Guy Gordon (00:00.558)
Hello, once again, and welcome to the Hashtag Facts Matter Podcast. I’m Guy Gordon. As you know, coming up November 3rd, which is I guess less than 70 days away now, we will be asked to determine whether or not Michigan should reopen its constitution, should revisit, reform, rewrite parts of it in a constitutional convention. We’ve looked at many of the articles in our constitution. Today we’re going to focus on Article 10, which relates to
property and as always we welcome in our expert on this Eric Lufer, president of the Citizens Research Council of Michigan. Hello once again, Eric. So Article 10, I mean this is one of those articles that has received very little attention, very little attempt at amending, but it was amended once and it was a significant one. Let’s talk about it.
Eric Lupher (00:35.832)
Hello once again.
Eric Lupher (00:51.074)
Yeah, so article d the different articles of our constitution are either protecting the rights of citizens and and businesses or establishing the structure of our state government, our local governments, our schools. This is one that’s about protecting the rights and and managing the interaction between government and the people.
one of the police powers of government is something called eminent domain, the ability of government to take with compensation, but take property usually for a governmental purpose. If you think about driving on the highway, how crazy it would be if the if the government had to negotiate with every owner, you would have this zigzagging road that would wind through
because some owners would be more willing to negotiate and but you want on a highway you want a a road that runs straight and railroads same thing. so there’s a number of different governmental purposes where the public well being, the public function usurps the the individual property
Guy Gordon (01:54.968)
Railroads, same thing.
Eric Lupher (02:12.042)
owner’s rights. And and so this, you know, the provisions of eminent domain are meant to balance those interests, the government’s interests and the private owners’ interests. And that has worked for centuries, decades, long time, but became an issue a couple of decades ago when property was taken through eminent domain with compensation to the owners, but
taken and then used for economic development to give that property to another private interest, not for building roads, not for railroads or airport or anything like that, but given to a a business so it could put up a facility and engage in private activity.
Guy Gordon (03:02.816)
Right. And this resulted in a Supreme Court decision asking does this fall under the umbrella of public use, public good? Right.
Eric Lupher (03:09.966)
Right. and ultimately the Michigan courts, the US Supreme Court have you know pushed back on that and said that there has to be a a public interest. And then in 2006 we amended our state constitution to say that when it happens there needs to be a public use and and to find it in a way that economic development doesn’t really fit into that term of public use.
that the burden is on the government to show that it’s a public use, not the private party trying to push back on that.
Guy Gordon (03:46.838)
It also s established a I think a floor for compensation as well, too.
Eric Lupher (03:50.924)
Yeah, it it upped the price. So if we can agree that hundred one hundred dollars is the market value, now the government’s required to pay one hundred and twenty five dollars, a twenty five percent premium. Which really puts the onus on government to say, How bad do you really need this? This is really in your your interest. And anytime you’re negotiating that price, there’s a lot of wiggle room. Of course, the private owner is gonna say, Well, this is worth millions and millions of dollars and the government
is gonna try to lowball it. So you you’ve got to come to that common understanding, but then governments pay a premium on it. So we can in the twenty years since that amendment, we can look and say MNN domain has not really been in the headlines and when it has occurred, it primarily has occurred for public purposes as we intended, you know, as that whole concept is evolved.
So a constitutional convention I think would come in and take a hard look at this. Did that amendment really put us in the right place as a state for b balancing the need of government and the interest of private citizens? I suspect they might tweak a few things, but I would be really surprised if a rewrite of that or a weakening of those protections occurred. I I think
maybe change at the margins, but it seems that they’ve really balanced the interest of government and private owners with where we’ve landed in that two thousand six amendment to the constitution.
Guy Gordon (05:34.22)
You you also in this paper have unearthed, I guess, what we would call a a real constitutional relic, which is the notion of disability of coverture. Explain what that is and l and we’ll and we’re going to say right up front you this this hasn’t been endorsed or promoted in an o well over a century.
Eric Lupher (05:58.604)
Yeah, this is a concept that dates back to centuries ago. English.
Guy Gordon (06:05.048)
Yeah. Not even American.
Eric Lupher (06:08.108)
Yeah, English common law. And it it carried over to America. I th there’s a reason it’s in our constitution that we had to you know pump the brakes on that and say that doesn’t fit w who we are as a nation or a culture. the concept is that when a couple get married that the interest of the women are subsumed by the interest of the man. So a woman
more or less loses her legal personhood and she doesn’t have the right to own property, to enter contracts, to keep her own wages, to sue or be sued as her own thing. Everything had to happen through the husband. And that started to weaken very early in our nation’s history. But in eighteen in our eighteen fifty state constitution, they put in a provision
saying this just just not gonna work in Michigan, right? This is not to be enforced that women should have their own their own rights, their own personhood again. Exactly. And you can think back in history, this is a time when suffrage was just starting to take to to build strength and we were seeing this. And now we look more recently and
Not that I’m an authority on this, but the research we did for this paper, you know, sort of how do you frame this subject, marriage more or less now is seen as a a union of equals, a man and a woman coming together, or now we have the the the same sex marriage and and people are coming together as equals. We see that marriage lasts for a shorter amount of time, so
till death do you part is always tends to be part of the recital of of vows, but we see that I guess half the half the weddings, marriages fail in some sort. So it’s really become a very antiquated concept as we s as I started to amend this part of our paper, having four daughters and and their own
Eric Lupher (08:34.977)
you know, very strong woman. It’s like, why do we even have this? That we can just get rid of this. I was reminded there are some people out there that might come in and say, you know, Michigan or society’s been weakened by this type of thing and blah, blah, blah. so we wanted to address it. We wanted to put it in context and recognize that this might be an issue that a constitutional convention might want to address.
So let’s let’s be aware of that going in and understand the issue a little bit better.
Guy Gordon (09:10.21)
Yeah, understanding I think there was a viral campaign underway by, you know, someone on the on the extreme or the fringe saying that women must vote as their husbands vote. That gained not necessarily traction but a lot of attention. So they’re there to to the to the point of the individual that said, Well, you know, there may be attempts to to somehow undermine this. I don’t think that necessarily that person would get appointed to a constitutional convention as a delegate. But these are strange times.
Eric Lupher (09:40.17)
Or get you know, at least half of the delegates to go along with that line of thinking.
Guy Gordon (09:44.704)
Exactly. Right. there it but that would kind of fall under the heading of a possible place where we need cleanup or revision or some kind of
Eric Lupher (09:56.03)
address. My my fundamental question and thinking to take it out wasn’t that we could weaken it because we have statutory right law that provides the rights of all people, women and men. and do we need it in the constitution? Going along with the theme for anybody who’s listened to these podcasts all along or read our papers, we feel that there’s a whole lot of statutory material baked into our Constitution that
limits the ability of government to be agile and to change with the times. so my thinking as we are editing the paper is, you know, could we just say this is something statutory in nature? but as we’re talking about the rights of people, rights of women, having it in the constitution might ser might serve a purpose. Not all states have this in their constitution. Several do.
But others have treated it as a statutory element. Something of statutory nature that could be dealt with that way.
Guy Gordon (10:59.228)
one other, and it’s it’s really maybe more of a footnote than anything else, and that would be section six of Article Ten relating to foreign property ownership and the rights of foreign property owners in the state of Michigan.
Eric Lupher (11:15.202)
Yes, and our constitution says that regardless of your citizenship status, if you own property that is to be respected and
they enjoy the same rights to ownership as anyone else. Again, you sort of looking about us in twenty twenty six and some of the political discourse that we are exposed to, there might be some that would want to be elected based on a platform of weakening those rights of our alien residents or changing that in some way. there’s a question again of, you know
If that’s your platform, does that get you elected? If elected, does that get you fifty percent of the constitutional convention delegates supporting that? So pretty basic stuff. Aga again, just managing the interest of government against the interest of citizens and trying to find that balance. This isn’t in any way defining the structure of our state government or
Guy Gordon (12:05.806)
Reopen that, yeah. Right.
Eric Lupher (12:24.502)
local governments, but how how much strength should they have as it relates to property ownership vis a vis the rights of the citizens?
Guy Gordon (12:35.258)
And as we as we kind of underline and close the discussion on Article ten, we’re we’re we see the light at the end of the tunnel here, Eric.
Eric Lupher (12:45.528)
Yes, there’s twelve
Guy Gordon (12:47.734)
It’s not a it’s not a track that was laid based on eminent domain. It’s
Eric Lupher (12:51.374)
There’s twelve articles in our state constitution. This is the tenth of them. So we have two more papers following this. and the next one that deals with public employment and it the whole again defining the the structure for people elected to office or employed in our civil service. and then the final one is dealing with amendment and const
amendment and revision of our constitution. so we have hope to have we aim to have the last one out about the week that everybody is receiving their absentee ballots for those people who vote absentee. and then we’ll be doing a webinar. We’ll have the whole series of podcasts lined up and try to inform people as best we can what is this question about and
How do you make an informed decision?
Guy Gordon (13:50.924)
Yeah, and and as you point out, an informed decision based not on politics, but on the facts at hand and and and on how these things have been treated historically. Eric, excuse me. still dealing with I know, still still dealing with a with a bit of a with a bit of a bronchitis here. Thanks so much. That’ll put a exclamation point on Article Ten. We’ll be back with future podcasts on the CONCON.
but until next time, thanks to Eric Lufer. I’m Guy Gordon. We’ll see you next time on the hashtag FactsMatter Podcast.
Eric Lupher (14:26.914)
The Citizens Research Council of Michigan has been providing lawmakers, academics, philanthropists, business leaders, voters, and all Michiganders with factual, unbiased, independent information on significant issues concerning state and local government organization and finance. For over a century, our research is available to you. Go online at CRCMish.org.
Guy Gordon (14:32.162)
The media.
Guy Gordon (14:44.801)
And local.
Guy Gordon (14:49.166)
Or
Eric Lupher (14:56.85)
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