The Amendment Effect, Jonathan L. Marshfield
Dec 2017
The Amendment Effect, Jonathan L. Marshfield
Jonathan Marshfield
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 …
Political Functions And Limitations Of Contemporary State Constitutions In The United States, Jonathan L. Marshfield
Dec 2016
Political Functions And Limitations Of Contemporary State Constitutions In The United States, Jonathan L. Marshfield
Jonathan Marshfield
State constitutions in the United States serve various important political functions that may be relevant and helpful to constitutional designers in other political systems. This paper explores two striking features of contemporary state constitutionalism with an eye towards their value for those considering a written Quebec constitution. First, state constitutionalism is characterized by frequent formal amendment through popular political processes. This has resulted in a form of constitutionalism that often prioritizes swift democratic responsiveness over entrenched prior commitments. Because recent empirical scholarship suggests that this is a broader phenomenon often occurring in federal countries with written subnational constitutions, Quebec reformers …
Amendment Creep, Jonathan L. Marshfield
Apr 2016
Amendment Creep, Jonathan L. Marshfield
Jonathan Marshfield
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 …
Improving Amendment, Jonathan L. Marshfield
Apr 2016
Improving Amendment, Jonathan L. Marshfield
Jonathan Marshfield
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 …
Foreign Precedent In State Const Interpretation, Jonathan L. Marshfield
Apr 2015
Foreign Precedent In State Const Interpretation, Jonathan L. Marshfield
Jonathan Marshfield
Americans are rightly proud that they created the first successful written constitutions. But constitutionalism is now an international phenomenon. Since the United States Constitution was ratified, there have been an estimated 879 constitutional systems adopted around the world. Some failed quickly, but others have endured and helped to stabilize volatile societies. Constitutionalism now has a rich international history, and the United States is one of many countries with a proud and meaningful constitutional tradition. It is not surprising, therefore, that American courts are sometimes caught “peeking abroad” to see what they might glean from other constitutional systems
Decentralizing The Amendment Power, Jonathan L. Marshfield
Dec 2014
Decentralizing The Amendment Power, Jonathan L. Marshfield
Jonathan Marshfield
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 …
Dimension Of Constitutional Change (Book Review), Jonathan Marshfield
Dec 2012
Dimension Of Constitutional Change (Book Review), Jonathan Marshfield
Jonathan Marshfield
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 …
Federalism And Political Competition In Emerging Democracies, Jonathan Marshfield
Dec 2010
Federalism And Political Competition In Emerging Democracies, Jonathan Marshfield
Jonathan Marshfield
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 …
Models Of Subnational Constitutionalism, Jonathan Marshfield
Dec 2010
Models Of Subnational Constitutionalism, Jonathan Marshfield
Jonathan Marshfield
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 …
Evaluating South Africa's Post-Apartheid Democratic Prospects Through The Lens Of Economic Development Theory, Jonathan Marshfield
Dec 2009
Evaluating South Africa's Post-Apartheid Democratic Prospects Through The Lens Of Economic Development Theory, Jonathan Marshfield
Jonathan Marshfield
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 …
Providing Meaningful Judicial Review Of Municipal Redevelopment Designations: Redevelopment In New Jersey Before And After Gallenthin Realty Development, Inc. V. Borough Of Paulsboro, Jonathan Marshfield
Dec 2008
Providing Meaningful Judicial Review Of Municipal Redevelopment Designations: Redevelopment In New Jersey Before And After Gallenthin Realty Development, Inc. V. Borough Of Paulsboro, Jonathan Marshfield
Jonathan Marshfield
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 …
Authorizing Subnational Constitutions In Transitional Federal States: South Africa, Democracy, And The Kwazulu- Natal Constitution, Jonathan Marshfield
Dec 2007
Authorizing Subnational Constitutions In Transitional Federal States: South Africa, Democracy, And The Kwazulu- Natal Constitution, Jonathan Marshfield
Jonathan Marshfield
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.
A Tribute To Chief Justice James R. Zazzali: More Than A "Caretaker", Jonathan Marshfield
Dec 2006
A Tribute To Chief Justice James R. Zazzali: More Than A "Caretaker", Jonathan Marshfield
Jonathan Marshfield
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 …
