Wednesday, February 10, 2010

Throw out the Michigan constitution?

It's that time again.Every 16 years,the voters in Michigan must vote to decide on convening a constitutional convention for the purpose of revising our state constitution.It failed overwhelmingly in 1978 and 1994.Here is some reading to get you up to speed.

CRC Special Report
No. 360-01 A publication of the Citizens Research Council of Michigan February 2010
Proposal 2010-01 on the November 2, 2010, statewide ballot will ask Michigan voters whether a constitutional
convention should be convened for the purpose of a general revision of the state Constitution. The
1963 Michigan Constitution provides in Article XII, Section 3, that in 1978 and every 16 years thereafter the
question of a general revision of the constitution shall be submitted to the electors of the state.
Options for Michigan Voters
Proposal 2010-01 will ask Michigan electors to assess
how well the fundamental law of the state serves
as a framework for efficient, accountable government
services that meets today’s economic and social
needs. In November, voters will choose: to convene
a constitutional convention to draft a revised
constitution to deal in a holistic manner with issues
perceived to be problematic; or to allow the 1963
Michigan Constitution to continue in its present form.
If Proposal 2010-01 is approved, Article XII, Section
3 of the Michigan Constitution requires a special primary
and a special election to be held within six
months to select convention delegates. Michigan’s
election law provides for four elections in a calendar
year, so the elections would occur in February and
June of 2011. Article XII, Section 3 of the Constitution
further provides that the electors of each representative
district (110 districts) and the electors of
each senatorial district (38 districts) shall elect one
delegate to the convention.
The 1963 Constitution provides that the convention
would convene in Lansing on October 4, 2011. The
delegates are empowered to choose their own officers,
determine the rules of proceedings and judge
the qualifications, elections and returns of its members.
The delegates will be compensated for their
time and to incur additional cost through the appointment
of such officers, employees, and assistants
as it deems necessary; printing and distribution
of documents, journals, and proceeds; and
explanations and information dissemination about the
proposed constitution. The Constitution does not
dictate the length of time that a convention can use
to draft a revised constitution.
If Proposal 2010-01 is rejected by the voters, the
1963 Constitution will remain in effect. The legislature
and voters may continue to adapt the 1963
Constitution to future economic and social needs by
offering amendments to reform specific sections
viewed as problematic. If the question is rejected, it
will automatically appear on the ballot again in the
year 2026.
Michigan voters decided against similar ballot questions
in 1978 (640,286 Yes to 2,112,549 No) and
1994 (777,779 Yes to 2,008,070 No). The 1963 Michigan
Constitution has proven to be a living document,
having been amended numerous times over the 45
years since its adoption.
A state constitutional convention elected by the
people is free to fashion any kind of document it
pleases, subject only to restraints imposed by the
United States Constitution as the supreme law of
the land and subject, of course, to having its work
ratified by the state’s electors. While Michigan‘s his-
Wholesale Revision
tory with constitutional revision has tended to incrementally
build on existing constitutions, nothing
would bind a 2011 constitutional convention to such
an approach.
Further, while a number of electors may agree upon
issues in need of constitutional reform, there are no
First in a series of papers about state constitutional issues
CRC Special Report on Michigan Constitutional Issues
CRC Board of Directors
NICK A. KHOURI, Treasurer
single, correct reforms to most of
the large and important questions
that would confront a convention.
These are matters of opinion and
judgment, and honest differences
of view can readily be entertained.
In the end, a convention must
submit the results of its deliberations
to the state’s electors for
approval. To merit this approval,
a proposed revision of the constitution
must be a document that
can be read and understood by
citizens and which in meritorious
features commends itself to the
people as a worthy instrument for
the furtherance of effective and
responsible government directed
to the end of serving and promoting
the common good.
The Nature and Purpose of a State Constitution
The idea of a written constitution
defining the structure of government
and enumerating the rights
of the people as a limitation on
the powers of government is
deeply-rooted in Anglo-American
history. The adoption of the first
state constitutions preceded the
drafting of the United States Constitution
by the Philadelphia convention
of 1787 which established
the federal system under which
we now operate—a system under
which governmental power is
divided between the federal or
central government and the fifty
states of the Union.
A constitution should serve the
purpose of a fundamental organic
document: establishing, defining
and limiting the basic organs of
power, stating general principles,
and declaring the rights of the
American constitutionalism presupposes
certain basic principles
that find expression either expressly
or impliedly in state constitutions
as well as the constitution
of the United States. Some
of these are so fundamental and
familiar and their implications so
plain that they need not be developed
at length:
• That political power rests ultimately
in the people;
• That the popular will is reflected
in the constitution and
in the institutions of representative
government designed
to serve the interests and
welfare of the people;
• That the organs of government
are subject to the limitations
imposed by the people and by
the rights retained by them;
• That a constitution is fundamental
and supreme law; and
• That the courts in the exercise
of the power of judicial
review have the responsibility
and the duty to uphold this
fundamental law and to
refuse to enforce legislative
and other acts of government
found to be in conflict with it.
In addition to these principles, a
state constitution can be expected
to achieve a number of fundamental
objectives. The first fundamental
objective is to establish the organs
of governmental power, to
define and distribute authority
among them, and to state limitations
on these powers. Secondly,
the questions of direct participation
by the electors in the legislative
process by means of the referendum
and initiative and the
mechanics of these processes require
attention. Finally, it may be
suggested that since the political
process is such an inherent part of
government and the operation of
representative government, attention
may well be given in the constitution
to the roles that political
parties may play in Michigan’s state
and local government.
Apart from the electorate and the
three branches of government,
the other organs or bodies that
may be vested with constitutional
status are public corporations.
These may be divided into two
categories: (1) municipal corporations
and other local governmental
units including counties,
townships, and metropolitan districts
and (2) public corporations
organized for specific purposes
CRC Special Report on Michigan Constitutional Issues
such as the state universities.
With respect to both classes, the
questions respecting constitutional
position and authority—including,
in the case of those in
the first class, the important
questions of home rule status—
are matters of basic concern.
In addition to establishing the
structure of state government,
municipal corporations and other
local governments, and public
corporations, alteration of a state
constitution has the potential to
alter the basis upon which state
laws and judicial decisions are
based. Amending or revising the
state constitution could affect
broad concepts, such as home
rule for local governments, the
involvement of citizens through
elections, initiatives, and referenda,
and the state’s responsibility
for funding public education.
It also could affect more narrow
concepts, such as government
finance, the death penalty, and
eminent domain.
A constitution should not be an
elaborate document. It should be
relatively compact and economical
in its general arrangement and
draftsmanship. Details should be
avoided and matters appropriate
for legislation should not be incorporated
into the organic document.
Chief Justice Marshall
stated this idea in classic form in
the course of his famous opinion
in McCulloch v. Maryland.
A Constitution to contain an
accurate detail of all the subdivisions
of which its great
powers will admit, and of all
the means by which they
may be carried into execution,
would partake of a prolixity
of a legal code, and
could scarcely be embraced
by the human mind. It would
probably never be understood
by the public. Its nature,
therefore, requires that
only its great outlines should
be marked, its important
objects designated, and the
minor ingredients which
compose those objects be
deduced from the nature of
the objects themselves… .
In considering this question,
then, we must never forget
that it is a Constitution we
are expounding.
Justice Cardozo stated the matter
more succinctly:
A Constitution states or ought
to state not rules for the passing
hour but principles for an
expanding future.
The 1963 Michigan Constitution
contains 12 articles, with several
sections contained within each
article. In brief, these articles are:
Article I – Declaration of Rights
sets forth basic individual liberties
which are to be secure from
impairment by the actions of state
Article II – Elections defines the
qualifications of electors and provides
for the place, manner, and
time of elections. Article II also
discusses the board of state canvassers,
recalls, the powers of
initiative and referendum, and
term limitation. Additional provisions
for term limitation are found
in Articles 4, 5 and 12.
The Michigan Constitution
Article III – General Government
establishes Lansing as the
seat of government and provides
for a separation of the powers
within the structure of state government.
Article IV – Legislative Branch
establishes the constitutional
framework for the conduct of legislative
powers through a Senate
and House of Representatives.
Article V – Executive Branch
establishes the constitutional
framework for the conduct of executive
powers by the governor,
lieutenant governor, attorney
general, secretary of state, and
certain boards and commissions.
Article VI – Judicial Branch establishes
the constitutional framework
for the general authority of
the judiciary to interpret the law.
Article VII – Local Government
contains many of the provisions
regarding the system of local government
in Michigan, which includes
counties, townships, cities
and villages, and authorities.
Article VIII – Education defines
the role and responsibility of the
state for elementary-secondary
education and higher education.
Article IX – Finance and Taxation
contains various limitations
upon the otherwise plenary
power of the legislature to raise
CRC Special Report on Michigan Constitutional Issues
funds through taxation, ranging
from the proportion of value at
which property may be taxed, to
requiring voter approval before
local governments may increase
certain taxes and indebtedness,
to specifying how certain revenues
are to be expended.
Article X – Property creates limitations
on the powers of eminent
domain and escheats and entrusts
to the state general supervisory
jurisdiction over all state
owned lands.
Article XI – Public Officers and
Employment provides for an
oath of office for public officers,
the beginning of terms of office,
a classified state civil service, a
merit system for employees of
local governments, and for the
impeachment of civil officers.
Article XII – Amendment and
Revision provides for the amendment
and general revision of the
The 1963 Constitution, Michigan’s
fourth, is now 46 years old. Over
that time Michigan’s population
has grown from 8 million to more
than 10 million. Transportation
and communication networks
have developed to connect people
and population centers. The roles
of governments have expanded
to support welfare programs and
to more actively attract and encourage
economic development.
Although certain provisions of the
1963 Michigan Constitution are in
violation of the United States Constitution,
the framework for Michigan
government is generally
workable. Since adoption, 70
constitutional amendments have
been proposed; 30 of which have
gained approval from the electors.
If a constitutional convention
is convened, it will have the
goal of making Michigan government
work better, not to solve a
constitutional crisis.
Over the coming months, the Citizens
Research Council of Michigan
will publish a series of papers
to provide information which
electors may use to decide
whether the convening of a constitutional
convention is in the
best interest of Michigan at this
Series of Papers
time. The series will relate the age
and length of the Michigan constitution
relative to those of other
states; provide a historical perspective
of the 1963 Constitution;
and consider obsolete and problematic
provisions, as well as provisions
that voters may wish to
change in each article to set a
new direction for the state. Look
for these papers to be released
on roughly a bi-weekly schedule
at and
sign up for CRC’s e-mail updates
to have notice of their release
delivered directly to your inbox.

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