Constitutional Amendments: Cementing the road to poor policy

The Nevada State Constitution is a long, hot mess of a document.  It’s a little more than 37,000 words long, give or take, depending on how you do the word count.  That’s longer than Orwell’s Animal Farm (29,966), Steinbeck’s Of Mice and Men (29,160), or Dickens’ Christmas Carol (28,944).  The federal Constitution, including text which has been repealed by amendment, doesn’t get past 7,700.   

Worse than its raw length, the content is all over the map.  It creates a foundational structure for our government and protects the rights of minorities over majorities, as all constitutions in a republic must do.  But then it wanders off into the weeds (so to speak) on medical marijuana, various tax exemptions, marriage regulation, minimum wage, vehicle registration fees, lotteries, campaign finance laws, and so on and so on.

Instead of a solid trellis upon which we can create and adjust our statutes and regulations, we’re stuck with a simultaneously too-flexible and not-flexible-enough tool for implementing various policies.  Since 1864, it’s been amended more than 100 times. This legislative session alone is considering no fewer than 11 state Constitutional amendments.

Our legal landscape always changes, of course.  But constitutional provisions (as opposed to ordinary ordinances and statutes) are unwieldy, by design.  That’s great for things like protecting fundamental rights of unpopular individuals against politically powerful majorities, but a lot less great when you realize those tax exemptions for special interests created an “unexpected” mess we can’t clean up for (at least) another five years.  Because both methods of constitutional amendment require a popular vote, you also have the problem of poorly worded, emotionally driven language that can backfire in all sorts of absurd ways.  How we make law is in many ways just as important as what we make the law.

To illustrate this point, we have only to look at a few of this session’s proposals.

AJR1, AJR8, and SJR13 all purport to protect us from willy-nilly tax raising, which I usually like as a matter of policy.  AJR1 requires a “vote of the people” to ratify expansions of the Commerce Tax to less wealthy businesses, which sounds great, except that it would simply incentivize such a tax-happy Legislature to raise other, potentially more economically damaging types of taxation.  AJR8 trusts “the people” a lot less, requiring a 2/3 popular vote win to raise taxes, fees, or assessments by initiative or referendum. SJR13 limits property tax increases.

Tax policy is complex, and not all attempts to limit taxation save us money in the long run.  For example, say a majority of a community would rather pay for an infrastructure project up front, rather than having to go into debt via public bonds – AJR8 makes debt the easier path.  Some amendments specify dollar amounts that may make no sense years from now.  If individual communities can’t raise taxes for their own services, a later, more liberal state government is likely to raise them on everyone in the state down the road – with less local input or control over how funds are used.  (To me, limiting debt and keeping government as local as possible are more conservative principles than any arbitrarily set limits on specific tax rates.)  And again, constitutionally closing the door on one type of tax increase merely invites other “creative” revenue options – virtually guaranteed to be more expensive in the long term than merely tweaking an existing system.

AJR2 wants to protect same-sex marriage, which is almost as silly a specific constitutional provision as protecting heterosexual marriage turned out to be.  Instead of trying to address every social debate directly, add a general due process clause if we must.  That won’t do anything either since the federal Constitution binds us in that regard, but hey – one man’s word clutter is another man’s campaign brochure fodder.

SJR1 would create a full time “Clemency Board,” taking the pardoning of convicted criminals out of the electorally accountable hands of the Governor, Attorney General, and Supreme Court Justices, and giving it to a commission of unaccountable political appointees.  What could go wrong?

SJR3 is a sort of voter’s bill of rights (legible ballots, that sort of thing), but is blowhardy, toothless, and merely re-affirms what is already the law.  It will probably invite lawsuits against local governments, draining funds that could have been used for, say, better trained poll workers.  SJR17 is likewise a solution in search of a problem – it’s a “victim’s rights” bill which literally replaces existing “victim’s rights” language in the Constitution with similar (but wordier) provisions.  At best, this sort of thing is pointless, but more realistically it will cost local governments tens of thousands of dollars for additional employees for compliance purposes (preventing them from, you know, hiring more cops), keep people in jail longer for minor offenses, and limit access to what should be public records – all of which happened in South Dakota when a virtually identical amendment was added to their constitution.

I’m all for laws or regulations which provide victims of crime a voice, keep taxes low, insure the integrity of our elections, and respect the commitment of any loving couple.  But as with any regulatory scheme, the devil is in the details, and constitutions just aren’t meant to handle the devilish details of day-to-day policy.

Whatever the merits of the ideas in these amendment proposals, they will inevitably be implemented imperfectly, and we will discover unintended consequences.  Save constitutional amendments for structural fundamentals. By guarding our flexibility to constantly reevaluate and improve our laws, we’ll retain the freedom to better govern ourselves.

Orrin Johnson was a political columnist for the Reno Gazette-Journal in 2015 and 2016. He began blogging in 2005 for his law school’s Federalist Society chapter and in 2007 started his own blog, First Principles. He can be reached at orrin@orrinjohnson.com. Follow him on Twitter @orrinjohnson.