Academic journal article Albany Law Review

A Judicial Traditionalist Confronts Unique Questions of State Constitutional Law Adjudication

Academic journal article Albany Law Review

A Judicial Traditionalist Confronts Unique Questions of State Constitutional Law Adjudication

Article excerpt

In Federalist No. 46, James Madison acknowledged that there are "different modes" by which federal and state governments are constituted: while both have their common root in the people, the federal and state governments are "but different agents and trustees of the people, instituted with different powers, and designated for different purposes." (1) Because of this, state constitutions have significant independent meaning from the U.S. Constitution. In no place do state constitutions have greater independent meaning than where the people of some states have retained powers of plebiscite--direct democracy--that they have not retained vis-a-vis the federal government. (2) As a consequence, cases that concern the constitutional dimensions of these direct democracy provisions offer a unique opportunity to examine state constitutional adjudication in isolation and free of the normal influences of federal constitutional practices that apply when there are state and federal constitutional analogues.

Like any state court of last resort, the Michigan Supreme Court's interpretations of the Michigan Constitution are controlling. (3) Accordingly, state judges wield an awesome power in interpreting constitutional provisions for which there is no federal counterpart. During my fifteen years of service on the Michigan Supreme Court, I have had occasion to examine provisions of Michigan's constitutional protection of the various rights of our citizens to participate directly in government. As I have seen, certain tensions in the law require that judges exercise great care to ensure that such rights are interpreted consistently with the common understanding of the ratifiers, the people. I am proud to say that the Michigan Supreme Court takes this responsibility seriously. In this article, I will explain why. After introducing general principles of constitutional interpretation, I will illustrate how the Michigan Supreme Court has applied those principles in three recent cases interpreting the direct democracy provisions of the Michigan Constitution.


Before delving into some of these provisions, I want to explain some first principles of constitutional interpretation and judicial philosophy. I, and a majority of the members of my court, consider ourselves "judicial traditionalists." (4) As such, we believe that a constitution has "an ascertainable meaning that is rooted in the history of its creation." (5) In interpreting the Michigan Constitution, we believe that we "must give meaning to the text as it was understood by its ratifiers." (6)

Determining the ratifiers' understanding of any constitutional text must start with the plain language of the text, and I use the following tools, in descending order, to determine the meaning of a constitutional provision:

(1) The actual words used in the constitution according to their plain meaning as might be revealed in contemporary dictionaries;

(2) Address to the People (distributed to every voter by the Constitutional Convention that drafted the constitution and which described in simple terms what each provision meant); (7)

(3) Michigan Supreme Court cases construing an analogous provision in previous constitutions;

(4) when there is uncertainty about a term's plain meaning, contemporaneous commentaries about the provision or conditions that might have given rise to the need for such a provision; and

(5) where doubt remains, anything else that might provide an historical context shedding light on whether a particular text has a meaning other than that which seems most apparent, including the record of the Constitutional Convention that drafted the constitution. (8)

In Michigan law, this judicial traditionalist approach was most famously articulated by Justice Thomas M. Cooley, who introduced the concept of "common understanding," which he developed in his influential nineteenth century constitutional law treatise and applied during his tenure on the Michigan Supreme Court. …

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