re talking about state constitutional amendments and state constitutional conventions. Just to note from the outset, they are different from the federal Constitution, very different. There are many ways, and hopefully, we’ll get into some of that as part of the discussion. But I want to just kick it off here, knowing that the goal of this is so you have an understanding about how state constitutional reform, state constitutional change occurs. So you have a broad understanding of those processes, have an understanding of the landscape today, and any sort of promises, possibilities, threats to those processes.

And so, again, we have this great panel to elucidate in those respects. So my opening question is going to be for Professor Gadson, who is on the screen, and it is in view of your scholarship. And I’m hoping that you might offer us just an overview here, just an understanding of these processes about state amendments and state conventions, a bit about their history, and maybe give us a glimpse of some of the ways that they’re materializing today.

Marcus Gadson: Sure. And Wilford, thank you so much for moderating this, and thank you to everybody at the Brennan Center, especially those who are doing tech support. I thank you for your flexibility and having me here. And I’m just so grateful that I can be here. I’d open with actually a preliminary observation, which is that state constitutions have changed enormously in ways that the federal Constitution has not. And if you look at our federal Constitution, I think you’d be forgiven for concluding that we’ve had only a certain number of constitutional moments that take place. So there’s obviously the drafting of the original Constitution in 1787. There’s the Bill of Rights in 1791. There are the 14th, 15th, and 13th Amendments at the end of the Civil War.

And then you have some other amendments. But state constitutions really have been changing organically and continually over the past 250 years. And so I think of our state constitutions really as being a 250-year conversation about who we are as a country and what our ideals are. And when you look at our Declaration of Independence, which talks about life, liberty, and the pursuit of happiness, and then the less famous part of it, which talks about how the people have a right to alter or amend government, our state constitutions really are ways that we talk about how to live out those parts of the Declaration of Independence. And so there are a few specific ways that constitutions have changed historically.

At the founding, I think it’s interesting for many of you to know that our very first 1776 constitutions actually frequently did not specify a method of constitutional change. And so you had constitutions that spelled out structure, and in several cases, rights, but did not have a clearly defined way to change it, which posed some interesting difficulty. So here are the four ways that constitutions have changed at the state level historically and today. The first is through a constitutional convention, most famous for the variation that happened in Philadelphia in 1787. And our tradition has come to be at the state level that a constitutional convention is conducted by delegates who are separately elected from the legislature.

And that is because Americans have come to reject parliamentary sovereignty and the idea that a legislative body has unilateral control over a constitution. And we did that in 1776 by writing down our state constitutions. And so it’s a logical next step, that if you think a constitution is a higher document than the legislature, then a separate group than the legislature would write it. These conventions have tended to happen in waves. We had a wave of constitutional conventions at the founding in 1776. And these were distinguished, I think, by having really weak governors, by having annual elections frequently for legislatures, and for having declarations of rights.

We had another wave of constitution drafting during the age of Andrew Jackson. That’s where many states adopted judicial elections and also single-subject clauses, and things like that. We have Civil War and Reconstruction-era state constitutions, which, in their largest part, were really about the role of Black Americans in American political life. And they typically guaranteed Black political suffrage and Black political rights. We had Jim Crow and Progressive Era constitutions in the early 20th century. And most recently, we had a wave of conventions in the 1960s. Constitutional conventions have fallen out of favor in the last 30 or 40years.

The last one I remember is Rhode Island’s 1986 convention. And my justification for that is, I think, Americans are very wary of opening up Pandora’s box. If we have a constitutional convention, what else could change? So that’s my explanation for it. I’m not sure it’s completely satisfactory. To this day, about 14 states actually offer voters an option, every 20 years typically, to have a constitutional convention. And that actually, in some ways, is based off of a famous letter Thomas Jefferson wrote, where he said, “The Earth belongs to the living. And every generation has a right to remake a constitution as it pleases.”

A second method of constitutional change is legislatively-referred amendments. At the founding and afterwards, it typically tended to be the case that these were very stringent, that you had super majority requirements, and in many cases, they had to pass in consecutive sessions. So you’d have to pass an amendment in, say, 1795 and 1796. There are some states that still have consecutive session requirements, but they’re more rare. And this is a very commonly used method of constitutional amendment. A third one is citizen-sponsored initiatives. And so the idea is that you have voters petition to put a constitutional amendment on the ballot for consideration by their fellow citizens, and then once they get enough signatures, it goes on the ballot, regardless of whether the legislature wants it to be on the ballot. And then, typically, it passes with a majority of voters.

But some states, like Florida, have 60 percent thresholds, or higher thresholds. And then, finally, what I think is the most interesting, actually, is extra-legal constitutional conventions. And I’m using that term deliberately, because I’m not convinced that you can have such a thing as an illegal constitutional convention. The First Amendment plainly protects your right to assembly, in addition to free speech and free exercise. So I think that you could argue there’s a First Amendment right to have a constitutional convention, regardless of whether it’s called by the legislature.

But historically, we’ve had groups of Americans that actually have their own constitutional conventions. And a famous example of that is Dorr’s Rebellion, which some of you may have learned about in law school with the case Luther v. Borden. And the idea is that you had a group of citizens dissatisfied by suffrage requirements in Rhode Island’s charter. And so because the legislature was not delivering on a constitution they wanted, the Rhode Island Suffrage Association held their own elections for delegates, and then they even had their own ratification vote.

And obviously, Thomas Dorr was unsuccessful. He became the first American tried for treason against a state and was convicted and sentenced to life in prison. But this is something that then later happened in “Bleeding Kansas.” “Free-Staters” committed to abolishing slavery also held their own extra-legal constitutional convention. So those are the four main ways that constitutional change has taken place historically.

Wilfred Codrington: Great. Thank you very much for that. And so laying out these four ways, maybe an interesting place to go would be to you, Derek. Can you talk about some of the current, I guess, threats or attacks against the different ways? Professors Bulman-Pozen and Seifter wrote about “The Right to Amend State Constitutions” and discuss this. I know you’ve written on this a bit. Can you lay that out for us, please?

Derek Clinger: Yeah, and thank you. And first, thank you to the Brennan Center and to the law review for having me, and thank you all for being here. What’s happening nationally is we’re seeing a huge number of attempts by state officials to make it harder for citizens to use the initiative process to amend their constitutions. And if I’m channeling my inner Evan Wolfson from the last panel, it’s a power grab. We’re talking about entrenchment. Where you’re seeing this mostly is states on the verge of cementing or entrenching one-power rule, one-party rule. And kind of one of the last obstacles to that is the initiative power, where voters can just go around their legislature and make proposals to adopt policies without the legislature’s input. The Fairness Project tracks the number of bills that are dealing with this issue.

And I know it’s the last panel, I don’t want to throw numbers at you all, but 2025 has seen a record number of these bills. And not only that, this year we’ve pretty much doubled the prior record, which was set just two years ago. So it’s a huge number, and it’s an increasing number. And this goes back a few years, really, but what we’re seeing with the initiative is, over time, these came into state constitutions during the Progressive Era largely about 120 years ago. Initially, there was quite a bit of interest in these, but then it kind of died down over the years.

But in the last decade or two, there’s been really a resurgence of interest in using these devices, and especially in red states and purple states, you’re seeing largely progressive-aligned ballot measures being used to adopt policies like minimum wage increases, Medicaid expansion, marijuana legalization, redistricting reform, voting rights protections, and then especially after the Dobbs decision, abortion rights protections. We saw this in 2022 with Justice Welch’s state of Michigan, and in 2023, my home state of Ohio.

And then last year, I think there were nine initiated abortion rights measures on the ballot, plus a couple more that were put on by state legislatures. And coinciding with this rise in the use of these devices have been attempts by the legislatures and other state officials to really undermine and thwart these powers. So what kinds of restrictions? Really, every step of the way has been targeted. And in some instances, the legislatures are basically creating new steps that they can then also target to undermine these powers.

So even before citizens can circulate their petitions, you’re seeing requirements that force citizens to go to state officials and kind of get a pre-approval to circulate these petitions. And those aren’t supposed to be on the merits, but you can see the officials’ opinions on the merits kind of bleeding through as they kind of drag their feet to make these decisions, and really just waste the circulators’ time. Then at the petition circulation stage, you’re seeing restrictions like narrowing who can circulate the petitions, shortening how long they can circulate the petitions, and increasing the number of signatures required for these petitions.

Just one quick example of these types of restrictions: there was a bill passed in Florida earlier this year requiring circulators to register with the state. And the penalty is, if a circulator collects more than 25 signatures without registering, it’s a third-degree felony, (laughs) a third-degree felony. (Audience laughing.) So that’s being litigated in federal court. But these are the types of things that are getting passed and signed into law. And even once an issue has made the ballot, we continue to see these types of threats and attacks on the process. Something that I think we’re seeing probably increasing numbers of is officials kind of tinkering with the ballot language, the things that voters actually see.

And an example of this was mentioned yesterday by Professor Seifter from my home state of Ohio, where this last year there was an initiative to adopt an independent citizens redistricting commission, much like what’s in Michigan. And it included a ban (laughs) on partisan gerrymandering. There’s no question that was the intent and what it says. But the way the ballot language is written is — it goes to a state board made up of elected officials, and it’s chaired by an official who publicly opposed the measure. And he wrote language saying, “This measure, if adopted, would require partisan gerrymandering.” You look at the text, it would prohibit partisan gerrymandering. But what voters saw is that it would require partisan gerrymandering. And not just that, it was also incredibly long language. For folks who live in states with these types of ballot measures, typically, the language is limited to 100 or so words. In Ohio, this measure was over a thousand words long. So it’s (laughs) two columns of text, it’s multiple pages, it’s just a mess, and that measure was defeated. You also see, something Professor Gadson alluded to, is basically increasing the voter approval thresholds. He mentioned in Florida, there’s a 60 percent requirement, that 60 percent of voters need to approve a measure for it to be adopted.

So what that means, of course, is a smaller minority of the state can block measures. And you’re increasingly seeing efforts by legislatures to impose these types of requirements on the initiative process. These typically require voter approval. And voters have rejected many of them in recent years, including in Ohio, in Arkansas, in South Dakota. But Missouri is going to have one of these on the ballot next year. And what it would do, and it’s worth highlighting, is it would require a majority approval from a statewide vote, but then it would also require a majority approval from every congressional district in the state.

So it’s basically districting a statewide ballot measure, and imposing a gerrymander onto the statewide ballot measure process. So that’s going to be on the ballot next year. And even when measures have been approved by the voters, you’re continuing to see attacks on what the voters approved. You see officials dragging their feet to implement these new requirements. And you also see legislatures just kind of gutting things that the voters had just approved. You see this especially with initiated statutes, but you see this elsewhere with different issues. So when you look at these requirements in isolation, maybe they don’t seem so bad, but when you take a step back and look at the whole view, I think what you’re seeing is kind of an attempt to kill the initiative via death by a thousand cuts. And so that’s what’s going on.

Wilfred Codrington: I want to turn to you, Judge. How do you think about constitutional interpretation? There’s these new amendments, they may or may not have parallels in the federal Constitution. They may or may not have parallels in other states. They may or may not have been contentious in the lead-up to the passage of the amendments. From a judge’s perspective, how do you think about interpreting new amendments for the first time and thereafter?

Hon. Elizabeth M. Welch: So I can promise you, they have no parallel in the federal Constitution. (Panelists laughing.) There’s definitely nothing about marijuana in the federal Constitution (Panelists laughing.) or reproductive rights. So we specifically have both in Michigan; Derek did a great job. I think you checked off every major initiative that Michigan has passed in the last 10 years. So first, I just want to say, before I talk about interpretation, so the restrictions, I can speak about, judges are in a hard spot. We can’t talk about pending cases or likely cases, and what we would think about them, which is so hard, because people always ask, but we can talk about the past. And so one of the things Michigan, the legislature, did do is they put that you have to gather your signatures for the initiative process, 15 percent by basically congressional district. And we struck that down. We said, “That does not abide by… There’s nothing in the Constitution that says that. And that that would essentially undermine the spirit of the 1963 Constitution, which allowed direct democracy.” So we struck down that restriction.

As far as sort of methodology, it is true, there are no parallels, really, even in other states, because I suppose you have people going state by state, trying to work on a certain issue. But each state, the language becomes so specific to that state. Working around existing laws, probably experts drafting this, knowing they could be bumping into a different statute, and sort of trying to figure out their way to avoid those traps. So they’re really not the same state to state. It’s very different than interpreting Michigan’s search and seizure provision and the federal Constitution, because they’re so wildly different. They’re long, they’re detailed. And when they get to us, I will say, first, the top thing we are dealing with is just whether it gets on the ballot. Quite honestly, sure, stuff has gotten to us, and more will be coming, because so many of these initiatives are pretty new.

We are now dealing with a lot of litigation about the legalized recreational marijuana and the Open Meetings Act, and whether these panels in local communities — they pass ordinances, and whether they are subject to the Open Meetings Act. And so there’s all this stuff that isn’t necessarily directly constitutional interpretation, but how it then meshes with existing laws that maybe people didn’t think about. So we have to deal with that a lot. Interpreting an amendment is just like interpreting any other, whether the initiatives are statutes, so normal statutory interpretation principles. Amendments are part of the Constitution, normal constitutional interpretation principles.

So the principles are the same ones I use whenever I do any of that work. I always sort of start with the text, and then I do look at purpose. I am someone who thinks that can be very helpful if there’s an ambiguity. And I will tell you, with these initiatives and amendments, there’s often ambiguity, because they haven’t thought of everything, right? So they often (laughs) are, I swear, sometimes they’re like, “Eh, the courts will figure it out.” So then that is our job. The big difference between interpreting this and having to reach back to, you know, 1885, or whenever maybe original constitutional provisions were passed, either old Michigan constitutions or federal law, is that we were around. Most of these are pretty recent, most of us were going to the post office to mail a letter, and they were gathering signatures at the corner. And you’re like, “I’m so sorry. I can’t sign.” “Oh, no, no, you should sign.” You’re like, “No, trust me. I cannot sign.” (laughs) So we see it in real time. We see the debates, we see the media coverage.

So when you’re literally talking about what were the voters intending at the time, you have real-time knowledge, you have media articles, you have information on what was the public told about what they’re voting on. So again, you’re still looking at the text, that’s first, of course. But if you also are someone who does look at purpose and trying to figure out what the voters were intending, that is something we do, at least I do, and many of my colleagues do as well. And we have, our opinions have sort of delved into that.

Wilfred Codrington: Yeah, I’d love to follow up just on that point. Being around is good. And in some ways, it’s no different than not being around, but it seems like you can be a little bit more subjective on your reading of what’s going on in the political cultural environment that’s kind of leading to the passage of amendments one way or the other. How does that play out, or what’s the tension there?

Hon. Elizabeth M. Welch: Yeah, so of course, you’re still like trying to figure out what does the language mean, and that’s our first job. But, you know, figuring out sort of what people were thinking at the time. And again, everybody, we’re not a monolith, right? So people think different things, but there were certain understandings. I’m thinking of a case in particular. I authored an opinion called Mothering Justice, which, it wasn’t about the interpretation of the amendment itself, but it was whether an amendment gets on the ballot, or whether it gets to the voters to be approved. It’s a whole different drama.

But in that (laughs) case, I specifically cited the fact that everyone knew these ballot initiatives were going to pass. They had overwhelming support, raising the minimum wage and paid sick time. And the legislature decided to adopt those, and then in lame duck, amend the laws, sort of watering the laws down substantially. So I did include in my opinion that there was significant polling showing these were going to pass. The legislature adopted it sort of, they grabbed it, adopted it, and then amended it later. And it was why I sort of said we sort of understood what they were doing.

There was media coverage about why they were doing that, because they knew it was going to pass, and they thought, “Well, we’ll amend it later.” And the issue came to us then on whether they could do that. And the answer was no. So yeah, but that was an example of looking at what was going on in the ether at the time as to why they did this. And then of course, that’s an important consideration as to interpreting the Constitution about is this what the drafters intended, that the legislature could sort of work around the electorate by adopting it and amending it later?

Wilfred Codrington: I do need to mention that because Professor Gadson is on the screen, you can’t see the phone number to text for questions.

Hon. Elizabeth M. Welch: Oh, yeah.

Wilfred Codrington: And so I’m going to give that to you right now. You can text the number 971–801–0271. Again that is 971–801–0271. And that’s for questions, which we will be getting to in probably about a half hour or 35 minutes.

So Professor Gadson, since you’re taking up our screen, our text screen, I want to come back to you, just sort of in response. Well, one, actually, you spoke about conventions, you spoke about how rarely used they are, and you also spoke about people being afraid of Pandora’s box. It would be great if you could elaborate there.

So I think state constitutions are different in terms of how they think about conventions. The Pandora’s box is sort of a big fear at the federal level, but you said that states are amending and revising and reforming all the time. So what is that Pandora’s box?

Marcus Gadson: Sure. And so, actually, I think I should note that with the federal convention, many of you know that in 1787, the founding fathers were told to revise the Articles of Confederation, and then they promptly went to Philadelphia and came out with a different Constitution that was much stronger than the Articles of Confederation, and also rejected key features of many state constitutions at the time, which is why the federal Constitution actually was extremely controversial. In fact, I’m from North Carolina, where we refused to ratify, even over a personal appeal from George Washington actually. And it was because of some concerns about that. So here’s what I see it as being in terms of Pandora’s box, I think we have an interesting tension between the fact that state constitutions are so frequently amended and the lack of constitutional conventions.

And the way I square the circle is that for many of the amendments that are made, they are over particular, discreet issues, whether that is protecting abortion access or reinstating the right of people with felony convictions to vote, or other things that you might happen to see in state constitutions. I think once you start getting into a convention and telling people that how you structure the government basically might change, I think that people are really reticent to do that, to see that there might be bigger changes in the offing.

And I think there’s actually just a little bit of people potentially being freaked out by the sense of, if there’s a convention, could they take away the Declaration of Rights? And I think everybody here probably shares the intuition that no, that probably wouldn’t happen. And the reason we suspect it wouldn’t is because many states have had constitutional conventions throughout history, and they tend to actually have a good amount of continuity between things in their Declaration of Rights, even if the delegates change a great deal.

But I think that that is probably where people are coming from. I think there’s a conservatism about having a fundamental document change too much, too fast. And I think that people are uncertain about, if we have a convention, what’s going to come out of that? One solution historically to that has actually been limited convention calls.

And so, actually, historically, what some state legislatures did is, they would make delegate swear instructions, swear to not change certain things. So in North Carolina, for instance, in 1875, the legislature called a convention, but they specifically stipulated that delegates were not to interfere with suffrage requirements by imposing a property qualification. So you could imagine that as being a solution to that, which is to issue a limited convention call, which has happened historically. And that might be the solution going forward, that people realize that the Declaration of Rights and the fundamental structure’s going to stay the same, but we’re going to have a convention to reorganize the executive, or something like that.

Which, by the way, in North Carolina, we could use a reorganization of our executive because things keep getting shifted around between the auditor and the governor and the lieutenant governor, depending on which party is in power. One other thing I would add too is this idea of entrenching current majorities in the legislature to thwart ballot initiatives, that’s really an outgrowth of other phenomena that have happened in American history. So it’s actually been historically very common for legislatures or for constitutional conventions to try to really make it difficult to change the constitution. So I’ll give a couple of examples. Some constitutions historically have actually just straight up stipulated that there can be no change before a certain date. So that actually happened in Bleeding Kansas, before Kansas was admitted to a state. They had actually four constitutional conventions before they succeeded.

And two of those conventions actually said you can’t even change the constitution until a certain date. So that’s just a kind of blatant way to make it so that you can’t change it. But then legislatures historically, and conventions historically, have done all sorts of other things, including monkeying around with suffrage requirements, which is what I’m going to call a close cousin of ballot access, things that you can do, it’s just making it hard for some groups, but not others, to vote. So I think that this really has been something that’s been going on for 250 years, of some conventions trying to make it difficult. I know we’ve actually had discussions about partisan gerrymandering a lot. Even that has actually taken place with conventions historically, that legislatures will draw maps to elect constitutional convention delegates in a way to favor some parties, but not others. So that’s also been a problem.

Wilfred Codrington: And can I just follow up? You spoke about the fear of opening Pandora’s box. And that makes sense, people are afraid of changing the organic government, but when we amend the constitution, we do that too, right? I mean, individual amendments do change the way that the structural aspects or the officials interact with each other, their powers, what that means. Is that off? Is that just something that is not really understood? Is there a bigger fear? It seems to me that doing it the piecemeal way, you kind of can lead to incoherence.

Marcus Gadson: Yeah, I agree with that, by the way. I actually think Jonathan Marshfield has a really great article from the University of Florida about why reinvigorating constitutional conventions may actually be one of the solutions to many of the issues we have at the state level. I think that’s exactly right. I think citizen-sponsored initiatives are completely defensible as a matter of popular sovereignty. But I do think one side effect of them frequently has been a sort of incoherence to state constitutions, because you keep amending one year, and then you amend another year.

And again, I think it really comes down to, for a lot of people, they’re saying “Oh, well, this is abortion” or “This is criminal justice reform.” But if you have a bigger package of change that feels more far-reaching, I think what feels far-reaching can matter a lot too. And so, actually, the Michigan Supreme Court even has some case law built up about what counts as a revision of a state constitution and what counts as just an amendment of a constitution because that issue has happened in the Michigan courts, and it’s happened elsewhere.

And I think that revision piece, sort of the state of the case law, is that when you are making something that is a more fundamental shift in how the constitution is oriented, versus a smaller change, I think it’s that latter, where citizens feel like this is more of the revision that’s a fundamental change, that people feel really skeptical of, versus the smaller change that a state court might be less willing to invalidate as being a revision that you can’t do through a typical amendment process.

Wilfred Codrington: And Derek, I’m going to stay on conventions for a minute. Maybe you can talk about some of the upcoming conventions, or at least convention calls. I promised I’ll leave conventions after this, because there is the other way of amending the Constitution, but this is pretty fascinating.

Derek Clinger: Yeah, and so I mentioned one ballot measure I’m watching next year, which is this Missouri one on super majority requirements for initiatives. But another one that I’m watching that I think is still kind of flying under the radar is this question of whether, it’s an automatic convention call, a question of whether to hold a constitutional convention in Michigan. I think it’s the only one that’s going to be on the ballot next year. And these are usually pretty sleepy elections.

The last one that keeps getting mentioned, Rhode Island was the last one to approve one of these back in the mid-'80s. And so for the most part, I think they get rejected pretty handily. And that’s been the case in Michigan the last several times these questions have been submitted. They typically lose by two-to-one margins, three-to-one margins. The parties kind of come together to say, “We don’t want this.”

But what’s different about this question that’s going to be on the ballot next year is that the Republican legislative leaders have actually endorsed the convention call. They’ve thrown their support behind it. And I think that’s the first time in maybe modern history that’s happened in Michigan. And what they’ve said is they think the Constitution’s going to be getting too full of stuff. And so they want to have a convention to kind of revisit some of these measures. And they, excuse me, they’ve specifically mentioned the initiative that overhauled the state’s redistricting process. I think they mentioned marijuana being in the Constitution.

And then reporting has also suggested that they might also look at maybe the abortion rights measure or even the state’s long ban on the death penalty. So while you’re seeing the Republican leaders throw their support behind it, you’ve also seen an opposition PAC has formed, and it’s got some legit folks behind it. They’re already raising money. They’re doing a public education campaign. And so I think we’re actually going to see a pretty heated campaign in Michigan about whether or not the state should hold a constitutional convention next year.

Marcus Gadson: And I want to follow up with you, because that’s a little tricky to ask the Judge, given that it’s her own state. But do you know of anything in the past that has been sort of legally problematic with these convention calls, or sort of issues that have arisen that have been tricky, given how infrequent they are, or how they’ve only occurred since like 1983, we said, was Rhode Island’s last one. Are there any unique issues that arise facing conventions?

Derek Clinger: Yeah, I think Professor Gadson just highlighted, at least the ones that are coming to my mind, which is, oftentimes, you don’t really know what the rules are with these elections. I think in Michigan, they might actually be spelled out, in that I think a delegate will be elected from each legislative district, like each House and Senate district.

But otherwise, there’s no time limit on how long it could go. There’s no subject matter limit. They could propose an entirely new Constitution, or they could just propose individual amendments. And now these all would have to be approved by the voters. But I think the concern that Professor Gadson was just talking about is just, a lot of times, you don’t really know how it’s going to work, and you’re kind of figuring things out on the fly, which then can invite even gerrymandering to these districts sometimes.

Wilfred Codrington: I want to give you the opportunity to say something…

Hon. Elizabeth M. Welch: Yeah. Yeah.

Wilfred Codrington: Here, if you’d like. But I don’t want to…

Hon. Elizabeth M. Welch: Yeah, obviously.

Wilfred Codrington: …direct you.

Hon. Elizabeth M. Welch: I don’t know what could or couldn’t come to us. What I will say is, it’s every 16 years, it automatically goes on the ballot, yes or no, should there be a new convention? And Derek is absolutely right. It’s always been sort of a unified vote “no” world. So it is something different for the state. I don’t know yet how it’s going to play out. Next year is a big election year for the state. All the executives are term-limited out, our attorney general, governor, secretary of state. So those are big races. So I mean, obviously, other races too, but it will be a big year for our state. So I don’t know, I don’t know how that means it’ll shake out, but yeah, it’s certainly different that we now have a split in “yes” and “no.”

Marcus Gadson: Yes. And there are a number of states who do this. I know New York does this. New York did this not too long ago and also rejected it. So it is a common thing for these to come up. I’m going to go back to the amendments part of this, and not conventions. And I want to name a case, Moore v. North Carolina NAACP. Does that ring a bell for folks? So we spoke about the amending process and some of the ways that lawmakers have tried to circumvent this. Moore asked a different question, which was what power does the lawmakers have if those lawmakers might not be lawful themselves, if they’re not properly seated?

So in Moore, what we had was a legislature that was largely composed of lawmakers who came from racially gerrymandered districts. And this is in North Carolina. And in that case, the court said that, you know, “In trying to enact two specific amendments, you can’t do that, because there’s too many of you who come from these gerrymandered districts. And also the nature of what you’re doing” — one of them was about voter IDs — was to try to even further restrict the political process unconstitutionally. And so I wonder how to think about where judges come into this. And so you spoke about Mothering Justice, but I guess if we could step back and think more broadly, there seemed to be a lot of different ways that we can get amendments that don’t seem particularly legitimate. How does a court step into that, and particularly those courts where they’re appointed and not elected? So we kind of raised this counter-majoritarian problem. I’m going to leave this to you to start, to see where you can go, Judge. And maybe, Derek, as a former litigator, you can talk about how you might approach that.

Hon. Elizabeth M. Welch: So I guess… Could you reframe the question? (Laughs.)

Wilfred Codrington: Yeah so instead of lawmakers actively trying to frustrate the amendment process…

Hon. Elizabeth M. Welch: Yes.

Wilfred Codrington: It’s more trying to take on their own, right? More of the sovereign power.

Hon. Elizabeth M. Welch: Yes.

Wilfred Codrington: Including when they themselves aren’t, in this particular case, weren’t legally constituted.

Hon. Elizabeth M. Welch: Right. And so I can’t speak to, obviously, if something like that happened in Michigan, what my views would be. I mean, I will tell you, we’ve had an abundance of cases where people are — most of our cases are mandamus actions, asking the State Board of Canvassers to put something on the ballot. So that’s most of where things have gotten stuck in our state. And then they come to us asking for relief, mandamus relief, just asking the State Board of Canvassers to do their job, because they deadlock, there’s two Republicans and two Democrats. So deadlocking has become incredibly common now. And then we have to be the ones to tell them to put it on the ballot. And usually the challenge is something about, in the case of the reproductive amendments, the language was squished together. (Laughs.) Like there were a few things that, it was a printing thing, where it was printed big, it looked fine, but then when it got shrunk down to the ballot, they were all together. So yeah, there’s just been lots of things like that. So we haven’t had to deal with anything quite like that.

Wilfred Codrington: Yeah. This was a novel question, the court noted, right?

Hon. Elizabeth M. Welch: Yes.

Wilfred Codrington: And there was a change in the court, and so there’s a change in these outcomes here. But Derek, do you have anything to add?

Derek Clinger: Yeah, I think these types of cases present an opportunity for really powerful storytelling about state constitutions. You look at the text and structure of state constitutions, and start to finish, you see this, that they’re really meant and designed to put voters in the driver’s seat of state government. This is the democracy principle that Miriam Seifter was talking about yesterday. And I think the Moore case, initially, it’s even cited. And then I think a new court came on and reversed it. (Laughs.) But you look at this, and you look at, starting with the preamble, these documents are really all about the people. They’re not about the legislators. They’re trying to give power to the people. And so you can start with the text and structure, you can read it holistically.

The Moore decision, the first one was a great example of that, as was the Mothering Justice decision that Justice Welch mentioned earlier. But don’t stop there. You can also look to the history of these provisions. You can talk about — where did they come from. Another great example of this is a decision from the Utah Supreme Court last year, it’s called League of Women Voters of Utah v. Utah State Legislature, where there’s basically a question, it was an initiative-related question. But the court took a really interesting deep dive into the history of these provisions about the people’s right to abolish or amend their form of government. And they went all the way back to, I think, Ancient Greece, just exploring this right. And so I think cases like this really ask fundamental questions about the nature of government. And so I think there’s a really great opportunity to explore that and talk about it.

Hon. Elizabeth M. Welch: And I should note, these cases are closely divided on my court.

Wilfred Codrington: Right.

Hon. Elizabeth M. Welch: You know, they’re like four–three decisions. So there is a very strong alternative viewpoint on whether it is a revision or too substantial a change. So the independent redistricting commission, this is before I got to the court, there was a challenge to even get that on the ballot, on the grounds that it was going to be a massive revision, too big of a revision, and shouldn’t go on the ballot. The majority, again a four–three decision, found that it can go on the ballot, that it was one small component of what the legislature historically had done. And at that point then it went on the ballot, where it had overwhelming support when it passed.

Wilfred Codrington: And why are these cases so close?

Hon. Elizabeth M. Welch: I mean, I think there are justices with very different viewpoints on sort of how expansive that direct democracy principle is. I tend to be a pretty expansive read on it. I think it’s a really, really fundamental part of our constitution. It’s a unique thing that we have that is not at the federal level. I think it’s an incredibly important right. And I’ve written a lot about it. And so for me, that’s my view. Others view it more narrowly, maybe taking a more textual view of the language, and viewing the right just more narrowly.

Wilfred Codrington: Sure. I’m going to mention this number one more time for the text, that’s 971–801–0271. And with that, I’m going to go to Professor Gadson again. You mentioned these different waves of convention. So we’re back to conventions. And we were kind of speaking about some of the promises, or at least I was trying to allude to them in my last question, that they have a potential to kind of bring more coherence to the document in a way that amendments can’t. But there are darker sides in convention history. You mentioned the ones that came after the Civil War. Maybe you can talk a little bit about those two sets of conventions, the ones right after the war and the ones that came following that, to kind of tease out some of the other side.

Marcus Gadson: Absolutely. So I’ll talk generally and then give everybody a specific example. So after the Civil War, everybody learns in law school that you have a 13th, 14th, and 15th Amendment. One of the things Congress also does is it forces southern states to write new constitutions and have those constitutions approved by Congress in order to be readmitted to the Union. And it requires that Black men are allowed to vote for delegates and that those new constitutions provide for Black suffrage. And that is actually an enormous insertion into what is normally a state prerogative, writing its own Constitution. But I think it’s very interesting that when you look at the historical record, many of the radical Republicans actually cited the Guarantee Clause of the U.S. Constitution, so Article IV, Section 4.

And the position they took was that southern states that are excluding former slaves from suffrage are not Republican governments. And so they have power to require them to be Republican governments. And so these new constitutional conventions that happen in Southern states after the Civil War are just extraordinary moments in American history. And the reason why is because, in some states, you’re actually having formerly enslaved people writing new constitutions for states. And this is something that people at the time fully understood was an innovation in American history. And so you look at New York newspapers, Massachusetts newspapers, they’re absolutely covering what’s going on in Southern constitutional conventions.

And they think it’s newsworthy that you have Black men and former slaves at those constitutional conventions. Those constitutions are actually highly progressive documents for their time. In Southern states, typically, they’re providing for public education for the first time, and they are providing for Black suffrage. Many of them actually refuse to ban interracial marriage. And so they’re actually highly progressive, and a really important caveat, which is that women’s suffrage is actually debated at some of these conventions, and it’s rejected. And I think, to their shame, in some cases, actually, delegates are laughing at women’s suffrage advocates at these conventions. So it’s certainly not a perfect moment in American history. But that said, it is a high watermark in the move for racial equality, I think.

And so just 25 years later, as white supremacists are taking down Southern governments, we get another wave of constitutional revision. And those conventions in Southern states are usually called with the explicit purpose of excluding Black men from political life. That is actually the reason why they are calling the convention. And I think it’s awkward, because typically we think of the late 1890s and the early 20th century, that’s the Progressive Era, and that’s true, because we’re getting things like the 16th Amendment and the 17th Amendment. But in southern states, it’s not really progress, it’s actually retrenchment that we’re dealing with in those constitutional conventions.

And so here’s a specific example I like to give, it’s South Carolina. At the end of the Civil War, South Carolina actually holds America’s only majority Black constitutional convention in American history. So actually a majority of the delegates are Black and about half of them are former slaves. And so just let that sink in for a moment. Three years after slavery you could have a constitutional convention that’s majority Black. And again, that absolutely was seen as newsworthy at the time, and it absolutely was something that was remarked upon. Two of the delegates to that were named William Whipper and then one of them is a little more famous, his name is Robert Smalls.

Robert Smalls was saving for his freedom from his master, but he couldn’t save enough money to bring his wife and his children with him. So he did the logical thing, which is he stole a Confederate war vessel and sailed it to Union lines and managed to take down the sails right before a Union battery started opening fire on him. And he got a bounty from the Union Army for that and ended up recruiting Black soldiers.

Well, the next part of his story is he’s a constitutional convention delegate in 1868, before going to Congress and becoming, really, one of the first Black political bosses in American life. In 1895, white supremacists, after overthrowing the Reconstruction Republican government, they call a new convention. And one of the pleas comes from a man by the name of “Pitchfork Ben” Tillman. And he pleads with white delegates, “Let us unite together as brothers, so that we don’t have to appeal to Black Americans and Black South Carolinians.”

And I mentioned Wayne Smalls and Wayne Whipper because they were two of the six Black delegates that attended in 1895, who had also been at the 1868 convention. So 27 years later, they’re actually attending the 1895 convention, and they’re defending the 1868 Constitution and their vision. And one of the big tragedies for me is William Whipper actually says he’s got asthma at this point, it’s difficult for him to talk. He actually says that, “I’ve been called the ‘N’ word on the convention floor by white delegates.”

And that’s particularly ironic because actually, in 1868, they considered banning the “N” word. Literally, they had a debate in the 1868 convention about banning the “N” word. And here he is, being called that. And then Robert Smalls makes an astounding claim. He says over 50,000 Black Americans had been lynched in the South since reconstruction. And he closes with a warning, “If you keep doing this to us, Black South Carolinians are going to leave.” And then we get the great migration to Northern states, and that’s going to reshape American politics in ways that we’re still living with today. And I just think that’s a fascinating bookend to that era of constitutional progress. A majority Black convention in South Carolina and then only six Black delegates a few years later, two of whom attended the 1868 convention, and they’re being called racial slurs on the floor.

Wilfred Codrington: I’ll just take a minute to let that sink in. Can we talk about some stuff that’s happening today, not necessarily in your state, but we’re seeing amendments around the country. We spoke a lot about gerrymandering, we had the Prop. 50. I wonder how, I guess, retaliatory amendments sort of fit into all of this. So it’s not against people necessarily in their state, but sort of thinking about, well, one state, this is our system of federalism, right? We can sometimes cooperate, sometimes we’re competing. How do we think about amendments in view of the fact that they’re in response to something outside of the state, trying to either correct some wrong or make some right? Does that figure into any sort of argument about their legitimacy, specifically for the people in the state? Is that something that should even be considered?

Hon. Elizabeth M. Welch: I mean, I will tell you, we are looking at just what’s in our state. So, and the challenge, I mean, we have, like you talked about, the redistricting commission. So that did get on the ballot, it overwhelmingly passed. And then once it was passed, and then once the lines got drawn, the commission had to do all its work out in the open. That’s part of the way it works. And it’s got, an equal number of people identifying as Republican, people identifying as Democrat, and people identifying as Independents. Thirteen members, literally, basically drawn from a hat. They have to learn how to do this. It was fascinating. I know Derek probably watched a lot of those. Like watching them do their work in the open, it was fascinating.

But there were lots of challenges, lots of lawsuits. One to the actual end result, where there was a challenge coming out of Detroit that sort of layered in the consideration of communities, which is one that they had all these criteria they had to consider, and then sort of a Voting Rights Act violation layered in on top of that. So, and that was another one, that was four–three. We did allow the lines to stay in place. There was a debate over whether more evidence should be gathered or not. And we let the lines stay in place.

There was another one, another challenge, where I was actually in the dissent on this, about whether they have a right to attorney-client privilege. I found they did. Again, it’s not the document — what the voters voted on is silent on that. So you could read it as well, it’s not in there, or you could read it as every entity usually has a right to attorney-client privilege. So I cited more, I was in the dissent on that, that I believed they had a right to attorney-client privilege, but I did not prevail on that. So my view did not prevail.

So again, we’re working very much within the confines of just our state and what is before us. It’s not to say people maybe don’t throw in things that could impact from the outside. But I would say, so far, the issues I’ve looked at, it’s mostly just been insular to Michigan.

Wilfred Codrington: Any parallels, Derek?

Derek Clinger: Yeah, I’m trying to think of examples. It’s such an interesting question. I would feel like the judges and justices reviewing the question would keep the analysis to their own court. But I would also imagine that the parties bringing the suits are absolutely going to make that case, just to try to build the narrative and talk about what’s happening, because it is hard to… You can’t really divorce the law from reality sometimes. So I would imagine that makes it in at least, certainly to the briefs. And I guess what effect that has on the decision-makers, I don’t know.

Hon. Elizabeth M. Welch: I will say that the redistricting challenges to the final lines, there was a companion federal case, and they did eventually find that the Voting Rights Act required some redrawing of one or two of the districts. I can’t remember. But yeah, they were using both forums in that particular litigation.

Wilfred Codrington: May I ask you just one more question, probably before we get to the Q&A? Do you think that there’s a paradox in sort of the judge’s role here, particularly when the people pass an amendment and if, even more, that amendment is to undo something that the court did, right? Let’s say you see a problem with an amendment. This seems to be what the people want. There’s either technical or substantive problem, but that amendment was passed to undo something you and your colleagues did.

Hon. Elizabeth M. Welch: Yeah, it could be. I’m thinking of most of the things that we’ve done are things that more what the legislature needs to do. So, and maybe people are upset that the legislature hasn’t taken something up, which is why this direct democracy right exists in the first place. There are things that maybe, for a variety of reasons, the legislature doesn’t want to touch something, but it turns out the populace thinks it’s a good idea. So, but it’s an interesting point. We’ve got the redistricting commission, we have original jurisdiction over that as a court. So it doesn’t start in the lower courts. They basically file with us. That’s what the voters voted on. So it’s an interesting position we’re in, because we’re not a trial court. So we now have this court of original jurisdiction. So how do we handle that?

Hon. Elizabeth M. Welch: And that was something that sort of did come up in some of the cases. And, you know, we sort of managed it. We’ve only done it once so far. So I guess we’ll try again, and after the next redistricting, whenever that happens. But the constitution of Michigan is pretty clear when it’s supposed to happen. But it’s always interesting when you become the court of original jurisdiction. It’s a different role for an appellate court. Yeah, normally, mostly, if you’re suing the State of Michigan, we have a court of claims. It starts there, you know, it goes to the court of appeals, and then it comes to us. So when something comes directly to us, often, on very tight timelines, which is the nature of all of our mandamus actions, all of these ballot challenges to like the mandamus actions for the board of state canvassers, it is incredibly, incredibly tight timelines, because this stuff has to get on the ballot. Ballots are getting printed within days often. So we are not sleeping a lot for a few weeks. Every election year, we just know, whether it’s ballot initiatives or candidates, or whatever it is, we know that we’re going to be very busy. That’s just our new reality.

Wilfred Codrington: Well, I will ask the first question from the audience, which is, when a text is unclear, and judges turn to intent, what sort of sources are appropriate to review?

Hon. Elizabeth M. Welch: Do you want me to go? (Laughs.)

Derek Clinger: I’m curious what your thoughts are on my thoughts. (Laughs.)

Marcus Gadson: I have thoughts too, so.

Hon. Elizabeth M. Welch: Yeah, so, okay. That’s a good question. Right, so like I talked about, sort of the moment in time for ballot initiatives or amendments, we certainly have cited news stories, absolutely. Again, that’s not going to necessarily get to the text, but maybe there’s something bigger about purpose, intent, that it’s helping inform that. I’m just thinking. We have certainly, I mean, again, this is stuff that a lot of Miriam [Seifter] and her team have talked about, other states having similar provisions, less about amendments, but more the sort of stuff that’s in the 1963 constitution, that’s been cut and pasted from other constitutions. And there is a lot of similarity. I think New York’s got cut and pasted for a lot of people, so, or a lot of states. So certainly, we have definitely looked at other states, but not always. Some have chosen to lockstep. And we’ve said, “No, we’re not going to do that,” in some cases. So those sort of come to mind immediately.

Oh, our constitutional convention. Yeah. We have pretty good records of the 1963 convention. So if we’re talking about something that’s not one of the newer amendments, we absolutely cite that history, quite a bit. In fact, the Mothering Justice (laughs) opinion, there was dueling… that was the sole adopt and amend, if you can amend it after you’ve adopted it. The Constitution of Michigan has three alternatives. If you go out to the voters and get petition signatures, you have to get hundreds of thousands of signatures, 8 or 10 percent of the number of people who voted for the governor in the prior election.

And then you present it to the legislature and say, “Can you please put this on the ballot?” They have an option for initiatives, statutes, to either say, “Yeah, we agree with you. This is a great idea. Adopt it.” Or the second one is they can reject it, but it still has to go on the ballot, or they can offer an alternative, and then put two dueling versions on the ballot. The legislature took a fourth option, which, they adopted it, and then, in lame duck, amended it. And that’s what we said they could not do. But we got into a bit the constitutional convention’s history and the debate on this. And I will tell you both sides used the convention, I think, in their opinions to say, “It supports me,” “No, it supports me.” So tough issue. But yeah, so we did definitely use the convention.

Wilfred Codrington: Derek?

Derek Clinger: Yeah, and this is indirectly a question for Justice Welch, but I’ll phrase it. When I was a litigator, what I would use, and specifically with citizen-initiated amendments, when you’re trying to get at the purpose, or maybe how voters understood this when they approved it, there are some other extra-textual sources you could consider looking to, like the ballot language, which is just generally a summary of what the measure is. So I think in theory, that should hopefully represent how the voters understood this when they went into the ballot box and said yes or no. But that’s kind of a question.

And I know, I think that’s divisive among some judges, about whether or not that’s a reliable source. Also, information, and voter information pamphlets that are put out by the state oftentimes, you can look at these, those will summarize the ballot measures. So there might be another source of trying to find how the voters understand this.

But also, and probably the trickiest one, would be campaign materials. When you maybe look at statements made by the campaigns, maybe on a website. I’ve seen some judicial opinion site campaign websites to try to understand the scope of amendments. But I know there’s also a lot of caution with using all of these sources. And so I’m curious what you think about using any of those sources, Justice Welch?

Hon. Elizabeth M. Welch: So I think it would depend. Obviously, it would depend on what it is we’re trying to interpret, right? So if there’s sort of an ambiguity, and we’re trying to get to voter intent, what it is people were voting on, I suppose it could be helpful. I would guess the other side has a different narrative, maybe, maybe. So I certainly know some of my colleagues would definitely frown upon that. They would say that’s just beyond the scope of what we should be looking at. So I certainly think it could be relevant.

Wilfred Codrington: Another question here is, can you discuss the role of PACs and big money in initiatives, including advertising and social media? They give an example of someone, Ken Griffin, pouring money into the Illinois income tax initiative, but I don’t think you’re limited to discussing that. Yeah, how do you sort of deal with the era of big money and fast media in these campaigns? You mentioned the Michigan ballot convention question, that’s going to come up. You have support, I suspect there’s going to be money behind there. And I don’t want to put you, again…

Hon. Elizabeth M. Welch: No.

Wilfred Codrington: In a weird position here, so, when we talk about that…

Hon. Elizabeth M. Welch: It’s not. It’s just our political reality now, right? It’s whether for those of us who run for office, that’s the reality now of what’s happened. Whether someone is supporting me or not supporting me, there’s just a lot of money in these races now that is no different with the initiatives. They have become huge, huge, like well-funded machines, they just have, not all of them. It was really interesting, the independent redistricting commissions sort of started out as, they’re actually, the League of Women Voters had been working on it for a very long time. And then post-2016, it’s a great story. One gal, she just posted on Facebook like, “Hey, is anyone interested in this?” so, when we talk about that.

And then she got all this people responding and sharing, and whatever. So it really did start that way, and then it really grew. I don’t think their organizers were paid. I could be wrong on that, but most of the time, these campaigns are having to do paid organizers to reach that vote threshold that’s needed, because it’s so huge. That campaign was incredibly grassroots and had great success once it got on the ballot and was passed. So that’s an interesting sort of observation. But yes, there’s no doubt, the money has become big. I think that’s true everywhere. Obviously, it doesn’t impact the cases when they come to us. It might mean that there’s a well-funded litigation strategy so, when we talk about that.

Hon. Elizabeth M. Welch: That is part of it. So it’s coming to us because people can afford to litigate it. So, but obviously, that doesn’t impact the view on the case.

Wilfred Codrington: Professor Gadson, Derek, do you want to add anything about money and politics, fast media in this endeavor?

Marcus Gadson: Now, just to Justice Welch, I don’t envy you (Panelists laughing.) for having to deal with all of that. (Panelists and audience laughing.)

Derek Clinger: I have a few additional thoughts. I mean, if you think about our modern campaign finance system and how there are pretty few restrictions left, I would say there are slightly fewer restrictions on campaign finance for ballot measures. Going back to the 1970s, there’s been U.S. Supreme Court case law saying you can’t really pose any sort of contribution limits on these. You can’t impose source limits on these types of ballot measures. And yes, that’s led to these being expensive campaigns. And especially getting on the ballot is a very expensive process. It’s very difficult to collect hundreds of thousands of signatures in the state without money. That’s a reality.

Derek Clinger: I do think when you impose these additional restrictions on the initiative process, it makes it even more expensive, and it becomes this kind of loop, where then the folks who are critical of the process then point to it and say, “Oh my. Look at all this money that’s being spent on it.” And it’s, well, it just becomes kind of a self-fulfilling prophecy. When you make the process more expensive, that’s just what’s going to happen.

Wilfred Codrington: Here’s an interesting question, does originalism seem more appealing under state constitutional law, given that states can amend their constitutions much more easily?

Hon. Elizabeth M. Welch: That’s a great question. So for me, it’s probably that it’s easier to discern original intent when, first of all, like the 1963 constitution, I know it sounds like a long time ago to a lot of you, but for some of us, it was seven years before I was born, there were delegates who are still alive. And it wasn’t that long ago. The issues are modern enough that we understand them. So it’s much easier to figure out what was going on and what was intended. So I mean, so in some ways, I think that’s a really good point, because you can discern what’s going on more easily. And obviously, voters can change things if they want. So that’s just a really interesting point. That’s a good one. I don’t know the answer.

Wilfred Codrington: Yeah.

Hon. Elizabeth M. Welch: Yeah, I think there’s some validity to that point, that when you look at how we’re interpreting, it’s much closer in time. So one of the critiques, obviously, of originalism, going back to the founding constitutional documents, and even the amendments, is the world has changed, multiracial democracy, all the key players weren’t at the table. Obviously, it’s different, especially for initiatives, which is like the ultimate form of vast democracy.

Wilfred Codrington: Yeah, I think we highlighted two, or I guess three, of the really important parts about originalism, or at least the arguments against it. One is the history part, right? It’s hard to know this history, it’s indeterminate often, the evidence is not there. Another part is the sort of democratic illegitimacy point, which is that we should be amending the constitution if we want to change the constitution. And state constitutions kind of make it easier. I think the other part is just sort of the process-type questions, right? And you mentioned who’s at the table, that sort of thing. That becomes very different, right? Now, there are ways you can still stymie any of those things, even in modern times. But I think that there’s something there. Derek, do you have thoughts?

Derek Clinger: I was just thinking of specific examples. We’ve had instances where [courts] are deciding cases where the people who wrote the amendment are still alive. (Laughs.) And they will file amicus briefs saying, “No, this is what I meant.”

Hon. Elizabeth M. Welch: Yeah.

Wilfred Codrington: Is that persuasive?

Hon. Elizabeth M. Welch: I think it’s helpful. I mean, that’s something, some may disagree, but yeah, that actually happens with legislative amendments and stuff too. (Laughs.) We’ll get documents like that too, amicus briefs. So actually, I think it’s helpful. Obviously, there’s probably an opposing viewpoint, and maybe, again, this is what’s hard, right? Especially with legislatures, where it’s like, well, one group thought that, but the other sure didn’t, you know? So they can probably find… But I think it’s important information.

Wilfred Codrington: Let me ask kind of a flip of that question, which is, what’s lost if we’re not using the amendment power under state constitutions? And so this kind of ties to the point about, we don’t amend the federal Constitution. Some people believe that the reason why we have such veneration for the federal Constitution, it’s because we don’t amend it, and it stays the same. And so things that don’t change, you kind of hold it in higher regard. I’m not sure if that’s really what’s happening, or if it’s going the other way. We have this veneration, and so we don’t change it, and that might be what’s happening. But I guess how does this play out in states where you can change it?

Hon. Elizabeth M. Welch: Yeah, so I can give an interesting example on that. There was litigation challenging abortion restrictions after Dobbs, we had a zombie law that came back alive, and there was litigation about that. And it was using the state constitution and fundamental rights. And there were arguments that were working their way through the courts. And there was a stay put in place, so that abortion did remain legal. And parallel to that, there was the amendment process happening. So that case, obviously, the voters came out, voted, approved that issue, the voters decided. So in some ways… so from that standpoint, I always, I talk to people from other states, and I’ll be like, “Oh, right. You guys don’t have a direct democracy process.” They just don’t have it. And in that sense, people, I think, in Michigan forget that that’s a pretty incredible right that you have in our state. It’s a big deal. And I remind people about it all the time. So from that standpoint, it’s like the people decided, the courts didn’t have to get involved.

Wilfred Codrington: Professor Gadson, any thoughts about that, what’s lost when state constitutions aren’t amended, whether through convention, initiative, otherwise?

Marcus Gadson: I agree with Justice Welch’s comments, that one practical effect is you ratchet up pressure on courts. And so I think that is a partial explanation for why judicial elections in some states are so high stakes, because that is a practical way of either changing or thwarting change for a constitution if you can’t actually do it otherwise. Here’s what I’ll tell you I think is lost. I think constitution-making is actually a chance for us as a state or us as Americans to define who we areand think about what are the basic principles that bind us together, and what are some of our shared dreams for a society.

And so I think it’s very common for students to think of constitutions as being sets of rules, on viewpoint discrimination or tiers of scrutiny for the 14th Amendment. But what I try to push them to see is that, actually, constitutions are much more than that. They are expressions of what our dreams are as a country and as a state. And by not amending constitutions and by not having constitutional conventions, I think we’re really missing out on that chance for us as a state to, in a really coherent, logical way, say, “What does it mean to be a North Carolinian or an Arizonan in 2025?” And I think that could actually be a really interesting way that we take on those questions. Next year we’re going to turn 250 as a country. I think that that absolutely is a conversation people ought to be having, how ought we reform our state constitutions to take into account who we aspire to be as a country?

Wilfred Codrington: So constitutions as communicative documents, expressing our values, expressing our culture. So it’s important to change as we change. I think…

Marcus Gadson: Yeah, I think, most preambles, a lot of students skip right past it. You know, “We the People, to form a more perfect Union,” and state constitutions have counterparts to those, but those preambles are telling you that they had dreams when they wrote those documents.

Wilfred Codrington: Great. So Illinois is one of the states that has a convention to voters every 20 years, or puts a question to voters every 20 years. If you had two to three years to prepare for a state constitutional convention, what would you do? I’m not sure, that’s a broad question, (Panelists laughing.) and I’m not sure who that’s meant for, but I will just toss it out there.

Derek Clinger: I suppose if you’ve got an issue in mind, maybe you’ve got to get organizing. There’s going to be elections. And if this is something you want to push, get going. (Laughs.) You know, I just wrote a piece about the history of Ohio’s initiative power. And looking into it, there was like a 10-year-long campaign in the works, building up to the state’s 1912 constitutional convention, organized by different interest groups, who all wanted the initiative power.

And they just started organizing. They met each other, they went around the state, and they had it so that basically, there were competing slates of, it was by the time the convention came around and there were elections to hold, elections for the delegates, there were whole slates formed, where basically, everybody had a position on the initiative and referendum. I think something like two-thirds or three-fourths of the elected delegates had publicly said they endorsed the initiative going into the convention. So it’s just a product of years and years of organizing. So I guess, if you’ve got something in mind, I would say organize.

Hon. Elizabeth M. Welch: Yeah. And in my prior life, I was involved in issue advocacy in a lot of different spaces. And it is just organizing, and it’s finding key constituency groups who have their own interest in the issue, and bringing those folks together. I think that’s the only way you could get it done.

Wilfred Codrington: I have a question about Gen Z. Okay. As Gen Z… (Laughs.)

Hon. Elizabeth M. Welch: I have Gen Z children. So it’s good, I’m an expert. (Panelists laughing.)

Wilfred Codrington: Want this one? As Gen Z becomes more politically active, how might they use their digital organizing skills, grassroots efforts, etc. to drive initiatives and state constitutional conventions? And what issues do you think Gen Z might be prioritizing? I can’t speak to that.

Hon. Elizabeth M. Welch: Hmm. That’s interesting. There’s a lot of interesting coverage on the elections this past week. And also just how, I don’t know if anybody else listens to Ezra Klein, but I was listening to a podcast, and he was talking about how local races now have become national. Like everybody, when you get news now, because of the dearth of local news, people get national sources of news now.

So now, it used to be you could make a race really local and really focus on local issues, which, of course, the best electeds do that. But they’re talking about how that’s getting harder because the voters maybe, you’re trying to make it about your local issues that are very unique to your community, often very nonpartisan, and how it’s gotten harder because of the algorithm, which, I firmly believe the algorithm is really hard. It’s just a challenge for all of us to figure out because of the divisiveness it’s created.

Based on my vast experience with Gen Z, no, my kids are pretty, (Panelists laugh.) I mean, they grew up in a household where two lawyers and lots of, talk of politics at night, and all that, they grew up in that, but they’re actually pretty informed. My son is in sales and lives in Denver, but he’s pretty hooked in, granted, it’s those snippets. So when I’ve talked to people, they’re like, “Yes,” trying to get them to maybe dive a little deeper beyond, the 30-second video or whatever.

But so information is getting to them. I do worry about the algorithm, so I talk to them about, “You’ve got to read opposite viewpoints. You’ve got to really, really try. You have to work at it a little bit,” right? So it’s like creating that digital literacy, which, I’m sure many of you know this, but you really have to look for… I read various viewpoints. I get up early in the morning, I spend about 90 minutes just reading what’s going on in my state and nationally. And I work very hard to read alternative viewpoints, because I just think it’s incredibly important, maybe opinion columnists who I know I don’t necessarily align with ideologically, and yet, they have some wise things to say, right? So and also just understanding that.

So I do think that one of their… I’m a big believer, the next generation figures it out. So I’m not someone who’s like, “Oh, well, when back in the day, well, we did it.” I do it a little bit, (Panelists laughing.) my kids will definitely say I do it some. But, we worry, right? Like we do worry about, there’s a lot that Gen Z has coming at them, right? They’re living at a really interesting time. The pandemic, they all lived through, when they were in their formative years, my kids were in college, it was hard. But they’ve turned into these remarkable humans who are deeply passionate about their community and fellow human beings. And I’ve seen that with their friends. I mean, I’m pretty amazed at the work they’re doing, and I am amazed.

I think we know the digital tools can do a lot of bad things, but we know they can do a lot of good things too. Just for the future of your profession and when you become lawyers, there’s a lot of great things it’s going to be able to do, and there’s also going to be things that aren’t great that we’re going to have to figure out. I think they’re going to do great.

Wilfred Codrington: I’m going to toss out one last question, because we’re close to time. And this goes to the idea of constitutions communicating values. And I’ll start with you, Professor Gadson, one, because you’re on the screen, but also because you spoke about conventions. Arkansas has a very long constitution, Alabama, sorry. And it also had a pretty racist constitution. And this goes back to that same era that you were talking about, right? Where you had black-and-tan conventions, I guess they’re called, replaced by these lily-white ones, that were trying to impose a Jim Crow regime.

And the result of that is you have provisions of the constitution that were deeply problematic in terms of the language itself, much less the message that it was sending. And that was put up to the voters, whether they wanted to change their constitution, for a couple reasons. One, because the constitution was impossibly long, one of the longest in the world, not just in the United States. And so there was a consolidation or reconsolidation process that’s proposed, but also to get rid of some of that language, because the language was deeply problematic. And I wonder how that rings to you, right? I think that there can be two things going on here. One is, yes, we want to get rid of these terrible stains in our history, including using the constitutive power to do that.

Wilfred Codrington: But on the other hand, especially in times like today, it could feel like you’re erasing history, right? Where we want to sort of just whitewash the things that happened in the past. And so I wonder how you think about that? And that’s probably a heavy question to end on, but, that’s what we’ll do. (Panelists and audience laughing.)

Marcus Gadson: Sure. So I think one of the questions that you’ve raised actually is, fundamentally, are there state constitutions in this country that don’t deserve respect? Which I know, probably, for a Justice Welch, that’s probably not a question you like that much, right? (Panelists laugh.) Does your state constitution deserve respect? But you look at some state constitutions, South Carolina still has a literacy test in the text of its state constitution. It still refuses to ban slavery today in 2025. And so we have state constitutions that have relics of an era. And I think you would forgive a Black South Carolinian for saying, “I have trouble respecting the South Carolina Constitution right now. I just do, when it refuses to do the bare minimum and ban slavery, or have a literacy test.”

But that’s also a broader principle. There are state constitutions that still ban gay marriage. There are state constitutions that still actually ban atheists from office. And so I think you have a lot of what I’ll call zombie historical provisions still in state constitutions. And here’s my worry, I’m always telling my civil procedure students, probably to their chagrin at this point, that they need to take state constitutional law. But one of the things I worry about a little bit is that when they read state constitutions, they’re going to see literacy tests still in the North Carolina Constitution. They’re going to see gay marriage bans.

And I do worry about them saying, “I don’t respect state constitutions, because they still have this.” And that even leaves aside, which, you raised another point, Wilfred, is the length, that some of these are just so darn long, it’s hard for you to even keep track of what’s in a constitution. How do you respect something that’s the size of War and Peace or something like that? That’s that hard to actually get through.

But here’s how I would turn it into something positive, state constitutions still have, many times, bad provisions in them. Let’s turn that into a redemptive story, where a new generation of Americans got involved, and they finally fixed problems in state constitutions. I personally think it would be really great in 2026 in North Carolina if there were a major push to get rid of our literacy test provision. And we’re so intensely polarized and divided as a country, but I would just love it if that’s something that, across the political spectrum, people could look themselves in the eyes and say, “It’s really time to relegate that to the dustbin of history. I’m a Republican, you’re a Democrat, but can we at least agree on non-literacy tests in the text of our state constitution?” So this really is an opportunity for us actually to get together as a country, form a consensus, and at least get rid of some bad provisions. If we can’t agree on new good provisions, then surely we can at least agree on taking out bad ones.

Wilfred Codrington: Well, those are wise words to end this panel. And so I want to thank Judge Welch, Derek Clinger, and Professor Gadson for joining us today and closing this out. Thank you. Thanks all. (Audience applauding.)

Kasia Wolfkot: Thank you so much. And is Lily Pieper here? Great. Lily is the senior symposium editor at the Northwestern Law Review. And she’s just going to give some closing remarks. Don’t forget to sign out for CLE credit. And there will be a reception right in the lobby after this.

Lily Pieper: Thank you all so much. My name is Lily Pieper, I’m the senior symposium editor for the law review. I know I’m the only thing standing between you and a reception, so I will be brief, but I did just want to take a moment to reflect on the symposium.

Over a year ago, when we started working on this, I think that we knew it would be timely and relevant, but I don’t think that we could have anticipated or known just how crucial it would be at this moment in time. Over the last two days, we have heard how this moment presents an enormous opportunity and challenge and struggle. I attended the reproductive rights breakout session yesterday. And I just want to paraphrase something that Sue Frietsche said, because I think it so perfectly encapsulates what the symposium has shown. She said something along the lines of, “Now is not the time for despair, despite the challenge and the struggle. Now is the time and the opportunity for us to build the democracy that we deserve.” I hope that the past two days have highlighted for you the opportunities that each of us has to do just that.

I’d like us to end where we began, and that’s in offering thanks to the Brennan Center and the State Court Report. I don’t think that I’ll ever have the words to thank you enough for everything that you’ve done to make this a reality, to Alicia and Susan and Terrance and Jamie, genuinely thank you for everything. To Dean Clopton and Professor Rodriguez, thank you for your leadership and your vision for the symposium. To the Law Review and May and Giselle, without whom none of this would be possible. To all of our members and our volunteers, thank you for your support. To our speakers, who have so brilliantly and thoughtfully offered their contributions to the symposium. And to each of you. Over the past two days, hundreds have joined us, either here in Chicago or across the nation on the live stream. And we are so glad that you did. I hope that this symposium has been as meaningful and informative for you as it has been for me. And on behalf of the Northwestern University Law Review, thank you for being a part of it. (Audience applauding.)