For months now, the Minnesota press has been rife with commentary about Minnesota’s two proposed constitutional amendments. As could be expected, public debate has revolved around the specifics at play in the amendments themselves. While these specifics are important, there is a more fundamental set of questions that underlies this discussion. Specifically, when — and why — should Minnesota’s Constitution be amended at all? Do Minnesotans have a set of principles to direct our process of constitutional change, or are we making adjustments based upon short-term political desires?
A look at the history of Minnesota’s constitutional amendments indicates that in many instances our state has hewn to the latter course. Consequently, our governing document has grown to look less like a constitution — full of broad and enduring principles — and more like a legislative code book, full of mutable detail. What this essay seeks to propose is a set of standards to guide the adoption of any amendment to the Minnesota Constitution, in order to make that document more consistent and internally logical.
For some perspective on matters of constitutional amendment, it is worth comparing the history of our governing charter to that of the U.S. Constitution. Our federal constitution has been remarkably stable, and has undergone only a modest number of changes since its enactment, despite seeing the nation through economic calamity, war and civil strife. In contrast, the Minnesota Constitution has been altered repeatedly, for all manner of reasons, ranging from taxing iron ore to authorizing railroad loans. In sum, our state’s constitution has been amended 119 times since 1858, and over twice that number of amendments have been put to the voters.
Due to the rapid pace of constitutional change during the state’s early years, an amendment was passed in 1898 in order to “raise the bar” for changes to the Minnesota Constitution. Since that time, the pace of constitutional change has slowed, but the reasons for change still range widely, and seem to lack cohesive principles.
In formulating a set of standards for adopting amendments, we should look less to our own historical process — which has been scattershot at best — and should instead seek to emulate the history of U.S. constitutional amendments, which have been more targeted, and have resulted in a more durable and coherent document.
The stability of the U.S. Constitution has been a product of its thoughtful but spartan design. It sets out several broad principles, plus a few basic mechanics of governance, and leaves the rest to political actors to parse out within the boundaries that it prescribes.
Examining the history and structure of the federal Constitution reveals three key lessons that can serve as standards for amending the Minnesota Constitution. These standards are:
1. Constitutions should secure broad-based rights for the people Nonstructural amendments should enable this purpose.
2. A constitution should not perform a job that a statute could perform. Structural amendments should, for the most part, be broadly written. A constitution works best as a statement of overarching governmental principles and structures that delegates out many of its specifics to the political process.
3. If there is a way to address an issue short of amending the constitution, then a constitutional amendment should be avoided. Amendments should stem from structural necessity rather than from political expediency.
(A note – the statutory versus constitutional argument has previously been made by University of St. Thomas law professor Mark Osler in the context of the proposed marriage amendment, but this essay seeks to broaden the scope of that argument.) Thus, let’s examine each of the above standards in turn, and further examine how some of Minnesota’s recent (and proposed) amendments measure up to them.
Amendments should secure rights to the people
Rights can either be granted by statute (through legislative action) or through a constitution’s provisions. The former tend to be more specific in nature, and can change with social needs and desires. The latter tend to be broader philosophical statements that guarantee individual rights by permanently restraining governmental powers. There has been just one amendment made to the U.S. Constitution that has exclusively constrained individual conduct, and it was short-lived. The most durable and stable constitutional amendments have been those that have secured broad-based rights for the people.
One can recognize this by looking to the earliest history of the U.S. Constitution. As originally written, the federal constitution contained almost no guarantees of individual rights, save for the “privilege of the writ of habeas corpus.” Because of this, a political struggle ensued, and the Constitution was ratified under the terms of a brokered deal that added 10 rights-based amendments to the original text. These amendments constituted the Bill of Rights — a group of amendments that has survived for over 200 years because of its close correlation to our nation’s guiding philosophy of securing individual liberty. In similar fashion, a long tenure has attended America’s three post-Civil War amendments. These largely rights-based amendments (which abolished slavery, expanded the voting franchise, and guaranteed additional due process) have become central parts of America’s constitutional tradition.
In comparison, the one federal amendment that exclusively restricted individual behavior was repealed once social dynamics had changed. This, of course, was the 18th Amendment that outlawed the manufacture and sale of alcohol. Controversial even at the time of its passage, the amendment nonetheless survived the arduous process of constitutional adoption, only to be repealed by the passage of the 21st Amendment 14 years later.
Many recent amendments fall short
Most of Minnesota’s recent constitutional amendments — including its current, prospective amendments — do not meet this first proposed standard. The marriage amendment does not secure broad-based rights, but instead incorporates a narrow statutory definition of marriage so as to preclude the awarding of civil benefits to certain individuals. Likewise, the voter-ID amendment does not grant rights, but instead seeks to add procedural mechanisms to the state’s electoral franchise.
This is not to say that Minnesotans have not proposed any rights-based amendments in recent years. During the 2012 legislative session, Rep. Tony Cornish proposed an amendment that would have guaranteed gun rights analogous to those found in the U.S. Constitution’s Second Amendment. Such rights would have included a right to bear arms that is now only protected by statute in Minnesota, due to the fact that the U.S. Supreme Court has not yet interpreted what the “bearing arms” language of the Second Amendment means in practice. The Cornish bill was not only rights-based, but was targeted, for it attempted to fill an interpretive gap in federal constitutional doctrine that the Minnesota Constitution did not address.
Amendments should not perform the work of statutes
Besides securing individual rights, the other main function that a constitutional amendment should perform is to adjust the mechanics of governance set out by an existing constitution. The aim of any adjustment should be to make modifications sparingly, and to leave behind a broad superstructure of governance. Constitutions work less well when they attempt to enforce immediate policy preferences, which fluctuate according to short-term political desires. In general, one should try to minimize the amount of fine-grain detail contained within a constitution, and let the document simply set basic parameters. This has proven successful for the U.S. Constitution, which has been amended 27 times in total, with only 10 of those changes being procedural in nature. In nearly half that time, the Minnesota Constitution has been subject to 48 amendments on spending, bonding, and tax procedure alone.
When first crafted, a constitution needs to contain a certain number of specifics in order to establish its fundamental structure of governance. Both the U.S. and Minnesota constitutions contain such specifics — including procedures for establishing the allocation of legislators, the timing of legislative sessions, and the basic mechanics of revenue generation. Beyond these fundamentals, the level of specific guidance varies greatly.
At the federal level, the U.S. Constitution has empowered the legislative branch to fix a large number of details though deliberative action — from establishing post offices and roads to setting up the structure of the federal court system. This has remained true when the U.S. Constitution has been amended. For example, the 15th Amendment expanded voting rights on a constitutional level, but also specifically tasked Congress with enforcing those rights through “appropriate legislation.”
Providing legislative flexibility is not the same as allowing legislative supremacy, of course. The U.S. Constitution cabinets the authority of Congress in many ways, but it still leaves broad discretion in those areas where it has delegated authority, obviating the need for frequent constitutional amendments.
Legislature has abdicated its deliberative role in the past
In Minnesota, another approach has been taken. The Legislature has seen fit to propose — and the public has seen fit to endorse — a wide range of constitutional amendments that contain details which could instead be handled by statute. The Minnesota Constitution originally set out its spending and taxing authorities in spartan language. However, Minnesotans began amending the document almost immediately to provide for a host of specific constitutionally mandated spending and taxing initiatives.
In recent years, Minnesotans have continued the trend of pushing the work of legislative deliberation into a constitutional form. The 2008 Legacy Amendment, for instance, mandates a block of spending that would otherwise be evaluated by the legislature biannually, on a need-to-fund basis. So too with amendments to dedicate the fuel sales tax and provide bonuses to Gulf War veterans. While all of these issues have their own merits, the Legislature has abdicated its deliberative role by using the amendment process to turn legislative decisions into constitutional mandates. Rather than continue down this path, it would be far wiser to adopt the premise that — to the extent possible — a constitutional amendment should not do the work of a statute.
Do our two current, proposed amendments pass muster in this regard? The record here is mixed. The marriage amendment deals with the definition of who is eligible for marriage licenses, which has heretofore been a statutory matter, and there is no compelling reason to treat it as a constitutional one. (It is another matter entirely whether the state should be in the business of licensing religious ceremonies at the statutory level.)
The voter-ID amendment straddles the line on this question. In seeking to modify the state’s existing voting franchise, it takes on a classic function of a structural amendment. However, its proposed modifications (providing and requiring photographic IDs for voting) are mutable enough that this action might be better accomplished by statute alone. Indeed, the amendment would require a statute to be passed in order to enact some of its provisions. Any proposed law, however, would need to carefully crafted so as to avoid implicating other constitutional rights. This is a fate that has befallen other voter-ID laws throughout the country, as courts have found some ID laws to be discriminatory as implemented.
Is an amendment necessary?
Before undertaking any constitutional alteration, the underlying issue should be evaluated to determine if there is another way to address it, short of a constitutional amendment. If a public controversy exists, it should be dealt with in the arena of public discourse first, and should then move on to resolution in the :egislature if a political solution is appropriate. Only those matters that cannot be dealt with through existing political mechanisms — and which meet one of the other criteria above — should spur constitutional amendments.
A look at many of Minnesota’s constitutional amendments reveal issues that could have been resolved or approached in other ways, including the amendments previously referenced.
Dealing with current issues short of an amendment
The proposed marriage amendment provides another example of how this premise should be applied. Behind the debate over the civil definition of marriage is a larger debate over how society should define what constitutes marriage in the first instance. This debate is one that can be readily engaged through the First Amendment of the U.S. Constitution and Article I, Section 3 of the Minnesota Constitution, and is currently happening in churches, barber shops, and homes across the state. No additional constitutional action is required to effectuate such a debate, nor to allow advocacy speech to win persons to any side of the debate. The passage of the proposed marriage amendment would not stop this broader public and inter-faith dialogue from occurring, or from allowing members of the public to reach conclusions one way or another.
In addition, the First Amendment (as well as Article I, Section 16 of the Minnesota Constitution) is sufficient to secure a denomination’s religious definition of marriage against any future changes to state marriage law, due to the religious freedom provisions contained in both. Existing constitutional provisions are strong enough to prohibit the state from forcing a denomination to define marriage against it own practice, despite what some amendment supporters have claimed. For instance, the Minnesota Constitution specifically allows that “control or interference with the rights of conscience” shall not be permitted. In short, an amendment is not necessary to secure the existing religious freedom of a denomination that refuses to recognize same-sex marriage within its own ranks, nor to protect any denomination’s right to advocate for its definition of marriage within the public sphere. For these reasons, the proposed marriage amendment does not meet the test of necessity made by its proponents.
With the voter-ID issue, we should again ask whether the matter could be resolved short of a constitutional amendment. Here too, the answer is “yes.” At base, the voter-ID amendment is an attempt to reduce voter fraud, which is a legitimate public policy concern, but its remedy need not lie at the constitutional level. As previously stated, a photo ID statute might be possible to craft, but it would need to be carefully tailored so as not to be discriminatory. On another front, there is ample room to adjust statutory penalties for voter fraud, and to improve the enforcement of current laws if such remedies are desired.
Process deserves scrutiny — and hesitancy
In November, Minnesotans will vote on the merits of two proposed constitutional amendments, and will decide if they will become part of our governing charter. Next January, the Legislature will re-convene to debate many things — including whether more constitutional amendments are needed.
In both instances, our state would be better served by affording the amendment process the scrutiny — and the hesitancy — that it deserves.
Matt Ehling is a writer and television producer based in St. Paul.