Abstract
Thomas Jefferson believed that “the earth always belongs to the living generation.” His constitutional approach would empower twenty-first century Americans to decide twenty-first century problems regularly determined by the United States Supreme Court. Article V, the formal method for constitutional change, seemingly relegates these decisions to the Supreme Court because amending the federal Constitution is nearly impossible.
Unfortunately, our fixation on federal constitutional law often eclipses the power of state constitutional law. State constitutions balance our relatively static federal Constitution with responsive state governments. There is no need to debate what the Framers thought about modern issues when Americans can respond to new technology and desired rights through state constitutional amendments. Unlike our federal Constitution, American state constitutions align with Jefferson’s vision of living under the present generation’s desires as opposed to remaining captive to the desires of those long since gone. State governments have provided the periodic change that enables Americans to live under a rarely changed national Constitution. This dual sovereignty, a balance of power between the national government and individual state governments provides a symbiotic system of flexible permanence.
This Article discusses the role that state constitutions, particularly Western state constitutions, play in moderating Article V’s inflexible demands for constitutional change. While Article V erects super-majority standards and only permits amendments from either the federal or state legislatures, many Western state constitutions provide the opportunity for citizen-initiated change. This “check” on the legislatures and courts provides an opportunity for citizens to have their voices heard and their demands considered. Citizen initiatives allow Americans to temper Article V’s stagnancy by providing greater individual rights and protections at the state level. This Article seeks to highlight state constitutional power as an important counter to Article V’s continuing impediment to achieving Jefferson’s constitutional philosophy. Constitutions belong to the living generation.
Recommended Citation
Meg Penrose, Fifty Ways to Leave Your Lover: Using State Constitutions to Escape the Dead Hand of Article V, 83 Wash. & Lee L. Rev. 183 (2026).Available at: https://scholarlycommons.law.wlu.edu/wlulr/vol83/iss1/6