When discussing constitutional interpretation, most attention is given to the federal constitution. However, it is important to remember that there are 51 constitutions in the United States, each with its own unique features and interpretations. State constitutions can develop differently from the federal constitution due to their distinct characteristics and historical contexts. For example, some states have a system of electing multiple executive branch officials, unlike the “unitary executive” system at the federal level.
Ohio Supreme Court Justice Pat DeWine has a forthcoming paper on the interpretation of the Ohio Constitution, titled “Ohio Constitutional Interpretation.” This paper adds valuable insights to the limited literature on state-level constitutional interpretation.
Here is the abstract:
There has been much discussion on why state courts should independently interpret state constitutions, but little on how they should approach it. It is essential to recognize that interpretive methodologies for state constitutions may differ from those of the Federal Constitution. In this paper, I focus on key interpretive issues for the Ohio Constitution, which are also relevant to the interpretation of other state constitutions.
I advocate for an original public meaning approach to interpreting the Ohio Constitution, based on our earliest caselaw. This approach is supported by the fact that every provision of the Ohio Constitution was approved by popular vote and can be easily amended. Unlike the federal constitution, the Ohio Constitution can be updated by the people themselves, making a “living constitution” approach unnecessary.
So how should judges determine the original public meaning? While text is crucial, other factors such as prior constitutions, historical materials, ballot language, and campaign materials can also provide insights. Additionally, addressing the issue of “lockstep precedent” requires minimal stare decisis effect, with a willingness to abandon such precedents when text and history suggest a different interpretation.
