Introduction
Imagine that you learn that when you wake up tomorrow morning, you will have no memory of who you are. Perhaps your doctor tells you news of some obscure neurological problem, or maybe you fear some ancient curse will befall you. You want to leave a note to yourself to quickly erase this amnesia so you can continue with your life. What would you say to your future self? What would be important? Who do you love? What are your values? What matters? Where is the kitchen?
Now, imagine that instead of a single person, we wish to continue the identity of a group of people over many generations. Babies are born, young people grow up, age, and die, but the group remains the same. How could this feat be accomplished? Would there be some master book that everyone memorizes, a set of cultural practices taught to the next generation, or a set of rules that are enforced? And if one generation changes the rules, rewrites the book, or alters the rituals, will the group still have the same identity? How much change is allowed before we can say that we are no longer the same as the previous generation?
This is the dilemma of any group, whether that of a culture, a nation, or a state, such as California. How much change is appropriate? How does a state pass its ways on to the next generation? Drawing on the earlier sections of this chapter, I would like you to develop your own philosophy of constitutional change. How much change is acceptable and what kinds of change do you prefer? Let’s review the formal and informal processes of state constitutional change to help you develop your opinion.
There are different opinions regarding the acceptability of political change. The conservative approach is to be foundationalist—to conceive of a set of fundamental principles that are enshrined in a constitution and establish the structure and process of government, civil liberties, and civil rights. These foundations should define our lives. All laws, government practices, and rights must conform to these foundations; and only in rare circumstances, requiring near unanimity, should there be any change. Policy changes should not be present in a constitution, but should simply be the substance of laws passed by the government. This foundationalist depiction is consistent with conservative preferences with regard to the US Constitution: stick with precedent, and follow the same ways of interpreting the Constitution.
Returning to the story above about forgetting who you are, you might leave yourself a list of the most significant principles that you care about—treating others kindly, working hard, and being honest—with the hope that your future self would keep this philosophy in mind as they approach each hour of the new day. They wake up, read the list, and treat others with kindness in all sorts of situations that simply can’t be predicted the night before.
Thus, for foundationalists, the Constitution functions like the keel of a sailboat. The keel is the long fin below the water that provides stability and support. Without it, even a mild storm would swamp and overturn the boat. In the same way, the state constitution provides the fundamental organization of government, including how the different parts of government will interact, such as the legislative, executive, and judicial branches. It establishes the basic civil liberties and civil rights that we as citizens of California rely on to define our roles. The superstructure of the sailboat—the hull, the cabin, masts, etc.—must be constructed to be consistent with the keel. So if we want to change the keel, we must proceed with utmost caution, for the entire sailboat may founder.
The Framers of the US Constitution made formal constitutional change difficult. Two-thirds of the states are required to call a Constitutional Convention, a step that has never been taken. Instead, hundreds of constitutional amendments are proposed by senators or members of the House of Representatives, and they require a two-thirds majority to pass in both houses, in which case they must still be ratified by three-fourths of the states. As a result, only twenty-seven amendments have been added to the US Constitution. In the place of constitutional amendments, other strategies have changed the nation, such as new laws like New Deal legislation under President Franklin Roosevelt and court cases expanding the scope of civil liberties and civil rights since World War II. For instance, the Civil Rights Act of 1964 and the Voting Rights Act of 1965 profoundly impacted the nation. Yet each new court decision or legislation must be tested against the words of the US Constitution.
In contrast, in California, there is no sharp divide between the California Constitution and legislation; instead, one primary arena for changes in law is amending the Constitution. It is as if, in our story above, at the national level, you gave yourself the Constitution to read so that you would understand who you are as an American, but if you were Californian, a far longer Constitution with blank pages for your future self to write on would be your gift to your future.
Let’s review the many ways that the Constitution can be changed through current processes with the aim of helping you to develop your opinion on what is best—a more foundationalist approach to the California Constitution like what we have at the national level or the more anti-foundationalist approach that we have today in California that serves the demands and needs of the present. A more foundationalist approach would prioritize stability and adherence to established principles, while an anti-foundationalist approach would be more flexible and responsive to current needs. At stake is the deeper ethical question of whether you perceive rules and principles as objective—true and unchanging—or more malleable, relative to the values and preferences of the people living at a given time and place.
Changing the California Constitution
What are the sources of constitutional change? We can divide them into formal and informal methods. The formal methods include actual amendments to the Constitution. The informal methods include changes in the interpretation of the state law by the state and federal courts or changes in the interpretation or enforcement of constitutional procedures, rights, and liberties by state or federal executive authorities.
“We, the people of California, grateful to Almighty God for our freedom, in order to secure its blessings, do establish this Constitution.”
So the 1849 California Constitution begins, first setting out a Declaration of Rights, then the legislative, executive, and judicial branches, plus a few more miscellaneous provisions. Modeled after the New York and Iowa state constitutions, it bears a familial resemblance to the US Constitution, emphasizing a republican form of government, three branches of government with the separation of powers, checks and balances, and provisions for civil liberties. With an eye toward joining the Union, the state constitutional framers banned slavery. Amendments to the Constitution required a majority vote of both houses of the legislature, followed by approval of the next elected legislature with a majority vote, and finally ratification by the people with a majority vote. This rather difficult process resulted in only three amendments added to the California Constitution in 1856, 1862, and 1871 (“The California Constitution of 1849,” California Secretary of State). The legislature could also call for a new Constitutional Convention through a similar process, which is how they convened the Constitutional Convention of 1879.
The delegates of the 1879 Convention made it far easier for the legislature to amend the Constitution, only requiring a two-thirds majority of the legislature, followed by submission to the people. Any revision of the Constitution through a convention had to be initiated by the legislature. Then, in 1911, amendments were added to the California Constitution allowing for the people to amend the Constitution or pass new laws through the initiative process (described earlier in this chapter), bypassing the state legislature altogether. The consequence has been the proliferation of amendments to the Constitution; it has been amended over five hundred times ("California Constitution"). For example, the Constitution of 1879 begins with a California Declaration of Rights that states in Section 1:
“All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”
In 2022, Californians drafted and approved Proposition 1, which added to this section:
“The state shall not deny or interfere with an individual’s reproductive freedom in their most intimate decisions, which include their fundamental right to choose to have an abortion…”
In short, the California Constitution today reflects the values and prejudices of mid-nineteenth-century America, plus the contemporary concerns of majorities who can pass constitutional amendments by gathering the requisite signatures of 8% of registered voters, followed by simple majorities of the electorate. Revisions of the Constitution, defined as broad changes to the legislative procedures and powers of the branches of government, must originate with the legislature. The Legislature may call for a constitutional convention (which must be approved by the people), but since 1879, there has not been a majority in the Legislature willing to do so; perhaps because of the drastic nature of such a move, the outcome on state politics is hard to predict. Note that governors have no formal authority when considering initiatives, amendments, or legislative referenda; their signatures are not part of the process. Hence, direct democracy methods are a way to circumvent gubernatorial power.
There are two other sources of constitutional change in California that arise not from actually changing the Constitution but from changing the interpretation of the Constitution or its enforcement. State policies are embedded within a larger federal framework. The Ninth Amendment of the US Constitution safeguards rights that are not necessarily stated in the US Constitution, and the Tenth Amendment protects the power of states to have jurisdiction over areas of policy not delegated to the US government. These amendments and the general role of the courts in interpreting state law according to state and federal law give judges significant power. For example, in Pruneyard Shopping Center v. Robins (1980), the US Supreme Court upheld the California Supreme Court’s extension of freedom of speech onto private property. High school students had set up a table in a private shopping center to distribute literature supporting Israel, and the Court ruled that the shopping center could not limit their activity based on the California Constitution and the Ninth Amendment of the US Constitution.
The relationship between the federal and state governments can also dramatically change how constitutional provisions and civil rights and liberties are enforced. In 2025, the Trump Administration used the US Civil Rights Act of 1964 to protect the rights of Jewish students at the University of California to study in a harassment-free environment. This is in marked contrast to prior years, where universities were emphasizing the rights of protestors to freedom of speech even when it was offensive to other students (Associated Press).
In summary, constitutional change can occur both formally through amending the Constitution or less formally through changes in enforcement by the executive branches or judicial branches at the state or national level. The question remains: first, how much change do you believe is good in a constitutional democracy? Second, do you prefer formal constitutional change through new amendments to the California constitution or informal change through new interpretations by judges and executive officials? The constitutional aspect of our political systems advises stability, continuity, maintaining foundations; the democratic aspect recommends flexibility and responsiveness to political needs and public opinion. What do you think is best?
