Improving Amendment

State constitutional amendment rules are often criticized for their poor design. The most common criticism is that the frequent use of direct democracy bypasses the virtues of representative decision making and effectively surrenders constitutional politics to well-financed special interests. Indeed, many initiative states need to improve the democratic quality of their amendment procedures. They need effective ways to foster constructive public deliberation, incentivize meaningful citizen participation, and provide checks on the influence of special interests. In this essay, I consider whether states might achieve some of those improvements if they changed the process for ratifying citizen-initiative amendments to require debate and approval by locally-elected governing bodies rather than a public referendum. The specific proposal that I explore is whether initiative states could improve their amendment processes by changing amendment rules to require ratification of citizen-initiatives by some majority of existing county governing bodies rather than a statewide referendum. Sending amendment ratification decisions to locally-elected bodies could have the beneficial effect of keeping constitutional decision-making close to citizens while at the same time retaining many of the virtues associated with representative decision-making. It might also help undermine special-interest capture by dividing the amendment power across numerous independently elected bodies rather than centralizing it within a state legislature or popular majority vote. Of course, a county-ratification model is not a panacea. There are many difficulties and costs associated with this approach. It might, for example, make the citizen-initiative too difficult to use, which would effectively shift all amendment power to the legislature. County representatives might also be ill-suited to decide statewide constitutional issues because of mismatched expertise and limited resources. A county-ratification model could also result in unconstitutional voter-dilution because of significant population differences between counties. These issues, among others, represent serious difficulties with the county-ratification model that cannot be overlooked. My goal in this essay is only to suggest that the county-ratification model deserves serious consideration as states struggle with how they might improve their amendment processes

Textualism and Obstacle Preemption

Commentators, both on the bench and in the academy,have perceived an inconsistency between the SupremeCourt\u27s trend, in recent decades, towards an increasinglyformalist approach to statutory interpretation and theCourt\u27s continued willingness to find state laws preemptedas obstacles to the accomplishment and execution of thefull purposes and objectives of Congress\u27 --so-called obstacle preemption. This Article argues that by givingthe meaning contextually implied in a statutory textordinary, operative legal force, we can justify most of thecurrent scope of obstacle preemption based solely ontheoretical moves textualism already is committed tomaking.The Article first sketches the history of both textualismand obstacle preemption, showing why the two doctrinesseem so obviously to be in tension with one another. It then introduces the field of linguistic pragmatics-thestudy of context\u27s role in determining meaning-payingspecial attention to the theory of scalar implicature, aframework that attempts to systematize our intuitions thatwe often say one thing but imply another. The Article thenproceeds to apply this theory to the obstacle-preemptioncase law, contending that scalar implicature, propertyadjusted to the legal context, can justify the result in mostobstacle preemption cases. Next, the Article argues thattextualists are committed to accepting this justification ofobstacle preemption because of two deep theoreticalpresuppositions of their theory. Finally, the Article closesby suggesting that this justification of obstacle preemptionnot only challenges widely shared assumptions about theinconsistency of textualism and one of the most commontypes of preemption; it also has the potential to reshapeour understanding of both textualism and obstaclepreemption