Most discussions of constitutional interpretation focus on the interpretation of the federal constitution. But (as Judge Jeffrey Sutton likes to remind us) there are actually 51 constitutions in the United States, and constitutional doctrines can develop (and have developed) differently at the state level. Different state constitutions were adopted at different times, and many have features that are quite distinct from the federal constitution. For example, many states elect multiple executive branch officials, such that it cannot be said that they have a “unitary executive.” (Whether the federal constitution creates a unitary executive is, of course, a matter of some academic debate.)
Ohio Supreme Court Justice Pat DeWine has a forthcoming paper on the interpretation of the Ohio Constitution, titled (appropriately enough) “Ohio Constitutional Interpretation.” It is a welcome contribution to the under-developed literature on state-level constitutional interpretation.
Here is the abstract:
There has been a good deal written about why state courts should independently interpret state constitutions. But not much on how they should do that. We shouldn’t just assume that the interpretive methodologies for state constitutions are necessarily the same as for the Federal Constitution. I focus here on some key interpretive issues for the Ohio Constitution, but the issues addressed will be relevant in the interpretation of other state constitutions as well.
I argue for an original public meaning approach to the Ohio Constitution. Such an approach is rooted in our earliest caselaw. And there is a compelling normative case for original public meaning because every provision of the Ohio Constitution was approved by popular vote of the people and because the Ohio Constitution is relatively easy to amend. Most proponents of a “living constitution” focus their arguments on the difficulty of amending the federal constitution, but because the Ohio Constitution can be easily updated by the people, there is no justification for judges to do that work for them.
So how do judges discern original public meaning? Text is paramount, but what should judges look at when text is not determinative? I explore several possibilities including: (1) Ohio’s prior constitution and other state constitutions, (2) constitutional convention proceedings and other historical materials, (3) ballot language and other officially promulgated materials, and (4) campaign materials, news articles and other contemporaneous materials available to voters considering a constitutional amendment.
Finally, I take up the problem of how to deal with prior “lockstep precedent” that says that a provision of the Ohio Constitution has the same meaning as a similar provision in the federal Constitution. I argue that we should only give minimal stare decisis effect to such pronouncements and in most cases should abandon them when text and history demonstrate a different meaning.
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