Not Double Vision, Double Constitutions: Michigan History and Statehood (Part 1)

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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.

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