This symposium issue of the Cleveland State Law Review publishes the papers that were presented at a conference marking the bicentennial of the Ohio Constitution.  That conference, held here at Cleveland-Marshall College of Law in April 2003, examined the history and assessed the vitality of our state constitution. The conference was conceived and its planning was  supervised by our Dean, Steven H. Steinglass, who has devoted significant scholarly attention to the Ohio Constitution. In light of my own endeavors in state constitutional law, both as a lawyer and as a scholar, I gladly assisted Dean Steinglass in organizing the conference. In the paragraphs that follow, I briefly summarize each of the contributions to this symposium. Those papers cover a broad range of topics — from Ohio constitutional history and interpretation to race and equal protection, education and tort reform, separation of powers and the one-subject rule

O\u27Neill, Kevin F

English

Cleveland-Marshall College of Law

Cleveland State University EngagedScholarship@CSU Law Faculty Articles and Essays Faculty Scholarship 2004 Foreword: The Ohio Constitution on the Occasion of Its Bicentennial Kevin F. O'Neill Cleveland State University, k.oneill@csuohio.edu Follow this and additional works at: https://engagedscholarship.csuohio.edu/fac_articles  Part of the Constitutional Law Commons, and the State and Local Government Law Commons How does access to this work benefit you? Let us know! Original Citation Kevin F. O'Neill, Foreword: The Ohio Constitution on the Occasion of Its Bicentennial, 51 Cleveland State Law Review 333 (2004) This Article is brought to you for free and open access by the Faculty Scholarship at EngagedScholarship@CSU. It has been accepted for inclusion in Law Faculty Articles and Essays by an authorized administrator of EngagedScholarship@CSU. For more information, please contact research.services@law.csuohio.edu. Citation: 51 Clev. St. L. Rev.  333 2004 Content downloaded/printed from HeinOnline (http://heinonline.org)Mon May 21 16:06:55 2012-- Your use of this HeinOnline PDF indicates your acceptance   of HeinOnline's Terms and Conditions of the license   agreement available at http://heinonline.org/HOL/License-- The search text of this PDF is generated from    uncorrected OCR text.FOREWORD: THE OHIO CONSTITUTION ON THE OCCASIONOF ITS BICENTENNIALKEvIN FRANCIS O'NEILL'This symposium issue of the Cleveland State Law Review publishes the papersthat were presented at a conference marking the bicentennial of the OhioConstitution.' That conference, held here at Cleveland-Marshall College of Law inApril 2003, examined the history and assessed the vitality of-our state constitution.The conference was conceived and its planning was supervised by our Dean, StevenH. Steinglass, who has devoted significant scholarly attention to the OhioConstitution.3 In light of my own endeavors in state constitutional law, both as alawyer4 and as a scholar,5 I gladly assisted Dean Steinglass in organizing theconference. In the paragraphs that follow, I briefly summarize each of thecontributions to this symposium. Those papers cover a broad range of topics -from Ohio constitutional history and interpretation to race and equal protection,education and tort reform, separation of powers and the one-subject rule.We begin where the conference began: with a keynote address by a statesupreme court justice who is known and respected as much for her scholarly writingsas for her judicial opinions - Chief Justice Shirley S. Abrahamson of the WisconsinSupreme Court. Chief Justice Abrahamson provides the perfect introduction, tracingthe rise, decline, and resurrection of state constitutional independence over thecourse of our nation's, history. She identifies the origins of that resurrection anddescribes how it has been dubbed the "New Judicial Federalism." Her remarksculminate with some insights regarding the future direction and vigor of stateconstitutional jurisprudence. She foresees a change of focus in state constitutionalclaims, shifting from the rights of criminal defendants to the protection of propertyand economic rights. This sea change may prompt a role reversal by current critics'Associate Professor of Law, Cleveland-Marshall College of Law, Cleveland StateUniversity. For guiding this symposium issue into print, special thanks go to George Zilich,the editor-in-chief of our Law Review, and to Holli Goodman and April Mixon of the LawReview staff.2The Ohio Constitution - Then and Now: An Examination of the Law and History of theOhio Constitution on the Occasion of Its Bicentennial, Cleveland-Marshall College of Law,Cleveland State University (Apr. 24-25, 2003).3See, e.g., STEVEN H. STEINGLASS & GINO J. SCARSELLI, THE OHIO STATE CONSTITUTION:A REFERENCE GUIDE (forthcoming 2005) (Greenwood Press).4See Eastwood Mall, Inc. v. Slanco, 68 Ohio St. 3d 221, 626 N.E.2d 59 (1994) (invokedOhio Constitution's Free Speech Clause - Article I, Section 11 - in unsuccessful effort toobtain right of access for speech activities in the common areas of privately-owned shoppingmalls); Preterm Cleveland v. Voinovich, No. 92CVHO1-528, 1992 Ohio Misc. LEXIS 1 (OhioC.P. May 27, 1992) (persuading trial court to hold that Ohio Constitution affords greaterprotection for reproductive freedom than the U.S. Constitution), rev'd, 89 Ohio App. 3d 684,627 N.E.2d 570 (1993), dismissed, 68 Ohio St. 3d 1420, 624 N.E.2d 194 (1993).5See Kevin Francis O'Neill, The Road Not Taken: State Constitutions as an AlternativeSource of Protection for Reproductive Rights, 11 N.Y.L. SCH. J. HUM. RTS. 1 (1993).HeinOnline  -- 51 Clev. St. L. Rev.  333 2004CLEVELAND STATE LAW REVIEWand proponents of New Judicial Federalism, causing the former to applaud and thelatter to rue any departure from federal constitutional norms. She concludes on anote of caution, observing a willingness by the Rehnquist Court to inject itself intostate constitutional claims.With Chief Justice Abrahamson having set the stage - by sketching the nature,role, and significance of state constitutions - we commence our examination of theOhio Constitution. Our initial focus is on Ohio constitutional history. Here we havecontributions from two authors: Barbara A. Terzian and Jonathan L. Entin.Terzian takes us from 1802 to the present, through two state constitutions andfour constitutional conventions. She shows how the crucible of history shaped andreshaped the Ohio Constitution - from early struggles, on the very threshold ofstatehood, between Jeffersonian Republicans and Federalists; to the pressuresexerted in their respective eras by Abolitionists, Progressives, and Prohibitionists; tothe quests for suffrage by blacks and women; to the economic impact of the CivilWar and the growing industrialization of subsequent decades. Terzian performs thissurvey with careful attention to the political dynamics at each of Ohio'sconstitutional conventions - in 1802, 1850-51, 1873-74, and 1912. She paints herpicture with illuminating quotations from the letters and speeches of the conventiondelegates who forged and amended Ohio's Constitutions.Entin focuses on the early history of race and equal protection under the OhioConstitution. He observes that in 1802 - long before the United States adopted theFourteenth Amendment, with its guarantee of equal protection, in 1868 - the OhioConstitution featured an equality guarantee that drew on the natural rights principlesembodied in the Declaration of Independence. He carefully examines a number ofOhio Supreme Court decisions from the Nineteenth Century that involved racialissues. In the process of deciding those cases, he observes, the court developed ajurisprudence that, although jarring to modem sensibilities, was in some respectssurprisingly progressive for its time. Moreover, the reasoning employed in thosecases is considerably less offensive than that of the U.S. Supreme Court in casesraising similar issues. By the end of the century, however, the Ohio Supreme Courthad largely abandoned the effort to develop a distinctive jurisprudence of equality,deferring instead to the U.S. Supreme Court's approach under the FourteenthAmendment. Entin sees in this Nineteenth Century example some parallels to theOhio Supreme Court's treatment of the state bill of rights in the late TwentiethCentury. He identifies the court's Nineteenth Century retreat from independence asforeshadowing the court's Twentieth Century discomfort with New JudicialFederalism.Entin's concluding observations serve as the ideal transition to our next group ofarticles. We shift here from the history of the Ohio Constitution to its interpretationby the Ohio Supreme Court. Specifically, the focus here is on the methods of stateconstitutional interpretation that the Ohio Supreme Court has employed during theera of New Judicial Federalism. How has the court responded when asked toconstrue language in the Ohio Constitution that is similar or identical to language inthe federal Constitution previously interpreted by the U.S. Supreme Court? Does itperform a truly independent reading of the state constitutional text, consulting theintentions of the Ohio framers and seeking guidance from Ohio's history, or does itconveniently adopt the federal approach to construing the analogous clause in theU.S. Constitution? On this important topic we have contributions from three authors:Robert F. Williams, Richard B. Saphire, and Marianna Brown Bettman.[Vol. 51:333HeinOnline  -- 51 Clev. St. L. Rev.  334 2004FOREWORDWilliams, a pre-eminent authority on state constitutional law, observes that thecurrent wave of state constitutional independence has been underway since the1970s, and that the Ohio Supreme Court, by professing to join the movement in1993, is a relative newcomer. In the years since 1993, he observes, the court'sinterpretive methodology has alternated between two approaches: "reflectiveadoptionism" and "prospective lockstepping." Under the former approach, a statecourt acknowledges the possibility of different state and federal outcomes, considersthe arguments in that specific case, and then, on balance, tends to adopt the federalapproach in analyzing the state provision. Under the latter approach, the state courtannounces that not only in the instant case, but also in the future, it will interpret thestate clause in accordance with federal analysis. Williams concludes that the OhioSupreme Court should be commended for recognizing, at least in the abstract, thatthe state constitution is a document of independent force. It must be borne in mind,he writes, that New Judicial Federalism has only recently arrived in Ohio, that theOhio Supreme Court has not yet settled upon a definitive method of interpretation,and that lawyers and scholars still have time to present the court with alternativeapproaches stressing state constitutional independence.Saphire provides a detailed review and critique of the. Ohio Supreme Court'sinterpretive methodology since 1984. This examination, superb in itself, is renderedall the more valuable by Saphire's inclusion of two other discussions - one placingthe Ohio experience in a larger historical context, the other probing the legitimacyand limits of New Judicial Federalism. Saphire concludes that the Ohio SupremeCourt's commitment to state constitutional independence has been marked byinconsistency and ambivalence. This trend will continue, he suggests, until the courtdevelops and articulates a theory of Ohio constitutional interpretation - somethingthat it has so far completely failed to do. Such a theory would have to provideanswers to questions like: When is the text sufficiently ambiguous that a judge maylook beyond the words? To what extent may judges consult historical sources,contemporary sources, and policy considerations when construing the text? To whatextent and in what ways should they adopt approaches to interpretation that allow forgreater or lesser degrees of judicial discretion? In the end, Saphire, like Williams,believes that lawyers and scholars can play a constructive role in suggesting answersto these questions and thereby promoting the independence of the Ohio Constitution.Bettman analyzes Ohio Supreme Court decisions construing the Speech, Press,Search and Seizure, Free Exercise, and Establishment Clause analogues of the OhioConstitution. Here in Ohio, she concludes, New Judicial Federalism remains in itsinfancy. The Ohio Supreme Court is still struggling with the fundamentals of stateconstitutional interpretation. It remains heavily dependant on federal methodologywhen construing analogous provisions of the state constitution. Bettman gives us theunique perspective of a law professor who previously served as an Ohio appellatecourt judge. This perspective sensitizes her to the current political make-up of theOhio Supreme Court. Today's court, she observes, is far more conservative than the1993 tribunal that proclaimed Ohio's embrace of New Judicial Federalism. Thus,there are strong political reasons to suppose that, at least for the time being, the courtwill not be taking any long strides toward state constitutional independence.We turn now from questions of interpretation to separation of powers. On thistopic we offer three articles. The first (authored by Curtis Rodebush) provides acritical analysis of separation of powers under the Ohio Constitution. The second(authored by Michael E. Solimine) examines the justiciability doctrines that prevail2004]HeinOnline  -- 51 Clev. St. L. Rev.  335 2004CLEVELAND STATE LAW REVIEWin Ohio courts. The third (authored by Stephanie Hoffer and Travis McDade) looksat the Ohio Constitution's one-subject rule.1 Rodebush has two aims, and he weaves them together with such skill that eachcomplements the other. Reviewing the Ohio Supreme Court's performance indeciding separation-of-powers cases, he critiques that performance while offering apreferred method of analyzing any separation-of-powers issue. Drawing upon recentscholarship, Rodebush identifies two distinct approaches to separation-of-powersanalysis - "formalism" and "functionalism" - and, canvassing the full range ofseparation-of-powers scenarios, he shows how one approach or the other. is bestsuited to resolving a particular conflict.Solimine focuses on principles of justiciability,- specifically, the standing andpolitical question doctrines - as imposing separation-of-powers restraints on thejudicial branch. He shows that in several recent cases, the Ohio Supreme Court hasdeparted from federal doctrine and lowered the thresholds of justiciability - makingit easier for litigants in Ohio courts to establish standing and to avoid dismissal underthe political question doctrine. While acknowledging that Ohio courts are not boundby federal law on these issues, Solimine examines the historical, institutional, andpolicy grounds for departing from federal norms. After an exhaustive analysis of thestanding doctrine, he concludes that the federal approach remains optimal and thatOhio courts should continue to follow it. But as to the political question doctrine, hearrives 'at the opposite conclusion. That doctrine, he observes, has weaker roots inboth federal and Ohio jurisprudence and its application is fraught with ambiguity.Accordingly, Solimine concludes that the Ohio Supreme Court correctly declined touse the political question doctrine as a basis for resolving the recent school-fundinglitigation.Hoffer and McDade reveal the seismic shift in the Ohio Supreme Court'streatment of the one-subject rule. That rule - set forth in Article II, Section 15(D)of the Ohio Constitution - provides that "[n]o bill shall contain more than onesubject." Its purpose is to prevent the packaging of several unrelated bills, none ofwhich commands majority support, into one bill, thereby converting severalminorities into one majority. As originally construed by the Ohio Supreme Court,the one-subject rule afforded no basis for judicial review. It merely prescribed alegislative norm - like the number of times a bill must be read aloud - and itsenforcement should be left to the legislative branch. From this modest debut, theone-subject rule has been transformed into a source of enormous judicial power anddiscretion. This metamorphosis is recounted and critiqued with great precision byHoffer and McDade. They conclude by applying the one-subject rule, in its virilenew form, to legislation recently enacted by the Ohio General Assembly. In theprocess, they demonstrate that the rule's new reach poses separation-of-powersconcerns, unduly magnifying the judicial power vis-A-vis the legislative branch.We turn, finally, from the separation of powers to two hot-button issues in Ohio:school choice and tort reform. Molly O'Brien and Amanda Woodrum authored theschool choice article, while James T. O'Reilly contributed the piece on tort reform.O'Brien and Woodrum approach the school choice controversy by going back tofirst principles. They investigate the origin and meaning of the "common school"ideal that is embedded in the education clause of the Ohio Constitution. That clause- Article VI, Section 2 - requires the general assembly to create and fund "athorough and efficient system of common schools," and it concludes with theadmonition that "no religious or other sect, or sects, shall ever have any exclusive[Vol. 51:333HeinOnline  -- 51 Clev. St. L. Rev.  336 2004FOREWORDright to, or control of, any part of the school funds of this state." That provision wasdrafted and adopted by the delegates to Ohio's 1851 constitutional convention.Through a painstaking examination of Ohio's early history and the 1851 conventiondebates, the authors demonstrate that the term "common school," as used in ArticleVI, Section 2, had a clear and specific meaning to the convention delegates. Thatmeaning had been etched into the public mind through the efforts of educationalactivists who campaigned vigorously through the 1830s and 40s for theestablishment of free, universal schooling. Those activists used the term "commonschool" to refer specifically to a non-sectarian, publicly funded school wherechildren of all classes and backgrounds would be educated together. This is what theOhio Constitution means by "common schools," argue the authors. It is this type ofschool, and none other, they argue, for which public funding is authorized under theOhio Constitution. Thus, they conclude, efforts by school choice proponents tosecure public funding for privately-run sectarian schools directly conflict with the"common school" ideal that is enshrined in Ohio's education clause.O'Reilly examines Ohio tort reform from the ominous perspective of electoralfundraising for Ohio Supreme Court candidates. Though he concludes that tort lawjustice is not for sale in Ohio, he demonstrates the disquieting extent to whichjudicial candidates are selected and funded based on their approach to productliability, medical liability, and employer tort liability. In 2002, the candidates whowon election to the Ohio Supreme Court spent about two dollars for every vote theyreceived. A new justice begins a six-year term with the knowledge that oneincumbent needed a $758,000 reelection fund for the fight to retain her seat in 2002.O'Reilly explores how the pressures of raising so much money can drive a candidateinto the arms of corporate political action committees. The Procter & Gamble GoodGovernment Committee, for example, gave candidates over $200,000 in 2002 alone.O'Reilly follows this exploration with a detailed analysis of recent tort decisions bythe Ohio Supreme Court, an analysis that reveals the great extent to which tortreform is affected by the court's interpretation of the Ohio Constitution. Inperforming this analysis, O'Reilly recounts the court's ongoing feud with the OhioGeneral Assembly - and he inquires whether shifting political majorities on thecourt will produce zigzagging outcomes, thereby sacrificing stare decisis anddoctrinal coherence.In closing, we very much hope that lawyers and judges here in Ohio will find thissymposium issue useful in advancing claims and deciding issues under the OhioConstitution. To that end, we have departed from law review citation rules in theway that we have cited Ohio cases. Rather than citing only to the NortheastReporter, as those rules require, we have added parallel citations to the official Ohioreporter. Since Ohio courts require citation to the official Ohio reports, we hope thatour parallel citations will facilitate the use of this symposium issue by Ohio's benchand bar.2004]HeinOnline  -- 51 Clev. St. L. Rev.  337 2004HeinOnline  -- 51 Clev. St. L. Rev.  338 2004

Foreword: The Ohio Constitution on the Occasion of Its Bicentennial

https://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=1314&amp;context=fac_articles

Foreword: The Ohio Constitution on the Occasion of Its Bicentennial

Abstract

Similar works

Full text

Available Versions

Cleveland-Marshall College of Law