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CRC Column

The right to criticize government is also an obligation to know what you are talking about. 
-Lent Upson, 1st Executive Director of CRC  

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Inserting Legal Code into the Michigan Constitution
September 2012
Memorandum 1115

Several proposed amendments to the 1963 Michigan Constitution submitted to voters either by the legislature or by initiative petition in recent years (and in particular this year) have contained enough detail to raise the question of whether the Constitution is the appropriate place for such detailed and often complex provisions, regardless of their public policy merits.

Michigan electors are in line to vote on five proposed constitutional amendments at the November 6, 2012, general election dealing with matters of renewable energy, unionization of home health care workers, collective bargaining, state tax limitation, and international crossings. A review of the proposed amendments reveals that several are quite lengthy, go into substantial technical detail, and deal with issues that would be found in statutory law, not in the constitutions, of most states.

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The Detail of a Legal Code

The questions of what specifically should be dealt with in a state constitution and the purposes to which a state constitution should be directed are questions which depend for their answer on the choice of a basic approach to constitution making. Most students of the subject agree that detailed constitutional provisions run contrary to the role of a constitution as an enduring, understandable basic governing document. They feel that the 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 people. These guiding principles suggest that the constitution should not be an elaborate document; that it should be relatively compact and economical in its general arrangement and draftsmanship; that details should be avoided; and that matters appropriate for legislation should not be incorporated into the organic document.

In 1819, John Marshall, Chief Justice of the United States Supreme Court, made an enduring observation concerning the nature and purpose of constitutions. In McCulloch v Maryland, (17 US (4 Wheat) 316, 406), Marshall noted that

[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 the 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 composed those objects be deduced from the nature of the objects themselves. ... [W]e must never forget that it is a constitution we are expounding. (Emphasis in original.)

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 early state constitutions embodied the idea that a constitution should establish a general frame of government, setting forth general principles and avoiding the detail which mistakes a constitution for a statute or legal code. And the constitution of the United States is a superb model of a compact, organic document that is logically arranged, internally coherent and drafted with the object in mind of stating broad, fundamental, and enduring purposes.

Examples of the wordiness and detail often found in a legal code that would be introduced in the 2012 proposed constitutional amendments include:

  1. inclusion of specific definitions of "ownership and development", "state", and "new international bridges or tunnels for motor vehicles" for the bridge question
  2. the types of technology for capturing renewable energies that will qualify as satisfying the Michigan standards, and
  3. creating and defining the duties and functions of a Michigan Quality Home Care Council or the composition of represented parties that would sit on the Council.

The length and complexity of the Constitution limits the ability of state and local lawmakers to exercise judgment. Once provisions with this level of detail are amended to the Constitution, it requires another vote by the people to change it in the future. Even something as simple as technical changes -- that could include new renewable energy technologies or different parties to be represented on the Council -- would require additional amendments, a lengthy and expensive process.

Just as a constitution does not derive its meaning from the convention or petition authors that drafted it, but rather from the people who ratified it, neither should a proposed constitutional amendment be written in so technical a manner as to render its meaning unintelligible to the general public.

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