Prior to statehood, Michigan was part of the Northwest Territory. During this period, Detroit was the territorial capital, and, instead of a state legislature, Michigan was governed by a unicameral body called the Territorial Council. See Christopher J. Carl, Michigan’s Four Constitutions, 1 (Legislative Service Bureau, Research Brief Series No. 13, 1994).
The Ordinance of 1787 was drafted as a "forever [and] unalterable" "compact between the original states, and the people and states in the said territory." It promised regions in the Northwest Territory future statehood. It also provided for religious freedom and protections such as due process and the writ of habeas corpus. The Ordinance of 1787 also prohibited slavery and cruel and unusual punishment.
MICHIGAN’S FOUR CONSTITUTIONS
States possess plenary power. Therefore, Michigan’s current constitution and its predecessors, like other state constitutions, differ from the federal constitution in that they do not, and need not, enumerate governmental powers. Despite this fundamental difference, most state constitutions draw heavily on the federal Constitution, and Michigan is no exception.
Michigan’s constitutions have all created or maintained three branches of government in the state: executive, legislative, and judicial. They have all established or maintained a bicameral legislature. Michigan’s constitutions have all provided the state with a bill of rights, in some form or another, enumerating state citizens’ individual rights and liberties.
The Michigan constitutions are democratic documents. Each was drafted by elected delegates and enacted by a vote of the state electorate. See Carl, supra, at 1. Except for court decisions finding provisions of a Michigan Constitution unconstitutional, nothing in a Michigan Constitution may be changed without voter approval. Id.
Because each constitution’s authority stems solely from its enactment by the people of Michigan, and not from the drafting process, courts use the rule of common understanding to interpret constitutional provisions. See Kuhn v. Secretary of State, 228 Mich. App. 319, 324 579 N.W.2d 101, 104 (1998) (applying the rule of common understanding to interpret a provision of the Michigan Constitution). See also, Kelley v. Riley, 417 Mich. 119, 137, 332 N.W.2d 353, 356 (1983). This means that, when construing the Michigan Constitution, courts must ask what meaning the general public would ascribe to the language in question. See Kelley, 417 Mich. at 137.
Justice Cooley described the rule as follows.
"A constitution is made for the people and by the people. The interpretation that should be given it is that which reasonable minds, the great mass of the people themselves, would give it. 'For as the Constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed.' (Cooley's Const Lim 81)." Traverse City School District v. Attorney General, 384 Mich. 390, 405; 185 N.W.2d 9, 14 (1971).
Despite giving deference to 'common understanding', courts may consult Constitutional Convention Records in order to ascertain the intent of a specific provision. See Kuhn, 228 Mich. App. at 324. Interpretations that support the document’s constitutionality are preferred. See Traverse City School District, 384 Mich. 390 at 406.
Over the years, Michigan voters have approved a total of four constitutions. Carl, supra, at 1. Two other proposed constitutions were rejected by voters in 1868 and 1874. Id.
In 1834, Governor Steven T. Mason requested a census that demonstrated Michigan had the requisite population for statehood. See Susan P. Fino, THE MICHIGAN STATE CONSTITUTION: A REFERENCE GUIDE 5 (Greenwood Press, 1996). Once Michigan had decided to pursue statehood, it needed a state constitution. See Carl, supra, at 1. Accordingly, in 1835, ninety-one elected delegates met from May 11 to June 24 to draft what would become Michigan’s first constitution. Id. After drafting the 1835 Constitution, Michigan attained statehood in 1837.
Most of the delegates at the state’s first Constitutional Convention were Jacksonian Democrats. See Fino at 5. Many were farmers or tradesman, although some east coast academics also participated. Id. These framers borrowed heavily language from other state constitutions, the New York and Connecticut Constitutions in particular. Id.
The 1835 Constitution authorized, inter alia:
- vesting all executive powers into an elected governor, see Mich. Const. art V, sections 1 and 3 (repealed 1850);
- a bicameral elected state legislature, see Mich. Const. art IV, sections 1 and 4 (repealed 1850); and
- a state supreme court, and justices appointed for seven year terms by the governor, upon "the advice and consent of the senate." See Mich. Const. art VI, sections 1 and 2 (repealed 1850).
The 1835 Constitution emphasized individual liberties, providing Michigan citizens with greater protection than the federal Bill of Rights. Article I was titled "Bill of Rights", and included detailed provisions regarding freedom of speech, religion, conscience, and the press, prohibiting unlawful search and seizure, and providing jury trials. See Mich. Const. art I (repealed 1850).
Other than Supreme Court Justices, who were to be appointed, the 1835 Constitution favored electing officials to office. Lower court judges were to be elected, as were county treasurers, sheriffs, and so on. In fact, Michigan’s historic preference for elected offices is rooted in its first constitution. See Fino at 7.
The 1835 Constitution handled apportionment similarly to the current Michigan Constitution. Senators and Representatives both were elected by constituents based on population (the sexism and racism built into the 1835 document notwithstanding). See Frank Ravitch, The Four Michigan Constitutions, in THE HISTORY OF MICHIGAN LAW 128 (Finkelman and Hershock, Eds., 2006).
The 1835 Constitution also authorized state spending on internal improvements. Mich. Const. art. XII, section 3 (repealed 1850).
Only fifteen years after enacting the 1835 Constitution, Michigan delegates met again to draft the 1850 Constitution. See Carl, supra, at 2. This new constitution was longer, more complex, and incorporated issues generally left to statutes, but voters embraced it enthusiastically because it addressed concerns that had developed among the electorate since 1835. Id.
Jacksonian democracy’s popularity had increased over the preceding fifteen years, and resonated with Michigan voters. See Id. See also Fino. Accordingly, the 1850 Constitution reflected the new political landscape by including provisions that increased government by the people. The 1850 Constitution, for example, dramatically increased the number of elected government positions, including:
- Supreme Court Justices, Mich. Const. art. VI, section 2 (repealed 1908);
- Secretary of State, Mich. Const. art. VIII, section 1 (repealed 1908);
- Superintendent of Public Instruction, Mich. Const. art. VIII, section 1 (repealed 1908);
- State Treasurer, Mich. Const. art. VIII, section 1 (repealed 1908);
- Commissioner of the Land Office, Mich. Const. art. VIII, section 1 (repealed 1908); and
- Auditor General, Mich. Const. art. VIII, section 1 (repealed 1908).
But drafters feared that frequent elections could wreak havoc on state policies. As a preventative measure they incorporated into the constitution numerous policy related provisions more suited to statutes. See Fino at 9. These policy statements covered a lot of territory, including the following.
- Prohibitions on lotteries, Mich. Const. art. IV, section 27(repealed 1908).
- Limits on leases of agricultural land, Mich. Const. art. XVIII, section 12 (repealed 1908).
- The specific salaries of state officers, Mich. Const. art. IX, section 1 (repealed 1908).
- The dedication of educational funds, Mich. Const. art. XIII, section 2 (repealed 1908). See Fino at 9
Mistrust of Banks and Internal Improvements
Throughout the 1830s, land speculation flourished in the United States, and Michigan in particular. See Malcolm J. Rohrbough, The Land Office Business: The Settlement and Administration of American Public Lands, 1789-1837, 221-249 (Oxford University Press, 1968). Speculation was accompanied by large increases in public and private debt. See Susan Fino, Perspectives: Federal Jurisprudence, State Autonomy: De Tocqueville or Disney? The Renquist Court’s Idea of Federalism, 66 Alb. L. Rev. 765, 769 (2003). And New York banks, which were central to the country’s infant banking system, strained to meet ever increasing demands for specie. President Jackson’s “Specie Circular”, which required payment for public lands to be made in cash, provided the proverbial last straw that broke the national banking system’s back. See Peter Rousseau, Jacksonian Monetary Policy, Specie Flows, and the Panic, Journal of Economic History, 62(2)(2002).
The speculation bubble burst in 1837. Michigan’s internal improvements program foundered, nearly bankrupting the state. See Carl at 2. Subsequent bank failures, coupled with individuals’ personal financial crises and high unemployment fueled mistrust of the financial sector. To address voters’ fundamental mistrust of banks and banking, drafters included in the 1850 constitution a provision requiring voter approval of any changes to banking regulations. See Carl,supra, at 2. Because the state’s internal improvements program was intertwined with events leading to the 1837 economic crisis, drafters also added a provision forbidding state involvement in internal improvements. See Mich. Const. art. XIV, section 9 (repealed 1908).
Another constitutional change impacted the proportionality of Michigan’s apportionment system. In particular, Article IV provided, in part, that “[e]ach county hereafter organized, with such territory as may be attached thereto, shall be entitled to a separate representative, when it has attained a population equal to a moiety of the ratio of representation.” Mich Const. art. IV, section 3 (repealed 1908). This meant that, as populations increased during the interims between constitutionally mandated reapportionments, certain urban districts went underrepresented on a per capita basis, while counties allocated a representative upon reaching a moiety were over represented. See Ravitch, supra, at 129.
As Michigan moved into the new century, its largely democratic government fell before the reformist minded Republican Party led by Theodore Roosevelt. Fred M. Warner, the republican governor of Michigan from 1905 to 1911, successfully called for a constitutional convention and a new constitution for a new century. See Fino, supra, at 13. As originally drafted, the 1906 constitution made few significant changes to the 1850 constitution. It did, however, reinsert as article II a bill of rights—the 1850 constitution had dispensed with the separate bill of rights included in the 1835 constitution, relegating important liberties to the status of miscellany. See Carl, supra, at 3. The 1906 Constitution also gave women property owners the vote on certain tax or bond matters, Mich. Const. art. X, section 25 (repealed 1963), although it did not fully enfranchise women until after the passage of the 19th Amendment to the U.S. Constitution. Id.
Other changes included the following.
- General reorganization (for the better)
- Authorization for wage and labor law legislation, including for women and children, Mich. Const. art. V, section 29 (repealed 1963)
- A gubernatorial line item veto on appropriations bills, Mich. Const. art. V, section 37 (repealed 1963)
- Greater local government autonomy , Mich. Const. art. X, sections 21-24 (repealed 1963)
A 1952 amendment to the 1908 Constitution had a negative impact on apportionment. It retained the earlier moiety provision, but counties entitled to additional representatives were awarded additional seats only when the “full ratio of representation was reached.” Mich. Const. art. V, section 3, as amended (1952)(repealed 1963). See also Ravitch, supra, at 130. Moreover, this amendment to the 1908 Constitution created an apportionment scheme for senatorial seats that resulted in unequal per capita representation that generally favored rural areas. Id.
Like earlier versions of the state constitution, the Constitution of 1963, our current state constitution, is a product of its time. As such, it reflects certain civil rights era values. For the first time, the convention included African American and women delegates. See Fino, supra, at 21. These delegates were cognizant of the Warren Court’s efforts on behalf of equal rights for African Americans. Id. at 23. As a result, they drafted a progressive equal protection guarantee. Id. Seealso Mich. Const. art. I, section 2. They also established the first constitutional Civil Rights Commission in the country. Carl, supra, at 4. The delegates were not so progressive, however, as to provide protection for women’s equal rights. Id at 31.
Still, article I of Michigan’s 1963 Constitution specifically protects against racial discrimination and safeguards citizens’ civil and political rights. Some courts have argued that the language used in article I establishes protections greater than those of its federal counterpart, the Fourteenth Amendment. Id. See also NAACP v. City of Dearborn, 173 Mich. App. 602; 434 N.W.2d 444 (1988)(affirming that “Article I, section 2 of the Michigan Constitution [goes] beyond the limits of the Fourteenth Amendment by prohibiting all racial segregation, without regard to whether it was caused by a segregative purpose”). But see,Harville v. State Plumbing and Heating, Inc., 218 Mich. App. 302; 553 N.W. 2d 377 (1996) (asserting that Doe v. Dep’t of Social Services, 439 Mich. 650 (1992) “impliedly overruled” NAACP). According to the Harville Court, however, the drafters of the Michigan Constitution added specific language regarding discrimination to article I, section 2 in order to avoid the public accommodation and state action debate that was then playing out in the U.S. Supreme Court. 218 Mich. App. 302, 318.
Although the constitutional delegates were forward thinking on equal rights issues, they fell short elsewhere. They knew, for instance, that they needed to revisit legislative apportionment. During the time of the Constitutional Convention, the U.S. Supreme Court held, in Baker v. Carr, 369 U.S. 186, 235 (1962) that federal courts could hear and decide cases involving voters’ claims of malapportioned or debased votes and “denial of equal protection.” In light of Baker, the U.S. Supreme Court vacated and remanded a Michigan Supreme Court decision upholding the state’s apportionment scheme. Scholle v. Hare, 369 U.S. 429 (1962). On remand, the Michigan Supreme Court held that sections 2 and 4 of article V were unconstitutional. Scholle v. Hare, 367 Mich. 176, 116 N.W.2d 350 (1962).
The prospect of a federal court finding a 14th Amendment violation in a Michigan constitutional provision made delegates nervous. They wanted to avoid any potentially suspect system of apportionment. Fino, supra, at 23. Despite their caution, the delegates selected methods for apportioning both house and senate seats based on population, and population and land area, respectively that, only one year later, were found to have violated the one-person, one vote rule laid out in Reynolds v. Sims, 377 U.S. 533 (1964), and thus federal equal protection law. In re Apportionment of State Legislature, 413 Mich. 96; 321 N.W.2d 565 (1982).
Search and Seizure
The delegates also retained search and seizure language rejecting the “exclusionary rule” that they knew was unconstitutional. See Fino, supra, at 23. Article I, Section 11, contains language, added by amendment in 1935 (1935 Joint Resolution No. 1, ratified November 3, 1936), that states Section 11 "shall not be construed to bar from evidence in any criminal proceeding any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house in this state." Mich. Const. art I, section 11. In 1961, however, the Supreme Court had held that the exclusionary rule applied to states. Mapp v. Ohio, 367 U.S. 643 (1961). Being familiar with Mapp, the delegates understood that the language in Section 11 rejecting the exclusionary rule was unconstitutional. But they left the questionable language intact. Several years later, the Michigan Supreme Court confirmed that, to the extent it deviates from federal law, Section 11 was indeed unconstitutional. People v. Pennington, 383 Mich. 611, 178 N.W.2d 471 (1970).
Like earlier constitutions, the 1963 Constitution also reflected the recent economic trials of the people of Michigan. Between 1908 and 1963, the population of Michigan had grown dramatically. See Albert Sturm, Constitution Making in Michigan 1961-1963, 21 (Institute of Public Administration, University of Michigan, 1963). Similarly, manufacturing and manufacturing jobs had increased. Id. But by 1953, jobs had peaked. Increasing automation in the automobile industry started a decline in employment to which the legislature failed to respond adequately—in large part because the legislature and the governor could not agree on a tax program. Id. But other factors, inter alia, inequitable representation and the legislature’s lack of control over state funds were also to blame. Id. By 1959, the state was in the midst of a full blown financial crisis. Id. The crisis itself was resolved fairly quickly, but it left the people of Michigan anxious for constitutional reforms, and led to intense scrutiny of tax and funding provisions. See Fino, supra, at 22.
Other changes to the constitution were a response to a popular view that executive agencies should be consolidated into a less unwieldy structure. Carl at 3. Some more radical constituents even lobbied for a unicameral legislature. See Sturm, supra, at 21. As a result, the Constitution of 1963 reorganized the executive branch of state government. It also extended the terms of the Governor, Lieutenant Governor, Secretary of State, and Attorney General. Mich. Const. art. V, section 21.
The executive branch was not the only branch of government targeted for change. Senators’ terms were extended to be concurrent with the Governor’s, from two to four years. Mich. Const. art. IV, section 2. And delegates added several new provisions to Article VI, which relates to the judiciary. Section 2 reduced the number of justices from eight to seven. Mich. Const. art. VI, section 2. And section 8 established the Court of Appeals. Mich. Const. art. VI, section 8.
The 1963 Constitution was not universally applauded. Democratic groups primarily, led by former Governor Swain, opposed the ratification of the new constitution. The AFL-CIO and the NAACP also expressed concerns. Supporters, led in part by former Governor Romney, succeeded in having the document ratified, however, and, despite its flaws, the 1963 Constitution, as amended, remains in place to this day.