A Wave of Change: Celebrating the 50th Anniversary of Michigan's Constitution and the Evolution of State Constitutionalism

8/10/2019 A Wave of Change: Celebrating the 50th Anniversary of Michigan's Constitution and the Evolution of State Constit

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Contents

I. Foreword by Robert Williams ................................................................................................. 1

II. Constitutional Politics Panel: Lawrence Friedman, Susan Fino, and John Dinan; Moderated

by Ann Lousin................................................................................................................................. 6

A. Ann Lousin........................................................................................................................... 6

B. Lawrence Friedman............................................................................................................. 6

C. Susan Fino........................................................................................................................... 9

D. John Dinan......................................................................................................................... 12

III. State Courts and Constitutional Enforcement Panel: Helen Hershkoff and Justin Long;

Moderated by Steven Steinglass ................................................................................................... 19

A. Steven Steinglass................................................................................................................ 19

B. Justin Long......................................................................................................................... 19

C. Helen Hershkoff................................................................................................................. 23

D. Steven Steinglass................................................................................................................ 27

IV. Federalism and Comparative Constitutionalism Panel: Jim Gardner, Alan Tarr, Mila

Versteeg, and Emily Zackin; Moderated by Justin Long ............................................................. 32

A. Justin Long......................................................................................................................... 32

B. Jim Gardner....................................................................................................................... 32

C. Alan Tarr............................................................................................................................ 38


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I. FOREWORD BY ROBERT WILLIAMS

I thank you, Lynn, and I want to thank Justin and Stephanie and all the others who

worked so hard to put this conference together. Its such a pleasure to be here among the leading

lights in state constitutional law. We joke aroundthere are only five or six of those lights in the

country, but they are virtually all here. And Id like to take credit for bringing luck to the Detroit

Tigers; I caught the last couple of innings of the shut out last night. And its particularly good to

be here in Michigan where I can hear the faint echoes of Thomas Cooley and the immediate

shrill screeching of the Emergency Financial Manager Act. So we have all of those things going

on here. The title of my talk and my foreward to this symposium is: Michigan on the Front of the

Last Wave of State Constitutional Revision. The historian James Henretta said this about this

particular waveor as Alan Tarr refers to them, erasstate legislators have once againbecome relatively democratic and representative bodies as a result of the reapportionment

revolution begun in 1962 byBaker v. Carr[coming down during the constitutional convention of

Michigan]. Not accidentally, that decision spurred a wave of constitutional revision. No fewer

than thirteen states revised their basic charters between 1963 and 1976, reviving at least in part,

the tradition of activist popular sovereignty.

Many people who have described the state constitutional conventions of that era refer to

the stimulus of the one person, one vote decisions (an external political factor, as Alan Tarr

refers to them, and of course Michigan started this wave or this era off even before the one

person, one vote decision came down from the United States Supreme Court). As Susan Fino has

taught us, in her excellent book about the Michigan Constitution, Michigan used a very

interesting two-step process. The first was the so-called Gateway Amendment that eased the

requirements for calling a constitutional convention, and this procedural step led to the

successful 19621963 state constitutional convention here in Michigan. And also, as she has

pointed out, this was the first constitutional convention in Michigan where the voices of women

and African Americans were heard in state constitutional revisiona very interesting point

which is not the case with the United States Constitution. And we see at least threeprobably

many morecrucial provisions from that time: the municipal home rule clause that Justin Long

is writing about, and we will hear about the vested pension protection clause, which Justin is also

going to cover, and the environmental provision, which Alan Tarr mentions and Emily Zackin


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mentions. So this 1963 to 1978 period created a wave or an era of state constitutional revision as

Dr. Henretta described. Its really the last of those waves that we have seen in our country.

Waves or eras of revision are characterized with our state constitutional evolution in this country,

beginning during the Founding Erathe Revolutionary Periodwith two waves: first, the

radical egalitarian wave epitomized by the Pennsylvania Constitution, followed by the more

balanced approach that we see in the Massachusetts Constitution of 1780. But then we went

through these waves of influence of Jacksonian Democracy, Reconstruction, the Populist Era,

and the Progressive Era that John Dinan has written about in which state constitutions were

revised. And by revision we mean something in contrast to piecemeal amendment. And what

Alan Tarr has described as constitutional reformor revisioninvolves a more fundamental

reconsideration of constitutional foundations and includes changes of considerable breadth and

impactchanges that substantially affect the operation of state government and public policy.

These waves of revision slowed by the 1960s; the waters had calmed, and this is partly a result of

the vested interest of the rural dominated state legislatures prior to one person, one vote, so this

would be an example of an entrenchment of state constitutional provisions to protect the ruling

elitea concept that Emily Zackin and Alan Tarr described. Of course its not the only reason

state constitutions have revisions in them, but this is a form of state constitutionalism rigidity

the inability to do any kind of substantial reform or revision of constitutions. Again the Michigan

two-step process with step one being easing the rigidityeasing the nature of the entrenched

provisions first, and then using that eased up process to make substantive changes. Again, this

was used by Michigan, Florida, and a number of the states in this era. By the 1960s the states

were coming back to at least some prominence after being overshadowed by the federal

government in the Depression, World War II, and the beginning of the Civil Rights Movement.

As Hans Linde said, each of these eras represents a timeline of issues that will come up in a state

constitutional convention; its no surprise that the 1859 Oregon Constitution didnt have an

environmental protection clause in it, and its not a surprise that the state constitutions of the

1960s and 1970s did have provisions like that. Also, by the 1960s, the states had almost two

centuries of experience with state constitutional change, and this was experienced again, not just

with the substance of state constitutional provisions, but also with the process of revised and

amended state constitutions. Were still involved with this idea of continuing development of the

processes that we used to change state constitutions. By the 1960s the advent of the


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constitutional commission had been well-established. Constitutional commissions werent really

used in the first 100 years of our state constitutional development, and youll hear about this

from Steve Steinglass in a little whileparticularly in the context of the Ohio constitutional

modernization, a very interesting, relatively new process thats unheard of at the federal level.

Alan Tarr, in his paper, will analyze the conditions and motivations for state constitutional

revision in a very interesting piece. So by the 1960s, when the United States Supreme Court

turned these entrenched apportionment provisions and practices in the statesas I like to say

into waste paper, these are the things that we had learned with respect to state constitutions. Jim

Gardner will refer to this as a judicial shockto the state constitutions as the Supreme Court

required a move from representation of places to representation of people, and Alan Tarr refers

to it as an external political force operating on the states.

So what did the states know when they embarked on the change? What did the states

know about the technology of state constitutional change? Well first, again as I mentioned, they

knew the evolving process of state constitutional change could be utilized as it was in Michigan

and other states. Second, states knew that rights guarantees could evolve beyond the minimum

standard federal style negative rights to include positive rights or even mandates for government

action and protection. Again, weve learned a lot about this recently from Emily Zackin, and

well learn today from her and her coauthor, Mila Versteeg. Helen Hershkoff has worked in this

area for many years, and John Dinan will talk about the fact that this continues to evolve positive

rights in state constitutions despite the criticism of scholars. But its not we who criticize this;

were not the scholars criticizing this. This very, very important area that to some extent, as

Emily has pointed out, reflects not just the entrenchment of rights by dominant political forces in

power at the time, but to some extent advocacy by outside groupsgrass roots groupsfor the

inclusion of new inclusions in state constitutions even if they are not empowered. By the 1960s

the state constitutional makers knew that the distribution of powers questions within state

constitutions were certainly not limited by what the federal Constitution did with respect to

distribution of powers. The states by this time hadIm from Floridawe had the Freshwater

Fish and Game Commission that was created in the constitution, so if you wanted to know if you

could hunt in Florida on Sunday, you didnt look at the statutes. This commission had executive

and legislative power granted in the constitution, so you looked at administrative regulations!

Thats what governed in Floridapretty unheard-of at the federal level. Michigan


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constitutionalized a higher education board. We would have loved to have that in New Jersey last

year when the governor and the legislature tried to take apart our university. We had something

else thoughthe contract clause. Assignment of judicial rulemaking in Michigan, as Helen will

tell us about, was strengthened during this era, as well as home rule in local government, and

again, Justin Long will talk about this. This is now a vertical separation of powers as opposed to

horizontal, so separation of powers is a very important development beginning before this era but

taking off during this era. As an aside, what we now call the new judicial federalismthe state

and federal interaction on rights guarantees that Justin Long is going to talk aboutwas on the

horizon, but in the early 1960s we didnt have much of that, but it was coming.

Finally, policy mattersmatters that we would think would be normally dealt with by so-

called normal legislationwere, by the 1960s, already infused into state constitutions. In other

words the state constitutions had been identified long agoand Emily and Mila will expand on

thisas tools of lawmaking that you could actually legislate through state constitutions, and

John Dinan will refer to this today.

Now what did the states do with these opportunities? At the dawn of the 1960s, American

states had more state constitutional spacemore competency to develop their constitutions

than any other component unit of a federal system in the world. What did the states do with this

opportunity as Michigan led off this wave of change? Jim Gardner is going to say they wasted it

pretty muchparticularly with legislative structures. I think Helen Herskoff is going to say that

the Michigan Supreme Court has to some extent wasted the opportunity of developing its

enhanced rulemaking power. And by the way, when authority like this to make rules and

procedures for the court is given to the Supreme Court of Michigan, that acts as a limitation on

the legislature. So if the legislature tries to enact procedural statutes, they are arguably

unconstitutionala point that would be missed by many lawyers and judges not sensitive to state

constitutions. I think Alan Tarr is going to be a little more positive; Alan may be a little more

impressed with what happened. Alan and I have noticed thoughas we have looked at state

constitutions around the worldthat most component units in federal countries do underutilize

the space that they have in which they have to make constitutions. Helen Hershkoff has referred

to this as our underutilization thesis, which I appreciate you recognizing, Helen.

But this wave of the 1960s and the 1970s hit the shore too; it died, and the waters calmed

again. We now have what political scientist Gerry Benjamin, Alan Tarr, and John Dinan


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recognize as a form of convention-phobia. We dont have state constitutional conventions any

morefor the last thirty years or so. You in Michigan voted against the constitutional

convention a couple of years ago, and five years ago in Illinois. And you know whats happened?

In the old dayslets say before the 1960spoliticians were afraid of constitutional

conventions. Politicians were afraid of the people in constitutional conventions. They could

bypass the entrenched established elite. They could enact these kinds of new provisions. Now its

the people who are afraid of the politicians in constitutional conventions. And so they believed

constitutional conventions were politics as usual: more special interests, more using the

government to make money for people, and there are other reasons of course. The people hate

government, and so they vote against constitutional conventions even in states like Michigan that

have an automatic vote every sixteen years. So now state constitutional reform and revision takes

the form of piecemeal amendmenta little at a timemaybe not well-coordinated with other

provisions in the constitution. Alan Tarr said wed possibly have a revival of comprehensive

constitutional reform. Maybe well have some external reason that would cause that; maybe

well have a judicial shock that would cause it.I dont know. But in any event, for now we still

feel in Michiganfifty years laterthe effects of that wave which seems so long ago, and I

think well continue to feel that for many years to come.

Thank you.


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II. CONSTITUTIONAL POLITICS PANEL:LAWRENCE FRIEDMAN,SUSAN

FINO,AND JOHN DINAN;MODERATED BY ANN LOUSIN

A. Ann Lousin

Good morning; my name is Ann Lousin, and I come from Illinois. It is my pleasure to

moderate a panel with three people who are going to talk about constitutional politics. Let me

just introduce them very briefly and say that after I introduce them they will speak in the order in

which I introduce them, and I am going to ask them to try to limit their comments to ten minutes

if they can. Ill start waving at the end of ten minutes so we have time for some questions.

Professor Lawrence Friedman teaches, among other things, state constitutional law at the New

England College of Law. His publications include Path Dependence and the External

Constraints on Independent State Constitutionalism from thePenn State Law Review. Professor

Susan Fino is a Professor of Political Science here at Wayne State University, and she is the

author of The Michigan State Constitution: A Reference Guidefrom Oxford University Pressa

series I know all too well because Ive been spending half my life trying to put together the

Illinois version. The third speaker today is John Dinan, a professor at Wake Forest University,

and he has written several booksamong them The American State Constitutional Tradition.

Im going to ask Professor Friedman to speak first if thats all right with all of you.

B. Lawrence Friedman

Thank you, Ann. Thanks also to the editors of the WayneLaw Reviewand to Professor

Justin Long for putting this symposium togetherfor getting the band back together. It is good

to see so many state constitutional law colleagues. When Justin called me with this invitation at

first I wasnt sure what, if anything, I would write about, but a couple months ago a book came

across my desk by Zachary Elkins, Tom Ginsburg, and James Melton called The Endurance of

National Constitutions, and I suppose I had just been waiting for a reason to read that book and

to do something with it. So I proposed to Justin that I might just take the framework that those

political scientists developed to try and assess how long national institutions will endure and

apply it to state constitutions. And though I had some grand ambitions about this, when I started

reading the book I realized that Im a lawyer not a political scientist, and that I understood only


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about two-thirds of what the authors were talking about. The book is great, though, and I can

highly, highly recommend it to you.

What I did get out of the book was enough for me to know that my original grand plan of

taking the New Hampshire and Michigan Constitutions and comparing them in light of the

Enduranceframeworkwell, that wasnt going to happen, mostly because I know next to

nothing about the Michigan Constitution. But I do know a little bit about the New Hampshire

Constitution, since Alan Tarr had persuaded me to revise a book about it. So I focused on the

New Hampshire Constitution, seeking to apply the framework that theEnduranceauthors

developed in the context of national constitutions.

So what is that framework? It has three parts: essentially, the authors judge the potential

endurance of a national constitution on the basis of inclusion, flexibility, and specificity.

Inclusion refers to who is involved in the deliberation and drafting of the constitution, as well as

its adoption or ratification. Flexibility refers to how likely the constitution is to endure, and the

authors pay particular attention to the presence or absence of amendment procedures. Finally,

there is specificity, which is pretty much what you think it isspecificity of detail regarding

what a constitution covers, the depth to which it covers it, and the breadth of that coverage.

I began by looking at the New Hampshire Constitution of 1776New Hampshires first

constitutionwhich was intended to be a temporary constitution to govern the state following

the Revolution. Its very short; you could write the basic points on the side of a napkin. It

contained no provision for an executive or for a real judiciary; it created a legislatively-

dominated government, and, even then, most of the decisions were made by a select committee

on safety, because the legislature itself met only infrequently. And yet this constitution governed

the State of New Hampshire for more than the first few years of its conception as the legislative

assembly struggled to get a constitutional convention going. That convention, after several

drafts, would eventually produce the Constitution of 1784, which remains New Hampshires

constitution to this day. Thats 229 years as were sitting here today.

The average life span of a constitution according to theEnduranceframework is

somewhere between 15 and 20 years. So I thought it would be interesting to see what it was

about the New Hampshire Constitutionwhat design features it containedthat might help us

to understand why it has endured. In terms of inclusion, the process of deliberation and drafting

through a constitutional convention was probably as inclusive as it could have been given the


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standards of the time. Obviously there were important societal groups that were not then

represented that today would be, but as far as things went, following the model of James Adams

in Massachusetts, New Hampshires constitutional creation was fairly inclusive. In terms of

flexibility, the constitution did contain an amendment procedure: every seven years, and later

every ten, the people would consider whether to hold another constitutional convention.

Interestingly, until the 1850s, aside from 1792, the people consistently rejected that opportunity.

In terms of specificity, the 1784 Constitution, on first reading, would seem to fall into a

place theEnduranceframework authors call the Goldilocks Category. It has just the right

amount of description and just the right amount of amount of detail and covers just the right

scope to suggest that it will endure. But here is where, upon looking more closely at the New

Hampshire Constitution, I saw that it was plainly not what theEnduranceauthors would describe

as a statutory constitution. They conclude, at the end of their book, that it is the constitutions that

are most statutory that are most likely to endure. They believe that this is because constitutional

politicsand this is not original to themis simply a continuation of ordinary politics, set at a

different level. The New Hampshire Constitution contains some of those provisions that we

would all regard as statutory in nature because of their specificity and narrowness. But I believe

the endurance of the New Hampshire Constitutioneven though much of it was written at a far

more general level than theEnduranceframework authors would conclude leads to constitutional

longevityis due more to the interaction of the courts with the question of implementing the

constitutions more general moral commands and protectionsthe highfalutin provisions, as

the authors call themthan interaction with the constitutions more statutory provisions.

Longevity in the state constitutional context could also be the result of other factors; one

of them might be culture. Consider in this regard the Massachusetts Constitution: the people of

Massachusetts are so beholden to the fact that their constitution is the oldest written constitution

and that it was first that they are not inclined to change itthey are likely never going to have

another constitutional convention that makes wholesale revisions. Instead, theyll continue to

amend it piecemeal over time.

Though New Hampshire was also one of the first constitutions, the people of New

Hampshire do not seem to be bound by tradition in quite the same way. Yet it does seem that

succeeding generations have committed themselves to having the New Hampshire Supreme

Court and the lower courts work out disputes over constitutional meaning, as nearly every


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problem of meaning of course becomes a judicial problem.

If nothing else, these observations suggest to me that the framework that Elkins and his

coauthors have created for assessing the longevity of national constitutions needs some

tweakingif not some reworkingif we are going to use it and apply it to state constitutions to

determine whether or not any has the potential for a very long life. And because I am not a

political scientist, and because all of you are smarter than I am, I will leave it to you to think

about what factors might become part of a framework designed to determine how long a state

constitution will endure. Though New Hampshire once again rejected a new constitutional

convention in 2012, it might be of some interest to those people in other states who are thinking

about state constitutional change to determine what factors might be important to state

constitutional endurance. In other words, what design features relating to inclusion, endurance,

and specificity would be important to insure that your states constitution has a long life,

assuming that a long life is something you want the constitution to have?

C. Susan Fino

Good morning. What I wanted to talk about today is an example of constitutional change

in Michigan. I became interested in this because of the inspiration of two distinguished jurists.

The first was Judge Avern Cohn, who asked me one time why we are saddled with an elected

judiciary, and I know the answer to that; the second jurist is Sandra Day OConnor, who isdevoting her retirement years to lobby against elected judiciaries. So what Ive got here is a

quote from a justice of the Ohio Supreme Court, and it really doesI thinksum up how he felt

about running for office as a judge.

What Ive done here is Ive created a timeline that follows the development of the

election of Michigans judiciary. We originally, as a territory, were governed under the

Northwest Ordinance of 1787, and under the Northwest Ordinance almost everybody was an

appointed official. Therefore, its not surprising when Michigan framed its first constitution that

it would follow the federal model of appointed judges. At the time, in terms of party politics, you

were looking at Jacksonian Democrats versus various species of Whigs. By the time you get to

1848, state politics was dominated by Jacksonian Democrats. The Whigs at this point were

beginning to fall apart, and here is when we first see an advocacy for an elected judiciary. The

answer as to why they advocated for an elected judiciary is because it was inevitable that


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gubernatorial election, and at this point, as a kind of aggressive reform to take power away from

the machines and restore it to the people, we see direct primaries. In 1904 we do get direct

primaries, but the parties were reluctant to let go of their control over the nomination process. So

it was a case where there were direct primaries, but the results of the primaries were subject to a

referendum by party officials so that the people who actually ran on the November ballot would

be acceptable to both parties. In 1908 we have a new state constitution, and its pretty much a

consolidation and revision of the 1850 Constitution, but a couple of things are important for the

recruitment of judges. At this point the ABA begins to advocate nationally for so-called merit

selection, or an appointment system, of judicial recruitment. However, the ABA cant control

state politics or state action, so that was up to the Michigan Bar Association, and the Michigan

Bar Association essentially did nothing. By the time we get to 1909, we have a direct primary for

all offices, and state politics is dominated by Progressive Republicans. The stock market crashed

in 1929, and when the Progressives leave the scene with the retirement of Teddy Roosevelt from

politics, the Republican Party becomes pretty much the party thats very pro-business to the

point where it alienates anyone who doesnt seem to be a business magnate. 1932 had the critical

electionthe realigning election in which FDR wins and carries not just Michigan but the

nation, and at this point state politics begins to become dominated for Democrats again. 1940 is

the first time that we have a formal merit system adopted by a statethats the Missouri plan,

and that comes online in 1940. So whats the punch line of this about these direct judges?

Impetus for reform seems to come from two sources: oneand I think the most important isit

comes from the party that is not in power at the time. So for example, when the Democrats had a

strangle hold on the electorate before the Civil War, it was the Whigs proto Republicans who

wanted to see a move toward an appointed judiciary. When you get to the Civil War Era when

the Democrats are driven from state politics, and you have an era of Republican domination of

politics, what you see are the Democrats advocating for an appointed system, and the

Republicans wanted to keep an elected system because the outcome would be the guarantee of

elected Republican judges.

While the Democrats advocated for a change to an appointed system, they forgot about

that completely once they woke up on a November morning in 1931 and found out that

Democrats had taken over state government. So at that point politics works in their favor;

elections work in their favor, so the wind goes out of the sails of reform. The ABA and state bar


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associations had been sources of proposals for judicial reform, but those had pretty much gone

nowhere. Theres a possibility that scandal could provoke a reexamination of elected judiciaries.

For example, there was a problem with the governors election in 1900; there could be a scandal

with our judiciary, and if there is a scandal its going to have to do with the influence of money

in politics. These are a series of resources that I can give you later on about this. The most

valuable one is probably the last one, called Follow the Money, which gives you an idea of the

amount of money thats injected into state supreme court electionsand the extent to where

theres at least the appearance of wealthy people buying votes.

In terms of change in Michigan, from partisan election to something else, I dont think

its going to happen; I think the only possibility for change would be scandal. Where people see

the extent to which money has affected politics, youll have a situation like West Virginia where

the judiciary was pretty much bought and sold. But absent something of that point, I dont expect

change at all. I think Republicans are happy with the situation the way it isthe reason being:

even though party politics is more confused now than its ever been, the winner, or the party,

might be the person who is able to raise the most money. And given the socioeconomic

differences between Democrats and Republicans, it makes sense that the Republicans would be

in a position to raise more money and therefore have more success, supposedly, in judicial

elections.

So thats my message; change can come from the losing party in an effort to reestablish

themselves; it can come from the state bar association (but Michigans has been particularly

inactive); and theres the possibility of scandal that could drive reform, and that is a real

possibility as money becomes more important in the election of judges.

D.John Dinan

Thank you very much, and thank you to the law school, to the WayneLaw Review, and to

the members of the WayneLaw Reviewfor making this conference possible. My topic today, and

my focus, is on the contents of state constitutions; to be even more specific, my focus is on the

continuing inclusion of numerous policy provisions in state constitutions over the last 50 years.

Now state constitutions vary in their prevalence of policy provisions. Some look a lot like

the U.S. Constitutionjust structure of government provisions, just rights provisions, and not

much in the way of policy. But many other state constitutions have a fair number of policy


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provisions. The Michigan Constitution would be an example of this. Just take a look at the

Michigan Constitution and see the prevalence of what we might call policy provisions there:

provisions banning the death penalty, banning recognition of same sex marriage, limiting

affirmative action, authorizing stem cell research, requiring a balanced budget, restricting

borrowing and imposition of certain taxes, creating certain trust fundsthe list could go on.

Whats striking about this continued practice of including policy provisions in the Michigan

Constitution and other post-1960s state constitutions is that this is at odds with a near universal

scholarly consensus in place in the early 1960s at the start of this wave. When one looks back at

the scholarly books and materials available in the early 1960s that the state constitution makers

of Michigan and others would have drawn on, one looks very hard for anything other than

wholesale condemnation of policy provisions. Thats changed over the years; its changed in part

due to people in this room, but if we look back at the scholarly consensus in place in 1961 when

Michigan convention delegates met, its fair to say that there was a consensus in place against

policy provisions.

My purpose today is to explore this divergence between the scholarly standards in place

in 1961 and the actual practice of what state constitution makers have done in the aftermath. And

I do so with an eye toward challenging what I take to be conventional reactions to divergences of

this type between scholarly consensus and practice. That is, the dominant approach is to take the

scholarly consensus as a given, and to lament the fact that practitioners have diverged from the

scholarship. But I have taken a contrarian position here and propose a different way of reacting

to this divergence. I start by investigating the origins of the early 1960s scholarly consensus and

tracing it back and suggesting that it was far from fixed in time. In fact if we look back even

earlier, there are other scholarly views regarding the propriety of policy provisions. And next I

investigate the arguments that have been advanced by practitioners in support of their continued

reliance on these provisions. Why have they in fact continued to adopt these policy provisions in

the years since?

And we find when we look at the last 50 years of practitioners and the reasons why they

keep going to these policy provisions; they are really displaying more continuity than change

with their predecessors. The particular subjects of policy provisions have changed over time. But

the basic motivations and reasons are rather constant. Their concerns are, in part: to remove

certain tasks from legislatures in areas where they have been demonstrated to be incompetent to


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govern effectively; a concern with bypassing legislators that are unresponsive for obvious

reasons and unable to secure policies with broad public support; a concern with the need to

bypass courts that are blocking passage of policies with broad popular support; and finally, a

need to safeguard enduring commitments in the face of short-sighted or passionate popular

majorities. I close by suggesting that our usual approach of expecting practitioners to learn from

scholars might not be in order here, and that perhaps theres more wisdom than is fully

appreciated in the actions of practitioners than was fully realized by scholars in the early 1960s.

Let me start by considering the scholarly standards in place in the early 1960s. If we take

the materials that were available to Michigan convention delegates rewriting the state

constitution, they would have looked to various publications of the National Municipal League;

they would have certainly had with them a publication by Professor Paul Kauper, who prepared a

paper advising the Michigan convention delegates. When one looks at these materials, the

consensus was loud and clear: avoid policy provisions. When one looks at what was driving that

consensus in place in the early 1960s, it stemmed in part from a newfound scholarly consensus to

view the U.S. Constitution as the model constitution and to expect state constitutions to conform

to it. And it also stemmed in part from a particular understanding of deficiencies in

representative institutions and particularly a view that legislatures were entitled to confidence

and that they should be empowered.

Whats striking about those views in place in the 1960s is that they are at odds with a fair

amount of scholarly views before that point. That is, as Alan Tarr and others have shown, this

early 1960s consensus was a product of a particular time periodparticular concerns and

particular preoccupations. There were others who would share those views in earlier eras back in

the late 1800s and early 1900s. For instance, if we look back to Thomas Cooley and some of his

advice to earlier conventions, his advice would have borne some similarity to the advice that

folks would have gotten in the early 1960s. However, when we look back to other writings in

earlier eras, we find various scholars such as Walter Dodd, among others, who gave very

different advice. In the view of earlier scholars such as Dodd, state constitutions have a different

logic from the federal Constitution. According to this earlier scholarly view, legislatures might

be trusted in certain areas but their actions show that they dont deserve trust in other areas and

need to be constrained. My point hereto sum up my brief survey of the origin of the scholarly

consensusis that early scholars did not always follow this early 1960s consensus, and we need


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not take the early 1960s consensus as the fixed scholarly consensus for all time.

And in fact, when we turn to practiceand this is my main pointstate constitution

makers themselves have long adhered to the earlier scholarly view that I have tried to sketch out.

That is practitioners, the actual participants in state constitutional amendment revision, have long

viewed state constitutions as having their own logic distinct from the U.S. Constitution. And they

have long viewed representative institutions as deficient in important ways that can only be

corrected, in their view, through adoption of constitutional provisions. Its true that for a time in

the mid-twentieth century there was a slight decline in enthusiasm for a reliance on policy

revisions, due in part to the newfound influence of this early 1960s scholarly consensus. State

constitutions became a little shorter; some detail was eliminated. But on balance we see a rather

continuous practice from early 1800s to the present day of a continuing resort to policy

provisions. Let me point out why this is the case.

What are these reasons why practitioners have turned continuously to adopt policy

provisions? I argue that its driven by a desire to address four recurring challenges to effective

governance. Let me briefly identify each of these four.

One recurring challenge to effective governance is posed by legislative irresponsibility in

handling various policies. Various state constitution makers have concluded that legislators are

incapable of acting responsibly in a given area. Perhaps they take more of a short-term than long-

term view. Perhaps legislators are susceptible to special interests rather than the public interest.

Perhaps legislators are susceptible to advancing their own self-interests rather than the interest of

the public. All these are reasons why state constitutions have occasionally been used to adopt

policy provisions and remove tasks from legislators: in the Jacksonian Era, taking away their

ability to invest in roads and canals; in the progressive era, it was taking away their ability to

regulate railroads, by setting up independent corporation commissionsbecause legislators were

not seen as being able to do the job. In the post-1960s era theres been a whole new set of

concernsthat led to adoption of balanced budget provisions, in Michigans constitution for

instance, or provisions limiting certain tax policies, or various provisions limiting spending

policies, or various Michigan provisions establishing various trust funds and thereby specifying

the purposes for allocating certain revenue by taking that out of the hands of the legislature, or

various policy measures regulating the redistricting process by setting up independent

commissions and therefore taking that out of the hands of the legislature. So this is one reason


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why state constitution makers and practitioners have resorted to policy provisions. Legislators

cant be trusted to handle certain areas.

A second long-standing challenge to effective governance is securing enactment of

policies blocked by an unresponsive legislature and then preserving these policies against

legislative interference. So the first challenge Ive discussed above involves cases where

legislators are acting, and it is necessary to take matters out of their hands. The second challenge

involves cases where legislators arent acting, and action needs to be taken. Why might

legislators not enact measures supported by the broad public? Powerful interest groups might

capture the legislature. Self-interested legislators might prevent them from acting. Or it might be

due to intransigence or unrepresentativeness of the legislature. In earlier years, policy provisions

were adopted along these lines to force adoption of labor policies seen as blocked by corporate

interestssometimes mining interests, sometimes railroad interestsand so they got written in

constitutions policy provisions requiring worker safety measures to be taken. In the post-1960s

era, policy provisions have been adopted for this purpose for various reasons. Sometimes

legislators self-interest has blocked passage of campaign finance reform; public financing of

elections has almost always had to be done through constitutional provisions. At other times, the

initiative process has been used as a way of overcoming powerful interests seen as dominating

the legislature, as with constitutional amendments setting a minimum wage rate, or as in

Michigans 2008 amendment authorizing stem cell research over the opposition of an

intransigent legislature. This is a second recurring challenge and reason why folks have resorted

to policy revisions.

Let me get to the third reason: state courts can also present challenges to effective

governance, whether by overturning measures supported by a broad public majority or, in some

cases, by issuing decisions raising doubts about whether a state court would in fact overturn a

policy that might be passed. The challenge in these instances is to insulate policies that enjoy

broad public support from judicial overturning. Provisions of this sort were quite prevalent in the

Progressive Era and some of these provisions are still found in modern state constitutions. For

instance, this is the origin of a provision in the Michigan Constitution authorizing laws

regulating work-hours of women and children; the intent was to insulate these measures from

judicial overturning. Michigan also has a constitutional provision that authorizes indeterminate

sentencing in criminal cases. Why is that in the Michigan Constitution? Because the legislature


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tried to pass this reform, and the Supreme Court of Michigan struck it down. How are you going

to get this broadly backed public policy in place? Put it in the constitution. Today, the leading

example of this would be the same sex marriage ban amendments adopted in many states,

including Michigan, as a way of insulating such policies from judicial reversal.

Let me turn finally to the fourth challenge: the general public can also present challenges

to effective governance. That is, I have shown that the legislature can pose a problem either by

action or inaction. And Ive shown that the judiciary can pose a problem. But the public itself

can pose a problem as well. Sometimes the public can be shortsighted; it can also be passionate;

and it can contravene policy commitments established by deliberative majorities. In the least,

state constitution makers have concluded, placing these commitments in the state constitution

can erect a higher barrier to erasing them than if these commitments merely stood on a statutory

footing. And placing these commitments in the state constitution can make it more difficult for

popular majorities to engage in backsliding.

Ill just provide one example from early periods and one example from the modern

period. From the 1820s onwards, state constitutional participants often barred state run lotteries

in constitutions. Why did they do this? Their concern was that the temptation on the part of

legislatures to adopt lotteries was so greatto balance the budget, when everyone knew that it

was injurious to the citizenry and the government to actually impose lotteries and have money

made off peoples weaknesses. So lottery-ban provisions were put in state constitutions for that

reason: to prevent backsliding. Now let me provide the classic example from the post-1960s era,

and let me turn to Michigan here. Michigan has a provision in its current state constitution

disallowing enactment of the death penalty. Where did that come from? Michigan has had a

statute banning the death penalty from 1836 onward. It was the first state to adopt a statutory ban

on the death penalty. So why put this in the state constitution? When delegates met in 1961

1962, the leading reason is that one delegate said: Since 1926 there have been 8 times the

majority of one of the houses of the majority legislature voted in favor of the death penalty.

Thus, theres potential danger, particularly after a sensational crime, of such legislation being

adopted. The people might backslide in a passionate moment; in a shortsighted, sensational

moment, they might leap to do something that they might later regret. So you put it in the

constitution; you prevent them from doing it.

Well let me close. Ive argued that state constitution makers in the post-1960s era have


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adopted policy provisions for many of the same reasons that their predecessors have. And Ive

suggested theyve done so in the face of advice they gotdominant advice in the early 1960s

not to do that. And Ive suggested that the usual tendency is to expect and recommend that

practice align with the scholarly consensus. Ive pushed back against that, and Ive suggested

that we look at why state constitutional practitioners do what they do and look at the reasons why

theyve adopted these policy provisions. In fact, scholarship can take its bearings from practice,

and in fact, some state constitutional scholars have, in recent years, taken their bearings from

practice, and in a healthy way. In this case; theres a lot of wisdom to be gained from actually

looking at why practitioners have done what they have done, and the bottom line is that

representative institutions can be deficient in important ways and pose challenges to effective

governance, and constitutional constraints, including policy provisions, can be one tool for

redress.

Thank you.


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III. STATE COURTS AND CONSTITUTIONAL ENFORCEMENT PANEL:HELEN

HERSHKOFF AND JUSTIN LONG;MODERATED BY STEVEN STEINGLASS

A. Steven Steinglass

Initially I want to add my thanks to the Wayne Law Review and to Justin Long for

putting together this symposium. It is a terrific symposium and the papers are great, so this effort

will have an impact on those who are not here today. This is a very worthwhile undertaking.

I will briefly introduce Justin and Helen, and they will each get ten minuteswe are

going to try to keep it briefand then encourage questions from the audience. Because I have

recently been added as a panelist, I will introduce Justin and Helen now, and I will say a few

things about me later when I talk about Ohio.

Justin Long, as most of the people here know, is a law professor at Wayne State

University. Justin has written extensively on state constitutions, and I am going to leave it right

there. Helen, whom I have known for many years, is a distinguished professor at NYU. Because

of how long I have known her, she gets the longer introduction. She was in a private practice in

New York with The Legal Aid Society of New York and with the American Civil Liberties

Union, when she and I first got together, and she has written extensively on state constitutional

law, including some pieces on positive rights. With that I will turn it over to Justin, and you have

ten minutes.

B. Justin Long

Thank you Steve, and thank you again to the WayneLaw Reviewfor this terrific day. I

wrote a paper about a federal case in the U.S. Court of Appeals for the Sixth Circuit that was

looking at federal questions. And the question for us is what does that have to do with state

constitutionalism? So there was a problem in the city of Pontiac, Michigan: they had no money.

The state appointed an emergency manager who was authorized by a statute to do things like

reduce the health benefits of retirees, contrary to the terms of their collective bargaining

agreement. He did so. The retirees then brought a federal action in the Eastern District of

Michigan. They raised federal questions, among others, including federal constitutional claims

under the Contract Clause, saying that the statute had deprived them of their property in


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contravention of their contract, and also under the Due Process Clause of the federal

Constitution, and also under the Bankruptcy Clause of the federal Constitution, arguing that the

statute was preempted by federal bankruptcy law. The retirees sought a preliminary injunction

against the emergency managers actions. They lost in the district court but appealed, raising

these federal questions at the Sixth Circuit. To everyones surprise, and contrary to anything that

had been briefed or argued in front of the appellate panel, the court came out with a decision

reversing the district courts decision on entirely non-federal grounds. The court said that as a

matter of the canon of constitutional avoidancethat is the federal courts practice of avoiding

reaching the federal Constitution if there are other grounds for basing a decision onthey would

instead require the district court to investigate and actually find facts on certain state

constitutional questions. The court identified two state constitutional questions that the Sixth

Circuit made up itself as potential problems with what had happened in the passage of the

statute. There are many, many different state constitutional doctrines and theories that one could

point to. Writing about this case is almost like giving myself an issue-spotter exam because many

different kinds of problems come out of this opinion, and some of them are somewhat related to

federal court problems that are also state constitutional problems. And I wanted to look at all of

these different issues together in one article because we often talk about, in legal literature and in

academic literature, taking a theory and applying it to different cases. I thought it would be fun to

look at a case and apply it to different theories.

But today I want to talk about two specific things that came out of my review of this

federal case. One is that I get to ask the very unusual question: why didntthey address what

everyone else wanted to say about these other state constitutional questions? Normally the

answer to that question is very easy: because the parties didnt raise it. But where the court is

already in the mode of making up issues to think about, its fair to ask why they picked those

issues and not others. So we get to ask: why did the court raise certain state constitutional

questions and not others? And the second point I want to make today is something that I think

touches a lot of what we have heard this morning already and well hear more about this

afternoon, and that is how ineffective the state constitutional text has been at restraining political

actors.

So first, the court looks at this challenge and saw a problem with legislative procedure.

Im constantly trying to convince my students that constitutional structure actually does affect


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real peoples rights in the real world. And this court gave a perfect example of that. It said that

the statue had been passed potentially in violation of a structural provision of the Michigan

Constitution that says statutes shall take effect 90 days after the end of the legislative session

unless two-thirds of the majority voting in each house decides to give the statute immediate

effect. The constitutional text seems pretty clear that the framers were thinking of immediate

effect as not necessarily an emergency but at least an unusual characteristic. As it turns out,

roughly 90%, at least, of the bills passed in 2011 were passed with immediate effect in Michigan.

But the Sixth Circuit wasnt concerned so much with how many bills passed by immediate

effect; it was concerned with how the legislature accomplished this. By the way, theres actually

great video online if you look it up on YouTube. But the concern here is that the emergency

manager bill relevant to this case passed by a slight majority, and then immediately the Chair

acting as the Speaker of the Houseentertains a motion to give the bill immediate effect. That

motion is heard, and the Chair says something like, everyone in support of giving the bill

immediate effect please rise, and if its a two-thirds majority, then the bill will have immediate

effect. And the speaker says, will everyone please rise/two-thirds vote yes in roughly that time

frame and thats pretty close to real time.

So then the Michigan Constitution also includes a provision that says any member of the

House can move for a roll call vote on any motion if it gets one-fifth of the support of the

members. So while this two-thirds/immediate effect motion is being considered, the minority

party is desperately trying to raise their hand and theres actually a video of about ten

representatives circling the Speakers desk waving their arms in the air. But the Speaker doesnt

see them, so they dont get recognized. Then the immediate effect bill passes by this two-thirds

effect. The minority party says that they want to appeal the ruling from the Speaker that two-

thirds of the membership voted in favor of immediate effect. They didnt think that the Speaker

counted right. Fine, the Speaker says. Then, the normal process for appealing a ruling from the

Chair applies. And as those of you who are familiar with parliamentary procedure will know,

you appeal a ruling of the Chair to the whole house. Here, the House voted to uphold the

Speakers ruling by a simple majority. So you get the 51% or 52% that supported the bill in the

first place saying, Yes two-thirds of us agreed that this bill should have immediate effect. So

this was the question that the Sixth Circuit was bothered by. That court said that the district court

should find facts as to whether the Michigan Legislature actually passed the immediate effect


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motion with the constitutionally required two-thirds majority. They also asked, given the statute

under which the emergency manager had impaired the retirees health benefits, whether the later

repeal of that statute by referendum voided the actions taken under its authority, i.e., voided the

emergency managers decision on health benefits. Those are the two constitutional questions the

Sixth Circuit addressed.

The Sixth Circuit did not mention anything about home rule and the City of Pontiacs

right to determine what their employees would get in retirement benefits. The Sixth Circuit did

not mention anything about Michigans constitutional protection of pensions. Michigans

constitution prohibits any partystate or local or in betweenfrom interfering with vested

pensions. And furthermore, interestingly, because of the federal questions raised, which again

were Contract Clause, Due Process, and Bankruptcy, the Sixth Circuit did not ask whether these

actions or the statute under which they were taken violated Michigans due process clause or

Michigans contracts clause. This would, I thought, have been a really nice way for the court to

avoid interpreting the federal Constitution while still signaling how it thought those federal

questions should come out. The court, in full compliance with all of the passive virtues, could

have answered those questions as matters of state constitutional law, knowing that, as a federal

court, whatever was decided about those state constitutional questions would be binding only on

the parties to the case. Then, if it disagreed, the lowest trial court in the state judiciary could

reach exactly the opposite conclusion the very next morning. But the federal court would have

warned the political branches what it thought about the federal constitutional questions.

So these unaddressed questions to me demonstrate a few points about the way the federal

panel thought about this state constitution. First, with the home rule and pension clauses: both of

those are actually weak arguments for the retirees for various reasons. So its possible that the

Sixth Circuit just thought to itself that those are sure losers for the retirees, so why bother

bringing them up? On the other hand, thats a strange conclusion to reach before really going

through the motions of figuring out what those clauses mean and how they apply. So theres a

sense in which the Sixth Circuit maybe just didnt want to engage with those because theyre not

typical federal-style questions; they seem weird to federal judges. A constitutional right to

protected pension benefits is weird to federal judges. Or a constitutional right to local autonomy

and local decision-making over public policy is completely inconsistent with the way that the

federal Constitution treats localities. So they might not have reached those questions because


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they just dont understand those state constitutional ideas, which are common across state

constitutions. The other clauses they didnt reach seem to present the opposite situation: the court

didnt discuss them because they are too similar to federal law. The due process clause and the

contracts clause in the Michigan Constitution the court might not have reached (Im speculating,

of course) because the judges just assumed that because these clauses are so similar to the federal

Constitution the outcome would be the same. Why bother going through that when the whole

exercise of pointing to the state constitution is to avoid analyzing the federal Constitution?

So Ive described these four constitutional questions that, on the surface, seem like they

would have been right at the tip of the tongue of a court reaching in the sky for state

constitutional questions to approach this case with. And yet they were totally unaddressed. Ive

also described how ineffective the state constitutional text requiring a two-thirds majority in the

legislature to give a bill immediate effect became in the hands of clever legislators. They used

completely lawful and ordinary procedures common to parliamentary practice everywhere to

completely eviscerate the two-thirds requirement. The courts might or might not enforce that;

theres almost no reason to think that Michigan courts would have enforced the two-thirds

requirement, more likely preferring a strong version of the enrolled-bill doctrine, where the

courts would not inquire into legislative practice beyond looking at the face of the journals and

proceedings of the house, which in this case, of course, would reflect that no motion for a roll

call vote was made and that the immediate-effect vote passed by the requisite supermajority. But

the federal courts inquiry into this area, an area that the Michigan courts probably would have

stayed out of, is a hint of how federal courts expect constitutional doctrine and text to be applied.

But in practice, in the states, the constitutional text doesnt have that force.

Thank you.

C.Helen Hershkoff

Good morning, and thank you. Thank you for coming this morning and thanks to the

WayneLaw Reviewand to the Cohn Family Endowed Fund, and to Steve Steinglass for his warm

introduction and to Justin Long for inviting me to participate. As Steve has said, the topic of this

panel is constitutional enforcement, and my focus is Article VI, Section 5 of the Michigan

Constitution, which authorizes the Michigan Supreme Court to enact rules of practice and

procedure. The topic of court procedure can sound very technical; it can sound very drytake


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that as a euphemism for dull and uncontroversial. But who gets to set the rules is anything but

dull and uncontroversial. Indeed, control of court procedure forms an important part of the

history of separation of powersthe struggle about whether the legislature controls the court, or

whether the court functions as an independent and autonomous branch. In addition, rules of

procedure embody very important social choices; they help to calibrate how much of the

substantive law is enforced and respected. Bill Steiger, Congressman from Wisconsin, used to

tell his colleagues that procedure issubstance. Congressman John Dingell of this great state, not

known for euphemism, put it more bluntly. If you let me write the procedure and I let you write

the substance Ill . . . you every timethats an expletive, five-letter wordbeginning with s.

So, the fact that the Michigan Constitution gives exclusive and broad rulemaking

authority to the Michigan Supreme Court should not be regarded as a mere housekeeping detail;

it is a constitutional commitment with legal and political significance. Just how broad is the

Michigan Supreme Courts rulemaking power? By comparison, consider some rulemaking

provisions in other state constitutions. The Ohio Constitution provides that a judicial rule should

not abridge, enlarge, or modify any substantive right. The Virginia Constitution provides that

judicial rules shall not be in conflict with the general law. The South Carolina Constitution

provides that judicial rules are subject to statutory law. None of these terms or limitations appear

in the Michigan Constitution. The closest analog to the Michigan Constitutions Section 5 is

probably that of New Jersey, which a half-century ago Professor Leo Levin and the young

Anthony Amsterdam called uncontrolled and uncontrollable rulemaking power.

Let me emphasize that this exclusive and very broad rulemaking powerat least as a

textual matteris not a recent constitutional innovation in Michigan. The 1963 Constitution

cannot take credit for this approach. The 1850 Constitution, which Susan Fino told us introduced

elected judiciaries, assigned exclusive rulemaking power to the court. And this commitment to

judicial primacy in the area of rulemaking contrasts very sharply with the federal approach.

Congresss authority over rulemaking and the federal system is well settled. The Rules Enabling

Act delegates power to the Supreme Court of the United States, and those rules are not permitted

to abridge, modify, or enlarge rights. Michigans quite different approach to rulemaking in part

reflects the different structural position of the state court to the legislature relative to that of

Congress and the Article III courts under the federal Constitution. Article III courts, at least the

lower courts, are creatures of Congress; thats not true of the courts in Michigan (with the


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exception of courts of limited jurisdiction). Under the states constitution, the courts of Michigan

cannot be abolished or diminished by the legislature. All of this is to underscore that the

Michigan courts primacy over the promulgation of court rules is entrenched as a matter of

constitutional text, a matter of constitutional history, and a matter of structural design. But as

with so many other aspects of state constitutional law, here and in other states, the scope and

content of the Michigan courts rulemaking authority increasingly has come to conform to

federal practice. A later panel will discuss state autonomy and the trend that Jim Gardner very

elegantly calls isomorphism. For present purposes, the federalization of the state judicial-

rulemaking power is a prime example of a state constitution taking on aspects of the federal

modeleven when the terms and structure of the state constitution are radically divergent. In

construing the Michigan Constitution, its my belief that the Michigan court has come to treat

Section 5 as if it were a statutory delegation of rulemaking authorityor even simply as an

expression of inherent authorityrather than as a clear constitutional assignment of exclusive

power to one branch rather than to the other.

My paper discusses the transformation of Section 5, and I speak about the pattern of

change in terms of three historical moments. The transformation that I describe is not merely

academic in its implications. As I said at the beginning of the panel, judicial rulemaking

historically has formed an essential piece of struggles about separation of powers and therefore is

a critical element of constitutional enforcement. It marks the boundary between the legislature

and the judiciary, and like every border dispute in law, control over rulemaking carries important

implications for substantive policy. Looking to the earliest period, the period before the 1963

Constitution, I argue that the courts initially lacked institutional capacity for rulemaking, and this

position of weakness created political space for the legislature to enact rules of procedure. In

practice, the legislature came to exercise concurrent power over procedural rulemaking and

statutory procedure coexisted with judicial rules, with court rules taking precedence when

statutory rules came into conflict with them. Legislative rulemaking was justified as a matter of

necessity. The practice even could be constitutionally justified: the legislature had authority to

merge law and equity, and the merger of law and equity necessarily brought the legislature into

the world of court practice and procedural rules. However, concurrency did not mean legislative

superiority: during this early period, the courts stood up to the legislature when statutory

procedure was perceived as encroaching upon judicial power and treated their own rules as


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superior. A conflict of this sort arose when the legislature passed a law requiring the court to

prepare and file a syllabus to each and every opinion delivered by thejudges. In the infamous

case of In the Matter of Headnotes to Opinions, the justices of the Michigan Supreme Court,

including Justice Cooley, wrote a letter to the governorthats right, a letter to the governorto

explain why the statute was unconstitutional and to announce that it would not be enforced. This

episode gave rise to a constitutional ban on statutory procedure when it encroached on the

judicial power, and the court enforced this limitation in later judicial opinions. For example, in a

1925 contract case, the Michigan Supreme Court took a tough approach to a legislative rule that

required the court to file its decisions within sixty days of a motion. A concurring opinion, in

vibrant language, wrote that a spurring to prompt decision may be praiseworthy, but spurs can

only be applied by a rider, and the Legislature does not occupy the judicial saddle.

Turning to the middle period of judicial rulemaking, namely the time immediately after

the enactment of the 1963 Constitution, the Michigan Supreme Court made clear that the

legislature was not in the judicial saddle and did not control the courts rulemaking power. Bob

Williams said in his introductory remarks that the 1963 Constitution is known as the managerial

constitution; as a part of those reforms, the 1963 Constitution increased the judiciarys

administrative capacity and, in the process, bolstered the judiciarys rulemaking power

restoring and reaffirming the traditional commitment to judicial rulemaking. On the heels of the

convention, the Michigan Supreme Court adopted what came to be known as the Michigan

General Court Rules of 1963, and those rules permitted statutory procedure only if the

legislatures rules did not conflict with the court's rules. The Michigan Supreme Court saw fit to

enforce that principle in the case ofPerin v. Peuler, which involved an automobile accident. In

that case, the court struck down a legislative rule of evidence that conflicted with a common-law

rule of evidence on the view that the legislature lacked power to dictate procedure to the court.

Over the next generation, as I argue in my paper, the balance of authority between the court and

the legislature with respect to procedural rulemaking shifted, as rulemaking became entangled

with the legislatures use of procedure to effect substantive tort reform. In the process, the court

turned its Section 5 jurisprudence upside down; the rule now is that statutory procedure takes

precedence over court procedure if the legislative rule displays any policymaking basisan

approach that essentially cedes rulemaking power to the legislature.

The last part of my paper turns from the past to the future, and starts from the premise


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that the Michigan courts rulemaking power has fallen into the orbit of federal doctrine. Going

forward, I ask how federal doctrine might further induce federalization of judicial rulemaking in

Michigan and what the implications of this trend might be. In particular, I consider whether the

Erie/Hannadoctrine can affect a states decision to apportion rulemaking as between the

legislature and the judiciary. I further consider whether this change in the shape of state

governance also will influence policymaking and so affect substantive rights. Let me say that I

find nothing inherently attractive or unattractive about having the legislature design procedural

rules or having the court design procedural rules. No rulemaking procedure will be entirely free

of interest group politics, and Im not suggesting that one mode of rulemaking has any greater

normative appeal than any other. But in Michigan, statutory procedure is not consistent with the

states Constitutionalthough it fits comfortably with the federal model. I consider whether the

Erie/Hannadoctrine might indirectly distort the shape of state governance by further shifting

responsibility for rulemaking from the courts to the legislature. Should that happen, the shift can

be expected to generate different substantive bargains than those struck under a regime of

judicial rulemaking, and the shape and content of state policymaking likewise can be expected to

change. Throughout the morning, weve seen how federal doctrine, directly or indirectly, can

inhibit change by affecting the political space within which states utilize state constitutional

power; court rulemaking in Michigan illustrates that general phenomenon.

Thank you and I hope we can continue a conversation about these issues.

D. Steven Steinglass

You have no doubt noticed this commonality among the three panelists: we all teach civil

procedure and state constitutional law, surely the two most important courses in the curriculum.

Helen and Justin have done a great job extracting state constitutional law issues from a federal

courts case and from a federal civil procedure case. I hope you will read their articles because

they have a lot to offer. My presentation is not high on theory at all; actually it is pretty low on

theory and more a description of state constitutional revision in Ohio.

Let me begin by telling you what I have been doing lately. Forgive what could be seen as

an extended self-introduction, but it actually does relate.

In late-2011, Ohio created a 32-person bipartisan organization, the Ohio Constitutional

Modernization Commission, and gave it responsibility for reviewing the Ohio Constitution and


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making recommendations to the Ohio General Assembly. Commission recommendations to the

General Assembly are to be made by a two-thirds vote. The General Assembly by a 60% vote

can then present proposed amendments to the voters, who can vote for or against them by a

majority vote.

This current commission was patterned on a similarly-named commission, the Ohio

Constitutional Revision Commission, which operated in the 1970s and had what is generally

considered to be a good track record. It made multiple recommendations to the General

Assembly, twenty of which ended up being presented to the voters; and the voters approved

sixteen of them. So an 80% percent batting average is not bad.

These two commissionsthe one in the 1970s and the current oneare structured

similarly. Both commissions are explicitly bipartisan and bicameral with twelve legislatorssix

Republicans and six Democrats; six senators and six representatives. The twelve legislators were

selected by their respective caucuses, and the legislative members of the commission then

selected an additional twenty non-legislators as commission members. The non-legislators do not

come to the table with party labels (although one can in most instances figure out who they knew

or how they got there).

These 32 individuals have been meeting regularly since late 2012it took a while for the

commission to get off the groundand its not-so-modest assignment is to review the entire state

constitution. The commission did not have a real budget until July 1, 2013, so for the first several

months of its existence it had a very minimal budget with not enough to hire full-time staff. The

interim staffing came from legislative staff assigned to take care of the commission as an add-on

to their normal duties.

In late March 2013, after a period of volunteer involvement, I began working for the

commission as its part-time consultant, and effective October 1, 2013, I became the

Commissions part-time Senior Policy Advisor. I like the title and the fact that I am

compensated, but I spend far more hours on commission work than the part-time designation

suggests. Still, the work is very interesting and important, as we worked to provide appropriate

structure for the commission and its committees.

In this current era in which state constitutional conventions are out of favor, state

constitutional revision commissions are seen by many as a useful way to approach constitutional

revision; and there is some guidance around the country.


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One of the important influences on the process took place in late 2011 and early 2012

when a group of people organized what they described as a Colloquium Planning Committee.

This effort began independently of the Commission, and a group of 19 high-powered, well-

positioned people began getting together for the exclusive purpose of thinking about how the

proposed commission should operate. They were aided by faculty and students from Moritz

College of Law at the Ohio State University College of Law, and the planning committee looked

at the 1970s commission experience in Ohio as well as commission experiences in other states

such as Arkansas and Florida.

In March 2012, the Colloquium Planning Committee had a public event, and we were

joined by Professor Robert Williams, who is here today, as well as others who had experience

with state constitutional revision in general and with Ohios experience in the 1970s.

The Colloquium Planning Committee also produced a substantial report designed to help

the commission hit the ground running. The commission has used this as part of their template in

getting organized.

The commission now has six subject matter committees, and it is in the process of

selecting an executive director; hopefully interviews will take place fairly soon. With a staff in

place, it will be easier for the commission to move forward.

Having provided this current picture, let me double back and tell you how Ohio got to

where it is in this process. So here is the history of constitutional revision in Ohio in four or five

minutes.

Ohio is one of fourteen states that periodically place on the ballot the question of whether

there will be a constitutional convention. That automatic vote requirement was adopted in the

1851 Ohio Constitution. The voters said yes to a convention in 1871, but the 1873-74 convention

produced a constitution that the voters rejected, and that is the last time an entirely new

constitution was presented to the voters in Ohio. As a result, Ohio now has the second oldest

state constitution in the country outside New England.

The first Ohio Constitutional Convention of 1802 put Ohio on the path to statehood. The

delegates borrowed heavily from Kentucky and Tennessee and somewhat from Pennsylvania, as

Ohio became the first state carved out of the Northwest Ordinance. We have professors from

three of the five states from the Northwest Territory here. So we do have to get together one of

these days and have an event to celebrate constitution-making in the Old Northwest.


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The Ohio Constitution of 1802 was a constitution that was not designed to endure. For

example, the approximately 45,000 people in the state was less than the 60,000 required by the

Northwest Ordinance, but there was political pressure to bring Ohio into the Union.

To pick one of the most serious defects, the first constitution required the Ohio Supreme

Court to sit in each county each year. This perhaps was doable in 1802 when Ohio had only nine

counties. Fast-forward to 1850, when Ohio had 87 counties and almost two million people, you

can imagine the burden on the court.

The first Ohio Constitution was a document that embraced legislative supremacy. After

all, didnt Jefferson tell us that the legislature was closest to the people and could do no wrong?

Well, things did not exactly work out that well, and the pendulum had swung by the time the

second convention began its work in 1850.

Under the 1851 Constitution, the governor was given more power (though still not the

veto power), and the General Assembly lost much of its power. It lost the power to appoint or

elect judges, and the constitution also placed limitations on its ability to incur debt. The General

Assembly was also required to operate by general rather than special legislation.

The third major constitutional event in Ohio was the 1912 Constitutional Convention,

which took place during that wave of state constitutional conventions held during the Progressive

Era. And this is when Ohio recognized that even if constitutional conventions were good things,

presenting the voters with an up and down choice on a new constitution was not necessarily a

good idea. The experience of 1874 gave them pause, and the presence of many controversial

issues created concern. So the 1912 convention adopted a piecemeal approach to constitutional

revision and presented 42 separate amendments to the voters. And the voters approved 34 of

them, including one that was transformationalthe adoption of the initiative and the referendum.

What is remarkable about the 1912 convention is that the vote in 1911 in favor of holding

a convention was supported by an overwhelming 9 to 1 margin. Of course, at that time if a

political party endorsed the convention and you voted a straight party ticket, your vote counted in

favor of the convention. And both parties supported the convention; labor also supported it,

something John Dinan has written about, to overturn at least seven Ohio Supreme Court

decisions that restricted the rights of workers; representatives of the cities supported a

convention to try to constitutionalize home rule. Women, who did not have the vote in Ohio,

could not serve as delegates, but their interest groups supported holding a convention. As an


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aside, the convention recommended womens suffrage but the voters rejected the proposal even

though the issue received the highest number of votes. Business supported a convention, because

it wanted changes in the tax system. The Direct Legislation League wanted direct democracy,

and many delegates supported major changes in the tax system, some hoping to embrace the

Henry George view of a single tax.

Ultimately, the abolition of capital punishment was on the ballot in 1912, but the voters

rejected the proposal as they did proposals on womens suffrage and even black suffrage (despite

the 15th

amendment). Finally, the proposal to permit the use of voting machines lost.

That was the last time we had a constitutional convention in Ohio. In 1932, 1952, 1972,

1992, and 2012, the voters overwhelming

Documents

A Wave of Change: Celebrating the 50th Anniversary of Michigan's Constitution and the Evolution of State Constitutionalism