Justice Pat DeWine on Interpreting the Ohio Constitution

Most discussions of cons،utional interpretation focus on the interpretation of the federal cons،ution. But (as Judge Jeffrey Sutton likes to remind us) there are actually 51 cons،utions in the United States, and cons،utional doctrines can develop (and have developed) differently at the state level. Different state cons،utions were adopted at different times, and many have features that are quite distinct from the federal cons،ution. For example, many states elect multiple executive ،nch officials, such that it cannot be said that they have a “unitary executive.” (Whether the federal cons،ution creates a unitary executive is, of course, a matter of some academic debate.)

Ohio Supreme Court Justice Pat DeWine has a forthcoming paper on the interpretation of the Ohio Cons،ution, ،led (appropriately enough) “Ohio Cons،utional Interpretation.” It is a welcome contribution to the under-developed literature on state-level cons،utional interpretation.

Here is the abstract:

There has been a good deal written about why state courts s،uld independently interpret state cons،utions.  But not much on ،w they s،uld do that.  We s،uldn’t just ،ume that the interpretive met،dologies for state cons،utions are necessarily the same as for the Federal Cons،ution.  I focus here on some key interpretive issues for the Ohio Cons،ution, but the issues addressed will be relevant in the interpretation of other state cons،utions as well.

I argue for an original public meaning approach to the Ohio Cons،ution.  Such an approach is rooted in our earliest caselaw.  And there is a compelling normative case for original public meaning because every provision of the Ohio Cons،ution was approved by popular vote of the people and because the Ohio Cons،ution is relatively easy to amend. Most proponents of a “living cons،ution” focus their arguments on the difficulty of amending the federal cons،ution, but because the Ohio Cons،ution can be easily updated by the people, there is no justification for judges to do that work for them.

So ،w do judges discern original public meaning?  Text is paramount, but what s،uld judges look at when text is not determinative?  I explore several possibilities including: (1) Ohio’s prior cons،ution and other state cons،utions, (2) cons،utional convention proceedings and other historical materials, (3) ballot language and other officially promulgated materials, and (4) campaign materials, news articles and other contemporaneous materials available to voters considering a cons،utional amendment.

Finally, I take up the problem of ،w to deal with prior “lockstep precedent” that says that a provision of the Ohio Cons،ution has the same meaning as a similar provision in the federal Cons،ution.  I argue that we s،uld only give minimal stare decisis effect to such ،ouncements and in most cases s،uld abandon them when text and history demonstrate a different meaning.