Monday, October 19, 2009

People's Constitutional Amendments -- mostly not a good idea

I do not like to write negatively about the work of colleagues who seek to restore our Constitutional liberties, but I have some serious concerns about a series of amendments to the Ohio Constitution being proposed by the People's Constitutional Coalition of Ohio.

The group wants to place some thirteen amendments to the Constitution on the ballot next year, which they believe will help protect the sovereignty of the state from further federal intrusion. The amendment text is too long to detail here; but in general, they want to:
- add a supremacy clause to the Ohio Constitution to make explicit that it is the fundamental law;
- emphasize that the state exists for the people;
- assert that "the state of Ohio shall operate as a free and independent republic within the [United States of America];
- specifically limit the powers of state government;
- explicitly state that laws that are contrary to the Constitution are null and void;
- assert a duty by state officials to protect Ohioans from the abuse of federal powers; and
- make abuses by Ohio officials criminal offenses.

We need to take great care when considering amendments to the Constitution; but unlike the three ballot amendments up this November, the amendments being proposed here are Constitutional law.

The proposal as written suffers from some serious flaws:
- Portions of the proposed amendments duplicate provisions already in the Ohio Constitution, especially Article I, Section 2; Article I, Section 20; Article II, Section 28; and Article IV, Section 2(B)(2)(a)(iii). Their proposed prohibition on compacts and treaties duplicates Article I, Section 10, clauses 1 and 3, of the U.S. Constitution.

- The "free and independent republic" provision will be interpreted by most Ohio voters as secessionist. We're not ready for such strong language -- and if introduced, this phrase alone is likely to sink the whole proposal.

- The sections on protecting Ohioans from federal abuses and establishing "high crimes" for abuses by state officials are asking a lot of a Constitution. As we are learning from current hard experience, a Constitution is only as strong as the will of the people and their elected officials to enforce it.

- Section 12 of the proposal contains this text: "All provisions of this Constitution and Ohio laws, rules, regulations, and other governing provisions shall be created, altered, revised, repealed, interpreted, and enforced to comply with this Article." As written, the section is unenforceable. What they are proposing, in fact, is a rewrite of the entire Ohio Revised Code, an effort that would take several years, and a great deal of legal manpower.

Here is my alternative: two new sections and some transitional provisions to the Ohio Constitution which address the objections stated above much more simply and workably:

ARTICLE I: Bill of Rights
§21. Purpose of the Ohio Constitution

The Ohio Constitution implements the sovereign will of the people of Ohio for the establishment and operation of their government. It constitutes the fundamental controlling instrument upon which all powers and authorities of the state are dependent, and without which the state shall not act. This Constitution is subject only to the Constitution of the United States and all laws and treaties established under, and in compliance with, the Constitution of the United States. Neither the General Assembly nor any official of the State of Ohio, or any of its subdivisions, may establish any law, rule, or regulation that is contrary to the expressed provisions of this Constitution, or of the Constitution of the United States.

ARTICLE II – Legislative--
§15. Purposes Well Defined

The General Assembly shall make no law that does not contain in its introductory text the following in clear and succinct language:
(A) Identification of the specific provisions of this Constitution, which authorize this law.
(B) A statement of the purpose of the law.
(C) If the law is being enacted as an emergency: A clear statement of the emergency, how the law addresses that emergency, and upon what reasonably attainable conditions said emergency will cease.
(D) A date, not more than ten years from enactment, before which the law shall be reconsidered by the General Assembly for revision or repeal.

Transitional Provision (not numbered as a section)
Article II, Section 15, and the following provision shall take effect on the first day of January following their adoption by the people of the State of Ohio in a general election:

The General Assembly shall pass laws providing for the review of all laws, regulations, and ordinances of this State and its subdivisions at the time this provision becomes effective, for the purpose of identifying and repealing those which are found to be obsolete or in conflict with this Constitution. Such review shall be completed within six years of the adoption of this section. The General Assembly shall consider the results of this review, and complete consideration of items recommended for repeal within four years of its receipt of the recommendations.

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