Current Issue

Vol 60, No 1

Michigan State Constitutionalism: On the Front of the Last Wave

Robert F. Williams

The evolution of American state constitutions has been, in part, the product of “waves” of state constitutional adoption and revision. These waves have reflected national or regional political developments that have had causes and impacts beyond a single state. There were two waves of state constitution-making during the “founding decade” of 1776 to 1787. The first of these waves was a radically egalitarian form of state constitution-making (such as Pennsylvania) that stimulated a second-wave reaction, resulting in more moderate, or balanced, state constitutions (such as Massachusetts). Continue reading

Explaining State Constitutional Change

G. Alan Tarr

The U.S. Constitution mandates that each state have “a republican form of government” and empowers the federal government to enforce this requirement. It also asserts its supremacy and that of other federal law, including statutes and treaties, over state constitutions, as well as over other state laws. Yet these requirements and restrictions are not particularly burdensome, and if one compares the “constitutional space” available to state constitution-makers in the United States with that available to their counterparts in other federations, there are far greater opportunities for constitutional innovation and experimentation in the United States than in most other federations. Continue reading

Autonomy and Isomorphism: The Unfulfilled Promise of Structural Autonomy in American State Constitutions

James A. Gardner

In the American system of federalism, states have almost complete freedom to adopt institutions and practices of internal self-governance that they find best-suited to the needs and preferences of their citizens. Nevertheless, states have not availed themselves of these opportunities: the structural provisions of state constitutions tend to converge strongly with one another and with the U.S. Constitution. This paper examines two important periods of such convergence: the period from 1776 through the first few decades of the nineteenth century, when states were inventing institutions of democratic governance and representation; and the period following the Supreme Court’s one person, one vote decisions in the early 1960s, when the Court’s destruction of the existing constitutional model created an important opportunity for states to experiment with alternative forms of legislative representation. In the first period, initial innovation and diversity were followed quickly by convergence and isomorphism; and in the second period, no burst of innovation occurred at all. After reviewing studies of institutional isomorphism and policy diffusion from other fields, the paper concludes that the facts best fit explanations based on the resort by constitutional drafters to well-known patterns of non-rational decision-making such as “availability” and “anchoring” heuristics. American state constitutions thus likely display little diversity in their structural provisions not because prevailing models have proven superior to the alternatives, but because imitating the choices of seemingly similar entities is a common way to dispatch cognitively challenging tasks. Continue reading

State Constitutional Études: Variations on the Theme of a Contemporary State Constitutional Problem

Justin R. Long

Conventional legal scholarship presents a new theory by testing its application against a variety of cases. In this essay, I reverse the process, considering a single recent case to identify the various theories of state constitutionalism it invokes. This exploration, reminiscent of the musical-composition concept of “études” or the visual-arts idea of “studies,” develops understanding by turning and turning the case until all of its major facets are exposed. The case I have selected, from Michigan, raises issues typical of all of the ten modern constitutions under study in this symposium. By adopting this method, I hope to demonstrate how even seemingly esoteric or abstract theories of state constitutionalism are playing out across some of the most important controversies of our day. Continue reading

The Michigan Constitution, Judicial Rulemaking, and Erie-Effects on State Governance

Helen Hershkoff

The fiftieth anniversary of the Michigan Constitution gives us an occasion to celebrate. Known as a managerial constitution because of its emphasis on executive power and administrative centralization, the Michigan Constitution has proven to be durable in significant ways. Yet every anniversary also marks a time to reflect, providing an occasion to look back at past accomplishments and defeats, and to look forward to future challenges. In that spirit, this essay reflects upon a provision of the Michigan Constitution that may seem quite distant from managerialism and gubernatorial power. Specifically, I look at Article VI, Section 5, which provides that the state’s supreme court shall create rules of practice and procedure for the courts of the state. Like many structural features of a state constitution, Section 5 has no analogue in the federal Constitution; to the contrary, the power of Congress over federal rules of procedure is well accepted. In Michigan, by contrast, the state constitution assigns procedural rulemaking to the court system—a conferral of authority that long preceded the 1963 Constitution and has served as a model to other states. Continue reading

Policy Provisions in State Constitutions: The Standards and Practice of State Constitution-Making in the Post-Baker v. Carr Era

John Dinan

The semi-centennial of the Michigan Constitution offers an opportunity to take stock of various features of post-Baker v. Carr state constitution-making, especially the continued reliance on policy provisions, which were often retained in state constitutions revised during this era and in many other cases added via the amendment process, even in the face of a near-universal scholarly consensus disfavoring the practice. My concern in this article is determining how to assess this divergence between mid-twentieth-century scholarly standards and the practice of state constitution-making over the last half-century. One might well view practitioners’ departure from these scholarly standards as a source of concern and recommend that practice be brought into alignment with these standards. Such is the position taken by some analysts. Alternatively, and this is the position I defend in this Article, one might view practitioners’ continued adoption of policy provisions as necessary and appropriate means of responding to recurring deficiencies in the operation of representative institutions, whether by removing matters from legislative purview in cases where legislators are at significant risk of acting irresponsibly, or securing passage of measures that command broad public support but are blocked in legislatures or by state courts, or safeguarding enduring commitments against short-sighted or passionate majorities. Mid-twentieth-century scholars were relatively unconcerned by these deficiencies in the operation of representative institutions and, at any rate, were confident that they could be addressed by means other than constitutional provisions. However, participants in state constitutional amendment and revision over the last half century, much like practitioners in prior eras and in keeping with the views of some scholars in prior years, have concluded that constitutional provisions are a necessary and proper means of addressing deficiencies in the political process and thereby securing more effective governance. Continue reading

The Endurance of State Constitutions: Preliminary Thoughts on the New Hampshire Constitution

Lawrence Friedman

The theme of the Wayne Law Review’s 2013 symposium was constitutional change—change, in particular, in Michigan, whose constitution this year celebrates its golden anniversary, and to state constitutionalism more generally. Fifty years is a milestone, to be sure, but there are other state constitutions that have endured in something resembling their original form for many more years. The people of New Hampshire, for example, ratified a constitution in 1784 that in its structure and much of its detail has remained unchanged to this day. In this essay, I would like to explore some of the facets of state constitutions that may make them more or less likely to endure—why is it that New Hampshire’s constitution has lasted essentially unchanged for more than two centuries, while the people of Michigan saw fit to replace their constitution (for the fourth time) fifty years ago? Continue reading

Booking It to the Supreme Court: The Evolution of the First Sale Doctrine and Kirtsaeng v. John Wiley & Sons, Inc.

Christopher J. Adams

Normally under copyright law, if a good has been manufactured in the United States and there is an original domestic sale, a subsequent purchaser can do what they will with the good because the copyright holder’s right to further distribute it is exhausted. However, if the good is foreign-made and sold in the United States without the domestic copyright holder’s permission, the seller could be liable for infringement. Continue reading

Protecting Our Students: The Need for Audiovisual Monitoring in Special Needs Classrooms

Kaitlyn Morin

It’s a well-known scenario; parents send their children off to school believing they will be protected and cared for until they are once again safely returned to the confines of their homes, never imagining that the very educators trusted to care for these children might be the ones causing them harm. While teacher abuse of the students entrusted to their care has always been considered an anomaly, recently this proposition has come into question. A barrage of cases has come to light showing this type of abuse to be a frequent and devastating occurrence. For most students, there exists an ingrained remedial safety net that prevents a singular such occurrence from becoming a recurring cycle. The student’s ability to communicate his or her experience with a family member or school official allows for the abuse to be discovered and proper action to be taken. Yet it has become apparent that a particular class of individuals, special needs children, are more susceptible to this abuse, but face communication barriers making them unable to report it. Special needs children, particularly those who are nonverbal or have been diagnosed with autism, are less able to prevent this type of abuse and unable to bring it to light once it occurs. Continue reading

Who is a Minister? Broadening the Scope of the Ministerial Exception After Hosanna-Tabor

Mark Steiner

How is it that churches can freely and openly terminate a minister in complete disregard of all existing and established employment law? The ministerial exception is a highly controversial doctrine. It bars, at the very least, employment lawsuits between ministerial employees and their religious institutions based on the First Amendment’s Establishment and Free Exercise Clauses. While every federal circuit has adopted some form of the exception, the Supreme Court stood firm in not addressing the doctrine until its decision in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission. Historically, each circuit applied the exception differently, some applying it broadly, while others very narrowly. Continue reading