Constitution of Ohio

The Constitution of the State of Ohio is the basic governing document of the State of Ohio, which in 1803 became the 17th state to join the United States of America. Ohio has had three constitutions since statehood was granted.

Ohio was created from the easternmost portion of the Northwest Territory. In 1787, the Congress of the Confederation of the United States passed the Northwest Ordinance, establishing a territorial government and providing that "[t]here shall be formed in the said territory, not less than three nor more than five states." The Ordinance prohibited slavery and provided for freedom of worship, the right of habeas corpus and trial by jury, and the right to make bail except for capital offenses.[1] Ohio courts have noted that the Northwest Ordinance "was ever considered as the fundamental law of the territory."[2]

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1802 Constitution
Main article: Ohio Constitutional Convention (1802)

The Ohio territory's population grew steadily in the 1790s and early 19th century. Congress passed an enabling bill to establish a new state, which President Thomas Jefferson signed into law on April 30, 1802. A state constitutional convention was held in November 1802 in Chillicothe, Ohio, and it adopted what became known as the 1802 Constitution. Largely due to the perception that territorial governor Arthur St. Clair had ruled heavy-handedly, the constitution provided for a "weak" governor and judiciary, and vested virtually all power in a bicameral legislature, known as the General Assembly. Congress simply recognized the existence of the "state of Ohio" rather than passing a separate resolution declaring Ohio a state as it had done and would do with other new states. On February 19, 1803, President Jefferson signed the bill into law. It provided that Ohio "had become one of the United States of America," and that Federal law "shall have the same force and effect within the said State of Ohio, as elsewhere within the United States." Scholars Stephen H. Steinglass and Gino J. Scarselli suggest that St. Clair's Federalist affiliation played a key role in the hasty passage, given that most Ohioans sided with Jefferson's Republican Party.[3]

Many tax protesters use this as an argument that Ohio was not a state until 1953. But see Bowman v. United States, 920 F. Supp. 623 n.1 (E.D. Pa. 1995) (discussing the 1953 joint Congressional resolution that confirmed Ohio’s status as a state retroactive to 1803).[4]

The first General Assembly first met in Chillicothe, the new state capital, on March 1, 1803. This has come to be considered the date of Ohio statehood.

Judge Charles Willing Byrd was the primary author of the document. He used the 1796 constitution of Tennessee as a model, with those of Pennsylvania and Kentucky as other influences. Provisions in the constitution included a ban on slavery but also included a prohibition on African American suffrage.[3] The constitution provided for amendment only by convention. An attempt in 1819 was rejected by voters.[5]: 484 

1851 Constitution

In the early decades of statehood, it became clear that the General Assembly was disproportionately powerful as compared to the executive and judicial branches. Much of state business was conducted through private bills, and partisan squabbling greatly reduced the ability of state government to do its work. The legislature widely came to be perceived as corrupt, subsidizing private companies and granting special privileges in corporate charters. State debt also exploded between 1825 and 1840. A new constitution, greatly redressing the checks and balances of power, was drafted by a convention in 1850-51, as directed by the voters, and subsequently adopted in a statewide referendum on June 17, 1851, taking effect on September 1 of that year. This is the same constitution under which the state of Ohio operates. The later "constitutions" were viewed as such, but in reality were large-scale revisions.[5]: 483 

Two key issues debated at the convention were African American suffrage and prohibition of alcohol. Delegates rejected proposals to allow Black suffrage in the state. They did not decide on prohibition, however. Instead, a second question asked Ohio voters if they wished to permit the licensing of alcohol sales, who rejected the proposition. This did not constitute a complete prohibition on alcohol, however.[3]

1873 Constitutional Convention

A constitutional convention in 1873, chaired by future Chief Justice of the United States Morrison R. Waite, proposed a new constitution that would have provided for annual sessions of the legislature, a veto for the governor which could be overridden by a three-fifths vote of each house, establishment of state circuit courts, eligibility of women for election to school boards, and restrictions on municipal debt. Delegates proposed the creation of circuit courts to relieve the Ohio Supreme Court's backlog of cases. The proposed document also made these circuits the final arbiter of facts. Waite took a leading role in this specific proposal.[6] It was soundly defeated by the voters in August 1873. A key provision which led to the defeat was another attempt to permit the licensing of liquor sales. Prohibition advocates rallied popular support against the proposal.[3]

In 1903, an amendment granted the governor veto powers.[3]

1912 Constitution

In the Progressive Era, pent-up demand for reform led to the convening of another constitutional convention in 1912. The delegates were generally progressive in their outlook, and noted Ohio historian George W. Knepper wrote, "It was perhaps the ablest group ever assembled in Ohio to consider state affairs." Several national leaders addressed the convention, including President William Howard Taft, an Ohioan; former president (and Bull Moose Party candidate) Theodore Roosevelt; three-time presidential candidate William Jennings Bryan; California's progressive governor Hiram Johnson; and Ohio's own reform-minded Gov. Judson Harmon.[3]

Recalling how the 1873 convention's work had all been for naught, the 1912 convention drafted and submitted to the voters a series of amendments to the 1851 Constitution. The amendments expanded the state's bill of rights, provided for voter-led initiative and referendum, established civil service protections, and granted the governor a line-item veto in appropriation bills. Other amendments empowered the legislature to fix the hours of labor, establish a minimum wage and a workers compensation system, and address a number of other progressive measures. A home rule amendment was proposed for Ohio cities with populations over 5,000.[5]: 485 

On September 3, 1912, despite strong conservative opposition, voters adopted 34 of the 42 proposed amendments. It was so sweeping a change to the 1851 Constitution that most legal scholars consider it to have become a new "1912 Constitution." Among the eight losing proposed amendments were female suffrage, the use of voting machines, the regulation of outdoor advertising and abolition of the death penalty. Voters also rejected a proposal to strike the word "white" from the 1851 Constitution's definition of voter eligibility. Although black people could vote in all State and Federal elections in Ohio due to the Fifteenth Amendment, the text of the State Constitution was not changed until 1923.[7] Urban voters propelled most the amendments to passage. Rural voters rejected most of them.[3]

In 1969, the General Assembly established the Ohio Constitutional Revision Commission. This commission made a number of recommendations to the General Assembly regarding amendments to the constitution. The legislature ended up submitting sixty amendments to the people, many of which were passed.[3]

A similar commission, the Ohio Constitution Modernization Commission, was established in 2011. The legislature failed to propose most of its recommendations and terminated it before its intended sunset date of 2020. The main success of the commission came in reforming the process of apportionment in Ohio, which eventually led to the establishment of the state's redistricting commission.[3]

Current constitution

The original 1851 constitution had 16 articles and 169 sections. The present document has 19 articles and 225 sections. There have been 170 amendments made. Most amendments occurred after 1912, when the requirements for passing amendments loosened.[8]

The current state constitution contains the following articles:

Preamble

We, the people of the State of Ohio, grateful to Almighty God for our freedom, to secure its blessings and promote our general welfare, do establish this Constitution

— Ohio Constitution, Preamble

While the preamble does not enact any positive laws, the Ohio Supreme Court has established that it creates a presumption that the legislature enacts law to promote Ohioans' "general welfare."[9]

Article I - Bill of Rights

Much of Ohio's bill of rights has been in place since the passage of the Northwest Ordinance. The writers of the 1802 constitution borrowed heavily from this document, and those of the 1851 constitution made few changes. Voters approved only nine amendments since then.[10]

Many of the rights found within the state constitution align with the U.S. Constitution. These include the right to assemble (section 3), the right to bear arms (section 4), and protections against cruel and unusual punishment (section 9).[10] The Ohio Supreme Court holds that "the Ohio Constitution is a document of independent force," however. Ohio courts are free to grant Ohioans greater rights than those afforded under federal law.[11] Additionally, the Ohio Constitution contains several rights not found in the U.S. Constitution. For example, the 1851 constitution outlawed slavery, but slavery remained legal under the U.S. Constitution until the passage of the 13th Amendment in 1865.[10][12] Additionally, in 2011, voters passed an amendment prohibiting residents from being required to purchase health insurance. This amendment targeted the Affordable Care Act, which had recently instituted a federal individual mandate.[13]

Article II - Legislative
The Ohio Statehouse, where the legislature meets

Article II lays out the power of Ohio's legislature, the General Assembly. The original 1802 constitution made the legislature the most powerful branch of the state government. It appointed most executive branch officers and judges, and the governor lacked a veto over its decisions. The 1851 constitution eliminated this appointment power, although Ohio governors lacked a veto until 1903.[14] Ohio judges still grant the legislature substantial leniency, however. The state supreme court, for example, considers that "all statutes are presumed constitutional."[15] One unusual provision requires that legislative vacancies be filled by an appointment of the members of the former legislators' political member within the legislature (not an outside body). Ohio is the only state to use this method.[16]

Since 1912, this article has been frequently amended. One notable amendment in 1918 gave voters the power to review legislative ratification of amendments to the U.S. Constitution. The U.S. Supreme Court, however, found this provision unconstitutional two years later in Hawke v. Smith.[17] More generally, article II also grants voters powers of initiative and referenda.[18] This power extends to the creation of new counties, but no new county has been created since the constitution was ratified in 1851.[14]

Article III - Executive

Article III details the state's executive branch, including the governor and other statewide officers. Initially, the governor lacked substantial power, and Ohioans were slow to expand the power of that office. It was not until 1903, for example, that governors gained a veto power.[19] The article also contains little information on the power of other constitutional officers. The powers of officials such as the attorney general is usually construed based on "common law" interpretations thereof.[20] Most of the article deals with the powers and duties of the governor.

Article IV - Judicial

Article IV describes the state's judicial system. The constitution creates three tiers—the Supreme Court of Ohio, the Ohio District Courts of Appeals, and the Ohio Courts of Common Pleas. The legislature can create additional courts as well.[21] In 1968, voters adopted the "Modern Courts Amendment" which significantly revised this article. The key change was granting the Supreme Court administrative control of the state's judiciary. Before, each judge was largely independent of any oversight.[22]: 822  This power extended to creating rules for judicial practice.[22]: 829  Section 22 also gives the governor the power to appoint a five-member commission to hear cases appealed to the Supreme Court. The provision has been invoked twice in 1876 and 1883. Legal scholars Steven Steinglass and Gino Scarselli note that "with the creation of this commission, Ohio literally had two supreme courts functioning simultaneously."[21] Decisions of this commission were considered equivalent to Supreme Court decisions and act as binding precedent.[23]

Unusually, the constitution once prohibited the Supreme Court from striking down laws as unconstitutional unless six out of the seven justices agreed. The justices could also uphold an appellate court's ruling that a law was unconstitutional.[21] This created the unusual situation that a law could be held unconstitutional in one appellate district but not others. The 1968 amendment repealed this provision.[22]: 845 

  • Article V - Elective Franchise
In 1995 Article V, Section 8 was struck down as unconstitutional by the Supreme Court of the United States in U.S. Term Limits, Inc. v. Thornton. It had imposed term limits on federal representatives and senators.

Article XIX - Congressional Redistricting

Article XIX was added by a referendum in 2018. It passed with nearly 75% of the vote.[24] The article requires a 3/5 vote of the state legislature to approve any redistricting plan, provided that half of each party votes in favor. If the legislature cannot reach an agreement, a commission creates a plan. This plan must receive approval from four members, including two members from each of the two largest political parties. If the commission cannot reach an agreement, the legislature may pass a plan by a simple majority vote. The article also lays out certain requirements for districts, including mandating partisan neutrality and limiting county and municipality splits. The state supreme court has sole jurisdiction over the constitutionality of any plan passed.[25]

Article XIX first took effect in January 2021 and governed the state's redistricting cycle that year. The legislature failed to create a plan, forcing the redistricting commission to take charge.[26] The commission also failed to reach an agreement, turning the job back to the legislature.[27] Eventually, the legislature passed a new map by simple majority vote.[28] However, the state supreme court rejected the maps, finding it unconstitutionally favored Republicans.[29] The legislature refused to adopt new maps, sending the process back to the commission.[30] The commission adopted the final set of maps in March 2022.[31] In July, the state supreme court again rejected the maps. However, because congressional primaries had already occurred, the maps will be used for the 2022 election.[32]

See also

References
  1. State v. Bob Manashian Printing, 121 Ohio Misc. 2d 99, 103 (Cleveland Muni. Ct. 2002).
  2. The Heirs of Israel Ludlow v. C. and J. Johnson, 3 Ohio 553, 560 (Ohio Sup. Ct. 1828).
  3. Steinglass & Scarselli 2022, introduction.
  4. "The Truth About Frivolous Tax Arguments - Section I". Internal Revenue Service. November 30, 2006. Archived from the original on October 18, 2007. Retrieved 2012-06-26.
  5. Ohio Constitutional Revision Commission (May 1, 1977). Recommendations for Amendments to the Ohio Constitution - Final Report: Index to Proceedings and Research (PDF). Columbus: Ohio Constitutional Revision Commission.
  6. Magrath, C. Peter (1963). Morrison R. Waite: The Triumph of Character. New York: Macmillan. p. 88.
  7. Amendments submitted to the voters Archived 2012-01-31 at the Wayback Machine Ohio Secretary of State see page 6, November 6, 1923
  8. Steinglass & Scarselli 2022, Introduction.
  9. Palmer v. Tingle, 55 Ohio St. 423, 440 (December 8, 1896).
  10. Steinglass & Scarselli 2022, chapter 2.
  11. Arnold v. City of Cleveland, 67 Ohio St. 3d 35, 42 (August 11, 1993).
  12. White, Richard (2017). The Republic for Which It Stands. Oxford History of the United States. New York: Oxford University Press. p. 29. ISBN 9780190053765.
  13. Marshall, Aaron (November 9, 2011). "Ohio voters say no to health insurance mandates, older judges". The Plain Dealer. Retrieved June 5, 2023.
  14. Steinglass & Scarselli 2022, chapter 3.
  15. State v. Bozcar, 113 Ohio St. 3d 148, 150 (2007).
  16. "Filling Legislative Vacancies". National Conference of State Legislatures. February 16, 2023. Retrieved June 11, 2023.
  17. Delliger, Walter (December 1983). "The Legitimacy of Constitutional Change: Rethinking the Amendment Process". Harvard Law Review. 97 (2): 404 – via HeinOnline.
  18. Article II, Section 1a, 1b, and 1c of the Constitution of Ohio (1851 (amended 1912))
  19. Steinglass & Scarselli 2022, chapter 4.
  20. Miller II, Clinton J.; Miller, Terry M. (1976). "Constitutional Charter of Ohio's Attorney General". Ohio State Law Journal. 37 (4): 803 – via HeinOnline.
  21. Steinglass & Scarselli 2022, chapter 5.
  22. Milligan, William W.; Pohlman, James E. (1968). "The 1968 Modern Courts Amendment to the Ohio Constitution". Ohio State Law Journal. 29 (4): 811–848 – via HeinOnline.
  23. Marshall, Carrington T. (1934). A History of the Courts and Lawyers of Ohio. New York: The American Historical Society. pp. 222–223 – via HeinOnline.
  24. Exner, Rich (May 9, 2018). "Ohio votes to reform congressional redistricting; Issue 1 could end gerrymandering". Cleveland Plain-Dealer. Retrieved November 5, 2022.
  25. Ohio Constitution, art. XIX
  26. Amiri, Farnoush (September 30, 2021). "Ohio lawmakers set to miss another redistricting deadline". AP State Wire – via NewsBank.
  27. Borchardt, Jackie (October 29, 2021). "Ohio Redistricting Commission punts on map". Akron Beacon Journal. p. B1 – via NewsBank.
  28. Hancock, Aimee; Gaines, Jim (November 20, 2021). "DeWine signs bill establishing new congressional map". Dayton Daily News – via NewsBank.
  29. Tobias, Andrew J; Pelzer, Jeremy (January 15, 2022). "Ohio Supreme Court again draws the line on gerrymandering The court rejects congressional maps two days after tossing legislative ones; it orders lawmakers to come up with a new one". Cleveland Plain-Dealer. p. 1 – via NewsBank.
  30. Bischoff, Laura A. (February 10, 2022). "Redistricting must go back to the commission - Lawmakers can't come up with enough votes". Columbus Dispatch. p. A1 – via NewsBank.
  31. Balmert, Jessie (March 1, 2022). "Ohio Republicans pass a new congressional map. Will it pass Ohio Supreme Court scrutiny?". Columbus Dispatch. Retrieved November 5, 2022.
  32. Balmert, Jessie (July 14, 2022). "Redistricting: Ohio Supreme Court rejects congressional map used in May, orders new one". Columbus Dispatch. Retrieved November 5, 2022 – via Yahoo News.
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