Malleable Constitutions: Reflections on State Constitutional Reform

While the U.S. Constitution is difficult to amend, most states constitutions are much easier to amend. This essay explores the implications of easily amended constitutions on the nature and quality of government. Theoretically, malleable constitutions can be more innovative and responsive to changes in society; however, they also are more likely to become another venue in which interest-group policy conflicts are played out and less likely to reflect serious deliberation among both government officials and voters. Highly stable constitutions can provide more durable protection of individual rights and other benefits based on the stability of government institutions. Our review of the experiences of state governance under malleable constitutions concludes that states can capture the benefits of both stability and malleability, and thereby improve their quality of constitutional governance, by establishing a brighter line between easy to accomplish amendments and more difficult to accomplish constitutional revisions and replacements. In particular, we recommend that constitutional provisions that establish individual political and human rights should be changed only through the revision process, while provisions about the details of governance institutions should be subject to change by an easier amendment process.