WHEREAS, the framers of the constitutions of the United States and Pennsylvania established our system of separation of powers to govern the responsibilities, coordination, and relationships among the executive, judicial and legislative branches of government; and

WHEREAS, Pennsylvania voters elect state Senators and Representatives to pass legislation that can then be reviewed and signed by the duly elected Governor (or vetoed with the possibility of an override), and the substance of the laws can then be reviewed by the courts; and

WHEREAS, this system of representative democracy and its checks and balances are essential components of the rule of law in Pennsylvania; and

WHEREAS, the number and variety of proposed amendments to the Pennsylvania Constitution have recently increased exponentially; and

WHEREAS, in the current session of the General Assembly, so far over eighty (80) new amendments to the Pennsylvania Constitution have been proposed; and

WHEREAS, amendments to the Pennsylvania Constitution should be added sparingly; and

WHEREAS, to submit a constitutional amendment for voter approval, Pennsylvania only requires a simple majority vote in both chambers in two consecutive sessions of the General Assembly; and

WHEREAS, the constitutional amendment process in Pennsylvania does not require legislative hearings or the opportunity for public comments, does not include the Governor in the process and eliminates substantive judicial review; and

WHEREAS, the process to amend the Pennsylvania Constitution is being increasingly used as a substitute for legislation adopted through the normal legislative process, thereby bypassing action by the executive and judicial branches; and

WHEREAS, this process increases the General Assembly’s role and upsets the carefully calibrated balance of power among the three co-equal branches of government; and

WHEREAS, the process for amending the Pennsylvania Constitution gives the General Assembly sole control over the initiation and the timing of consideration by the electorate of constitutional amendments presented for voter approval; and

WHEREAS, this control of the timing means that proposed constitutional amendments are often presented to the voters during “off-year” elections in the spring primaries when voter participation is relatively low, resulting in important constitutional questions being decided by an exceedingly small number of Pennsylvanians; and

WHEREAS, the two constitutional amendments adopted by the voters in the May 2021 primary relating to the Governor’s emergency powers were voted on by 25% of eligible voters of whom 54% voted to approve, for an approval percentage of approximately 13% of eligible voters¹; and

WHEREAS, without public hearings, there is a dearth of official and public commentary in the General Assembly before placing the proposed amendments on the ballot; and

WHEREAS, there is insufficient education of voters or encouragement of public dialogue about the potential impact of proposed constitutional amendments; and

WHEREAS, once passed, a constitutional amendment cannot be rapidly modified to meet changing circumstances and emergencies or to address unintended consequences.

NOW, THEREFORE, BE IT RESOLVED that the Philadelphia Bar Association is strongly opposed to amending the Pennsylvania Constitution to bypass the usual legislative process thereby eliminating the role of the Governor and the opportunity for substantive judicial review by the courts; and

BE IT FURTHER RESOLVED that the Philadelphia Bar Association encourages the General Assembly to hold public hearings and receive testimony on proposed constitutional amendments to facilitate bipartisan deliberation and thoughtful consideration of the merits of each proposal; and

BE IT FURTHER RESOLVED that the Philadelphia Bar Association undertake efforts to educate and inform the public about constitutional amendments that are under consideration by the General Assembly and also to educate and encourage all voters, including those registered as independents and members of third parties, to vote on constitutional amendments placed on the ballot; and

BE IT FURTHER RESOLVED that the Philadelphia Bar Association work with interested legal organizations, business, labor, professional groups and members of the public to establish a task force or other body to (i) evaluate and propose reforms to Pennsylvania’s constitutional amendment process that would reflect the goal of enacting constitutional amendments sparingly and only in cases when legislation would be an inadequate remedy; and (ii) educate the public about the constitutional amendment process and needed changes to that process; and

BE IT FURTHER RESOLVED that the Philadelphia Bar Association urges the General Assembly to place constitutional amendments on the ballot only in the general election in November to maximize voter participation; and

BE IT FURTHER RESOLVED that the Philadelphia Bar Association authorizes the Chancellor and/or the Chancellor’s designee(s) to communicate the contents of this Resolution to the Senators and Representatives of the Pennsylvania General Assembly and the Governor, as well as to other government officials, bar associations, the legal profession, the media, and the public, and to take any and all additional action that is necessary to effectuate these Resolutions.

PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
Adopted: March 31, 2022

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¹ 2021 Primary turnout and election results, which may be found: (i) https://elections.ap.org/whyy/results/2021-05-18/state/PA/race/I/raceid/40325; (ii) https://www.electionreturns.pa.gov/Home/SummaryResults?ElectionID=84&ElectionType=P&IsActive=0 and (iii) https://www.dos.pa.gov/VotingElections/OtherServicesEvents/VotingElectionStatistics/Documents/2021%20Primary%20VR%20Stats.pdf