Guy Gordon (00:00.987)
Hello and welcome to another edition of the hashtag facts matter podcast brought to you by the citizens research council of michigan and dedicated to the idea that fact should drive good policy making not politics if you’re searching for just the facts you have founded here coming up with this midterm elections prop one will be asking you as a michigan voter whether or not we should call a constitutional convention also known as a con con
to be really do a top to bottom review of our state constitution. We’ve got previous podcasts diving into the history of this, also kind of the 411, what it is, what it isn’t, how the delegates would be chosen. You can find that where you find your podcast at Spotify, iTunes, or elsewhere. Today, we’re going to be doing a deep dive into Article 1, which is the declaration in our constitution of your rights. And we once again welcome in Eric Lufer.
president of the Citizens Research Council of Michigan. And this is a big one. I mean, I think this is the third most revised, but potentially the most contentious, because we hold our rights to be very sacred.
Eric Lupher (01:11.97)
We hold the rights to be very sacred, but we’ve also amended that article to include rights that not everyone agrees on. So, you know, if we just start off with the bill of rights that are in the U.S. Constitution, the right to bear arms, the right to…
protection against habeas corpus and you know, all that type of stuff. We probably like no need for a con con, we’re all good. But now we get into same sex marriage and abortion rights and affirmative action and people have strong feelings on those one way or the other. And now that makes it very contentious.
Guy Gordon (01:41.403)
trial by jury. Yeah.
Guy Gordon (01:58.095)
So interesting, so at the federal level, our rights are in the Bill of Rights, which was the First Amendment to the Constitution. So they’re enshrined in an amendment, not in the Constitution itself. Does that matter? And is there a reason why we chose to make this Article I of our Constitution in the state of Michigan?
Eric Lupher (02:17.805)
You know, that gets a really deep question that gets into historical background. Ultimately, the Monday morning quarterbacking for the eight, 19, 18, 1787, I get my centuries right here, the 1787 US constitution. Some of the Monday morning quarterbacking, they felt it was a fundamental flaw to not include those bill of rights.
Guy Gordon (02:36.037)
Mm-hmm.
Eric Lupher (02:46.669)
And it was a document hard to sell to the states for ratification without those rights. So then our friends Hamilton and Madison and Jay got busy and drafted those and quickly came up with the bill of rights to be able to sell the whole document. Here we come in 1835 and we have the wisdom.
that the US Constitution, those drafters have already gone down that road and we have the ability to learn from it. So I think they have the ability to learn from those who come before us and whether it’s done through amendment or in the fundamental document is no longer an issue certainly by 1961.
Guy Gordon (03:32.474)
Right.
Guy Gordon (03:43.867)
So we do have in terms of declaring our rights some overlap with the US Constitution’s First Amendment. What differences are there in scope and reach in our state document versus what we have declared federally in our Bill of Rights?
Eric Lupher (04:00.354)
Yeah. So we find a lot of the same types of constitutional provisions, some rights in the early sections of Article 1. And in some cases, there’s just subtle differences, the use of an and or an or, things like that, that has enabled our Michigan Supreme Court
to interpret things slightly different than US Supreme Court interpretation of those rights, to define the boundaries. So there are subtle differences that afford Michigan citizens often greater rights, greater protection of their rights than is afforded through the US Constitution.
Guy Gordon (04:34.693)
Mm-hmm.
to define the boundaries.
Eric Lupher (04:58.59)
We can also think about the 250 years of US constitutional history as sort of as a meandering stream that hasn’t always granted the rights that we can see today, whether that’s equal protection or many other things. You know, the Miranda rights only date back 60 years. And so,
By having our own constitutional Bill of Rights, Declaration of Rights, it sets Michigan up to say what’s important to us and less beholden to that meandering US constitutional interpretation.
Guy Gordon (05:44.939)
And we should point out that while the Supreme Court has, our Supreme Court has the right to expand on those rights, it can’t restrict those rights because they get trumped by the federal constitution and our bill of rights.
Eric Lupher (05:59.279)
That’s right. So the US Constitution is going to set the minimum that these are your rights and the states are free to expand on that, but not to pull back slavery. Use that example. Once it was in…
the 13th Amendment and expanded by the 14th Amendment, states couldn’t then come in and say, well, we want to reserve the right to slavery in Mississippi or something. At that point, that’s the minimum. And we could go in as a state and say, we want to expand on that in some way, but we couldn’t reserve the right to have slavery in our state.
Guy Gordon (06:28.443)
Mm-hmm.
Guy Gordon (06:41.883)
So as we look at article one, let’s kind of break it down by section because I think it really helps to clarify and to bring into focus those issues which may arise at a constitutional convention should we choose to submit to that. Section two, equal protection. This was a very, very big issue for the delegates to the 1961 constitutional convention. As you pointed out in an earlier podcast, it was the era of the civil rights movement, Martin Luther King Jr.
This idea of enshrining protections against discrimination was very, very big. But what was a protected class is now expanding in some circles. How important will that issue be going forward?
Eric Lupher (07:30.968)
Yeah, I,
This is one of the fundamental rights I think that we can look back on in depending on who you are and your perspective on the world around us, important to some and less important to others as it related to race back in 1961. But now we think about the issues of
gender identity and LGBTQ rights and familiar marital status and things like that. How broad should those rights be? Of the 148 delegates that we could have to a constitutional convention, we might get 148 different perspectives on
Guy Gordon (08:17.709)
Mm-hmm. Should they be a protected class at all? Well, could, yeah.
Eric Lupher (08:31.894)
what exactly, who exactly should be protected in certain ways through our constitution or should that be left to the legislature in some way to define who falls under the umbrella of these sort of equal protection rights.
Guy Gordon (08:49.307)
And again, there are a few things as personal and as directly personal to us as these rights. So equal protection for sex and gender will be a gender identity will be an issue, but also the right to bear arms. mean, I can think of my earlier life as a talk show host, an issue that provoked as many calls and as emotions as strong as section six.
but it also because the the second amendment is constantly evolving at the federal level how do you lock it in on a constitutional convention at the state level
Eric Lupher (09:30.232)
I think that’s a great question and I would hesitate to try, honestly, because…
Eric Lupher (09:40.547)
As the US Supreme Court makeup of that body evolves, I think interpretation of Article Two in the US Constitution, the Second Amendment, as that evolves, then it’s going to be harder for states to know exactly what they can and can’t do and how they can expand on the fundamental rights at the US level. How should that be?
expanded on or try to stay on par with within a state constitution. One of the most triggering items is, as you suggest, but really hard to…
Guy Gordon (10:15.845)
Yeah.
Eric Lupher (10:24.982)
identify the proper scope within a state constitution.
Guy Gordon (10:29.125)
Well, and that doesn’t mean it might not be advisable, but that doesn’t mean that folks won’t try. I especially since this is one of those issues where the compulsion to take something that should be done by statute and to make it a constitutional amendment or an article in the constitution or section of the constitution is really compelling here because of the level of mistrust or the idea that you want to lock it in and make it difficult to change. can see where.
Eric Lupher (10:34.894)
for certain ease of try. Yeah.
Guy Gordon (10:58.937)
The idea of open carry, the idea of CPL licenses, all of it may come under scrutiny. And then the whole idea of an assault weapons ban may be proposed as well. Things that we should be handling in statute, because we just don’t trust the other side, we want to lock it into the constitution.
Eric Lupher (11:20.046)
And while it might be here today, anything that can be done statutorily can be undone statutorily. So while you might have that protection today, the future legislature might want to undo it. It’s a lot harder to change the constitution.
Guy Gordon (11:37.499)
Let’s skip ahead from section six to section 25, same-sex marriage. I think there would be those that would say this is settled law at the federal level. It certainly has broad popular support now. It’s really one of the greatest societal shifts, the most rapid societal shifts I’ve seen. How likely is that to be addressed?
Eric Lupher (12:00.462)
You know, again, we have an evolving US Supreme Court, the makeup of that body. It was settled at a time where the makeup of the US Supreme Court was, at least a majority were friendly to this topic. Michigan’s provision, section 25 was amended just before that. And we actually have a prohibition on same sex marriage in our constitution, but US law
Trump’s state law, whether it’s in the constitution or statute. So certainly they’ll want to open it and whether the delegates will want to reference to same sex marriage in the state constitution, but make it consistent with federal law is an open question. And then if they foresee a conservative US Supreme Court
continuing to nibble away at certain rights, choose to lock it in going forward, lest they lose the right at the national level was something. So another hot button issue and really will depend on the makeup of a state constitutional convention, which way they settle on this sort of issue.
Guy Gordon (13:25.827)
And again, one of those issues that wasn’t even being talked about or thought of in 1961, right? It shows you that the societal shifts. Section 26, affirmative action. This was most recently decided by Michigan voters back just three and a half years ago in 2022, the ban on affirmative action programs. Will delegates try to overturn that, clarify it? How much of an issue will it be, do you think?
Eric Lupher (13:30.284)
No, no, not at all.
Eric Lupher (13:55.209)
Again, this is another issue that’s being dealt with at the national level. The question has really narrowed over the years. It used to be a broader issue. the last time Michigan dealt with it, as we did our research, we found it was really only prevalent in the university selection process and only in some schools.
not really very widely. So again, trying to foresee where the US Supreme Court might be going on this issue, thinking about how Michigan has evolved and race relations has evolved in the state, whether that’s expanded to other, again, the gender or gender identification or other things.
should be looped in with that.
It’s hard to know on that one and this might be less of an issue than some of those we just finished discussing.
Guy Gordon (15:07.493)
Well, and but I think the idea of what falls under the heading of affirmative action, we used to think of it as just admissions policies at Michigan universities. I think has gone beyond what maybe those that thought about an affirmative action ban might have been. Section 28 reproductive freedom. I don’t think there’s any more contentious
Eric Lupher (15:57.667)
Right.
Guy Gordon (16:04.251)
perhaps other than the right to bear arms, more contentious issue than this that has dominated our political discourse since 1963. was decided by Michigan voters in 2022. By the way, I misspoke. The affirmative action ban came about in 2006. This was enshrined in the constitution just three and a half years ago. But I would think if you were to ask a majority of Michiganders, they would say it still hasn’t been decided because there was a lot of
detail that was left out.
Eric Lupher (16:37.602)
Yeah, this is another eye of the beholder. People for a wide variety of reasons have very strong feelings on the reproductive freedom questions. Some people think missed opportunity to include things. Some people think they went too far in securing the reproductive freedoms in our state constitution.
might be the biggest issue that a constitutional convention will have to deal with. We know from looking back at history that in 1961 there were some fresh amendments to the 1908 constitution that the delegates had to do. The people have recently spoken on this and we don’t need to second guess what the people think.
unless we get on the wrong side of that. I wonder if a 2027 convention might take the same approach with this. It’s probably as big an issue as the convention would want to take up, but also a big issue as people decide how they want to vote in November on this question of opening up the document at all.
Guy Gordon (18:00.809)
It was interesting because at the time as we were debating that ballot proposal, people in the middle who said, yes, we should enshrine reproductive rights, but we also need some clarification on fetal viability and when this is appropriate. And they were promised by the authors of the proposal, but we will take that up legislatively and statutorily at a later date. It still has yet to be done. And so there may be, even amongst those that are not
at the extremes of this issue those in the middle that are saying it still needs to be refined.
Eric Lupher (18:36.366)
Yeah, but you know, again, this is a case, it’s really hard to amend the constitution and how much detail should we put in in 1963? Could we even imagine, I mean, we could imagine dealing with this question of abortion was an issue then as it is today, but the science has evolved so much, could they?
imagine a question of fetal viability or many of the other medical advances that we’ve made and where will we be in 2050 or 2060 and if we have too much detail in the Constitution, how will that affect an issue like this?
Guy Gordon (19:24.229)
Because those details change. mean, if you say, well, fetal viability is 23 weeks today, who knows what it could be in the future with medical advances. Section 46, the Michigan death penalty. If memory serves, weren’t we the first state in the nation to abolish the death penalty?
Eric Lupher (19:46.383)
We have been in This is one of the issues that Michigan I mean again residents are all over the place some Feeling we miss it we’d be better with it and so I’m happy that we have the prohibition on it, but Michigan there seem to be pretty steadfast and keeping this provision in place Certainly, you’ll be an issue that the delegates
We’ll want to dig into and reconsider. We are a bit of a, to have it as early as we did in our constitution and to be as steadfast among the 50 states and prohibiting puts us in a special place among the 50 states.
Guy Gordon (20:40.379)
To what degree will this process also open up the idea of looking at rights that are enshrined in other states, but not necessarily in the state of Michigan? Maybe the right to unionize, something like that. Will that be a potential avenue for discussion?
Eric Lupher (21:00.334)
I think for sure it will. Part of any process like that is this is something that the research council did for the 1961 delegates is to look at the other states and don’t try to reinvent the wheel. If somebody has come up with a provisions that would fit well with us, think about how they could be included into our own document. So.
Guy Gordon (21:24.656)
Mm-hmm.
Eric Lupher (21:30.735)
Should the rights to unionize be added? Issues of privacy or public record access, something that we’re dealing with today, the Freedom of Information Act requirements for our legislature and the executive branch. Physician assisted suicide was an issue a couple of decades ago and other states have allowed it. Michigan.
Guy Gordon (21:47.643)
Mmm.
Eric Lupher (21:58.337)
set on the sidelines as this has progressed. The quality of the conditions around us, whether that’s clean air or water or right to farm or fish, hunt, many types of things could be added. And looking at other states for some example of these, but also thinking like, given that we are such a divided state,
Ultimately, you have to sell this document to the people in a vote.
including all those things that we went into great detail, complicate the thing. Adding more rights might complicate it further.
Guy Gordon (22:37.499)
All
Guy Gordon (22:43.343)
Because what we’re going to see, I think we can say safely based on past experience here with any ballot question, is the notion that it’s always easier to vote no than yes. Because it’s fear of what could happen if we move forward with this process. And yet there’s still some very compelling reasons to kind of clean up the document, maybe shrink it a bit, make it more understandable, greater clarity.
every for every special interest topic that we’ve identified as being open for discussion. As we said in an earlier podcast, it’s an opportunity for some, and it’s also a compelling reason not to do it for others because you’re scared to death of what might befall your interests.
Eric Lupher (23:29.784)
And we make the point in our paper, other provisions of the constitution, and I think I use this metaphor in one of the earlier podcasts, for some issues, there’s sort of the Rube Goldberg effect. If you change section two, that affects section six. And if you change section six, that’ll affect section 14. With the Bill of Rights, with the Declaration of Rights in our state constitution, each one stands on its own and there’s the ability
If the people have changed their position on certain issues to come in through the amendment process and say, let’s clean this up to reflect how we, how we feel as a state. and some of those might be successful and, and some might get shot down, to deal with it in a wholesale revision. it might not at all.
You know, how the delegates land on Article 3 might have little sway on you, but how they come down with these rights in Article 1 might have huge importance to the people.
Guy Gordon (24:36.825)
Right. Well, it’s a fine line between, informing people about potential impacts and fear mongering. And we’re going to see a bit of both, I think, in, in, in this discussion going forward. And that’s why we invite you to share this discussion with your friends to kind of take the passion, the hyperbole and the fear mongering out of it. And then talks amongst yourself about whether or not the, the,
Eric Lupher (24:48.99)
At least we sure will.
Guy Gordon (25:06.123)
potential benefits outweigh the potential consequences understanding that they’re still going to have to ask you for approval. Eric we thank you so much for your time and your scholarship on this. We want to point out before we go that the 110th anniversary of the Citizens Research Council is upon us and and maybe a good time for folks that say hey I can’t seem to find objectivity and reporting anywhere else other than the Citizens Research Council that this might be a good time to show some support.
Eric Lupher (25:35.982)
This is what we’re here for. We want to be a service to the people and the way we can do this is by you consuming our product, but also supporting our work in any way possible, either through your person or the company you work for and all help is appreciated.
Guy Gordon (25:56.709)
Very good, Eric. Thanks very much. We also invite our listeners and our viewers to share the word about the Citizens Research Council and the hashtag Facts Matter podcast by letting your friends know about it and that you found this informative and let them know about it online through social media and that you can find us either at crcmish.org, at YouTube, Spotify, iTunes, whatever platform you seek. But search hashtag facts matter to find this podcast.
to get where you need to go. You can go down a rabbit hole sometimes with this search words that you might use. Thanks for joining us. Until next time, we’re going to be tackling article two and other articles and deep dives in future episodes. Until then, take care. I’m Guy Gordon.
