Why Missourians Keep On Amending State Constitution
With dozens of sections and subsections, it wouldn’t be that easy to fit the Missouri Constitution in a shirt pocket.
In the past 10 years, 24 amendments have been proposed to Missouri's constitution. Not all of those propositions passed, but the Show Me State’s constitution has been changed more often than the federal one. (The U.S. Constitution has been amended 27 times.)
This year’s election cycle featured more constitutional amendments on the ballot – nine – than any time in last decade. Three of them passed in August, and four more will be decided Tuesday.
While the Missouri General Assembly placed most of the amendments on the ballot, the teacher tenure amendment was a result of an initiative petition. Some measures were in reaction to judicial decisions or clashes with Gov. Jay Nixon; others were aimed at providing a check of sorts against legislation or initiative petitions.
But at least two legislators who have handled amendments cite a broader purpose: placing limits on Missouri’s government.
“What you’ve seen with the other amendments more than anything is born out of a strong distrust of government,” said state Rep. Todd Richardson, R-Poplar Bluff, who sponsored a constitutional amendment to curb gubernatorial withholding power, known as Amendment 10. “You’ve got a strong sense of the public that government’s not headed in the right direction. People are fearful about government overreach. And one of the ways you can restrain government power is by enumerating rights and enumerating things in the constitution.”
Still, at least one observer said the abundance of amendments is reflective of an inexperienced legislature that doesn’t see the long view of things.
“There are a lot of amendments to the constitution generally. But it has accelerated, it seems to me, in recent years probably because of term limits,” said Michael Wolff, the dean of St. Louis University Law School and former member of the Missouri Supreme Court. “Because there are, I think, few people with long-term institutional memory who are in charge of things. And they just see the constitution as just another thing that can be amended.”
A fungible document
First, some basics. Unlike the federal constitution, it’s relatively easy to amend Missouri’s constitution. An amendment can get on the ballot through either an initiative petition or the legislature. If it gets over 50 percent of the vote, it’s in.
Typically, the constitution is amended for very specific reasons. They include:
- Changing something already in the Constitution, such as the gubernatorial withholding power over the budget.
- Taking away the Missouri General Assembly’s authority to pass a statute, such as the 2006 stem cell amendment.
- Going around a legislature that’s not passing specific law, such as this year’s effort to curb teacher tenure.
- Bypassing a likely gubernatorial veto, such as, say, placing so-called “right to work” in the Missouri Constitution.
- Placing a broad restriction to impede any future statutes, such as the “right to farm” amendment.
There are also some extenuating circumstances. Two amendments – Amendment 10 and Amendment 2 (to make it easier to prosecute child sex crimes) – are effectively reactions to judicial decisions.
Richardson said Amendment 10 dealt with a conflict involving Nixon’s withholding power “where there wasn’t going to be any judicial review of what the outer limits of that withhold power are.”
“There are times when the only solution to a problem is to look at what the constitution says and to consider changing it,” Richardson said. “What you’ve seen in some other areas is a reflection of trying to put some stronger language in the constitution to limit government’s ability to do mischief in certain areas, I guess, is the right way to put it. “
Amendment 6 on early voting was a reaction to an initiative petition that didn’t make the ballot. It's more restrictive, and an arguably less expensive, proposal.
State Sen. Will Kraus, R-Lee’s Summit, said that “clerks were concerned about the six-week proposal and the cost that it would have on the local election authority.” (It should be noted some clerks have not been that happy with the measure that’s up for a vote.)
“People around the state are concerned on various issues that they want to protect their rights,” said Kraus, who handled the early voting measure in the Senate. “But just putting it in statute doesn’t necessarily do that as well as putting it in the constitution. It’s relatively easy to change in the statutes. It’s very hard to change once it’s in the constitution.”
Kraus also said some amendments may be a byproduct of the GOP-controlled legislature’s antipathy toward a Democratic governor.
But Richardson said Amendment 10 is a corrective to a problem that has gone on for years.
“I don’t think it’s good for government to have any one person that can have absolute say – particularly in an area as important as the budget,” Richardson said. “Amendment 10 was born out of the idea to say ‘look, we have checks and balances when it comes to the budget process when the governor uses a line-item veto.’ But we have a situation where the governor can exercise the same power as he does with a line-item veto through a withhold that completely escapes any legislative review or any check and balance.”
Both Kraus and Richardson predict that this year is something of aberration. They expect Missourians to vote on fewer constitutional amendments in the next couple of election cycles.
But not everybody likes the current setup. In a recent blog post, David Kimball, a political scientist at the University of Missouri-St. Louis, expressed wariness about placing specific, administrative direction into the constitution. Kimball warned of unintended consequences with placing a requirement for the legislature to pay for the cost of early voting in the constitution.
Wolff went a step further, contending that Missouri’s constitution is “probably six or eight times longer than the U.S. Constitution” with some parts “that are really not even very coherent.” He added that “we’re about as easy to amend as it gets.”
“The constitution should be a statement of principles and principles that courts can read, interpret and apply. But then you go back several years to Amendment 2, the stem cell research one. That thing went on and on and on for pages,” Wolff said. “Why would you put that in the constitution? Well, they did it because they didn’t want the legislature to be able to change it. But you lock in a moment in time whatever the scientific, learning or desires were.
“And why should you put that in a constitution – which is, after all, difficult to change unless you’ve got a real motivation to change it?” he added.
Wolff said it might be better if there were a higher threshold to approve amendments.
Some states, he said, require a percentage higher than 50 percent to pass. He said he would favor having voters pass an amendment twice “because you have a somewhat smaller electorate in the off year elections than you do in the general elections of the presidential or gubernatorial year.”
“Before we change the constitution, we really ought to have both sets of voters take a look at it and decide whether it should be changed,” he said.
If it were harder to place amendments in the constitution, George Connor, Missouri State University political science professor, sees another unintended consequence: It may provide some incentive for lawmakers to come to consensus more often.
"There is a sense, especially with the ones that come from the legislature, that there is the abdication of responsibility," Connor said. "And it’s a lot to easier to let the people decide than to actually hammer out a politically acceptable agreement in Jefferson City."
"The avenue of least resistance is the statewide vote," he added. "And you always have cover, because it’s democratic. We’re letting the people decide this very important issue."
On the Trail, a weekly column, weaves together some of the intriguing threads from the world of Missouri politics.