Papers by Jonathan Marshfield
Conventional theories of constitutional design suggest that frequent formal amendment of a consti... more Conventional theories of constitutional design suggest that frequent formal amendment of a constitution’s text likely has a restraining effect on the practice of judicial review. On these theories, courts are more likely to favor the status quo when construing a constitution that is amended frequently, and more likely to issue transformative rulings when a constitution is difficult to amend. This Article investigates these claims by analyzing an original data-set of hand-coded opinions from state high courts in the United States. Because state constitutional amendment rates vary widely, these data provide a meaningful opportunity to explore how judges practice judicial review when operating under constitutions of varying degrees of flexibility.
The findings suggest that prevailing theories fail to fully capture the complex factors influencing the pathways of constitutional change. Many states with high amendment rates also experience high rates of judicial activism, and many states with low amendment rates experience low rates of judicial activism. After accounting for other influences on judicial decision-making (such as methods of judicial selection and retention, docket size, constitution age and length, etc.), the data suggest a tipping point where judicial activism begins to accelerate as amendment frequency increases. Contrary to prevailing theories, the data indicate that high amendment rates are reliably associated with high rates of judicial activism. These findings have implications for constitutional design because they underscore the highly contextual nature of constitutional change and challenge the notion that amendment flexibility is an effective strategy for constraining courts.
SSRN Electronic Journal, 2000
19 Lewis & Clark L. Rev. (forthcoming 2015)
The United States Constitution could soon be re-written by the states. Article V of the Constitu... more The United States Constitution could soon be re-written by the states. Article V of the Constitution authorizes two-thirds of the state legislatures to bypass Congress and demand a convention to initiate federal constitutional amendments addressing any number of issues. States have adopted resolutions calling for a convention to consider amendments that would, among other things, require a balanced federal budget, eliminate life tenure for Supreme Court Justices, constitutionalize universal healthcare, and even invalidate bulwark rulings such as Roe v. Wade. In April 2014, Michigan arguably became the thirty-fourth state to adopt such a resolution, and convention supporters believe that a convention should now be convened.
Although many observers believe that the current convention movement is a political gimmick unlikely to succeed, Article V’s amendment procedures raise fundamental questions about how the amendment power should be allocated between levels of government. Why should subnational units such as states, provinces, and regions have significant influence in the amendment of national constitutions? How do other countries allocate the amendment power between levels of government? What are the likely risks and benefits that constitutional designers should consider when allocating the amendment power? Despite recent interest in constitutional amendment rules, scholars have not fully addressed many of these issues.
This article presents findings and analysis from a comprehensive study of decentralization in national constitutional amendment rules. It provides constitutional designers and scholars with a useable model for understanding how and why constitutional amendment rules might be structured to include subnational units in the amendment process. Based on an exhaustive review of the amendment rules in the approximately 191 extant national constitutions, the article claims that there are currently five dominant decentralization mechanisms. The article further claims that although there are real risks associated with strong decentralization of the amendment power, there are several sound normative justifications for including subnational units in the amendment process. Finally, although one might expect decentralization of the amendment power to correspond to lower amendment rates, the article finds that amendment rates in strongly decentralized systems are actually higher than amendment rates in countries with centralized procedures.
In sum, this article contributes to the study of comparative constitutional design by providing a systematic approach to decentralization of the amendment power.
Penn State Law Review, 2011
This article considers an overlooked issue of constitutional design. Some federal systems d... more This article considers an overlooked issue of constitutional design. Some federal systems decentralize law-making and administrative power without allowing subnational governments to adopt their own constitutions that structure or limit subnational power. Other federal systems allow subnational units some discretion in structuring and limiting their powers by adopting subnational constitutions. Although scholars and constitution-makers have developed various theories regarding the utilities of decentralizing law-making and administrative powers, they have not separately considered the utilities or normative justifications for decentralizing constitutional choices. This Article takes up that important but neglected question. The goal is to move towards a systematization and critical analysis of possible justifications for introducing subnational constitutionalism into federal systems. By modeling plausible consequences associated with subnational constitutionalism, the Article aims to assist contemporary constitution makers considering federal arrangements.
The Article first offers a description of subnational constitutionalism that is derived from rational-choice theories of political institutions and a survey of the world’s federal systems. It concludes that subnational constitutionalism is best described as a series of rules (both formal and informal) that protect and define the authority of subnational units within a federal system to exercise some degree of independence in structuring and/or limiting the political power reserved to them by the federation. Building upon that working description, the Article argues that there are at least three coherent justifications for subnational constitutionalism. First, it can deepen a federal system’s ability to accommodate multiple political communities within a single constitutional regime. Second, it can uniquely contribute to federalism’s liberty-protecting, check-and-balances function. Third, the Article argues that scholars have largely overlooked the possibility that subnational constitutionalism can improve the deliberative quality of democracy within subnational units and the federal system as a whole.
The Article concludes with a brief assessment of the contemporary role of state constitutions within the U.S. federal system.
Rutgers Law Journal, 2009
This Article examines the significance of the New Jersey Supreme Court’s decision in Gallent... more This Article examines the significance of the New Jersey Supreme Court’s decision in Gallenthin Realty Development, Inc. v. Paulsboro for redevelopment and property rights in New Jersey. It suggests that Gallenthin has resulted in the revival of meaningful judicial review of municipal redevelopment designations. Specifically, the Authors contend that Gallenthin confronted two pervasive problems concerning judicial review of redevelopment designations. First, since 1947, when New Jersey adopted a constitutional provision that specifically authorized the legislature to pass laws permitting the taking of property for redevelopment of “blighted areas,” courts have unduly acquiesced to legislative and municipal interpretations of “blight.” Gallenthin addressed this trend by reaffirming that the judiciary is responsible for ensuring that only “blighted areas” are subject to redevelopment. Second, although municipal fact-finding is entitled to deference if supported by substantial evidence, courts often deferred to municipal redevelopment designations based on an expert’s conclusory testimony that the property satisfied the statutory requirements for redevelopment. Gallenthin clarified that judicial deference is proper only if a municipality presents meaningful, quantitative evidence that directly correlates to the relevant statutory criteria. Indeed, post-Gallenthin judicial review provides property owners with great protections without frustrating legitimate redevelopment initiatives.
Washington University Global Studies Law Review, 2011
Political competition is essential to the development and maintenance of a healthy and stabl... more Political competition is essential to the development and maintenance of a healthy and stable democracy. Current scholarship has largely ignored the role that federalism can play in fostering meaningful political competition in emerging democracies. This Article aims to fill this void by developing a theory of political competition within federal systems based on a formal game theory model created by economist and Nobel Laureate Roger B. Myerson. The Article argues that constructive political competition is especially difficult in emerging democracies because social and economic exigencies create strong incentives for new leadership to quash opposition and because first-time voters do not have a point of comparison by which to judge their first set of democratic leaders. Unitary regimes exacerbate these problems because they create an all-or-nothing political scenario and provide voters with only one point of political comparison. Federal systems, on the other hand, create multiple political arenas. This means that political opposition can be contained without being quashed, and that voters will have multiple points of political comparison. After exploring the necessary parameters of this model, the Article then applies the model to post-apartheid South Africa, which has been controlled by a single political party since the country’s first democratic election in 1994. The Article concludes that South Africa’s federal structure is gradually fostering constructive political competition as the model suggests and that opposition parties in South Africa are well situated to take further advantage of these opportunities in the future.
Richmond Journal of Global Law & Business, 2010
Political scientists have identified compelling correlations between economic development an... more Political scientists have identified compelling correlations between economic development and democratic stability. In general, the wealthier and more developed a country, the greater its chances of maintaining a long-term, stable democracy. This Article evaluates whether South Africa’s post-apartheid economic conditions are trending towards conditions that generally correlate to stable democracies. It compares South Africa’s post-apartheid economic conditions to the empirical trends that development theorists have identified as correlative to democratic stability. This analysis is important because if South Africa’s post-apartheid economic conditions do not exhibit positive trends, this may suggest that despite the just end of apartheid, conditions are becoming progressively more difficult for South Africa to maintain a democratic government. The Article finds that South Africa is exhibiting positive trends in relevant criteria such as levels of per capita income, education, urbanization, industrialization, and cumulative economic growth. The one exception is income inequality, which has remained constant and extremely high since the fall of apartheid. The Article reveals, however, that there have been various qualitative improvements in the nature of income inequality since the end of apartheid, which suggests that necessary quantitative improvements may be on the horizon. With that one notable caveat, the Article concludes that South Africa’s democratic prospects appear bright when viewed through the lens of economic development.
Rutgers Law Journal, 2013
In most federal systems, constitutional decision-making occurs at both the national and subn... more In most federal systems, constitutional decision-making occurs at both the national and subnational levels, and therefore, a more complete and accurate understanding of constitutional law requires careful study of subnational constitutional dynamics as well as the relationship between national and subnational issues. This articles reviews Constitutional Dynamics In Federal Systems – Subnational Perspectives (Michael Burgess & G Alan Tarr, eds., 2012) (“Constitutional Dynamics”), which includes studies analyzing issues of constitutional change in eleven different political systems from the unique perspective of subnational law and politics.
The article contends that this bottom-up perspective reveals two important themes. First, subnational politics have become a hotbed for popular constitutional involvement and activism. Drawing on the studies presented in Constitutional Dynamics, the article discusses the mechanisms for direct democracy that appear across federal systems and then explores several unique incentives that may explain why there is generally greater popular involvement in constitutional politics at the subnational level than at the national level. Second, the article identifies two pathways of bottom-up constitutional change within federal systems. Bottom-up constitutional change can occur when subnational units formally adopt new constitutional laws that percolate through the federal system and result in constitutional change at the national level. In those instances, subnational constitutions facilitate systemic change because they provide an institutional home for a new norm to germinate. Bottom-up change can also occur more aggressively when subnational groups capitalize on opportunities such as constitutional litigation and political campaigning to bring issues to the national agenda. In those instances, subnational constitutions provide an entry point for groups to bring conflicts and reform proposals within the existing political system.
VANDERBILT JOURNAL OF TRANSNATIONAL LAW, 2008
Not all federal systems permit their constituent units to adopt constitutions. This Article ... more Not all federal systems permit their constituent units to adopt constitutions. This Article considers whether, and under what circumstances, subnational constitutions tend to contribute to the volatility or stability of their respective federal systems. By examining the role that subnational constitutions played in South Africa’s celebrated democratization, this Article observes that a transitional federal state can increase its flexibility and adaptability by merely authorizing subnational constitutions. The Article concludes that federal systems, particularly those undergoing fundamental change, can be better equipped to manage regime-threatening conflicts and perpetuate a democratic political culture if they permit constituent units to adopt constitutions.
Rutgers Law Review, 2007
Chief Justice Zazzali's career reveals a dedication to public service and an unyielding symp... more Chief Justice Zazzali's career reveals a dedication to public service and an unyielding sympathy for the disadvantaged. Accordingly, this Tribute examines his impact on New Jersey civil law and seeks to honor both the man and his jurisprudence. Although his tenure on the Supreme Court of New Jersey lasted only seven years, and his time as Chief Justice only nine months, his impact was meaningful. His clear and accessible opinions consistently protected the state's children from myriad harms including negligent educators, harassing classmates, and tortfeasing businesses.
In the area of tort law, Chief Justice Zazzali was willing to incrementally expand the common law to account for evolving norms and provide injured plaintiffs with avenues for redress when appropriate. In addition, when addressing worker's rights, Chief Justice Zazzali, the son of a labor lawyer and a labor lawyer himself, never forgot the plight of the worker. Finally, in the corporate law context, the Chief Justice, in a practical fashion, generally sought to level the playing field for aggrieved investors, consumers, and property owners seeking redress against corporate entities and municipalities. In short, Chief Justice Zazzali's civil jurisprudence reflects his sympathy for the "little guy." By taking care of the Garden State's underdogs, Chief Justice Zazzali was more than a caretaker.
Drafts by Jonathan Marshfield
Arkansas Law Review
State constitutional amendment rules are often criticized for their poor design. The most commo... more State constitutional amendment rules are often criticized for their poor design. The most common criticism is that the frequent use of direct democracy bypasses the virtues of representative decision making and effectively surrenders constitutional politics to well-financed special interests. Indeed, many initiative states need to improve the democratic quality of their amendment procedures. They need effective ways to foster constructive public deliberation, incentivize meaningful citizen participation, and provide checks on the influence of special interests. In this essay, I consider whether states might achieve some of those improvements if they changed the process for ratifying citizen-initiative amendments to require debate and approval by locally-elected governing bodies rather than a public referendum. The specific proposal that I explore is whether initiative states could improve their amendment processes by changing amendment rules to require ratification of citizen-initiatives by some majority of existing county governing bodies rather than a statewide referendum. Sending amendment ratification decisions to locally-elected bodies could have the beneficial effect of keeping constitutional decision-making close to citizens while at the same time retaining many of the virtues associated with representative decision-making. It might also help undermine special-interest capture by dividing the amendment power across numerous independently elected bodies rather than centralizing it within a state legislature or popular majority vote.
Of course, a county-ratification model is not a panacea. There are many difficulties and costs associated with this approach. It might, for example, make the citizen-initiative too difficult to use, which would effectively shift all amendment power to the legislature. County representatives might also be ill-suited to decide statewide constitutional issues because of mismatched expertise and limited resources. A county-ratification model could also result in unconstitutional voter-dilution because of significant population differences between counties. These issues, among others, represent serious difficulties with the county-ratification model that cannot be overlooked. My goal in this essay is only to suggest that the county-ratification model deserves serious consideration as states struggle with how they might improve their amendment processes.
To most lawyers and judges, constitutional amendment rules are nothing more than the technical gu... more To most lawyers and judges, constitutional amendment rules are nothing more than the technical guidelines for changing a constitution's text. But amendment rules contain a great deal of substance that can be relevant to deciding myriad constitutional issues. Indeed, judges have explicitly drawn on amendment rules when deciding issues as far afield as immigration, criminal procedure, free speech, and education policy. The Supreme Court, for example, has reasoned that because Article V of the U.S. Constitution places no substantive limitations on formal amendment, the First Amendment must protect even the most revolutionary political viewpoints. At the state level, courts have cited to flexible amendment rules in state constitutions to support judicial restraint. Although largely unnoticed by scholars, it seems that amendment rules are creeping into other areas of constitutional law. This Article provides the first systematic investigation and assessment of ''amendment creep''-the phenomenon where judges explicitly draw on amendment rules to interpret constitutional provisions unrelated to formal amendment. It concludes that federal and state amendment rules contain constitutional substance that can assist judges and lawyers in resolving many diverse constitutional disputes. Based on an extensive review of relevant Supreme Court and state high court opinions, the Article constructs a typology of amendment-based arguments. The Article concludes that amendment creep is an extension of a familiar form of constitutional reasoning known as structuralism, and that it may have several normative benefits for constitutional adjudication-such as promoting overall constitutional coherence and ensuring that judges give appropriate consideration to the democratic values that amendment rules embed in the constitutional framework.
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Papers by Jonathan Marshfield
The findings suggest that prevailing theories fail to fully capture the complex factors influencing the pathways of constitutional change. Many states with high amendment rates also experience high rates of judicial activism, and many states with low amendment rates experience low rates of judicial activism. After accounting for other influences on judicial decision-making (such as methods of judicial selection and retention, docket size, constitution age and length, etc.), the data suggest a tipping point where judicial activism begins to accelerate as amendment frequency increases. Contrary to prevailing theories, the data indicate that high amendment rates are reliably associated with high rates of judicial activism. These findings have implications for constitutional design because they underscore the highly contextual nature of constitutional change and challenge the notion that amendment flexibility is an effective strategy for constraining courts.
Although many observers believe that the current convention movement is a political gimmick unlikely to succeed, Article V’s amendment procedures raise fundamental questions about how the amendment power should be allocated between levels of government. Why should subnational units such as states, provinces, and regions have significant influence in the amendment of national constitutions? How do other countries allocate the amendment power between levels of government? What are the likely risks and benefits that constitutional designers should consider when allocating the amendment power? Despite recent interest in constitutional amendment rules, scholars have not fully addressed many of these issues.
This article presents findings and analysis from a comprehensive study of decentralization in national constitutional amendment rules. It provides constitutional designers and scholars with a useable model for understanding how and why constitutional amendment rules might be structured to include subnational units in the amendment process. Based on an exhaustive review of the amendment rules in the approximately 191 extant national constitutions, the article claims that there are currently five dominant decentralization mechanisms. The article further claims that although there are real risks associated with strong decentralization of the amendment power, there are several sound normative justifications for including subnational units in the amendment process. Finally, although one might expect decentralization of the amendment power to correspond to lower amendment rates, the article finds that amendment rates in strongly decentralized systems are actually higher than amendment rates in countries with centralized procedures.
In sum, this article contributes to the study of comparative constitutional design by providing a systematic approach to decentralization of the amendment power.
The Article first offers a description of subnational constitutionalism that is derived from rational-choice theories of political institutions and a survey of the world’s federal systems. It concludes that subnational constitutionalism is best described as a series of rules (both formal and informal) that protect and define the authority of subnational units within a federal system to exercise some degree of independence in structuring and/or limiting the political power reserved to them by the federation. Building upon that working description, the Article argues that there are at least three coherent justifications for subnational constitutionalism. First, it can deepen a federal system’s ability to accommodate multiple political communities within a single constitutional regime. Second, it can uniquely contribute to federalism’s liberty-protecting, check-and-balances function. Third, the Article argues that scholars have largely overlooked the possibility that subnational constitutionalism can improve the deliberative quality of democracy within subnational units and the federal system as a whole.
The Article concludes with a brief assessment of the contemporary role of state constitutions within the U.S. federal system.
The article contends that this bottom-up perspective reveals two important themes. First, subnational politics have become a hotbed for popular constitutional involvement and activism. Drawing on the studies presented in Constitutional Dynamics, the article discusses the mechanisms for direct democracy that appear across federal systems and then explores several unique incentives that may explain why there is generally greater popular involvement in constitutional politics at the subnational level than at the national level. Second, the article identifies two pathways of bottom-up constitutional change within federal systems. Bottom-up constitutional change can occur when subnational units formally adopt new constitutional laws that percolate through the federal system and result in constitutional change at the national level. In those instances, subnational constitutions facilitate systemic change because they provide an institutional home for a new norm to germinate. Bottom-up change can also occur more aggressively when subnational groups capitalize on opportunities such as constitutional litigation and political campaigning to bring issues to the national agenda. In those instances, subnational constitutions provide an entry point for groups to bring conflicts and reform proposals within the existing political system.
In the area of tort law, Chief Justice Zazzali was willing to incrementally expand the common law to account for evolving norms and provide injured plaintiffs with avenues for redress when appropriate. In addition, when addressing worker's rights, Chief Justice Zazzali, the son of a labor lawyer and a labor lawyer himself, never forgot the plight of the worker. Finally, in the corporate law context, the Chief Justice, in a practical fashion, generally sought to level the playing field for aggrieved investors, consumers, and property owners seeking redress against corporate entities and municipalities. In short, Chief Justice Zazzali's civil jurisprudence reflects his sympathy for the "little guy." By taking care of the Garden State's underdogs, Chief Justice Zazzali was more than a caretaker.
Drafts by Jonathan Marshfield
Of course, a county-ratification model is not a panacea. There are many difficulties and costs associated with this approach. It might, for example, make the citizen-initiative too difficult to use, which would effectively shift all amendment power to the legislature. County representatives might also be ill-suited to decide statewide constitutional issues because of mismatched expertise and limited resources. A county-ratification model could also result in unconstitutional voter-dilution because of significant population differences between counties. These issues, among others, represent serious difficulties with the county-ratification model that cannot be overlooked. My goal in this essay is only to suggest that the county-ratification model deserves serious consideration as states struggle with how they might improve their amendment processes.
The findings suggest that prevailing theories fail to fully capture the complex factors influencing the pathways of constitutional change. Many states with high amendment rates also experience high rates of judicial activism, and many states with low amendment rates experience low rates of judicial activism. After accounting for other influences on judicial decision-making (such as methods of judicial selection and retention, docket size, constitution age and length, etc.), the data suggest a tipping point where judicial activism begins to accelerate as amendment frequency increases. Contrary to prevailing theories, the data indicate that high amendment rates are reliably associated with high rates of judicial activism. These findings have implications for constitutional design because they underscore the highly contextual nature of constitutional change and challenge the notion that amendment flexibility is an effective strategy for constraining courts.
Although many observers believe that the current convention movement is a political gimmick unlikely to succeed, Article V’s amendment procedures raise fundamental questions about how the amendment power should be allocated between levels of government. Why should subnational units such as states, provinces, and regions have significant influence in the amendment of national constitutions? How do other countries allocate the amendment power between levels of government? What are the likely risks and benefits that constitutional designers should consider when allocating the amendment power? Despite recent interest in constitutional amendment rules, scholars have not fully addressed many of these issues.
This article presents findings and analysis from a comprehensive study of decentralization in national constitutional amendment rules. It provides constitutional designers and scholars with a useable model for understanding how and why constitutional amendment rules might be structured to include subnational units in the amendment process. Based on an exhaustive review of the amendment rules in the approximately 191 extant national constitutions, the article claims that there are currently five dominant decentralization mechanisms. The article further claims that although there are real risks associated with strong decentralization of the amendment power, there are several sound normative justifications for including subnational units in the amendment process. Finally, although one might expect decentralization of the amendment power to correspond to lower amendment rates, the article finds that amendment rates in strongly decentralized systems are actually higher than amendment rates in countries with centralized procedures.
In sum, this article contributes to the study of comparative constitutional design by providing a systematic approach to decentralization of the amendment power.
The Article first offers a description of subnational constitutionalism that is derived from rational-choice theories of political institutions and a survey of the world’s federal systems. It concludes that subnational constitutionalism is best described as a series of rules (both formal and informal) that protect and define the authority of subnational units within a federal system to exercise some degree of independence in structuring and/or limiting the political power reserved to them by the federation. Building upon that working description, the Article argues that there are at least three coherent justifications for subnational constitutionalism. First, it can deepen a federal system’s ability to accommodate multiple political communities within a single constitutional regime. Second, it can uniquely contribute to federalism’s liberty-protecting, check-and-balances function. Third, the Article argues that scholars have largely overlooked the possibility that subnational constitutionalism can improve the deliberative quality of democracy within subnational units and the federal system as a whole.
The Article concludes with a brief assessment of the contemporary role of state constitutions within the U.S. federal system.
The article contends that this bottom-up perspective reveals two important themes. First, subnational politics have become a hotbed for popular constitutional involvement and activism. Drawing on the studies presented in Constitutional Dynamics, the article discusses the mechanisms for direct democracy that appear across federal systems and then explores several unique incentives that may explain why there is generally greater popular involvement in constitutional politics at the subnational level than at the national level. Second, the article identifies two pathways of bottom-up constitutional change within federal systems. Bottom-up constitutional change can occur when subnational units formally adopt new constitutional laws that percolate through the federal system and result in constitutional change at the national level. In those instances, subnational constitutions facilitate systemic change because they provide an institutional home for a new norm to germinate. Bottom-up change can also occur more aggressively when subnational groups capitalize on opportunities such as constitutional litigation and political campaigning to bring issues to the national agenda. In those instances, subnational constitutions provide an entry point for groups to bring conflicts and reform proposals within the existing political system.
In the area of tort law, Chief Justice Zazzali was willing to incrementally expand the common law to account for evolving norms and provide injured plaintiffs with avenues for redress when appropriate. In addition, when addressing worker's rights, Chief Justice Zazzali, the son of a labor lawyer and a labor lawyer himself, never forgot the plight of the worker. Finally, in the corporate law context, the Chief Justice, in a practical fashion, generally sought to level the playing field for aggrieved investors, consumers, and property owners seeking redress against corporate entities and municipalities. In short, Chief Justice Zazzali's civil jurisprudence reflects his sympathy for the "little guy." By taking care of the Garden State's underdogs, Chief Justice Zazzali was more than a caretaker.
Of course, a county-ratification model is not a panacea. There are many difficulties and costs associated with this approach. It might, for example, make the citizen-initiative too difficult to use, which would effectively shift all amendment power to the legislature. County representatives might also be ill-suited to decide statewide constitutional issues because of mismatched expertise and limited resources. A county-ratification model could also result in unconstitutional voter-dilution because of significant population differences between counties. These issues, among others, represent serious difficulties with the county-ratification model that cannot be overlooked. My goal in this essay is only to suggest that the county-ratification model deserves serious consideration as states struggle with how they might improve their amendment processes.