Guest Essayist: The Honorable Michael Warren

Before outbreak of the American Revolution, colonies were deeply embedded in the patriarchal traditions and customs of the entire world. All cultures and civilizations had placed women in a subordinate position in the political and social realm. However, the Declaration of Independence raised the consciousness of at least some women and men about the inequality that was embedded in the legal and cultural regimes. Women became serious contributors to the American Revolution war effort, and some, such as Abigail Adams (wife of Colossus of Independence and President John Adams) questioned why they should not be entitled to equality declared in the Declaration.

Unfortunately, the idea of gender equality was scoffed at by most both men and women. For the most part, women were supreme in their social sphere of family and housekeeping, but were to have no direct political or legal power.

The political patriarchy did not consider women able to possess the correct temperament, stamina, or talents to be full participants in the American experiment. Justice Joseph Bradley of the United States Supreme Court, in a concurring opinion upholding the Illinois Bar’s prohibition of women from the practice of law, epitomized these sentiments:

[T]he civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural timidity and delicacy which belongs to the female sex evidently unfits it for many occupations of civil life.

However, the hunger for freedom and equality could not be contained. With the strengthening of the abolitionist movement came a renewed interest in women’s suffrage. A groundbreaking women’s suffrage conference – the first of its kind in the world – was organized by Elizabeth Cady Stanton and others in Seneca Falls New York in 1848. At the heart of the conference was the Declaration of Sentiments and Resolutions, written by Stanton and adopted by the conference on July 20, 1848. Paralleling the Declaration of Independence, the power of the statement is understood best by simply reading a key passage:

We hold these truths to be self-evident: that all men and women are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that to secure these rights governments are instituted, deriving their just powers from the consent of the governed. Whenever any form of government becomes destructive of these ends, it is the right of those who suffer from it to refuse allegiance to it, and to insist upon the institution of a new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their duty to throw off such government, and to provide new guards for their future security. Such has been the patient sufferance of the women under this government, and such is now the necessity which constrains them to demand the equal station to which they are entitled. The history of mankind is a history of repeated injuries and usurpations on the part of man toward woman, having in direct object the establishment of an absolute tyranny over her. To prove this, let facts be submitted to a candid world.”

 

Now, in view of this entire disfranchisement of one-half the people of this country, their social and religious degradation–in view of the unjust laws above mentioned, and because women do feel themselves aggrieved, oppressed, and fraudulently deprived of their most sacred rights, we insist that they have immediate admission to all the rights and privileges which belong to them as citizens of the United States.

The Seneca Falls conference and declaration was just the beginning. During the lead to and aftermath of the Civil War, the women’s suffrage movement gathered strength and momentum. The Fourteenth Amendment, which gave all men the right to vote regardless of race or prior servitude, was bittersweet. The ratification of the amendment split the suffragists and abolitionists movements – some within both movements wanted women to be included in the Fourteenth Amendment, and others did not want to jeopardize its passage by including women in light of the overwhelming bias against women’s suffrage at that time. The suffragists lost, and the Fourteenth Amendment gave all men – but not women – their due.

It took several more generations of determined suffragists to enact constitutional change with the adoption of the Nineteenth Amendment. The territory of Wyoming in 1869 was the first to give women the right to vote. It would take over 50 years before the women’s right to vote was a constitutional right. The movement only happened with the great tenacity, persistence, brilliance, and courage of the women and men suffragists that slowly but surely turned the nation toward universal suffrage. Parades, protests, hunger strikes, speaking tours, book tours, and countless other tactics were used to change the tide.

The Nineteenth Amendment was passed by Congress on June 4, 1919, ratified by the States on August 18, 1920, and effective on August 26, 1920.  It simply provides:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Congress shall have power to enforce this article by appropriate legislation.

Short, but revolutionary. Honor the sacrifices of generations before us and defend – and exercise – the right to vote for women and all Americans.

Michael Warren serves as an Oakland County Circuit Court Judge and is the author of America’s Survival Guide, How to Stop America’s Impending Suicide by Reclaiming Our First Principles and History. Judge Warren is a constitutional law professor, and co-creator of Patriot Week www.PatriotWeek.org.

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Guest Essayist: The Honorable Michael Warren

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Executive Branch

The executive power of the United States is vested in the president who is elected pursuant to the electoral college.41 The electors of each state are chosen by a method of selection determined by the state legislature. Each elector has two votes, one each for president and vice president (who run as a slate).42 The president and vice president each serve four-year terms, and are limited to two full terms.43 The vice president also serves as the president of the Senate, and has no vote unless there is a tie.44 No other federal executive offices are addressed in the U.S. Constitution. To be president, a person must be a natural-born citizen, at least 35 years old, and have been a resident in the United States for at least 14 years.45 The president is, among other things, the commander in chief of the armed forces.46 He or she has the power to grant reprieves and pardons (except for cases of impeachment), make treaties (subject to a two-thirds approval of the Senate), and appoint federal judges (subject to the advice and consent of the Senate).47 He or she has the duty to ensure that the laws are faithfully executed.48

The executive power of the State of Michigan is vested in the governor.49 The governor and lieutenant governor serve four-year terms, with a maximum of two terms.50 The governor is elected in the general election of alternate even-numbered years.51 Candidates for lieutenant governor are nominated by party conventions.52 “In the general election one vote shall be cast jointly for the candidates of governor and lieutenant governor nominated by the same party.”53 The governor supervises each “principal department … unless otherwise provided by” the Constitution.54 The governor is also to “take care that the laws be faithfully executed.”55 Furthermore, the Michigan Constitution has a negative advice and consent clause – any gubernatorial appointments take effect unless a majority of the state Senate votes to disapprove the appointment.56 The governor has the authority to remove or suspend “any elective or appointive state officer, except legislative or judicial,” for “gross negligence of duty or for corrupt conduct in office, or for any other misfeasance or malfeasance therein …  .”57 Like the president, the governor is the commander in chief of the armed forces.58 He or she also has the authority to grant “reprieves, commutations and pardons for all offenses, except in cases of impeachment,” but that power is subject to the procedures and regulations provided by law.59 The governor has the duty to submit to the Legislature a balanced budget and appropriation bills.60 Like the vice president, the lieutenant governor is president of the Senate, without a vote except in cases of a tie.61 To be governor or lieutenant governor, a person must be 30 years old and have been a voter in the state for the four years “next preceding his election.”62 The attorney general and secretary of state are likewise elected for four-year terms at the same time as the governor, with a maximum of two terms.63 Like the lieutenant governor, the attorney general and secretary of state are nominated at state party conventions.64

Unlike the U.S. Constitution, the Michigan Constitution addresses in detail the administrative state over which the governor presides. For example, there are no more than “20 principal departments. They shall be grouped as far as practicable according to major purposes.”65 In addition, unless legislatively vetoed, the governor has plenary authority to reorganize the executive branch via executive order.66

The Michigan Constitution also establishes a statewide elected state board of education;67 elected statewide boards for the University of Michigan, Wayne State University, and Michigan State University;68 an appointed civil rights commission;69 an appointed state transportation commission;70 a Michigan nongame fish and wildlife trust fund;71 a Michigan game and fish protection fund;72 a Michigan conservation and recreation legacy fund;73 a Michigan veterans trust fund;74 and a Michigan natural resources trust fund.75

Judicial Branch

The judicial power of the United States is vested in “one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”76 All federal judges have life terms, subject to being in “good Behavior.”77 The jurisdiction of the federal courts includes all cases arising under the U.S. Constitution, federal law, treaties, foreign relations, admiralty and maritime, and controversies between the states.78

In Michigan the “judicial power of the state is vested exclusively in one court of justice which shall be divided into one supreme court, one court of appeals, one trial court of general jurisdiction known as the circuit court, one probate court, and courts of limited jurisdiction that the legislature may establish by two-thirds vote of the members elected to and serving in each house.”79 The Supreme Court has seven members, serving eight-year terms with staggered elections.80 The Supreme Court is nonpartisan, and “Nominations for justices of the supreme court shall be in a manner prescribed by law.”81 However, an incumbent may be placed on the ballot simply by filing an affidavit of candidacy.82 The Supreme Court chooses its own chief justice, and he or she “shall perform duties required by the court.”83 The Supreme Court must appoint “an administrator of the courts and other assistants of the supreme court as may be necessary to aid in the administration of the courts of this state.”84 The Supreme Court possesses “general superintending control over all courts … and appellate jurisdiction as provided by rules of the supreme court,”85 and rulemaking authority over the “practice and procedure in all courts of this state.”86 Although the Supreme Court “shall not have the power to remove a judge,”87 it may do so pursuant to judicial tenure proceedings.88 “Decisions of the supreme court, including all decisions on prerogative writs, shall be in writing and shall contain a concise statement of the facts and reasons for each decision and reasons for each denial of leave to appeal. “When a judge dissents in whole or in part he shall give in writing the reasons for his dissent.”89 The Constitution also establishes a court of appeals, with the number of judges determined by law.90 Court of Appeals judges serve six-year terms, elected in staggered terms.91 They are elected in nonpartisan elections “from districts drawn on county lines and as nearly as possible of equal population, as provided by law.”92 The jurisdiction of the court of appeals is determined by law.93 Circuit courts are established along county lines, with a minimum of one judge per circuit, as provided by law.94 Circuit courts must conduct sessions at least four times a year, and the number of judges for each circuit is also established by law.95 Circuit court judges are nominated and elected in staggered (by circuit) non-partisan elections for six-year terms, and must live in the circuit to which they are elected.96 Circuit courts have “original jurisdiction in all matters not prohibited by law; appellate jurisdiction from all inferior courts and tribunals except as otherwise provided by law; power to issue, hear and determine prerogative and remedial writs; supervisory and general control over inferior courts and tribunals within their respective jurisdictions in accordance with the rules of the supreme court; and jurisdiction of other cases and matters as provided by the rules of the supreme court.”97 Probate judges are also established and follow the same elective and qualification procedures as circuit court judges.98 To serve as a judge, an individual must have been admitted to practice law for at least five years, and cannot be elected or appointed after reaching 70 years old.99 Judges are also ineligible to be “nominated for or elected to an elective office other than a judicial office during the period of his service and for one year thereafter.”100

Additional Provisions

The Michigan Constitution takes great care to address taxes and fiscal matters,101 local government,102 elections103 and many other matters. These matters are left to the states in the U.S. Constitution.104 Both constitutions have extensive protection of individual rights105 – a topic that could consume hundreds of pages of commentary and review.

The differences between our two constitutions are quite intense – revealing the origins and philosophies undergirding each. Understanding their differences gives us a deeper appreciation for the value they provide and any potential imperfections. Simply put, the U.S. and Michigan constitutions have a profound impact on our daily lives, significantly differ in scope and detail, and are well worth learning if we intend to preserve our liberties and freedoms.

Hon. Michael Warren has served on the Oakland County Circuit Court since 2002, and teaches constitutional law at Western Michigan University Cooley Law School. He is a former member of the state board of education, co-creator of Patriot Week (www.PatriotWeek.org), and author of America’s Survival Guide: How to Stop America’s Impending Suicide by Reclaiming Our First Principles and History. 

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Footnotes

41     Article II, Section 1.

42     Article II, Sections 1 and Amendment XII.

43     Article II, Section 1 and Amendment XXII.

44     Article I, Section 3.

45     Article II, Section 1.

46     Article II, Section 2.

47     Id.

48     Article II, Section 3.

49     Article 5, Section 1.

50     Article 5, Section 21.

51     Article 5, Section 21.

52     Article 5, Section 21.

53     Article 5, Section 21.

54     Article 5, Section 8.

55     Article 5 Section 8.

56     Article 5, Section 6.

57     Article 5, Section 8.

58     Article 5, Section 12.

59     Article 5, Section 14.

60     Article V, Section 18.

61     Article V, Section 25.

62     Article V, Section 22.

63     Article V, Section 21.

64     Article V, Section 21.

65     Article 5, Section 2.

66     Article 5, Section 2.

67     Article VIII, Section 3.

68     Article VIII, Section 5.

69     Article V, Section 29.

70     Article V, Section 28.

71     Article IX, Section 42.

72     Article IX, Section 41.

73     Article IX, Section 40.

74     Article IX, Sections 37-39.

75     Article IX, Section 35.

76     Article III, Section 1.

77     Article III, Section 1.

78     Article III, Section 2.

79     Article VI, Section 1.

80     Article VI, Section 2.

81     Article VI, Section 2.

82     Article VI, Section 2.

83     Article VI, Section 3.

84     Article VI, Section 3.

85     Article VI, Section 4.

86     Article VI, Section 5.

87     Article VI, Section 4.

88     Article VI, Section 30.

89     Article VI, Section 6.

90     Article VI, Section 8.

91     Article VI, Section 9.

92     Article VI, Section 8.

93     Article VI, Section 10.

94     Article VI, Section 11.

95     Article VI, Section 11.

96     Article VI, Section 12.

97     Article VI, Section 13.

98     Article VI, Section 15.

99     Article VI, Section 19.

100   Article VI, Section 20.

101   See, e.g., Article VII, Section 21; Article IX.

102   See, e.g., Article VII.

103   See, e.g., Article II.

104   Amendments IX-X.

105   See, e.g., United States Constitution, Amendments I-IX; Mich Const 1963, Article I.

Guest Essayist: The Honorable Michael Warren

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When one is tasked to write about “the constitution,” my guess is not many ponder a threshold question: “Which constitution?” With the anniversary of the signing of the United States Constitution occurring on September 17 (dubbed “Constitution Day” – and also an anchor date for Patriot Week), one might naturally think the U.S. Constitution must be the topic. Not necessarily so. Because each state also has a constitution, each person lives under two constitutions. Few people understand the U.S. Constitution well, and only a minute number understand their state constitution. As a former debater, I appreciate that one should understand both sides of an issue to become deeply informed. Likewise, to best understand our constitutions, the best course may be to compare and contrast them. Accordingly, this article will review the basic contours of the constitutions of the State of Michigan and the United States to discern their commonalities and yawning differences. By necessity of space and time, this article will only address a few high-level topics such as age, origins, amendment process and the branches of government, and will not delve into the wonderful commentary that this comparison might yield.

Age

The U.S. Constitution was drafted in 1787 and ratified in 1789. The current Michigan Constitution was drafted in 1961 and adopted in 1963.

Predecessors

The U.S. Constitution was preceded by the Articles of Confederation and Perpetual Union, which was drafted by the Second Continental Congress in 1777 and effective in 1781. The current Michigan Constitution was preceded by the Michigan Constitution of 1835, the Michigan Constitution of 1850, and the Michigan Constitution of 1908.

Drafting Process

The U.S. Constitution was drafted pursuant to a constitutional convention held in Philadelphia during the summer of 1787. Each state appointed its own delegates. Although there were 55 delegates, each state’s delegation counted as only one vote. The majority of each state’s delegation would determine the vote of the state (i.e., if a delegation of three members split 2-1 in favor of a measure, that state’s single vote would be cast in favor of the measure). George Washington presided over the federal convention.

The current Michigan Constitution was also drafted pursuant to a constitutional convention held in Lansing from October 1961 to August 1962. The Michigan delegates were elected in a primary election held in July 1961. A delegate was chosen from each of the then-existing 110 state House of Representative districts and 34 state Senate districts. Each delegate voted at the Michigan convention on the principle of one man, one vote. Former American Motors Company president and future governor George Romney was the chairman of the Michigan convention.

Length

The U.S. Constitution is 4,543 words. The Michigan Constitution dwarfs the United States document with at least 31,000 words.

Ratification

The U.S. Constitution required nine of the 13 original states to ratify the document before it became effective. Each state held a ratification convention to debate the merits, and each had a separate process for selecting the delegates to the convention. Although no state rejected the Constitution, this was not a forgone conclusion and a vigorous debate ensued in several states, most especially in Massachusetts, New York and Virginia. Those supporting ratification were dubbed the “Federalists,” and those opposed, the “Anti-Federalists.” Both sides wrote voluminously in the papers and pamphlets of the day. The Federalist Papers (written by James Madison, Alexander Hamilton and John Jay) were a series of brilliant newspaper articles advocating ratification. New Hampshire sealed the deal when it ratified the U.S. Constitution on June 21, 1788. The United States Constitution went into effect in March 1789. Rhode Island delayed its ratification until May 1790.

Adoption of the Michigan Constitution was even a closer call. After a robust campaign, the Michigan Constitution was submitted to a vote of the people of Michigan on April Fool’s Day (April 1) 1963, and adopted by the very slim margin of 810,860 to 803,436. Unlike the U.S. Constitution, at the time of the election, the proposed draft constitution was accompanied at the ballot box with an address to the people that provided commentary about the purpose behind particular provisions of the proposed constitution. In addition, the constitutional convention produced a widely distributed 109-page booklet, “What the Proposed New State Constitution Means to You: A Report to the People of Michigan by Their Elected Delegates to the Constitutional Convention of 1961-62” for consideration by the voters.

Amendments

To amend the U.S. Constitution, two-thirds of both houses of Congress must submit a proposal to the states, and three-quarters of the states must approve the same.1 Approximately 12,000 amendments have been proposed in Congress, and only 33 have gone to the states for consideration.2 The U.S. Constitution has been amended 27 times. Such amendments include the Bill of Rights,3 the prohibition of slavery,4 establishing equal protection and due process for all people,5 voting rights for African-Americans and women,6 authorizing an income tax,7 altering United States Senate elections,8 and presidential elections and succession procedures.9

To amend the Michigan Constitution, citizens can propose an amendment via a ballot initiative when at least 10 percent of the total votes cast for all candidates for governor at the last preceding election sign a petition.10 The Legislature can also propose an amendment if two-thirds of both houses vote to do so.11 In either case, an amendment is approved by a majority vote of the people in a statewide election.12 There have been 31 proposed amendments via ballot initiatives, and 43 via legislative resolutions.13 Of those, 32 amendments have been approved and 42 rejected.14 Approved amendments include establishing the Judicial Tenure Commission,15 the creation of the State Officers Compensation Commission,16 addressing the filling of judicial vacancies,17 prohibiting public funds to aid nonpublic schools and students,18 and authorizing lotteries.19 Rejected amendments included attempts to lower the voting age to 18 (twice),20 permitting a graduated income tax,21 and permitting election of members of the Legislature to another state office during their term of office.22

Convention

A new U.S. constitutional convention can be called “on the Application of the Legislatures of two thirds of the several States,” and a new constitution may be adopted when three-quarters of the states approve the new constitution (either by constitutional conventions or by the state legislatures, as determined by Congress).23 No successful movement to call for a convention has yet occurred, although a movement dubbed the Convention of the States has obtained applications from 12 states (both houses), with partial success in 10 others (one house), calling for a convention that would “limit the power and jurisdiction of the federal government, impose fiscal restraints, and place term limits on federal officials.”24

The question of whether Michigan should hold a new constitutional convention is placed on the ballot every 16 years (beginning in 1978).25 If a majority of voters concur, a constitutional convention will be held subject to certain parameters set forth in the current Constitution.26 This process has yet to yield a call for a new convention since the enactment of the 1963 Constitution.

Separation of Powers

Each constitution provides for three branches of government: legislative, executive and judicial.27 Article III, Section 2 of the Michigan Constitution specifically provides, “The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.” The U.S. Constitution has no such express provision. However, Article 1, Section 6 of the U.S. Constitution prohibits any member of Congress from being appointed to “any civil Office created under the Authority of the United States … .”

Legislative Branch

Each constitution provides for a House of Representatives and a Senate.28 Under each, members of the House of Representatives are elected for two-year terms.29 United States senators serve six-year terms and one-third of the Senate is elected during each election cycle (i.e., every two years).30 Michigan senators serve four-year terms and all are elected at once during the same year as the election for the governor.31 Michigan legislators can serve a lifetime maximum of three terms (six years total) in the House of Representatives and two terms (eight years total) in the Senate.32 No term limits exist in the U.S. Constitution.

To be a member of the U.S. House of Representatives, the representative must be at least 25 years old, a citizen of the United States for at least seven years, and an inhabitant of the state in which he is elected.33 The U.S. Constitution does not provide a set number of representatives, only that there must be at least 30,000 citizens represented by each representative.34 The total number of U.S. representatives is determined by Congress, based proportionally on population – subject to the caveat that each state must have at least one representative.35 United States senators must be at least 30 years old, a citizen for nine years, and a resident of the state he or she represents. United States senators are elected on a statewide basis, with each state having two senators.36

In Michigan, “Each senator and representative must be a citizen of the United States, at least 21 years of age, and an elector of the district he represents.”37 Michigan Senate and House districts are both determined by population.38 In addition, in Michigan “No person who has been convicted of subversion or who has within the preceding 20 years been convicted of a felony involving a breach of public trust shall be eligible for either house of the legislature.”39 The U.S. Constitution has no such bar. The legislative process is hemmed in by title, object and other legislative requirements and prohibitions.40

Hon. Michael Warren has served on the Oakland County Circuit Court since 2002, and teaches constitutional law at Western Michigan University Cooley Law School. He is a former member of the state board of education, co-creator of Patriot Week (www.PatriotWeek.org), and author of America’s Survival Guide: How to Stop America’s Impending Suicide by Reclaiming Our First Principles and History.

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Footnotes

1       Article V.

2       Drew Desilver, “Proposed amendments to the U.S. Constitution seldom go anywhere,” Pew Research Center (April 12, 2018).

3       Amendments I-X.

4       Amendment XIII.

5       Amendment XIV.

6       Amendments XV and XIX.

7       Amendment XVI.

8       Amendment XVII.

9       Amendments XII, XX, XXII, XXV.

10     Article XII, Section 2.

11     Article XII, Section 1.

12     Article XII, Section 1-2.

13     State of Michigan, Bureau of Elections, Initiatives and Referendums Under the Constitution of the State of Michigan of 1963.

14     Id.

15     Article 6, Section 30.

16     Article 4, Section 12.

17     Article VI, Sections 20, 22-24.

18     Article VIII, Section 2.

19     Article IV, Section 41.

20     Senate Joint Resolution “A,” P.A. 1966, p. 678; House Joint Resolution “A,” P.A. 1970, p. 690.

21     Senate Joint Resolution “G,” P.A. 1967, p. 672.

22     Senate Joint Resolution “Q,” P.A. 1968, p. 708.

23     Article V.

24     Convention of the States, https://conventionofstates.com#whyCallCos.

25     Article XII, Section 3.

26     Article XII, Section 3.

27     United States Constitution, Articles I-III; Mich Const 1963, Articles IV-VI.

28     United States Constitution, Article I, Sections 1-3; Mich Const 1963, Article IV, Sections 1-3.

29     United States Constitution, Article I, Section 2; Mich Const 1963, Article IV, Section 3.

30     Article I, Section 3.

31     Article IV, Section 2.

32     Article VI, Section 54.

33     Article I, Section 2.

34     Id.

35     Id.

36     Article I, Section 3.

37     Article IV, Section 7.

38     Article IV, Sections 2-3.

39     Article VI, Section 7.

40     Article IV, Sections 24-26.