ITS NATURE AND PURPOSE

by Paul G. Kauper, J.D.

Memorandum No. 202,  October, 1961

Introduction

A convention consisting of popularly elected delegates will soon undertake its important task of studying the Michigan constitution of 1908 and probably, after due deliberation, proposing a revised constitution for submission to the state’s electors. Most of the time and energy spent by the delegates will be devoted to the treatment of specific areas and problems involved in restating the state’s organic law.
It is important, however, that the delegates in approaching these specific tasks be guided by a sense of perspective and an overall view as to the nature and purpose of a state constitution both in relation to the structure of our federal system and in relation to the internal purposes served by the state’s constitution. It is the purpose of this monograph to suggest considerations and standards that may prove helpful in orienting delegates to the nature of the task they face and the decisions they must make.
Any person writing on this subject must at the threshold enter a caveat—there are no scientific norms or pre-determined answers to be elicited from a Delphic oracle in respect to the basic assumptions underlying a state constitution and giving meaning to its status and purpose, to the principles, express or implicit, that should be incorporated in a constitution, and even less to the specific and concrete problems that call for solution. 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 constitution of the United States as the supreme law of the land and subject, of course, to having its work ratified by the state’s electors. The delegates will find that there are no single, correct answers to most of the large and important questions confronting them. These are matters of opinion and judgment, and honest differences of view can readily be entertained.
In respect also to the fundamental propositions and premises regarding the essential purpose and functions of a state constitution, differences of opinion may exist, and any writer offering suggestions must do so with a sense of modesty and with an awareness that he is at best expressing an opinion and making suggestions. A recognition, however, of the possible diversity of views of a number of matters should not obscure the consideration that history, tradition, experience and current trends in constitution revision, and the informed judgment of scholars and concepts of government fundamental to American constitutional thinking do furnish a basis for opinion and judgment and that on many of these questions a fair degree of consensus is to be found.