1

MICHIGAN STATE CONSTITUTIONALISM: ON THE FRONT

OF THE LAST WAVE
ROBERT F. WILLIAMS
f
Foreword to The Wayne Law Reviews 2013 Symposium 'A Wave of
Change: Celebrating the 50th Anniversary of Michigans Constitution
ana the Evolution of State Constitutionalism`
[S]tate legislatures have once again become relatively
democratic and representative bodies as a result of the
reapportionment revolution begun in 1962 by Baker v. Carr. 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.
James Henretta
1
The evolution of American state constitutions has been, in part, the
product of 'waves of state constitutional adoption and revision.
2
These
waves have reflected national or regional political developments that
have had causes and impacts beyond a single state.
3
There were two
waves of state constitution-making during the 'founding decade of 1776
to 1787.
4
The first of these waves was a radically egalitarian form of
f Distinguished Professor of Law, Rutgers University School of Law, Camden.
B.A., Florida State University; J.D., University of Florida; LL.M., New York University;
LL.M., Columbia University. This is an expanded version of a presentation at
'Celebrating the 50
th
Anniversary of Michigan`s Constitution and the Evolution of State
Constitutionalism, October 11, 2013, at Wayne State University Law School. I would
like to thank Professor Justin Long and the members of The Wayne Law Review for their
generous hospitality.
1. James A. Henretta, Foreword: Rethinking the State Constitutional Tradition, 22
RUTGERS L.J. 819, 839 (1991); see also TALBOT D`ALEMBERTE, THE FLORIDA STATE
CONSTITUTION: A REFERENCE GUIDE 14 (Greenwood Press 1991) ('After Baker v. Carr,
political power in the legislature shifted from the rural to the urban areas, and a round of
constitutional change followed close on the new apportionment. Reapportionment led to a
period of intense interest in state constitutional law and major changes in Florida took
place with the adoption of the constitution revision of 1968 and the new judicial article in
1972.).
2. See generally ROBERT F. WILLIAMS, THE LAW OF AMERICAN STATE
CONSTITUTIONS 85 (2009).
3. See id. at 42, 43-44, 85 and accompanying text.
4. Id. at 42.
2 THE WAYNE LAW REVIEW [Vol. 60.1
state constitution-making (such as Pennsylvania) that stimulated a
second-wave reaction, resulting in more moderate, or balanced, state
constitutions (such as Massachusetts).
5
These waves continued through 'Jeffersonian democracy, Jacksonian
democracy, the depression of 1837-1842, the Civil War and
Reconstruction, the depression of the 1870s and the Progressive
Movement.
6
The wave of state constitution-making after Baker v. Carr,
7
described above by Dr. Henretta, has been the last wave that we have
experienced in this country. As Dr. Alan Tarr pointed out in his article in
this symposium, there has been virtually no significant state
constitutional revision or replacement that has taken place in the last
several generations.
8
By revision (or 'replacement, as Professor
Lawrence Friedman describes it in his article in this symposium)
9
we
mean, as Dr. Tarr has explained:
Of course, it is possible to introduce significant constitutional
reform without calling a convention or adopting a new
constitutionamendments proposed by constitutional
commissions, by initiative, or by state legislatures may also
produce constitutional reform. But in thinking about
constitutional reform, it is important to distinguish it from the
ordinary constitutional change that is so prevalent in the states.
Any alteration of a state constitution, no matter how technical or
minor, qualifies as constitutional change. In contrast,
constitutional reform involves a more fundamental
reconsideration of constitutional foundations. It introduces
changes of considerable breadth and impact, changes that
substantially affect the operation of state government or the
public policy of the state. The replacement of one constitution by
another obviously qualifies as constitutional reform. So too may
major constitutional amendments or interconnected sets of
5. Id. at 43-44.
6. Id. at 85.
7. 369 U.S. 186 (1962).
8. See G. Alan Tarr, Explaining State Constitutional Change, 60 WAYNE L. REV. 9,
12 (2014).
9. Lawrence Friedman, The Endurance of State Constitutions: Preliminary Thoughts
and Notes on the New Hampshire Constitution, 60 WAYNE L. REV. 203, 207 (2014).
2014] MICHIGAN STATE CONSTITUTIONALISM 3
amendments. However, most constitutional change in the states
does not qualify.
10
Michigan initiated its 1960s state constitutional revision process with
an interesting two-step process, described by Dr. Susan Fino.
11
The first
step was the initiated 'Gateway Amendment, which eased the process
for calling a state constitutional convention.
12
This led the way to the
successful 1962-63 constitutional convention, which was the first in
Michigan to include women and African Americans.
13
This constitutional
convention took place during the litigation of, and decision in, Baker v.
Carr.
14
This 1960s state constitutional convention added at least three crucial
new provisions: strengthened municipal home rule,
15
vested pension
protection,
16
and an environmental protection provision.
17
The first two
of these provisions are central in the current Michigan litigation over
emergency financial managers for local governments, as described by
Professor Justin Long in this symposium.
18
The 1960s state constitutional
convention kicked off the last wave of state constitutional revision.
By 1960 the process of state constitutional revision had slowed after
the earlier waves. This was partly because of fear of reapportionment by
dominant rural representatives who had resisted it in order to protect
10. G. Alan Tarr, Introduction to STATE CONSTITUTIONS FOR THE TWENTY-FIRST
CENTURY: THE POLITICS OF STATE CONSTITUTIONAL REFORM 1, 2 (G. Alan Tarr & Robert
F. Williams eds., 2006) (citations omitted); see also Bruce E. Cain, Constitutional
Revision in California: The Triumph of Amendment over Revision, in STATE
CONSTITUTIONS FOR THE TWENTY-FIRST CENTURY: THE POLITICS OF STATE
CONSTITUTIONAL REFORM 59, 64 (G. Alan Tarr & Robert F. Williams eds., 2006) ('In
theory, constitutional revision should be more comprehensive and qualitatively more
significant than a constitutional amendment. But what if revision occurs increasingly
through amendment: What is gained and what is lost? The most important advantage
should lie in the ability of a Revision Commission to consider how all the pieces fit
together. Where the amendment process is piecemeal and sequential, the revision process
affords the opportunity to logically relate proposals to goals, and to make the entire
package of proposal[s] coherent.).
11. SUSAN FINO, THE MICHIGAN STATE CONSTITUTION: A REFERENCE GUIDE 20
(1996).
12. Id.
13. Id. at 21.
14. Id. at 22.
15. Id. at 141-42.
16. Id. at 203-04.
17. FINO, supra note 11, at 99.
18. Justin Long, State Constitutional tudes: Variations on the Theme of a
Contemporary State Constitutional Problem, 60 WAYNE L. REV. 69 (2014).
4 THE WAYNE LAW REVIEW [Vol. 60.1
their rural-dominated state legislatures.
19
Governor Terry Sanford of
North Carolina described these pre-1960 constitutions as the 'drag
anchors of state programs, and permanent cloaks for the protection of
special interests and points of view.
20
This resulted in a form of state
constitutional rigidity that was both political and legal. Michigan`s
utilization of the two-step process to break through this rigidity
illustrated that concern for state constitutional revision implicated not
only substance, but also process.
However, also by 1960 the states were beginning to come back into
at least some prominence after being overshadowed by the federal
government during the Depression, World War II, and the beginning of
the civil rights movement.
21
Hans Linde has indicated that state
constitutional revision reflects a timeline, in which each era or wave
contains issues that will attract state constitution-makers.
22
Also, by 1960
the states had had almost two centuries of experience with state
constitutional revision, both substantive and procedural. As Dr. John
Dinan has pointed out, by contrast to the federal Constitution, states can
more readily amend or revise their constitutions to take account of
lessons of the past or demands of the future.
23
Also, by the 1960s the use
of the constitutional commission had been established as an effective
adjunct to state constitutional revision. Michigan made use of this
mechanism, a preparatory study commission, in its 1960s state
constitutional revision.
24
So by the early 1960s, when the U.S. Supreme Court turned
entrenched state constitutional apportionment provisions and practices
into wastepaper, and, as Jim Gardner notes, provided a 'judicial shock,
19. See Tarr, supra note 8, at 18.
20. TERRY SANFORD, STORM OVER THE STATES 189 (1967).
21. ALICE M. RIVLIN, REVIVING THE AMERICAN DREAM: THE ECONOMY, THE STATES
AND THE FEDERAL GOVERNMENT 82-125 (1992); see also JON C. TEAFORD, THE RISE OF
THE STATES: EVOLUTION OF AMERICAN STATE GOVERNMENT (2002); G. Alan Tarr, The
State of State Constitutions, 62 LA. L. REV. 3 (2001); John Kincaid, The State of U.S.
Federalism, 2000-2001: Continuity in Crisis, 31 PUBLIUS: THE JOURNAL OF FEDERALISM
1 (2001); ANN O`M. BOWMAN & RICHARD C. KEARNEY, THE RESURGENCE OF THE STATES
(1986).
22. Hans A. Linde, E PluribusConstitutional Theory and State Courts, 18 GA. L.
REV. 165, 195 (1984).
23. JOHN J. DINAN, THE AMERICAN STATE CONSTITUTIONAL TRADITION 5 (2006)
('[S]tate constitution makers` departures from the federal model are primarily attributable
to the flexibility of state amendment processes and the resulting opportunities to benefit
from institutional knowledge and experience throughout American history.).
24. FINO, supra note 11, at 21; see also WILLIAMS, supra note 2, at 381.
2014] MICHIGAN STATE CONSTITUTIONALISM 5
transforming representation from places to people,
25
we had come to
know a number of important lessons about state constitutional revision.
States could use their state constitutional 'space,
26
or competency, to:
A. Modify the process by which state constitutions could be
changed. Again, the two-step constitutional revision process utilized
by Michigan and a number of other states, as discussed earlier, has
never been utilized at the federal level.
27
B. Include rights guarantees in state constitutions that could
continue to evolve beyond federal-style, minimum standard, negative
rights to include positive rights or mandates for positive action by
government.
28
Helen Hershkoff
29
and John Dinan
30
have provided
important analysis of such state constitutional rights. Further, an
awareness had developed concerning the importance of international
human rights norms, which could provide important rights
guarantees at the state level.
31
The New Judicial Federalism,
32
where state courts have interpreted
their state constitutions to be more protective of rights than the
federal Constitution, was barely on the horizon in 1960, so the
25. James Gardner, Autonomy and Isomorphism: The Unfulfilled Promise of
Structural Autonomy in American State Constitutions, 60 WAYNE L. REV. 31, 43-46
(2014).
26. Robert F. Williams & G. Alan Tarr, Subnational Constitutional Space; A View
from the States, Provinces, Regions, Lnder and Cantons, in FEDERALISM, SUBNATIONAL
CONSTITUTIONS, AND MINORITY RIGHTS 3 (G. Alan Tarr, Robert F. Williams & Josef
Marko eds., 2004).
27. Robert F. Williams, Unsettling the Settled: Challenging the Great and Not-So-
Great Compromises in the Constitution, 91 TEX. L. REV. 1149, 1159-60 (2013) (reviewing
SANFORD LEVINSON, FRAMED: AMERICA`S 51 CONSTITUTIONS AND THE CRISIS OF
GOVERNANCE (2012)).
28. See infra notes 29-30 and accompanying text.
29. See, e.g., Helen Hershkoff, Positive Rights and State Constitutions: The Limits of
Federal Rationality Review, 112 HARV. L. REV. 1131 (1999); Helen Hershkoff,
Foreword: Positive Rights and the Evolution of State Constitutions, 33 RUTGERS L.J. 199
(2002).
30. John Dinan, Policy Provisions in State Constitutions: The Standards and Practice
of State Constitution-Making in the Post-Baker v. Carr Era, 60 WAYNE L. REV. 155
(2014); see also EMILY ZACKIN, LOOKING FOR RIGHTS IN ALL THE WRONG PLACES: WHY
STATE CONSTITUTIONS CONTAIN AMERICA`S POSITIVE RIGHTS (2013).
31. See, e.g., Johanna Kalb, Human Rights Treaties in State Courts: The International
Prospects of State Constitutionalism After Medellin, 115 PENN. ST. L. REV. 1051 (2011).
32. Williams, supra note 2, at 113.
6 THE WAYNE LAW REVIEW [Vol. 60.1
fascinating state-federal issues that Professor Justin Long covers in
this symposium were mostly in the future.
33
C. Recognize that in the realm of distribution of powers, there are
virtually no federal requirements for state constitutions.
34
States had
already experimented widely with a variety of non-federal
arrangements such as the item veto, the constitutionalization of
executive agencies (with both executive and legislative powers), the
constitutionalization of higher education governance (such as that
adopted in Michigan),
35
the assignment of rulemaking for judicial
procedure to state supreme courts rather than the legislature,
36
and
horizontal, rather than vertical separation of powers by the inclusion
of home rule guarantees in the state constitution.
37
D. Recognize that policy matters that could be dealt with in ordinary
statutes had been imported into state constitutions as they were
identified as tools of lawmaking, motivated by various factors. This
again has not been available at the federal level. In other words, the
state constitution could be used, in effect, to legislate.
38
Now, what have we seen that the states have done with their
available state constitutional space?
39
To some extent, these opportunities
have been partially wasted, in Michigan and beyond, as pointed out by
Professors Gardner
40
and Hershkoff
41
in this symposium. Alan Tarr
seems a little bit more impressed.
42
33. Long, supra note 18.
34. Robert A. Schapiro, Contingency and Universalism in State Separation of Powers
Discourse, 4 ROGER WILLIAMS U. L. REV. 79, 92-93 (1998) ('The widespread adoption of
federal separation of powers principles might seem surprising. Key differences between
the realms of individual rights and of separation of powers would appear to render federal
authority much less attractive. One especially important distinction is that, unlike federal
individual rights precedent, federal separation of powers doctrine does not apply directly
to the states. This factor, in particular, means that the pragmatic and institutional benefits
of following federal individual rights case law do not apply in the separation of powers
area.).
35. FINO, supra note 11, at 169-74.
36. Helen Hershkoff, The Michigan Constitution, Judicial Rulemaking, and Erie-
Effects on State Governance, 60 WAYNE L. REV. 117 (2014).
37. See Long, supra note 18.
38. WILLIAMS, supra note 2, at 21-24.
39. See Williams & Tarr, supra note 26 and accompanying text.
40. See Gardner, supra note 25, at 46-50.
41. See Hershkoff, supra note 36, at 16-27.
42. See Tarr, supra note 8, at 10.
2014] MICHIGAN STATE CONSTITUTIONALISM 7
As noted earlier, the post-1960s and 1970s wave of state
constitutional reform, initiated by Michigan, washed ashore and has not
been followed by any others. In fact, virtually all opportunities for
revision, as described by Alan Tarr, have not been utilized.
43
Automatic
votes on whether to call state constitutional conventions have been
defeated by the electorate in state after state.
44
I have said:
The public seems to view a constitutional convention as political
business as usual by the 'government industry. Constitutional
conventions seem to have lost their legitimacy in the public
mind. At the time many states` original constitutions were
drafted, the politicians and special interests were afraid of the
people acting through constitutional conventions. Now, by
contrast, the people are afraid of politicians and special interests
acting through constitutional conventions.
45
There has developed in the country a fear of state constitutional
conventions, a 'conventionphobia.
46
There is no telling how long this fear of constitutional conventions
will continue. In the meantime the field of state constitutional law will
continue to grow, and this symposium will make a significant
contribution to that advancement. Professor Justin Long and The Wayne
Law Review are to be commended for taking the Michigan Constitution,
and state constitutions generally, as seriously as they deserve to be
treated. As Professor Richard Kay of the University of Connecticut
School of Law has observed:
The transformation of a law school from an institution of
vocational competence into one of intellectual excellence is
often associated with an increased attention to legal subjects
that are national in scope . . . . It is also true, however, that this
43. See id. at 12.
44. Id. at 13-14; see also John Dinan, The Political Dynamics of Mandatory State
Constitutional Convention Referendums: Lessons from the 2000s Regarding Obstacles
and Pathways to Their Passage, 72 MONT. L. REV. 395 (2010); John Dinan, Accounting
for Success or Failure of Southern State Constitutional Reform, 1978-2008, 3
CHARLESTON L. REV. 483 (2009).
45. WILLIAMS, supra note 2, at 388 (citations omitted); see also Gerald Benjamin &
Thomas Gais, Constitutional Conventionphobia, 1 HOFSTRA L. & POL`Y SYMP. 53, 69-70
(1996); Thomas Gais & Gerald Benjamin, Public Discontent and the Decline of
Deliberation: A Dilemma in State Constitutional Reform, 68 TEMP. L. REV. 1291, 1303-
05 (1995).
46. See supra note 45.
8 THE WAYNE LAW REVIEW [Vol. 60.1
broadening of interest need not be accompanied by an
abandonment of a special concern for the legal issues and
problems that are peculiar to a law school`s home.
47
This symposium serves both functionsboth a national and a Michigan
focus.
47. Richard S. Kay, The Jurisprudence of the Connecticut Constitution, 16 CONN. L.
REV. 667, 667 (1984).