David Atkinson

The Pennsylvania Constitution is the remarkable operating manual for the commonwealth.  It grants powers and sets limits on state government.  It clearly delineates the guaranteed rights of citizens, which are more numerous than those contained in the federal Bill of Rights.  The environmental declaration is a fine illustration.

Our state Constitution is much more extensive than the federal counterpart.  Several good reasons account for this.  One involves passages defining primarily state responsibilities such as education.  Another is a much fuller description of the state court system.  Of course, people are free to wonder what in the world Traffic Court is doing in there.  Another significant distinguishing factor is that our state Constitution has been revised several times through convention.  From a constitutional perspective, more verbiage is not necessarily preferable, but that battle was lost two centuries ago.

Constitutional amendments are approved with some regularity, despite the extended process by which a proposed amendment qualifies for the ballot and voter determination.  The state Supreme Court has added to the rigorousness of the process, with justices increasingly inclined to strike down even voter-approved amendments because of procedural flaws in the process.  Remember the ill-fated victims’ rights amendment, struck down on what non-legal minds see as a tortured technicality?

Now we are witnessing new imperatives for constitutional add-ons.  Legislators have successfully pursued the constitutional amendment avenue to resolve political food fights over executive powers during an emergency, prompted by executive branch imposition of unpopular pandemic restrictions and mandates.  Frustrated by an inability to override frequent Wolf vetoes, Republicans are seeking to park partisan-flavored election requirements in the Constitution.

There is every reason to question whether these relatively minor policy spats rise to the level of resolution in the Constitution.  Nevertheless, since populism seems to be the prevailing motivation of the movement, it is worthwhile to assess potential implications.

The quick answer given on Voter ID is that the people support these changes and should have a chance to vote directly on solutions.  Okay then, why not apply the same reasoning to other changes that have long enjoyed popular support?  Say a smaller General Assembly.  Or property tax reform.  Or redistricting reform.  On a lesser level, why the congenital reluctance to move on matters that require a simple bill, say a gift ban?  That has nearly universal public support.

There are also constitutional provisions of long standing that warrant revisiting.  A good example here is the anti-Catholic Blaine amendments often cited as a barrier to real school choice in primary and secondary education.   Those are 1874 vintage, and circumstances and attitudes have surely changed.  Or how about the statute of limitations language that seems horribly antiquated in light of the horrific abuse scandals of recent decades?  An overhaul, not just a quick window, as justified as that might be.

There is a bigger question that has received next to no attention.  Why should voters depend entirely on state legislators to decide which of public priorities are to be put up for approval or disapproval?  Legislators have a penchant for picking items from the lower rungs of taxpayer priorities while ignoring the heavy favorites.  If voter sentiment is truly the measuring stick for advancing constitutional amendments, then perhaps it is time to bypass the middlemen and women and accord voters the power of initiative and referendum.  About half of states do.  It is certainly a means for boosting participatory democracy.  Ballot questions draw full-throated public debate and juice voter turnout.

Veteran legislative observers recall that the late state Senator Jim Rhoades vigorously advocated initiative and referendum.  He did extensive research into other state processes, revising his plan as he learned more about the advantages and drawbacks of practical experience elsewhere.  Support or oppose it, his plan was carefully crafted.  Since his untimely death, Pennsylvania has not seen another steadfast champion emerge.  If those who constantly counsel their colleagues to “trust the voters” see initiative and referendum as a non-starter, then their position looks like transactional expediency rather than overarching philosophy.  If we are all-in on populist sentiment, why not be all-in in practice?

Of course, there is always the ultimate solution, a constitutional convention.  In these times when voters are increasingly deeply divided, disrespectful of authority, and dismissive of consensus building, it is impossible to see how a convention could be fairly constituted, reach agreement on the provisions to be debated, or emerge with constructive recommendations on the order of what the 1967 convention produced.  Conversely, a convention could easily degenerate into the Wild West, with various partisans endeavoring through a revised constitution to settle on their terms every raging social and cultural question.  Great political theatre; dreadful script for good governance.

The point of this discussion is to highlight the apparent abyss of inconsistency between the lesser matters state legislators choose to act on in the name of the public interest and the higher stakes issues they refuse to give even a hearing.  This likely consigns me to join the small-minded hobgoblins who seek some semblance of consistency, but the point merits exploring.

David A. Atkinson, Associate of the Susquehanna Valley Center for Public Policy

Nothing contained here should be considered as an attempt to aid or hinder the passage of any legislation.

The views expressed here are those of the author and not necessarily those of The Susquehanna Valley Center.