A judicial traditionalist confronts unique questions of state constitutional law adjudication.

AuthorYoung, Robert P., Jr.
PositionPERSPECTIVES

In Federalist No. 46, James Madison acknowledged that there are "different modes" by which federal and state governments are constituted: while both have their common root in the people, the federal and state governments are "but different agents and trustees of the people, instituted with different powers, and designated for different purposes." (1) Because of this, state constitutions have significant independent meaning from the U.S. Constitution. In no place do state constitutions have greater independent meaning than where the people of some states have retained powers of plebiscite--direct democracy--that they have not retained vis-a-vis the federal government. (2) As a consequence, cases that concern the constitutional dimensions of these direct democracy provisions offer a unique opportunity to examine state constitutional adjudication in isolation and free of the normal influences of federal constitutional practices that apply when there are state and federal constitutional analogues.

Like any state court of last resort, the Michigan Supreme Court's interpretations of the Michigan Constitution are controlling. (3) Accordingly, state judges wield an awesome power in interpreting constitutional provisions for which there is no federal counterpart. During my fifteen years of service on the Michigan Supreme Court, I have had occasion to examine provisions of Michigan's constitutional protection of the various rights of our citizens to participate directly in government. As I have seen, certain tensions in the law require that judges exercise great care to ensure that such rights are interpreted consistently with the common understanding of the ratifiers, the people. I am proud to say that the Michigan Supreme Court takes this responsibility seriously. In this article, I will explain why. After introducing general principles of constitutional interpretation, I will illustrate how the Michigan Supreme Court has applied those principles in three recent cases interpreting the direct democracy provisions of the Michigan Constitution.

  1. PRINCIPLES OF CONSTITUTIONAL INTERPRETATION

    Before delving into some of these provisions, I want to explain some first principles of constitutional interpretation and judicial philosophy. I, and a majority of the members of my court, consider ourselves "judicial traditionalists." (4) As such, we believe that a constitution has "an ascertainable meaning that is rooted in the history of its creation." (5) In interpreting the Michigan Constitution, we believe that we "must give meaning to the text as it was understood by its ratifiers." (6)

    Determining the ratifiers' understanding of any constitutional text must start with the plain language of the text, and I use the following tools, in descending order, to determine the meaning of a constitutional provision:

    (1) The actual words used in the constitution according to their plain meaning as might be revealed in contemporary dictionaries;

    (2) Address to the People (distributed to every voter by the Constitutional Convention that drafted the constitution and which described in simple terms what each provision meant); (7)

    (3) Michigan Supreme Court cases construing an analogous provision in previous constitutions;

    (4) when there is uncertainty about a term's plain meaning, contemporaneous commentaries about the provision or conditions that might have given rise to the need for such a provision; and

    (5) where doubt remains, anything else that might provide an historical context shedding light on whether a particular text has a meaning other than that which seems most apparent, including the record of the Constitutional Convention that drafted the constitution. (8)

    In Michigan law, this judicial traditionalist approach was most famously articulated by Justice Thomas M. Cooley, who introduced the concept of "common understanding," which he developed in his influential nineteenth century constitutional law treatise and applied during his tenure on the Michigan Supreme Court. (9) Justice Cooley explained that "[t]he object of construction, as applied to a written constitution, is to give effect to the intent of the people in adopting it." (10) Most importantly, the ratifiers' "intent is to be found in the instrument itself' because "[i]t is to be presumed that language has been employed with sufficient precision to convey it." (11) Interpreting a written constitution requires courts to "presume that words have been employed in their natural and ordinary meaning." (12) As a result, "[t]he meaning of the constitution is fixed when it is adopted, and it is not different at any subsequent time when a court has occasion to pass upon it." (13) In applying these principles of constitutional adjudication to cases before him, Justice Cooley explained that the Michigan Supreme Court's "duty is to enforce the law which the people have made, and not some other law which the words of the constitution may possibly be made to express." (14)

    Justice Cooley's approach contrasts with the approach that Justice William Brennan promoted over a century later during his tenure on the Supreme Court of the United States. In a controversial article in the Harvard Law Review, Justice Brennan advocated for the concept of a "living constitution" and promoted the view that constitutional interpretation "cannot be only of what has been but of what may be." (15) Disappointed that a majority of his Supreme Court colleagues did not share his flexible view of the U.S. Constitution, he called on state courts not to allow his colleagues' "crabbed" interpretation of the U.S. Constitution "to inhibit the independent protective force of state law." (16)

    While I have previously criticized Justice Brennan's "encouragement for state courts to use their state constitutions to invade the province of their state legislatures and to advance judicially favored social policy," (17) he nevertheless "correctly observed that state constitutional exegesis is a serious, legitimate enterprise." (18) This enterprise is perhaps no more important than in the examination of a state constitution's guarantee of rights beyond those provided in the U.S. Constitution. Such rights in Michigan include those provisions that establish characteristics of direct democracy, but these rights exist in tension with the rights delegated to the political branches of government. As a result, interpretive methodology becomes vitally important to ensure the balance of powers and rights that the constitution's ratifiers intended.

  2. THE MICHIGAN CONSTITUTION'S DIRECT DEMOCRACY PROVISIONS

    The Michigan Constitution states that "[a]ll political power is inherent in the people." (19) And in Michigan, the people have chosen to retain some of this political power outside that which they had delegated to state government. Thus, Michigan citizens may directly amend the Michigan Constitution, (20) propose laws by initiative, (21) approve or reject legislative enactments by referendum, (22) and recall the elected officials of the executive and legislative branches. (23) The people who ratified the U.S. Constitution retained none of these powers as they relate to the federal government. (24) Thus, when Michigan judges interpret the direct democracy provisions of the Michigan Constitution, we do so without reference to any federal counterpart. This is unlike, for instance, several provisions in the Michigan Constitution's declaration of rights that parallel rights guaranteed in the U.S. Constitution. (25)

    Article IV, section four of the U.S. Constitution states that "[t]he United States shall guarantee to every State in this Union a Republican Form of Government...." (26) In Federalist No. 39, Madison defined a republic as "a government which derives all its powers directly or indirectly from the great body of the people; and is administered by persons holding their offices during pleasure, for a limited period, or during good behaviour." (27) When the people of Michigan retained the rights of referendum, initiative, and constitutional amendment, they created a tension with the core constitutional principle that "[w]e are a constitutional republic in which we, as Michigan citizens, elect our representatives to local and state legislative bodies to enact our laws." (28) In light of this tension, judges must consider carefully the text and original understanding of the democratic constitutional provisions in order to ensure, as always, that we neither enlarge nor restrict their scope.

    In recent years, the Michigan Supreme Court has been called upon to interpret several of the Michigan Constitution's direct democracy provisions. Each case was high profile and hotly contested...

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