Peter Suber, Paradox of Self-Amendment, Appendix 2

Appendix 2
Self-Amendment of State Amendment Clauses Peter Suber, Paradox of Self-Amendment Table of Contents

AL AK AZ AR CA CO CT DE FL GA

HI ID IL IN IA KS KY LA ME MD

MA MI MN MS MO MT NB NV NH NJ

NM NY NC ND OH OK OR PA RI SC

SD TN TX UT VT VA WA WV WI WY

A. Summary
B. Table of States
Notes

This appendix identifies the ACs of the 50 state constitutions and indicates whether they have been amended. I include noteworthy features of the ACs, their histories, or their case law, when especially relevant to the issues of this book. Many states have had more than one constitution, and normally the newer ones were proposed and adopted under the authority of the AC of the previous constitution. If the AC of the new constitution differs from the older AC, then indirect self-amendment has occurred.
The first constitutions of most states, other than the original 13 colonies, were drafted under enabling legislation passed by Congress. However, 12 states [Note 1] produced their first constitution without the authority either of a prior AC or a federal enabling act.[Note 2] The bootstrapping, or self-creation from nothing, of constitutional power, seen in successful revolutions and some chaotic conventions, is the mirror image of the self-authorized and self-amending power under consideration here.
I do not give the text or even a paraphrase of the text of the state ACs. Readers who wish to compare their contents without looking in 50 statute books should consult any of several reference works.[Note 3]
This survey is based on the works cited (last note) as well as the 50 official state codifications. The states are remarkably different in their attitudes toward their own legal history. Some reprint all prior, superseded constitutions, even with annotations; some do not. Some do not even print the year in which their current constitution was adopted. Major holes in the survey caused by defects in the state reporters have been filled from other sources. Limited time and resources, however, require that minor holes remain unfilled.
No constitutions ratified before a state was admitted to the Union have been included in this survey unless those constitutions remained or became valid upon admission. The date of a constitution as listed is the date of ratification or adoption, not the effective date, when the two differed.
For each constitution I ask "AC amended?" A "no" answer is always difficult to prove, especially for a badly annotated constitution. Hence, an occasional "no" answer will be followed by a question mark. A "yes" answer means that the AC directly authorized its own amendment. "Yes" does not refer to indirect self-amendment in which an AC authorized the replacement of the entire constitution including a new AC. Both "yes" and "no" answers refer only to the AC of the current constitution; whether prior ACs had been amended is noted separately when known.
Whenever a state had more than one constitution, the reader should assume that all newer constitutions after the first were drafted and adopted under the authority of the prior constitution's AC, unless noted otherwise. That is, indirect self-amendment is the norm for the creation of new constitutions, and only exceptions are noted. However, this is but a presumption, and in many cases the authority under which a new constitution was made was not indicated in the state codification.
A. Summary
As of January 1, 1981 (date of this survey), fully 35 states had directly amended their current AC. The following 15 had not: Arizona, Delaware, Florida, Illinois, Kentucky, Louisiana, Michigan, Missouri, Montana, New Jersey, North Carolina, Texas, Virginia, Wisconsin, and Wyoming. Of these 15, 5 are known to have directly amended at least one prior AC: Florida, Illinois, Michigan, Missouri, and Montana. Of those 15, 12 are presumed to have indirectly amended at least one prior AC: all except Arizona, Wisconsin, and Wyoming. If direct and indirect self-amendment are considered the only types of self-amendment, then only three states out of 50 have no history of self-amendment: Arizona, Wisconsin, and Wyoming. But of these, Wisconsin has adopted its current constitution without antecedent authority in a way that may presuppose a form of self-amendment.
B. Table of States

Alabama
Current constitution: 1901 AC: Article 18, §§284-87
Prior constitutions:

1875 AC: Article 17
1867 AC: Article 16
1865 AC: Article 9
1861 AC: Article 6
1829 AC: Article 6

AC amended? Yes. August 2, 1933.
Comment. The AC contains a clause completely entrenching the rule that representation in the legislature shall be based on population. The entrenching language is the most complete and explicit in any American constitution: "such...shall not be changed by constitutional amendment." Yet for a case holding that the entrenchment clause may itself be amended or repealed, and that the AC is no more privileged from amendment than any other section of the constitution, see Opinion of Justices, 263 Ala. 158, 81 So.2d 881 (1955).
Alaska
Current constitution: 1956 AC: Article 13
Prior constitutions: none
AC amended? Yes. August 25, 1970; August 27, 1974.
Arizona
Current constitution: 1910 AC: Article 21
Prior constitutions: none
AC amended? No.
Arkansas
Current constitution: 1874 AC: Article 19, §22
Prior constitutions:

1868 AC: Article 13
1864 AC: Article 4, unnumbered § after §32
1861 AC: Article 4, §34
1836 AC: Article 4, unnumbered § after §34

AC amended? Yes. February 16, 1925.
Comment. The Speaker of the Akansas House initially declared that the amendment to the current AC had been defeated, January 15, 1921; the Special Supreme Court ultimately declared that it had been validly adopted in Brickhouse v. Hill, 167 Ark. 513, 268 S.W. 965 (1925).
The ACs of the 1836, 1861, and 1864 constitutions were identical, preventing indirect self-amendment for those years.
California
Current constitution: 1879 AC: Article 18
Prior constitutions: 1849 AC: Article 10
AC amended? Yes, but only by the addition of AC §§3 and 4 in 1970. The 1849 AC §2 was amended November 4, 1856.
Comment. The amendment to the 1849 AC provided procedures for ratifying a new constitution after a convention, thus paving the way for the 1879 constitution.
Colorado
Current constitution: 1876 AC: Article 19
Prior constitutions: none
AC amended? Yes. AC §2 was amended November 6, 1900.
Comment. Article 2, §2, of the Bill of Rights asserts that "the people...have the sole and exclusive right...to alter and abolish their constitution and form of government whenever they may deem it necessary, provided such change be not repugnant to the Constitution of the United States."
Connecticut
Current constitution: 1965 AC: Articles 12, 13
Prior constitutions:

1955 AC: Article 11
1818 AC: Article 11
1776 AC: none

AC amended? Yes. November 27, 1974.
Comment. The 1955 AC was repealed and replaced by its own authority, August 5, 1955. The 1818 AC was never amended.
The 1776 "constitution" was actually a "constitutional ordinance" passed by the General Assembly under the authority of the colonial charter of 1662; it contains only a Bill of Rights.
Delaware
Current constitution: 1973 AC: Article 10
Prior constitutions:

1897 AC: Article 16
1831 AC: Article 9
1792 AC: Article 10
1776 AC: Article 30

AC amended? No.
Comment. The 1776 AC contains a self-entrenchment clause immunizing several sections from "violation", apparently forever. One must assume that amendment was intended, along with violation, as it is superfluous to forbid violation of a constitution and suspect to forbid violation of only some sections. If the clause prohibited amendments, then, it was violated by the replacement of the 1776 constitution in 1792, and the violation was accepted as valid lawmaking.
In December of 1851 a constitutional convention assembled, but it adjourned the next day in doubt of its own legality. It reconvened in March of 1852 and debated its legality for a week, finally deciding it had authority to write a new constitution. Its product differed very little from the 1831 constitution, which itself differed very little from the 1792 constitution. Nevertheless, the people overwhelmingly rejected it in the first popular vote on a Delaware constitution.
The 1973 constitution was actually proposed as a series of amendments in 1969, but the legislature considered it an "amendment of the whole constitution of 1897" and it was ratified by the two successive legislatures (1971, 1973) as required for amendments. Delaware distinguishes piecemeal amendment from wholesale revision, Opinion of the Justices, 254 A.2d 342 (1970), and revision must be performed by convention. Arguably, Delaware has violated its AC by revising under a procedure for mere amendment.
Florida
Current constitution: 1968 AC: Article 11
Prior constitutions:

1885 AC: Article 17
1868 AC: Article 18
1865 AC: Article 14
1861 AC: Article 14
1838 AC: Article 14

AC amended? No.
Comment. The 1885 AC §1 was amended in 1948, and AC §4 was amended in 1964.
Georgia
Current constitution: 1968 AC: Article 12
Prior constitutions:

1945 AC: Article 13, §2-8101-8104
1877 AC: Article 13
1868 AC: Article 12
1865 AC: Article 5, §1.11
1861 AC: Article 5, §6
1798 AC: Article 4, §15
1789 AC: Article 4, §7
1777 AC: Article 63

AC amended? Yes. AC §1 was amended November 7, 1978.
Comment. The 1945 AC was amended five times.
At the same election in which the voters ratified the 1968 constitution, they ratified several amendments to the 1945 constitution; under Article 13, §1 of the 1968 constitution those amendments were incorporated into the 1968 constitution. This is an unusual case of amendments to one constitution applying to another. (See the entry on North Carolina, for a similar case, and on New Mexico, for an Attorney General Opinion that this practice is lawful.) Hence the AC of the earlier constitution had quasi-authority for amending (not merely instituting) its successor, though it had some help from provisions in its successor. Another way to put this is that the amendments in the 1968 election were proposed under one AC and ratified under two ACs working together. At least in Georgia in 1968 it was false that an AC and its self-authorized successor were had periods of validity that were cleanly distinct and not overlapping in time.
Hawaii
Current constitution: 1968 AC: Article 18
Prior constitutions: none
AC amended? Yes. The AC was renumbered from Article 15 to Article 18, November 7, 1978. AC §§2, 3 were substantively amended at the same time; AC §5 was added, November 5, 1968.
Idaho
Current constitution: 1889 AC: Article 20
Prior constitutions: none
AC amended? Yes. AC §1 was amended November 5, 1974. A proposed amendment to AC §2 was defeated November 5, 1968.
Illinois
Current constitution: 1970 AC: Article 14
Prior constitutions:

1870 AC: Article 14
1848 AC: Article 12
1818 AC: Article 7

AC amended? No.
Comment. The 1870 AC §2 was amended November 7, 1950, after proposed amendments had been defeated in 1946, 1932, 1924, 1896, and 1892. Two new constitutions made by convention were rejected by the voters on July 17, 1862, and December 12, 1922. The current AC is unusual in containing (§4) procedures for ratifying amendments to the federal constitution and for calling a federal constitutional convention. These may be the result of Illinois' embarrassment when it defectively ratified a federal amendment proposal (the pro-slavery Corwin amendment, see Appendix 1.B) in a state constitutional convention that happened to be in session.
When the 1870 constitution was ratified, four important articles of it were voted upon separately. One forbade "legislative or other authority" to release, remit, suspend or alter obligations of the Illinois Central Railroad to the State of Illinois. If the unqualified language of this prohibition reached the amendment power, which was never tested in court, then the unnumbered article was a (revocable) limit on the 1870 AC, although not a product of self-amendment.
Indiana
Current constitution: 1851 AC: Article 16
Prior constitutions: 1816 AC: Article 8
AC amended? Yes. AC §2 was amended November 8, 1966.
Comment. Article 1, §1 of the Indiana Bill of Rights recognizes that "the people have, at all times, an indefeasible right to alter and reform their government."
Iowa
Current constitution: 1857 AC: Article 10
Prior constitutions: 1846 AC: Article 10
AC amended? Yes. AC §3 was amended in 1964.
Comment. In 1920 the voters overwhelmingly approved a call for a constitutional convention. The legislature violated a mandatory provision of the constitution (AC §3) by failing to call the convention. Neither the courts nor the people imposed sanctions on the legislators, and no constitutional convention has been called since.
Article 1, §2 of the Iowa Bill of Rights asserts that the people have "the right, at all times, to alter or reform [their government] whenever the public good may require it."
Kansas
Current constitution: 1859 AC: Article 14
Prior constitutions: none
AC amended? Yes. Entire AC repealed and replaced, November 3, 1970.
Comment. For a case holding that the amendment of the AC above is valid because properly submitted pursuant to the old AC, see Moore v. Shanahan, 207 K. 1, 207 K. 645, 486 P.2d 506 (1971).
Kentucky
Current constitution: 1891 AC: §§256-63
Prior constitutions:

1850 AC: Article 12
1799 AC: Article 9
1792 AC: Article 11

AC amended? No.
Comment. Section 4 of the Kentucky Bill of Rights declares that the people "have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may deem proper."
Louisiana
Current constitution: 1974 AC: Article 13
Prior constitutions:

1921 AC: Article 21
1913 AC: Article 325
1898 AC: Articles 321-24
1879 AC: Article 256
1868 AC: Article 147
1864 AC: Article 147
1852 AC: Article 141
1845 AC: Article 140
1812 AC: Article 7

AC amended? No.
Comment. At least the 1913 and 1921 constitutions were not made under the authority of the prior ACs. The 1898 constitution contained no provision for revision by convention, and was revised (into the 1913 constitution) under a call by the legislature. State v. American Sugar Refining Co., 137 La. 407, 68 So. 742 (1915).
Maine
Current constitution: 1819 AC: Article 10, §4
Prior constitutions: none
AC amended? Yes. March 18, 1880; January 6, 1909; July 3, 1915; and September 19, 1957.
Comment. Article 1, §2 of the Maine Bill of Rights asserts that the people have "an unalienable and indefeasible right to institute government, and to alter, reform, or totally change the same, when their safety and happiness require it."
Maryland
Current constitution: 1867 AC: Article 14
Prior constitutions:

1864 AC: Article 11
1851 AC: Article 11
1776 AC: Article 59

AC amended? Yes. AC §1 was amended November 7, 1944, November 7, 1972, and November 7, 1978. AC §1A was amended November 7, 1978. AC §2 was amended November 6, 1956.
Comment. The Declaration of Rights, which is separate from the main body of the constitution, declares in Article I that the people possess "the inalienable right to alter, reform, or abolish their form of government in such manner as they may deem expedient." The Declaration of Rights does not control the constitution when the latter is clear. Anderson v. Baker, 23 Md. 531 (1865). The AC in the main body has been found "clear, explicit, and unambiguous." Bourbon v. Governor of Maryland, 258 Md. 252, 265 A.2d 477 (1970). Maryland is the only state I know of in which the relation between the ordinary AC and the declaration of a right to alter or abolish has been settled by case law.
A new constitution was written by a constitutional convention but rejected by the voters in 1968.
Massachusetts
Current constitution: 1780 AC: §101, or Ch. 6, Art. 10, §2
Prior constitutions: none
AC amended? Yes. The AC was amended April 21, 1821, by §111, which was itself superseded November 5, 1918, by §§157-61 and then annulled by §178.
Comment. Massachusetts' is the oldest constitution still in effect in the United States. It has frequently been amended, especially in three waves: nine amendments adopted in 1821, five in 1917, and 14 in 1918. An entirely new constitution was rejected by voters in 1853.
Article 7 of "Part the First" (a bill of rights) asserts that "the people alone have an incontestable, unalienable, and indefeasible right to institute government, and to reform, alter, or totally change the same when their safety, prosperity, and happiness require it."
Michigan
Current constitution: 1963 AC: Article 12
Prior constitutions:

1908 AC: Article 17
1850 AC: Article 20
1835 AC: Article 13

AC amended? No.
Comment. The 1908 AC §2 was amended in April of 1913 and again April 7, 1941; AC §3 was amended in November of 1917 and again April 7, 1941; and AC §4 was amended November 8, 1960. The 1850 AC §1 was amended in 1876; and AC §2 was amended in 1862.
A new constitution was rejected by the voters in 1867.
Minnesota
Current constitution: 1857, restructured 1974 AC: Article 14 (1857), Article 9 (1974)
Prior constitutions: none
AC amended? Yes. The 1974 restructuring was done by amendment and reworded many sections, including the AC, without intending to change their legal effect. The substance of AC §1 was amended in 1898, and of AC §3 on November 2, 1954.
Comment. Minnesota has one of the most stringent ACs in the nation. At the same election that ratified the restructuring amendment (November 5, 1974) an amendment that would have liberalized the AC was defeated. (It does not necessarily follow that Minnesotans want a difficult amendment procedure; it may be that the current procedure is too difficult to amend to reflect the wishes of the people.)
Mississippi
Current constitution: 1890 AC: Article 15
Prior constitutions:

1869 AC: Article 13
1832 AC: Article 7, unnumbered section
1817 AC: Article 6, unnumbered section

AC amended? Yes. AC §273 was amended August 26, 1955.
Missouri
Current constitution: 1945 AC: Article 12
Prior constitutions:

1875 AC: Article 15
1865 AC: Article 12
1820 AC: Article 12

AC amended? No.
Comment. The 1875 AC was amended November 2, 1920. A new constitution was rejected by the voters in 1846.
Montana
Current constitution: 1972 AC: Article 14
Prior constitutions: 1889 AC: Article 9, §§8-9
AC amended? No.
Comment. The 1889 AC §9 was amended November 3, 1970.
Nebraska
Current constitution: 1875 AC: Article 16
Prior constitutions: 1866 AC: Unnumbered
AC amended? Yes. AC §1 was amended in 1952 and 1968, and AC §2 was amended in 1952.
Nevada
Current constitution: 1864 AC: Article 16
Prior constitutions: none
AC amended? Yes. AC §1 was amended in 1972.
Comment. Amendments to AC §1 and §2 were ratified in 1886 but declared invalid because not properly entered on the journal of either House. Stevenson v. Tufly, 19 Nev. 391 (1887).
Article 1, §2 of the Nevada Bill of Rights declares that the people "have the right to alter or reform [their government] whenever the public good may require it."
New Hampshire
Current constitution: 1783 AC: Articles 99, 100
Prior constitutions: 1776 AC: none
AC amended? Yes. AC (Article 100) was amended in 1793 and 1964.
Comment. Article 1, §10 of the Bill of Rights asserts that "whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought, to reform the old, or establish a new government. The doctrine of non-resistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind."
New Jersey
Current constitution: 1947 AC: Article 9
Prior constitutions:

1844 AC: Article 9
1776 AC: none

AC amended? No.
Comment. The 1844 constitution was not made under the authority of the 1776 AC, since there was no 1776 AC. The 1844 constitution was drafted by a convention called by the General Assembly and ratified in a popular election. Article 5 (Powers of the General Assembly) of the 1776 constitution did not give the General Assembly the power to call a convention.
Although the 1776 constitution did not contain an AC, it did suggest that amendment of the constitution of the colony (a different document) was possible by providing in Article 23 that legislators must take an oath not to "annul, repeal, or alter" certain sections of the charter.
The last paragraph of the 1776 constitution provides for the conditional nullification of the whole constitution —"if a reconciliation between Great Britain and these Colonies should take place."
New Mexico
Current constitution: 1911 AC: Article 19
Prior constitutions: none
AC amended? Yes. AC §§1, 2, 3, 4, and 5 were amended November 7, 1911.
Comment. The amendments to the AC noted above were required by Congress as a precondition of statehood. 37 Stat. 39 (August 21, 1911). New Mexico was the only state that had to amend its AC prior to admission to the Union. Without the federally required self-amendments, the AC was not substantially different from the ACs of many other states.
AC §1 contains the procedures for ordinary amendment. AC §5 entrenches §1, immunizing it from amendment except by a convention called to revise the whole constitution. Nevertheless AC §1 has been amended circuitously by an ordinary amendment, as follows. AC §1 says (inter alia) that "any amendment...to this constitution may be proposed...at any regular session" of the legislature. An ordinary amendment to Article 4, §5.B (November 5, 1940) limited the types of action that the legislature could consider in even-numbered years to a short list that did not include constitutional amendments. Because the latter amendment was adopted later than AC §1, the limitation on even-numbered years amends the language, "any regular session," in AC §1. Op.Atty.Gen. No. 65-212 (1965). In short, the amendment to Article 4, §5.B amended AC §1 despite the entrenchment clause in AC §5. But note that there were eight proposed amendments in the even-numbered year of 1970. See Op.Atty.Gen. No. 69-151 (1969-70). Moreover, proposed amendments that would repeal the entrenchment clause were defeated on September 28, 1965, November 3, 1970, and November 2, 1971.
For a case holding that parts of AC §1 violated the 14th Amendment of the federal constitution (the one-person, one-vote principle), see State ex. rel. Witt v. State Canvassing Board, 78 N.M. 682, 437 P.2d 143 (1968). For an Attorney General Opinion that the old constitution (particularly its AC) must be followed in making a new constitution, see Op.Atty.Gen. No. 69-105 (1969). For another opinion that a constitutional convention may submit a new constitution and an amendment to the old constitution at the same election, see Op.Atty.Gen. No. 69-118 (1960); see the entries for Georgia and North Carolina for examples.
AC §3 provides that if the constitution is amended to allow the people to enact laws directly, then the same limitations will apply to the people that now apply to the legislature. This is the only AC I know of that anticipates future amendments by a conditional provision (but see the conditional nullification of the New Jersey constitution of 1776).
Some of the tangles of the New Mexican history of self-amendment are discussed in Section 9.B.
New York
Current constitution: 1938 AC: Article 19
Prior constitutions:

1894 AC: Article 19
1846 AC: Article 13
1822 AC: Article 8
1777 AC: none

AC amended? Yes. AC §1 was amended in 1941, effective January 1, 1942.
Comment. New constitutions were rejected by the voters in 1867, 1915, and 1967. Although the 1777 constitution contained no AC, it was once directly amended (October 27, 1801), and of course once indirectly amended. The direct amendment was made by a convention called by an act of the legislature.
The current constitution was written in 1894 but widely revised by convention in 1938.
North Carolina
Current constitution: 1970 AC: Article 13
Prior constitutions:

1875 AC: Article 13
1868 AC: Article 13
1861 AC: Article 13
1776 AC: none

AC amended? No.
Comment. The 1776 constitution contains no AC, but does contain something like an entrenchment clause for the Declaration of Rights, asserting that the latter "ought never to be violated on any pretence whatever." See comment on Delaware, above.
At the same election that ratified the 1970 constitution, six amendments to the 1875 constitution were submitted and ratified. See comments on Georgia, New Mexico, above.
North Dakota
Current constitution: 1889 (rearranged 1979) AC: Article 15, §202 (1889), AC: Article 4, §45 (1979)
Prior constitutions: none
AC amended? Yes. Aside from the rearrangement and renumbering of 1979, the AC was amended on November 3, 1914, November 5, 1918, and November 7, 1978.
Comment. Article 1, §2 of the North Dakota Bill of Rights declares that the people "have a right to alter or reform [their government] whenever the public good may require."
The current AC is unusual in being located in the article on legislative power (after the 1979 rearrangement).
Ohio
Current constitution: 1851 AC: Article 16
Prior constitutions: 1802 AC: none
AC amended? Yes. In 1913, the current AC was added to the 1802 constitution, which had no AC. AC §1 was amended on May 7, 1974.
Comment. A new constitution was rejected by the people in 1874. A virtually new constitution was adopted in 1912 when 39 of 42 amendments proposed by a convention were adopted; one of the new amendments was the state's first AC. Prior to 1912 the only section resembling an AC was Article 8, §1 of the 1802 Bill of Rights, asserting that the people have "at all times a complete power to alter, reform, or abolish their government, whenever they deem it necessary."
Oklahoma
Current constitution: 1907 AC: Article 24
Prior constitutions: none
AC amended? Yes. AC §1 was amended July 1, 1952, and August 27, 1974.
Oregon
Current constitution: 1857 AC: Article 17
Prior constitutions: none
AC amended? Yes. The entire AC was repealed and replaced by the current AC §1 alone, June 4, 1906; AC §2 was added November 8, 1960.
Comment. Article 1, §1 of the Bill of Rights asserts that the people have "at all times a right to alter, reform, or abolish the government in such manner as they think proper."
Pennsylvania
Current constitution: 1874, renumbered 1967 AC: Article 18 (1874), Article 11 (1967)
Prior constitutions:

1838 AC: Article 10
1790 AC: none?
1776 AC: §47

AC amended? Yes, but only by renumbering, May 16, 1967, and by an insignificant word change in AC §1 (date unknown).
Comment. Article 1, §2 of the Declaration of Rights asserts that the people "have at all times an unalienable and indefeasible right to alter, reform, or abolish their government, in such a manner asd they may think proper." Note that the last section of the article (§24) entrenches the whole article in some sense by asserting "that everything in this article is excepted out of the general powers of government, and shall forever remain inviolate." See comment on Delaware, above.
The AC in the Pennsylvania constitution of 1776 was apparently the first explicit amending clause in world history. See Section 9, note 44.
Rhode Island
Current constitution: 1842 AC: Article 13
Prior constitutions: 1841 (People's Constitution) AC: Article 13
AC amended? Yes. The entire AC was annulled by the 42nd amendment.
Comment. Although Rhode Island became a state in 1790, it operated without a constitution until 1842. Prior to that time its organic law was its colonial charter, signed by Charles II in 1663. The charter greatly benefitted large landowners, contributing to the insurrection known as the Dorr Rebellion in 1841, in which disaffected and disenfranchised small landowners called a People's Convention in order to draft a constitution more to their liking. The product of the convention was ratified by a large majority of voters. The "Charter Government" called its own convention in response, drafted a more conservative document (though less conservative than the charter), and saw it rejected by the voters. Thomas Wilson Dorr, a leader of the rebellion, was elected governor under the People's Constitution, but the incumbent under the charter refused to step down, claiming that the People's Convention was a nullity. The United States Supreme Court called the issue a political question and refused to decide it, while deciding other aspects of the case. Luther v. Borden, 48 U.S. 1 (1849). The Supreme Court in effect shifted the case to the Executive Branch, where President Tyler decided in favor of the Charter Government. Dorr was arrested and his movement put down by military force. The Charter Government called another convention; it conceded enough to the rebels that its constitution was adopted by voters in 1842. That constitution is still in effect. A new constitution was rejected by voters in 1898.
Article 1, §1 of the Bill of Rights grants to the people the right to alter or abolish their form of government, but also makes the following addition. "[T]he Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all." This is the only constitutional provision I have seen that says of the whole instrument, and even its successors, in effect, "valid and supreme until amended." Also note that the section claims to impose a duty even after the time of its replacement. As a result of the Dorr Rebellion, it also contains language ("an explicit and authentic act of the whole people") by which to test the validity of any future changes brought about by rebellion.
South Carolina
Current constitution: 1895 AC: Article 16
Prior constitutions:

1868 AC: Article 15
1865 AC: Article 12
1790 AC: Article 11
1778 AC: none
1776 AC: none

AC amended? Yes. The current AC was amended 11 times between 1965 and 1979, and apparently never before that.
Comment. The 1776 and 1778 constitutions were passed by the General Assemblies. The South Carolina Supreme Court declared soon after 1778 that both "constitutions" were actually statutes that the General Assembly could amend and repeal at will. That is one way to solve the problem of amending an organic law without an AC.
Article 1, §1 of the Declaration of Rights asserts that the people "have the right at all times to modify their form of government."
South Dakota
Current constitution: 1889 AC: Article 23
Prior constitutions: none
AC amended? Yes. AC §§1, 2, and 3 were each amended November 7, 1972.
Comment. Attempts to amend AC §§1 and 3 were defeated on November 3, 1964 and November 3, 1970. An attempt to amend AC §2 was defeated in November of 1916.
Article 6, §26 of the Bill of Rights declares that the people "have the right in lawful and constituted methods to alter or reform their form of government in such manner as they may think proper."
Tennessee
Current constitution: 1870 AC: Article 11, §3
Prior constitutions:

1834 AC: Article 11, §3
1796 AC: Article 10, §3

AC amended? Yes. The 1870 AC was replaced by the current AC by an act of convention in 1953.
Comment. Articlce 1, §1 of the Declaration of Rights recognizes "an inalienable and indefeasible right to alter, reform, or abolish the government in such manner as they may think proper." Article 11, §16 entrenches the Declaration of Rights in strong language: it "shall never be violated on any pretence whatever. And to guard against transgression of the high powers we [the people] have delegated, we declare that everything in the bill of rights contained, is excepted out of the General Powers of government, and shall forever remain inviolate." (See comment on Delaware, above.) Nevertheless, the following sections of the Declaration of Rights have been altered, either through direct use of the AC, or through succeeding constitutions, not counting mere numbering changes: §§3, 4, 5, 6, 8, 9, 11, 13, 14, 15, 17, 18, 19, 20, 25, 26, 27, 29, 31, 32, 33, and 34.
The 1870 constitution declares in its preamble that it was drafted and ratified under the authority, not of the AC, but of Article 1, §1 of the Declaration of Rights of the 1834 constitution, which contained a right to alter or abolish similar to that spelled out above.
Texas
Current constitution: 1876 AC: Article 17
Prior constitutions:

1869 AC: Article 12, §50
1866 AC: Article 7, §§37-38
1861 AC: Article 7, §37
1845 AC: Article 7, §37

AC amended? No?
Comment. Article 1, §2 of the Bill of Rights declares that "subject to this limitation only [that there shall be a republican form of government], they [the people] have at all times the inalienable right to alter, reform, or abolish their government in such manner as they may think expedient."
Utah
Current constitution: 1895 AC: Article 23
Prior constitutions: none
AC amended? Yes. AC §1 was amended November 9, 1970, effective January 1, 1971.
Comment. Article 1, §2 of the Declaration of Rights asserts that the people "have the right to alter or reform their government as the public welfare may require."
Vermont
Current constitution: 1793 AC: Chapter 2, Art. 68
Prior constitutions: 1786 AC: Chapter 2, Art. 40
AC amended? Yes. The original 1793 AC (which had been numbered Chapter 2, Article 43) was repealed and replaced by the 25th Amendment in 1870.
Virginia
Current constitution: 1970 AC: Article 15
Prior constitutions:

1902 AC: Article 15, §§196-97
1870 AC: Article 12
1864 AC: none
1851 AC: none
1829 AC: none
1776 AC: none

AC amended? No.
Comment. The early Virginia constitutions were drafted by conventions called by the legislature; the 1870 constitution was drafted by a convention called by the federal Congress under the Reconstruction Acts.
Washington
Current constitution: 1889 AC: Article 23
Prior constitutions: none
AC amended? Yes. AC §1 was amended in November of 1912 (by the 7th Amendment, which became Article 2, §1.d) and again on November 6, 1962.
West Virginia
Current constitution: 1872 AC: Article 14
Prior constitutions: 1861 AC: Article 12
AC amended? Yes. AC §2 was amended November 8, 1960, and November 7, 1972.
Comment. Article 3, §3 of the Bill of Rights asserts that "a majority of the community has an indubitable, inalienable, and indefeasible right to reform, alter, or abolish [its government] in such a manner as shall be judged most conducive to the public weal."
Wisconsin
Current constitution: 1848 AC: Article 12
Prior constitutions: none
AC amended? No?
Comment. Wisconsin drafted its first constitution in 1846 under a federal enabling act, and early in 1847 was admitted to the Union on the condition that its new constitution was ratified by its citizens. The people of Wisconsin rejected the constitution, however, and admission to the Union was postponed. Another constitutional convention was called in 1847 to draft a new constitution. Jameson believes that the original federal enabling act did not extend to the new convention; John Alexander Jameson, A Treatise on Constitutional Conventions, Callahan and Co., 4th ed. 1887, §§188ff. Hence on this view Wisconsin joins the states whose first constitutions were not antecedently authorized.
Wyoming
Current constitution: 1889 AC: Article 20
Prior constitutions: none
AC amended? No.
Comment. Article 1, §1 of the Declaration of Rights asserts that the people "have at all times an inalienable and indefeasible right to alter, reform or abolish the government in such manner as they may think proper."

Notes
1. Arkansas, California, Colorado, Florida, Iowa, Kansas, Michigan, Nebraska, Nevada, Oregon, Tennessee, and Wisconsin; see John Alexander Jameson, A Treatise on Constitutional Conventions, Callahan and Co., 4th ed. 1887, §§188ff. Wisconsin is on this list because of some very interesting history; see the entry under Wisconsin in the text. [Resume]
2. Cooley says that these constitutions were made

irregularly by the spontaneous action of the people, or under the direction of the legislative or executive authority of the Territory to which the State succeeded. Where the irregularities existed, they must be regarded as having been cured by the subsequent admission of the State in to the Union by Congress.

Thomas M. Cooley, A Treatise on Constitutional Limitations, Little, Brown and Co., 8th (Carrington) ed., 1927, vol. 1, pp. 80-81. On cure by admission to the Union see Secombe v. Kittelson, 28 Minn. 555 (1882), concerning amendments irregularly made to the Minnesota constitution before Minnesota became a state. See Yawitz, "The Legal Effect Under American Decisions of Alleged Irregularities in the Adoption of a Constitution or Constitutional Amendment," St. Louis Law Review, 10 (1925) 279; Wayne B. Wheeler, "The Constitutionality of the Constitution is Not a Justiciable Question," Century Law Review, 90 (1920) 152. [Resume]
3. Richard A. Edwards (ed.), Index Digest to State Constitutions, Columbia University Press, 1959. However, it is valid only up to September 1, 1958, and only covers the then-current constitutions. Less abbreviated and better annotated is Walter Farleigh Dodd, The Revision and Amendment of State Constitutions, Johns Hopkins University Press, 1910, but it is valid only up to 1910. Dodd's work is supplemented to some extent by T.R. White, "Amendment and Revision of State Constitutions," University of Pennsylvania Law Review, 100 (1952) 1132-52. The full texts of all state constitutions as of 1918 are collected in Charles Kettleborough's The State Constitutions, B.F. Bowen and Co., 1918. (It also includes the basic laws of the District of Columbia and the organic acts of Alaska, Hawaii, the Panama Canal Zone, Puerto Rico, the Virgin Islands, Guano Islands, Midway Islands, Tutaila, and Wake Island.) The full texts as of 1962 have been collected in a looseleaf service that is supposed to be updated regularly, although it is less current for some states than for others, and usually less current than the state statute books: Constitutions of the United States: National and State, Oceana Publications, 1967. A more complete service, though even slower to be updated, is William P. Swindler (ed.), Sources and Documents of the United States Constitutions, Oceana Publications, 1973, 10 volumes (not a looseleaf service). Recent amendments and revisions, and the procedures under which they came about, are well summarized in Albert L. Sturm, Thirty Years of State Constitution-Making, 1938-1968, National Municipal League, 1970, and the Council of State Governments, Modernizing State Constitutions, 1966-1972, Council of State Governments, 1973. [Resume]

This file is one section of the book, The Paradox of Self-Amendment. Return to the Table of Contents.

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MA	MI	MN	MS	MO	MT	NB	NV	NH	NJ
NM	NY	NC	ND	OH	OK	OR	PA	RI	SC
SD	TN	TX	UT	VT	VA	WA	WV	WI	WY

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NM	NY	NC	ND	OH	OK	OR	PA	RI	SC
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AL	AK	AZ	AR	CA	CO	CT	DE	FL	GA
HI	ID	IL	IN	IA	KS	KY	LA	ME	MD
MA	MI	MN	MS	MO	MT	NB	NV	NH	NJ
NM	NY	NC	ND	OH	OK	OR	PA	RI	SC
SD	TN	TX	UT	VT	VA	WA	WV	WI	WY