Can the Arkansas legislature change a constitutional amendment that voters passed by initiative, or do voters have to approve any change?

Plain-English summary

Senator Jim Dotson asked whether Arkansas's General Assembly can amend a voter-approved initiated constitutional amendment by a two-thirds vote under Amendment 7. Attorney General Tim Griffin said Amendment 7's plain language gives the legislature that power. He acknowledged that the Arkansas Supreme Court held otherwise in Edgmon in 1951 and said he believes that decision was wrongly decided. He predicted the court would overturn it if the issue were raised today.

Amendment 7 says no voter-approved “measure” may be amended or repealed by the General Assembly without a roll-call vote of two-thirds of all members elected to each house. It defines “measures” to include constitutional amendments. The opinion argues that Edgmon departed from those words because the court thought the literal result “inconceivable.” Griffin says the more recent, narrow absurdity doctrine does not justify that departure: the text has a conceivable purpose, and no obvious technical word or phrase can be corrected to eliminate the supposed absurdity.

The opinion also argues that stare decisis should not preserve Edgmon because, in Griffin's view, the decision departed from clear constitutional text. This is the Attorney General's interpretation and prediction about a future court ruling. The opinion reports no new ruling overturning Edgmon, and its question and answer address legislative amendment, not a separate power to repeal an initiated constitutional amendment.

What this means for you

Legislators and legislative staff

The opinion provides an argument for a two-thirds legislative amendment, but it also identifies the existing Supreme Court decision holding the opposite. Treat any proposed action as raising a disputed constitutional question until the court resolves that conflict. The opinion makes no promise about how the Attorney General's office would litigate a future case.

Ballot initiative sponsors and voters

A voter-approved constitutional amendment is the subject of this opinion's legal question. Its analysis may matter if the legislature later tries to change one, but the opinion itself does not change an amendment. The Attorney General also does not decide whether the legislature can repeal one outright.

Common questions

What did the Arkansas Supreme Court decide in Edgmon?

The opinion says Edgmon held that the General Assembly could not amend an initiated constitutional amendment by a two-thirds vote, despite acknowledging that Amendment 7's literal words pointed the other way.

Why does the Attorney General disagree?

He says Amendment 7 defines “measures” to include constitutional amendments, and its two-thirds exception contains no other restriction on legislative amendment of them. He argues the court's modern approach to plain text and absurdity would lead it to revisit Edgmon.

Did this opinion overrule Edgmon?

No. It is an Attorney General opinion predicting what the Arkansas Supreme Court would do if the issue returned to it. The opinion itself is not a Supreme Court decision.

Does the opinion say the legislature can repeal an initiated constitutional amendment?

No. It quotes Amendment 7's phrase “amended or repealed,” but Senator Dotson asked about amendment, and the opinion's conclusion answers that question. It does not decide a separate repeal question.

Currency note

The opinion was issued November 15, 2024. Check for later Arkansas Supreme Court decisions before relying on its prediction about Edgmon.

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2024-024

November 15, 2024

The Honorable Jim Dotson
State Senator
Post Office Box 651
Bentonville, Arkansas 72712

Dear Senator Dotson:

I am writing in response to your request about the interpretation of Amendment 7 to the Arkansas Constitution. You ask:

Can the General Assembly under Amendment 7 amend an initiated constitutional amendment by a 2/3 majority?

RESPONSE

The plain language of Amendment 7 gives the General Assembly power to amend initiated constitutional amendments. In 1951, the Arkansas Supreme Court reasoned that—read literally— Amendment 7 does just that. But the Court departed from the text because it did not believe the people could have intended to give the General Assembly that power. In my opinion, that decision employed an erroneous form of reasoning and was wrongly decided. If this issue were raised today, I believe the Supreme Court would overturn that case and hold that the plain language controls.

DISCUSSION

Constitutional provisions are given their “obvious and common meaning.”1 “[A]rticle 5, section 1 of the Arkansas Constitution” is no exception: “Neither rules of construction nor rules of interpretation may be used to defeat [its] clear and certain meaning ….”2

As relevant to this opinion, Amendment 7, which amended Article 5, § 1, provides that “[n]o measure approved by a vote of the people shall be amended or repealed by the General Assembly
… except upon a yea and nay vote on roll call of two-thirds of all the members elected to each

1
Johnson v. Wright, 2022 Ark. 57, at 6, 640 S.W.3d 401, 405.
2
Ark. Dep’t of Educ. v. Jackson, 2023 Ark. 140, at 7–8, 675 S.W.3d 416, 421.

The Honorable Jim Dotson
State Senator
Opinion No. 2024-024
Page 2

house of the General Assembly.”3 The word “measures” includes “constitutional amendment[s].”4 There is no other restriction in Amendment 7 on the General Assembly’s ability to amend a constitutional amendment.

Thus, under the plain language of Amendment 7, the General Assembly can amend initiated constitutional amendments.

In fact, the Arkansas Supreme Court reasoned, in Arkansas Game & Fish Comm’n v. Edgmon, that, read “literally,” Amendment 7 would allow the General Assembly to “change[] by legislative action” the “meaning of a constitutional provision.”5 But then it refused to read it literally; the Edgmon Court believed that the plain meaning of Amendment 7 was “inconceivable,”6 saying that if the people had intended the plain meaning they should have made it even plainer.7 In other words, the Court could not believe that the text meant what it said. Thus, it held—without reference to the text—that the General Assembly was prohibited from amending constitutional amendments by a two-thirds vote based on what the Court believed was the extratextual “intent” and “purpose” of Amendment 7.8

Edgmon did not mention the absurdity doctrine in its analysis, but it may have been why the Court declined to follow the text. The doctrine, however, is inapplicable. It only applies when two elements exist: (1) the absurdity must be something “no reasonable person could intend”—a judge’s belief that “the framers of the instrument could not intend what they say” is not enough— and (2) “[t]he absurdity must be reparable by changing or supplying a particular word or phrase whose inclusion or omission was obviously a technical or ministerial error.”9 This narrow definition is necessary to keep judges from substituting their personal policy preferences for the

3
Proposed by Initiative Petition: Proposed Amendment No. 13 to the Constitution of Arkansas, LITTLE RIVER NEWS, July 31, 1920, at 3 [hereinafter, “Amend. 7”] (emphasis added). Thanks to the Arkansas State Archives and its staff who helped locate the published text of Amendment 7. 4 Id.
5
218 Ark. 207, 210–11, 235 S.W.2d 554, 556–57 (1951).
6
Id. at 211, 235 S.W.2d at 556.
7
Id. at 211, 235 S.W.2d at 557 (stating that if the plain meaning was what was intended, Amendment 7 “would have
[used] more emphatic terms”).
8
Id. at 211, 235 S.W.2d at 557.
9
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 237–38 (2012) (quoting 1 Joseph Story, Commentaries on the Constitution of the United States § 427, at 303 (2d ed. 1858)).

The Honorable Jim Dotson
State Senator
Opinion No. 2024-024
Page 3

plain text of the law.10 Since Edgmon, the Arkansas Supreme Court has adopted this particular view of the absurdity doctrine.11 Neither prong of the doctrine is met here.

Amendment 7’s grant of power to the General Assembly is not so absurd that no person could have intended it. For example, it could be that this power was intended to allow the General Assembly to change the Constitution by a supermajority vote if a ratified amendment failed to include necessary provisions or if, in application, it became clear that the amendment was unworkable. Not to mention, Arkansas already had experience with a similar arrangement: our State’s first three Constitutions allowed legislative amendments without ratification by the people.12

Further, even if there were an absurdity, there’s no “easy fix” to Amendment 7. There is no word or phrase that was “obviously” left out or incorrect for the courts to “chang[e] or supply[]” with scalpel-like precision.13

Therefore, the absurdity doctrine provides no authority for a court to reinterpret Amendment 7’s clear grant of power to the General Assembly.

Although, in my opinion, the Supreme Court would likely hold that Edgmon was wrongly decided, one might argue that stare decisis will now defeat the plain language of Amendment 7. Applying stare decisis, courts will sometimes stick to decisions that the Court itself believes were wrongly decided.14 But stare decisis is inapplicable here for two reasons.

First, courts will not follow precedent if the legal analysis has “palpable error.”15 Thus, if precedent strays from the “plain language” and “rewrit[es] it to achieve a contrary result,” courts “are compelled to serve justice by returning to the … clear language.”16 As explained, Edgmon strayed from the constitutional text.

10
See id. at 237 (“Yet error-correction for absurdity can be a slippery slope. It can lead to judicial revision of public and private texts to make them (in the judges’ view) more reasonable.”). 11 See State v. Coble, 2016 Ark. 114, at 5, 487 S.W.3d 370, 373 (explaining that, when “the statute’s meaning is plain,” the absurdity doctrine is not applicable merely because the consequences of applying the statute’s text “make little if any sense” to the Court (quoting Scalia & Garner, supra note 9, at 239)). 12 Ark. Const. of 1864, art. IV, § 33; Ark. Const. of 1861, art. IV, § 34; Ark. Const. of 1836, art. IV, § 35.
13
Scalia & Garner, supra note 9, at 238.
14
Bryan A. Garner et al., The Law of Judicial Precedents 5–6 (2016) (noting that “stare decisis” is shorthand for the maxim “to stand by things decided and not disturb settled points”); Kimble v. Marvel Ent., LLC, 576 U.S. 446, 455 (2015) (“Respecting stare decisis means sticking to some wrong decisions.”). 15 Moore v. Moore, 2016 Ark. 105, at 8–9, 486 S.W.3d 766, 772 (quoting Ward v. State, 2015 Ark. 62, at 4, 455 S.W.3d 830, 833). 16 Id. at 9, 486 S.W.3d at 772 (quoting In re Guardianship of W.L., 2015 Ark. 289, at 7, 467 S.W.3d 129, 133).

The Honorable Jim Dotson
State Senator
Opinion No. 2024-024
Page 4

Second, stare decisis carries less weight when interpreting the Constitution.17 That’s so for at least two reasons:

1. The Arkansas Constitution is our State’s highest law; judicial precedent is not.18 To ignore the meaning of the Arkansas Constitution in favor of stare decisis “would be to violate the instrument [courts] are sworn to support”19—a “gross[] derelict[ion] in duty.”20

2. If a decision misinterprets the Constitution, it is difficult to alter the Constitution to align it with the correct interpretation.21 This contrasts with incorrectly interpreted legislation, which is easier than the Constitution to alter because the legislature only needs to pass new legislation to “correct any mistake it sees.”22

For these reasons, it is my opinion that, if the Supreme Court were faced with this question, it would most likely hold that stare decisis is inapplicable.

                                     *                *                 *

Amendment 7’s plain language gives the General Assembly power to amend initiated constitutional amendments. In my opinion, if the Supreme Court were faced with your question today, it would most likely hold that Edgmon was wrongly decided, employed a form of reasoning that is now rejected, and should thus be overturned.

Deputy Attorney General Noah P. Watson prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General

17
Kimble, 576 U.S. at 456.
18
See Jernigan v. Niblock, 260 Ark. 406, 410–11, 540 S.W.2d 593, 596 (1976).
19
Id. at 411, 540 S.W.2d at 596 (quoting Rice v. Palmer, 78 Ark. 432, 442, 96 S.W. 396, 398 (1906)); see also Little Rock & Ft. Smith Ry. Co. v. R.W. Worthen, 46 Ark. 312, 325 (1885) (“[I]f there be a conflict between the [constitution and another law], the constitution is the higher law, or, rather, the supposed law is not a law at all, being null and void.”). 20 Thomas. M. Cooley, A Treatise on the Constitutional Limitations which Rest upon the Legislative Power of the State of the American Union 109 (4th ed. 1908). A digital copy of Cooley’s treatise is available here: https://archive.org/details/treatiseonconsti00coolrich/mode/2up. 21 Kimble, 576 U.S. at 456
22
Id.