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ROBERT F. WILLIAMS*
I
n his important article 2 Professor Jonathan Marshfield (full
disclosure—a former student of mine) builds on his evolving
project, providing fresh analysis of the processes and effect of state
constitutional change. 3 Marshfield has emerged as among one of the most,
if not the most, important and prolific of the young scholars working on
both American state constitutionalism and comparative subnational
constitutionalism. 4 Marshfield’s project on American state constitutional
* Distinguished Professor of Law, Rutgers University School of Law; Director, Center for
State Constitutional Studies.
1 Richard Albert, How Unwritten Constitutional Norms Change Written Constitutions, 38
DUBLIN U. L.J. 387, 388–89 (2015) [hereinafter Norms]; see also Richard Albert, Constitutional
Disuse or Desuetude: The Case of Article V, 94 B.U. L. REV. 1029, 1063 (2014) [hereinafter Disuse]
(“An [i]nformal amendment occurs most frequently by judicial interpretation.”).
2 Jonathan L. Marshfield, Courts and Informal Constitutional Change in the States, 51 NEW
543
544 New England Law Review [Vol. 51|3
6 Marshfield, supra note 2, at 480 (“There is a perception that because informal amendment
under the Federal Constitution is caused by Article V’s rigidity, frequent formal amendment
under state constitutions limits informal processes in the states. Consequently, although
scholars have filled volumes studying formal amendment processes in the states, there has
been very little study of other forms of state constitutional change.”(emphasis added)
(footnotes omitted)).
7 See generally G. Alan Tarr & Robert F. Williams, Getting from Here to There: Twenty-first
Century Mechanisms and Opportunities in State Constitutional Reform, 36 RUTGERS L.J. 1075
(2005). But see Norms, supra note 1, at 388–89; Disuse, supra note 1, at 1063.
8 Marshfield, supra note 2, at 484. Marshfield states:
Overruling decisions are a meaningful, but admittedly imperfect
measure, of informal constitutional change by courts. They are imperfect
in that they are likely under-inclusive of instances where courts
contributed to informal amendment. Courts can use judicial review to
bring about significant constitutional change without explicitly
overruling prior precedent.
Marshfield, supra note 2, at 485–86 (footnotes omitted). A leading example of this latter form
of informal state constitutional change through judicial review would be the limiting
interpretations of California’s Proposition 13. See, e.g., City and County of San Francisco v.
Farrell, 648 P.2d 935 (Cal. 1982); Richard Briffault, Foreword: The Disfavored Constitution: State
Fiscal Limits and State Constitutional Law, 34 RUTGERS L.J. 907 (2003).
Of course, sometimes these forms of informal state constitutional change through judicial
review are “overturned” by formal amendment. See WILLIAMS, supra note 5, at 128. See generally
John Dinan, Court Constraining Amendments and the State Constitutional Law Tradition, 38
RUTGERS L.J. 983 (2007).
2017] New Light on State Change 545
stare decisis in federal constitutional law because of the difficulty of amendment may not apply
in state constitutional law).
12 WILLIAMS, supra note 5, at 349–51.
13 Marshfield, supra note 2, at 486 (Marshfield’s other article drawing on this dataset is The
18 Springer v. Philippine Islands, 277 U.S. 189, 209 (1928) (Holmes, J. dissenting).