Justice Patrick DeWine: Ohio Constitutional Interpretation
Michael Ramsey
Justice R. Patrick DeWine (Ohio Supreme Court) has posted Ohio Constitutional Interpretation (86 Ohio State L.J. (forthcoming 2025)) (31 pages) on SSRN. Here is the abstract:
There has been a good deal written about why state courts should independently interpret state constitutions. But not much on how they should do that. We shouldn’t just assume that the interpretive methodologies for state constitutions are necessarily the same as for the Federal Constitution. I focus here on some key interpretive issues for the Ohio Constitution, but the issues addressed will be relevant in the interpretation of other state constitutions as well.
I argue for an original public meaning approach to the Ohio Constitution. 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 Constitution was approved by popular vote of the people and because the Ohio Constitution is relatively easy to amend. Most proponents of a “living constitution” focus their arguments on the difficulty of amending the federal constitution, but because the Ohio Constitution can be easily updated by the people, there is no justification for judges to do that work for them.
So how do judges discern original public meaning? Text is paramount, but what should judges look at when text is not determinative? I explore several possibilities including: (1) Ohio’s prior constitution and other state constitutions, (2) constitutional 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 constitutional amendment.
Finally, I take up the problem of how to deal with prior “lockstep precedent” that says that a provision of the Ohio Constitution has the same meaning as a similar provision in the federal Constitution. I argue that we should only give minimal stare decisis effect to such pronouncements and in most cases should abandon them when text and history demonstrate a different meaning.
Via Jonathan Adler at Volokh Conspiracy.