In a Supreme Court case decided just this last week, Justice Neil Gorsuch wrote:
In a functioning democracy, policy choices … usually belong to the people and their elected representatives.
This was said as justification for the court not to invalidate a law approved by the people of California in a referendum, as the petitioners had wished it to do. Blessedly, the court has turned away from its decades-long pattern of seeing itself as a policymaker, legislating from the bench, that which the framers had explicitly reserved for the people to do through their representatives in Congress or in their states.
Keep your eye on the vote in Ohio this August.
A constitution is not the place to enact normal policies, the sort on which people routinely differ and over which they fight (we only wish!) honest campaigns, after which they submit the verdict to the ballot box. A constitution is rather the setting of the enduring ground rules that garner the consent of the people to commit to the government, and abide by policy decisions properly enacted, even if they disagree. A constitution will protect their rights even when they are in the minority, and so make possible that near-miraculous allegiance to the law even when they have lost the vote. Having faith in the right and the truth, trusting in the constitutional rules, they do as any decent competitor does in a fair game — learn from their mistakes, better their game, and come back to win the next time around.
It is therefore the norm that it is routinely much more difficult to change a constitution than to change a simple law enacting a policy. Following the sports analogy, a football team that’s losing a game will make constant adjustments, but the rules of the game will change much more slowly. Were the rules to change constantly, we’d wind up with Calvinball. As Calvin runs down the field away from Hobbes midgame, he yells out:
New rule! New rule! If you don’t touch the 30-yard base wicket with the flag, you have to hop on one foot!
A little more than a decade ago, some well-organized interests infested Ohio’s Constitution with a gigantic amendment that reads as if Calvin could have done a better job. In a document that begins with a bill of rights, invokes “we the people,” and forbade slavery well before the Civil War, all in concise and direct language, these interests inserted pages of specifications better suited for city zoning regulations or a page from the register of deeds, inserting lists of lot numbers in the various cities where casinos would go up. The goal of all this was to constitutionally enshrine a private gambling monopoly. It passed during the Great Recession because it sweetened the pot with ample money for the state coffers, but it shames the state to this day that this was put in its Constitution rather than as a statute reviewable by the people as any other implemented policy.
This was merely the last of a long series of such amendments that turned the state Constitution from a basic document to just another statute book, cluttered and overlong, one more place where the lawyers are the only ones at home, and the focus on “we the people” and the ground rules of the game are overwhelmed by mounds of verbiage and obscure details.
Ohio has enabled this by setting a low bar for constitutional amendments. Like amending the federal Constitution, it is a two-part process, but with easier requirements at each stage. Only a three-fifths majority is required in the legislature, instead of the two-thirds required federally. Alternatively, the first step in Ohio can be accomplished by an initiative petition, which opens a whole other portal.
For the second step, the U.S. Constitution sets the daunting requirement of each amendment being ratified by three-fourths of the states. Ohio has set the very low bar of obtaining a simple majority of a ballot referendum.
One need only compare the two documents to see the difference between the resulting documents. Ohio’s Constitution starts out well, but it as the years went by it has become bloated, eye-glazing, and in the amendment staking out casino fiefdoms, perverse and ugly. The federal Constitution remains spare, streamlined, and focused only on the largest of issues, as is proper.
But now, Ohio’s legislature has placed a new amendment on the ballot for the people’s approval that intends to tighten the process up. The petition process will be less lax. More importantly, the referendum to approve a new amendment will require a three-fifths majority instead of merely 50 percent plus one.
Most special interests oppose it, which is a fine enough reason on its own to support it. In particular, abortion advocates wish to remove from the most basic of all protections, the right to life, from the unborn. It would be much easier to do under the old rule of requiring only a simple majority. And this too is a good reason to pass the amendment, because something as basic as removing the most fundamental of all rights should never be subject to the tyranny of the majority. More so today than ever, we need to reestablish the basic ground rules that bind us together under law, and never confuse them with the ever-changing policies that need constant debate and revision. Keep your eye on the vote in Ohio this August. May it be a triumph of constitutional democracy and a rebuke of those who subvert its genius.
