Paradox of Self-Amendment by Peter Suber Appendix 2: Self-Amendment of State Amendment Clauses 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 Some reprint all prior, superseded constitutions, even with annotations; some do not.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 13 178