Notre Dame Law Review

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Jared C. Huber*

The “issue of whether pregnant pigs should be singled out for special protection is simply not a subject appropriate for inclusion in our State constitution; rather it is a subject more properly reserved for legislative enactment.”[1]  So said Justice Pariente when evaluating ballot eligibility for a citizen-proposed amendment to the Florida Constitution.  The amendment passed.  Thus, the Florida Constitution regulates the proper confinement of pregnant pigs.[2]  Odd amendments such as Florida’s, far from being anomalies, are routine.  But they should not be.  Instead, state constitutional amendment procedures should be strengthened.  A constitution is a fundamental law that should not fluctuate with the political wind.

State constitutions are much easier to amend than the Federal Constitution.  They freely use a host of procedures, including ballot initiatives, legislative proposals, and constitutional conventions.  Consequentially, state constitutions hold numerous provisions typically contained in state statutes or even administrative regulations.[3]  State constitutions are longer, more detailed, and much more amended than the Federal Constitution.  As a result, states treat their constitutions more like codebooks than constitutions.

But constitutions are not codebooks.  They are fundamental organizing documents.  Such simple amendment procedures undermine constitutionalism.  Strengthening amendment requirements for state constitutions would revive the veneration due constitutions as the fundamental law of a polity.  Such higher law should be protected with more stringent amendment procedures.

Further, strengthening amendment requirements would shield state constitutions from fluctuating with every political wind.  Currently, national political controversy often produces a flurry of reactionary state constitutional amendments facilitated by simple amendment procedures.  However, such reactionary construction of fundamental law denies deliberation and ruins reverence for constitutions.  Heightening amendment requirements would force states to deliberate proposals and separate constitutional change from political reactionism.  Better-drafted language that serves to reinspire the veneration that state constitutions lack would result.

This Note argues that state constitutions should have more difficult amendment procedures than most states currently do.  Part I highlights the ease of amending most state constitutions by evaluating state constitutional amendment procedures.  Next, Part II argues that because constitutions are fundamental, organizing laws, their amendment procedures should reflect such status.  Finally, Part III of this Note examines state constitutional amendments that resulted from national political turmoil and argues amendment procedures should be stringent enough to temper such reactionism.  If a constitution is to be a constitution, it must be resilient enough to function as one.  State constitutions largely fail to be so.

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*J.D., University of Notre Dame Law School, 2024; B.A. in Political Science & Mass Communications, Purdue University, 2021.  Thank you to my friends and fellow editors of the Notre Dame Law Review for their support and edits.  Further thanks to my family and wife, Mary Huber, for all of their love and support as I pursue more understanding of and ability in the law.  All errors are my own.  Soli Deo gloria.

[1]Advisory Op. to the Att’y Gen. Re Limiting Cruel & Inhumane Confinement of Pigs During Pregnancy, 815 So. 2d 597, 600 (Fla. 2002) (Pariente, J., concurring).

[2]Fla. Const. art. X, § 21 (ensuring pregnant pigs can turn around “freely” in their enclosures or while tethered).  Unfortunately, the burning public desire to protect the pregnant pigs flamed too hot, and the two unconstitutional farmers slaughtered the pigs and went out of business.  See Ken Thomas, Pregnant Pigs in Fla. to Be Slaughtered, Edwardsville Intelligencer (Dec. 11, 2002), https://‌www.theintelligencer.com‌/news‌/article‌/Pregnant​-Pigs-in-Fla-to-Be-Slaughtered-10520074.php [https://perma.cc/2W2N-7A7W].

[3]Among many others, see, for example, Ala. Const. art. IV, § 65 (prohibiting bingo); Okla. Const. art. II, § 11 (permitting impeachment of public officials for intoxication); Or. Const. art. I, § 39 (regulating the sale of liquor by the individual glass); Tex. Const. art. III, § 47 (allowing bingo for charitable purposes).