State Constitutional Amendment Processes and the Safeguards of American Federalism

Federalism scholars have studied the range of ways that state interests are advanced in the American federalism system, including through intergovernmental lobbying, federal lawsuits, state statutes, and state non-participation in federal programs. State constitutional law scholars, meanwhile, have noted the ways that state court rulings can provide greater protection for rights than at the federal level. I call attention to another way that state interests are advanced in the federal system and with increasing frequency: through state constitutional amendment processes. I also analyze the conditions under which processes can be effective in comparison with traditional mechanisms of state influence.

In a number of cases, constitutional amendment processes are serving a role that can be played just as effectively by traditional mechanisms of state influence, and there is no reason why amendment processes are any more effective than these mechanisms. But in other instances, state constitutional amendment processes are more effective than alternative mechanisms or are effectively supplementing these other mechanisms.