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(upbeat music) (audience chatting) (bell dinging) - Hello, and welcome to the City Club of Cleveland, where we are devoted to conversations of consequence that help democracy thrive.

It's Friday, November 11th, and I'm Cynthia Connolly, Director of Programming here at the City Club.

I am pleased to introduce today's forum, featuring Steven Steinglass, Dean Emeritus, at Cleveland State University's College of Law.

We're all familiar with United States' Bill of Rights, which includes the right to freedom of speech, the right to bear arms, and the prohibition against unreasonable searches and seizures.

But did you know there's another Bill of Rights?

This one applies only to Ohioans, and includes protections for victim rights, religious conscience, healthcare and more.

Though often ignored, the Ohio Constitution has become particularly relevant to today's legal and political issues.

And it matters more than you may think.

Dean Steven Steinglass joined the faculty of Cleveland State University's College of Law in 1980.

His teaching areas include civil procedure, federal jurisdiction, section 1983 litigation, state constitutional law, and Ohio constitutional history.

From 1994 to 1996, he served as associate dean of the College of Law, and in 1997 he was appointed the 12th dean of the Cleveland-Marshall College of Law, which he served until 2005.

Immediately after, he was appointed Dean Emeritus by the Cleveland State University Board of Trustees, Dean Steinglass has dedicated much of his career to providing current and future lawyers and judges with a deep and nuanced understanding of the Buckeye State's constitution.

But he believes the state constitutions are too important to be left only to lawyers and judges.

He notes that Ohioans, like you, have the power to alter it at the ballot box.

Dean Steinglass has released the second edition of his monumental 696 page book, "The Ohio Constitution".

It's a real page turner.

And today, he will explain why the rights Ohioans have secured for themselves may provide surprising answers to political and legal questions that are currently confronting our state.

If you have a question for our speaker, you can text it to 330-541-5794.

That's 330-541-5794.

And you can also tweet your question @thecityclub, and City Club staff will try our best to work it into the second half of the program.

Members and friends of the City Club of Cleveland, please join me in welcoming Dean Steven Steinglass.

(audience clapping) Thank you so much for being here.

- That's beautiful.

- Yes.

- What a great introduction.

Thank you very much.

It's a pleasure to be here today.

I really want to thank the City Club very much for sponsoring this talk on the Ohio Constitution.

As Cynthia suggested, the decision of the United States Supreme Court this June in Dobbs overruling Roe versus Wade, and the repeated refusals of the Ohio Redistricting Commission to follow the Iowa Supreme Court's decisions on redistricting have made this talk particularly timely.

What I plan to do today is tell two constitutional stories.

The first, the longer one, is about the Ohio Bill of Rights.

The shorter one is about the constitutional initiative.

And hopefully these stories will come together by the time I conclude.

Let me begin with a snapshot of the Ohio Constitution.

Our current constitution, the "Ohio Constitution of 1851", is the sixth oldest in the nation, and the second oldest outside New England.

Including the two amendments that the voters approved this Tuesday, this past Tuesday, the Ohio Constitution has been amended 172 times since it was approved by the voters in 1851.

The Ohio Constitution now has almost 60,000 words, thus making it the ninth longest in the nation, and more than seven times longer than the Ohio Constitution.

And for those of you who remember show and tell, this is the federal Constitution which fits in your pocket.

For those who are only listening, it's very small.

This is the Ohio Constitution, for which one needs a very, very large pocket.

The Ohio Constitution is also full of obsolete, redundant, unconstitutional, and dysfunctional provisions, and it contains many detailed provisions that are more appropriate for the "Ohio Revised Code" than for a state constitution.

But that is a topic for another day.

Despite its length and other shortcomings, the Ohio Constitution plays an important role in our system of government.

It organizes state and local government.

It provides for the selection of state and local officials, including the judiciary.

It addresses important issues.

It obligates the General Assembly to use tax funds to secure a thorough and efficient system of common schools throughout the state.

It places limitations on state debt.

It places limitations on state taxation.

It addresses lotteries and casino gambling.

It addresses the creation of corporations and home rule.

It governs state and congressional redistricting.

It also contains a Bill of Rights, and specifies the methods for its amendment.

Now, as Cynthia suggested, a working assumption behind this talk is that it's too important to leave exclusively to lawyers and judges, and that citizens of Ohio have an important role in determining what our constitution looks like and what it will look like.

Now, I know there are many lawyers in this room, many of whom I know, but I suspect that few have ever reviewed the Ohio Constitution in a systematic way.

Now, I was told that I can't get too Socratic, so I won't ask anyone to raise their hand as to whether you've read or skimmed the Ohio Constitution, but I would say, that except for some specialized areas, home rule and criminal defense come to mind, the Ohio Constitution rarely arises in litigation, and law schools generally do not include courses on state constitutional law in their curriculum.

And when they do, the courses are almost never required, and generally sparsely attended.

The lack of familiarity with our state constitution is not surprising, and even our public discourse embraces the notion that the US Constitution is the only game in town.

For example, you've all heard of witnesses and litigants taking the Fifth Amendment, but have you ever heard someone asserting the privilege against self-incrimination under Article I Section 10 of the Ohio Constitution?

I could go on with that theme, but I won't.

For many years, there has been an assumption that the US Constitution had adequately protected our rights, but that simply is not true.

Historically, and increasingly, people are beginning to realize this.

And unfortunately, in my view, few lawyers, judges, or members of the public are aware that the Ohio Constitution can provide even a greater amount of protection of individual rights than are secured under the US Constitution.

To be sure, lawyers, political scientists, and historians have studied state constitutions for many years, but it took an influential Harvard Law Review article in 1977 by US Supreme Court Justice William J. Brennan, to shine a light on the potential role that state constitutions can play in protecting individual rights.

In his relatively short article, Justice Brennan, a former New Jersey Supreme Court Justice, who was appointed to the court in 1956 by President Eisenhower to shore up the Catholic vote, expressed his dismay at the efforts of the Burger Court to tear down many of the constitutional protections for civil rights and civil liberties that Justice Brennan had helped construct, and he urged state courts to look to their own constitutions as the source of individual rights.

Justice Brennan's article was a catalyst for a cottage industry of scholarship advocacy and decision making on state constitutions.

In Ohio, however, the reception was at best lukewarm, as suggested in the title of a law review article written by two prominent political scientists and published in the Ohio State Law Journal.

The title, quote, "The New Judicial Federalism and the Ohio Supreme Court: Anatomy of a Failure" says it all.

Remarkably, the Ohio Supreme Court responded to this article and acknowledged the accuracy of its critique.

In its 1993 decision in Arnold versus City of Cleveland, the court stated, and I quote, when pressed with opportunities to do so, this court has not, on most occasions, used the Ohio Constitution as an independent source of constitutional rights.

Now, Arnold involved a challenge to Cleveland's ban on the ownership of assault weapons.

At the time of the decision, the US Supreme Court had not yet construed the Second Amendment as protecting an individual's right to own guns for self-protection.

And had not replied that right to the states.

Therefore, the Ohio Constitution was indeed the only game in town for those seeking to remove limitations in gun ownership.

The gun owners lost their case, but even more importantly, the court's opinion included its fullest statement on the independent, and I underscore independent, role the Ohio Bill of Rights has in protecting civil rights and civil liberties.

And I quote, and for the lawyers who are listening, this is in the syllabus, so it isn't some odd dictum in the case.

It is what the case embraced officially.

The quote is this, "The Ohio Constitution is a document of independent force in the areas of individual rights and civil liberties.

The United States Constitution, where applicable to the states, provides a floor," a floor, they said floor once, I said it twice for emphasis, "below which state court decisions may not fall.

As long as state courts provide at least as much protection as the United States Supreme Court has provided in its interpretation of the federal Bill of Rights, state courts are unrestricted in according greater civil liberties and protections to individuals and groups."

Arnold, and its powerful metaphor of the floor, is the beginning of a line of cases in which the Ohio Supreme Court construed identical or analogous provisions of the Ohio Constitution as independent sources of rights beyond those available under the US Constitution.

And this includes cases involving equal protection, religious freedom, cruel and unusual punishment, the privilege against self-incrimination, defamation, search and seizure, due process, and takings of property.

Now, to be sure, there are also Ohio Supreme Court decisions, even in the areas I just listed, rejecting an independent role for the Ohio Constitution in particular cases.

For example, in the search and seizure area, the court has stated that it will, quote, "harmonize," unquote, the virtually identical state and federal prohibitions in felony cases, whatever harmonization means.

But nonetheless, it has construed the state provision as providing greater protection from arrest in misdemeanor cases.

My primary purpose is to illustrate the basic, and for many, counterintuitive, point that the Ohio Constitution can provide greater rights than those available under the federal document.

Much of this will not be a surprise to those who have been paying attention.

For example, a prior City's Club speaker, Chief Judge Jeffrey Sutton of the US Court of Appeals for the Sixth Circuit, has spoken and written in broad terms about the importance of state constitutions.

But like Justice Brennan four decades earlier, Justice Sutton did not address the difficult questions of how to interpret state constitutions.

Mercifully, I do not plan to dig too deeply into the minutiae of the Ohio Constitution, but I do want to provide you with a sense of what courts and lawyers find when they begin taking a serious look at the Ohio Constitution.

I wanna start at the beginning.

Our first constitution, the Ohio Constitution of 1802, was drafted less than 30 days in November 1802 at a convention held in Chillicothe, which was the capital of the Eastern section of the Northwest Territory, and subsequently, the first capital of the new state.

The constitution was drafted by 35 delegates, elected from nine counties, mostly along the Ohio River.

The convention was held under the authority of an enabling act, adopted by Congress earlier that year, and had largely followed the path to statehood that had initially been outlined in the ordinance of 1787, popularly known as the Northwest Ordinance.

And it was not submitted to the voters.

It was simply adopted.

At the time of the adoption of the Ohio Constitution, which led to Ohio's admission as the 17th state, state constitutions had been adopted by 11 of the 13 original states, and the drafters of the Ohio Constitution looked to these state constitutions for guidance, especially the 1790 Pennsylvania Constitution.

And even more importantly, to the constitutions adopted in 1792 and 1796 by Kentucky and Tennessee, the 15th and 16th states in the Union.

The Ohio Bill of Rights now has 24 sections and constitutional text matters.

Indeed, adherence to the text is one of the principle tools of constitutional interpretation.

If you take a careful look at the Ohio Constitution and its Bill of Rights, you'll see that the Bill of Rights contains many unique provisions that have no federal analogs.

These include provisions on victim's rights, sovereign immunity, wrongful death, groundwater, and healthcare.

But even where the state and federal constitutions address the same topics, there are often significant textual differences between the two documents.

For example, many provisions of the Ohio Constitution are framed affirmatively as positive rights rather than the more familiar negative rights, the "thou shall nots" that characterize the US Constitution.

For example, the First Amendment provides in part that Congress shall make no law abridging the freedom of speech.

But Article 1 Section 11 of the Ohio Constitution affirmatively provides that, quote, "Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right."

And this pattern repeats itself throughout the constitution.

What I wanna do next is identify some important provisions of the constitution, and I'll have to go quickly because there's a lot to cover.

First of all, Section 1 of the Bill of Rights has an alien Bill of Rights provision, which provides in its entirety, "All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety."

Now, if you say to yourself, you've heard language like that someplace else, you're right.

It is very similar to the second paragraph of the Declaration of Independence.

The Declaration of Independence, however, is not part of the US Constitution, but the inalienable rights provision is part of the Ohio Constitution.

Second, Section 2 has four clauses, but for our purposes, the important one reads as follows.

"Government is instituted for their," i.e.

the people's, "equal protection and benefit."

Ohio does not have an equal protection of laws clause, but the equal protection and benefit clause, which was adopted in 1851, 17 years before the 1868 ratification of the Fourteenth Amendment's equal protection of laws clause is often treated as the counterpart of the federal provision.

The Ohio provision, however, is framed affirmatively, and the Ohio Supreme Court has recognized that equal protection is an evolving concept indeed.

It has gone far beyond any possible original understanding of the clause in 1851 to recognize that it bars racial and gender classifications, as well as classifications based on illegitimacy and national origin.

Section 7 is a lengthy section that deals with the religious freedom, the rights of conscience, and the importance of religion and education.

I'm not gonna read it to you.

Trust me that it's there.

Fourth, Ohio does not have a due process clause akin to the one that is in the Fifth and the Fourteenth Amendment.

In Section 16, however, Ohio has a due course of law provision.

That provision is often viewed as Ohio's due process clause, but it is different textually and historically from the federal counterpart, and like the federal counterpart, the Ohio provision has been interpreted to have both a procedural and a substantive leg.

Fifth, Ohio, in Section 20, has an unenumerated rights provision that is similar to the Ninth Amendment.

In its entirety, this section provides that the enumeration of rights shall not be construed to impair or deny others retained by the people.

And all powers not herein delegated remain with the people.

Finally, in this quick review, Section 21 is a unique provision that preserves the freedom to choose healthcare.

This provision in key part provides, quote, "No federal, state, or local law or rule shall prohibit the purchase or sale of healthcare or health insurance."

Proposed by initiative in 2011 by right wing Tea Party activists as a quixotic response to the Affordable Care Act and approved by almost 66% of Ohio voters, this sloppily drafted amendment appears to guarantee something, and I suspect its drafters did not support, access to abortion care.

Unless anyone think that I'm being too ivory towered or too divorced from the real world, you should know that all six of the provisions that I identified in this review, sections 1, 2, 11, 16, 20 and 21, have been relied on in the litigation currently taking place in Hamilton County to challenge, so far successfully, Ohio's six week fetal heartbeat, antiabortion law.

There are other interpretation issues, and they're accessible.

If you Google Ohio Constitution history and law, you'll see the website maintained by the law library at the law school of Cleveland State.

And all of the primary source documents you can imagine are there, including the lengthy proceedings of both the 1850, '51, and the 1912 constitutional conventions.

Unfortunately, there is no transcript of the 1802 convention.

If one is looking for the intent of the voters, one can look to ballot language the official explanation of proposed amendments to see what the voters were told when they were asked to approve the amendment.

One can look for General Assembly proposed amendments at the explanations given by the Legislative Services Commission.

And when amendments are proposed by initiative, one can look to the, quote, "fair and truthful", unquote, summary provided to the Attorney General, that must be on all petitions.

Sometimes, none of the above state specific factors point to the proper interpretation of the Ohio Constitution.

And all that is out there is the decision of the US Supreme Court on an identical or analogous federal provision.

But there is nothing, I repeat, nothing in the law that prevents, excuse me, that requires states to follow analogous or even identical provisions of the federal Constitution when construing the state constitution.

Of course, states should look to decisions of other jurisdictions, including other states and the US Supreme Court, but they are free to reject them and do what they think is right.

Now, it's a basic principle of judicial federalism that the Ohio Supreme Court is the final arbiter of the meaning of the Ohio Constitution, but the court has not adopted, and this is not a criticism, a uniform or official approach to interpreting the constitution.

In effect, the court has adopted a pragmatic or an ad hoc approach to determining which of the interpretive tools that it will use.

Would you believe I just lost my document?

Oh my gosh.

This is a challenge.

That's why I brought a backup.

(audience laughing) My good, you have to be nimble.

So, what this really does is bring me to the second story, and gives me four minutes to cover the Ohio Constitutional Convention of 1912.

- [Attendee] Take five minutes.

- What a guy, what a guy.

And a second dessert.

Thank you very much.

I know this may come as a shock, but in the early part of the 20th century, there was concern that the General Assembly was not as responsive to the needs of the people as ideally it would be.

And that gave, that was the impetus for a broad array of organizations supporting the calling of a convention in 1912.

I mean, if you look at the list of supporters, the Ohio State Board of Commerce, the precursor to the Ohio Chamber, the Direct Legislation League, a progressive outfit, the cities, led in part by Cleveland's mayor, Newton Baker, a founder of this organization, organized labor, the women's suffrage movement, and the liquor interests.

To avoid the fate of the 1874 Constitution, which the voters soundly rejected, the 1912 convention proposed 42 discrete amendments, 34 of which were approved by the voters.

The most important of the amendments, I believe, was the amendments dealing with the direct democracy.

Certainly the most relevant for this presentation.

Ohio, you should know, is one of only 16 states with a direct constitutional initiative.

You've gotta get signatures from 10% of the voters in the last gubernatorial election, which is 10% of 4 million.

There's about 400,000.

So, in practical terms, you need about 700,000 signatures.

There's a geographic distribution requirement, which if I explained it, it would blow my time limit.

The Ohio Constitution has been amended, as I said earlier, 172 times.

But if you look at the period from 1913, when the initiative was adopted, the voters approved 127 amendments and rejected 100.

But of the 71 proposed by initiative, the voters approved only 19.

So, only 19 amendments in Ohio have been proposed by initiative and then approved by the voters, 27% batting average.

Of the ones proposed by the General Assembly, 108 of the 156 were approved.

There's been an uptick in the last two decades as to the use of the initiative.

Time does not permit me going into it.

So, we get to the final chapter of the story.

During the next two years, it is likely that there will be four major amendments on the fall general election ballot.

Two that appear to be moving in that direction, raising the minimum wage and legalizing the recreational use of marijuana, are moving without any direct or indirect involvement of the courts.

Two others, redistricting and abortion, appear to be moving to the ballot for reasons that in some ways relate to the courts.

I do not know what to say about the outrageous process for redistricting the case.

A lawless Ohio redistricting commission, abetted by a remarkable and inappropriate decision by a three judge federal court, not only enabled a political result, but in effect approved the adoption of redistricting lines for the General Assembly that were deemed illegal by the Ohio Supreme Court.

It is likely that there will be a ballot issue in that.

And this is essentially what Chief Justice Maureen O'Connor predicted in her prescient concurring opinion in the first General Assembly redistricting case on January 12th.

As for abortion, it is not clear yet what form the constitutional amendment will take, and there will be one.

If the plaintiffs are successful, I suspect there will be a Kansas type effort to limit availability of abortion.

We know how that ended.

If the plaintiffs are unsuccessful, I assume they will initiate an effort to protect reproductive rights in the Ohio Constitution.

And as many of you may know, such amendments were approved on Tuesday in Vermont, Michigan, and California.

And so, all I can say is stay tuned.

Thank you.

I will try to answer questions.

(audience clapping) - Thank you so much, dean.

We are about to begin the audience Q and A. I'm Cynthia Connolly, Director of Programming here at the City Club of Cleveland.

We are joined by Steven Steinglass, Dean Emeritus at Cleveland State University's College of Law, getting quite the lecture on the Ohio State's Constitution.

We welcome questions from everyone, City Club members, guests, students, and those joining via our livestream at cityclub.org, or our radio broadcast at 89.7 Ideastream Public Media.

If you'd like to tweet a question for our speaker, please tweet it @thecityclub.

You can also text it to 330-541-5794.

That's 330-541-5794, and our City Club staff will try our best to work it into the program.

May we have our first question, please?

- Yes, this deals with amending the Ohio Constitution, the Constitution of 1912, provided for, 1931, and each 20 years thereafter, the question of calling a constitutional convention shall be submitted to the voters.

Has, my question is, has that provision to approve a constitutional convention ever been approved since then?

And if so, has it resulted in any proposed amendments?

- That provision, an automatic convention call on the ballot was first adopted in 1851.

Ohio is one of 14 states that have a periodic submission to the voters.

Your question was, has that provision resulted in the calling of a convention since 1912?

Easy question.

No.

- My question is, as a citizen of Ohio, I feel the legislature disregarded the Supreme Court and the school funding multiple time.

And then the Supreme Court disregarded the gerrymandering thing three times.

And to top it off, we have a governor whose son sits on the bench and refuse to recuse himself.

It's totally lawlessness is the way I see it.

And then, what is it as a citizen we can do to change that?

- Well, I don't like to get too ad hominem, but I believe this past Tuesday there was, what do we call it, an election, and the two individuals who you identified were on the ballot.

I think there's too much noise out there, and people just don't end up listening.

You know, what I'm reminded of, I mean, it's a big, I wanna be serious, it's a huge problem.

Andrew Jackson, not one of our greatest presidents, once said, in response to a decision by the US Supreme Court involving the rights of Native Americans, said, well, justice, is reputed to have said this, some dispute, "Justice Marshall has made his decision, let him enforce it."

It's really a problem.

When the Ohio Redistricting Commission, composed of a partisan majority that includes four lawyers, one of whom served, not gonna name any names, one of whom served on the US Senate's Judiciary Committee, and another one who served as a justice on the Ohio Supreme Court, ignored a decision of the Ohio Supreme Court, which is the final arbiter of the meaning of the constitution.

I am basically speechless.

I don't know what to say.

I sympathize with the Ohio Supreme Court.

It's very hard to know how to enforce a decision in that circumstance.

Should they have thrown the commission in jail?

I mean, some people say that, but I think that's a pretty tough decision.

What you have to have in a society is some respect for the rule of law.

So, what I would say, it's distressing that the decisions of the court were not followed.

With regard to school funding, there were some improvements made, at least in the physical part of the school construction, and things like that.

So, there's some improvements were made, but the folks that brought that case back in the nineties are back in court again, claiming that the use of vouchers has, in effect, prevented the state from meeting its obligation to fund a thorough and efficient education.

I mean, I don't want to be too glib, but stay tuned.

But I don't have a good answer for the big question you ask.

- Thank you, Dean Steinglass.

So many questions, so little time.

First, a follow up to this gentleman's question here.

What is a constitutional convention?

- Okay.

That's fair.

That's a fair question.

A constitutional convention.

You remember the bar scene in "Star Wars"?

(audience laughing) No, I mean, a constitutional convention is a group of delegates, elected, come together, and they're given the charge of drafting a new constitution or drafting amendments.

It happened in 1802.

35 men were elected.

It happened in 1851.

It happened in 1912.

Those folks get together, and in 1850, '51, and 1912, really wrapped, you know, rolled up their sleeves and addressed many, many important issues.

What they did then is submitted their work product to the voters.

In 1850, '51, they submitted a full constitution to the voters, and as I said earlier, in 1912, they submitted 42 discrete amendments.

So, that's really what it is.

In around 2005 or six, The Plain Dealer had Thom Suddes of the PD and me do a point counterpart as to whether there should be a state constitutional convention.

He said yes.

I said no.

But as I said in my comments about state constitutional revision, that's a topic for another program.

- Dean, on the abortion question, we assume there's going to be an initiative.

Is there a process in place that prevents there from being conflicting initiatives on the ballot at the same time?

In other words, one group says we wanna enshrine Roe versus Wade, and another group says we wanna enshrine heartbeat bill.

- Good question.

Indeed, there is.

There's a provision that says if two conflicting amendments are on the ballot, and if they both pass, the one with a greater number of votes becomes law.

And that happened once in 1918, I think, on a property tax issue.

But there could be a preemptive move by one side or the other where they see something going to the ballot to put something on that's contrary or that qualifies what's going on to try to head it off.

- Dean Steinglass, is the implementing authority for the initiative process, is that part of, is that in statute, so that it could be, there could be a statute that took that away, or is that in the constitution itself?

- The constitution explicitly provides for the statutory initiative, which is an indirect initiative, and it provides for the referendum, and it provides for the direct constitutional initiative.

The General Assembly is given authority to adopt facilitating language.

It does not interfere with the initiative.

The language in the constitution on the initiative is very, very difficult to read.

They don't believe in section marks or paragraphs, but there's a constitutional basis of it there, but the legislature has filled in some details on it.

- [Questioner] Can the legislature take it away?

- [Steven] What?

- Take the popular initiative away?

- No, the answer is.

I mean, details are details.

I mean, one detail for example is to initiate the process these days, one has to get the signature of 1000 individuals submitted to the Attorney General.

And one has to submit the proposed amendment and a summary of it, and the Attorney General makes a determination as to whether it is a fair and truthful summary of the proposed amendment.

Well, that is not provided for in the constitution.

I don't think the Ohio Supreme Court has, I mean, I know the Ohio Supreme Court has never addressed its validity.

My suspicion is that the Ohio Supreme Court would see that as a facilitating statutory change and would accept it.

But if they absolutely eliminated the initiative or did something that was really drastic, I suspect the court will reject it.

There are no cases where they've rejected it, 'cause they haven't tried anything that radical.

- Good afternoon, dean.

I've always heard that the Ohio Constitution is basically a cluttered mess.

And might, and you've said that there are redundant provisions.

I mean, I'm certain, there's certain, there are provisions not being used, et cetera.

But my question is how would that be cleaned up?

And I guess my more fundamental question is do you have an opinion on what should be in a state constitution?

I mean, there's been so many initiatives that have gone forward, but what should be in a state constitution, and how should that be decided?

I'm interested in the fact that you said you were not in favor of a convention.

- A convention would be a zoo.

So, I mean, I don't think, oh no, but I, again, well, I'll tell you how it should have been resolved, and it didn't work out.

In the 1970s, the General Assembly created something called the Ohio Constitutional Revision Commission.

It was a commission of 32 individuals, 12 legislators and 20 non legislators, and they had them review the constitution and make recommendations by a two-thirds vote to the General Assembly, which could put them on a ballot.

And they were very successful.

I think they, it resulted in 16 amendments being approved, but many of those amendments had multiple subparts.

So, I think on balance, they did a good job of cleaning up a lot of the provisions.

I got rid of some redundant, some unnecessary provisions.

An effort was made to do that again in 2011.

And by creating something with a slightly different name, the Ohio Constitutional Modernization Commission.

We're all in favor of modernization, I guess.

And it was structured largely the same way.

I know a lot about that because I had the good fortune, I guess, to be hired, that was the good part, to serve as the senior policy advisor of the Ohio Constitutional Modernization Commission.

So, I literally was in the room.

And we did a really good job.

We produced huge amount of documents, memoranda, recommendations, and it went no place.

And four years before its official termination date, the General Assembly decided to kill it.

So, the question is why were we successful in the seventies and unsuccessful in this last decade?

I'd like to think it wasn't because of the selection of the senior policy advisor.

I think what happened is there was no commitment on the part of legislators to revise the document in a serious way.

Partisanship just entered the whole process.

People didn't wear their party labels on their chest.

You didn't know which of the 20 citizens were there because the Senate Republican Caucus or the House Democratic Caucus selected them.

But people knew who they were.

But nonetheless, they could have played an independent role.

The legislature just simply wasn't willing to let go.

And they ran the show.

So, there was really no possibility for a couple of other reasons for there to emerge an independent non legislative group of private leaders.

And the people in the commission were good, but I think in retrospect it was stacked against their doing anything.

So that was a dead end.

So, we could try that again in 2011, 2031 rather, when we next vote on whether to have a convention.

There are other ways of doing it, but it really requires the issue to rise to a much higher level in public understanding.

There's some gateway amendments that could be adopted that might make the process a little cleaner.

In the 1960s, George Romney, who was Governor of Michigan, was committed to revising, updating the Michigan Constitution, but there were some constitutional obstacles.

He pushed through, again, what they called a gateway amendment to kind of clean the process and make it more likely.

I don't have time to get into that in great detail.

So, there may be some techniques that could be used.

But I think, unless there's public support and leadership in the General Assembly, it's not gonna happen.

And I'm not even talking about major changes that have substantive import, I'm just talking about aesthetics.

It shouldn't be 60,000 words.

It should be cleaner.

We should eliminate the stuff that's clearly unconstitutional.

We should take away the ability of the General Assembly to deny the franchise to idiot and insane people.

I mean, we have language in there that's offensive, you know, so it's a tough problem.

- What do you think about the initiative that you mentioned about the $15 an hour wage?

I mean, clearly this is to get around the General Assembly not acting on this.

But is that an appropriate use of the constitutional.

It seems like $15 an hour is not gonna be very much now, and we'd want it to be more in the future.

So, what about that?

- Well, I think that it would rise in the future under that proposal.

Well, this is gonna be a tough one.

I may lose some of my friends on this one.

So, lemme just take two steps back.

In 2004, the Ohioans voted on an amendment prohibiting same sex marriage.

Now, was same sex marriage around the corner in Ohio in 2004?

I think not.

So why was that on the ballot?

We know why it was on the ballot, to gin up the vote in advance of the 2004 election.

So, 2006, well, if they can do it, we can do it.

And we had a minimum wage amendment on the ballot in 2006, backed by the Democrats and the unions, and they ended up increasing the minimum wage.

That increase now seems kind of quaint and old fashioned.

My view is that, to be sure, a decent minimum wage is important, but I also don't think constitutions should have lengthy, statutory-like provisions in it.

And I think that's a provision that really doesn't belong in the constitution.

Now, I was gonna say it isn't fundamental, but then someone will slap me on the side of the head and say, "What do you mean a minimum wage isn't fundamental?"

And I get that, but being here today as sort of a, as an advocate for the constitution, I think you shouldn't muck it up with statutory provisions.

So, I'm not, I'll probably end up voting for it, but I still don't like it very much.

You know, I mean, this is not just an Ohio problem.

Let me just say that state constitutions have become instruments of governance, and when they become an instrument of governance, they end up as not a simple sentence or two.

They end up as being very, very detailed.

And, you know, that just may be the nature of the beast.

So, I don't think one can realistically adopt a 7,000 word Ohio Constitution, akin to the federal constitution.

The ease of amendment, for example, means that we would probably tolerate some more length in our constitution.

- We have a related question that came in through text.

Whenever there is a constitutional amendment brought by the people on the ballot, critics claim it's too risky to change the constitution.

With extreme gerrymandering creating policy that isn't reflective of the people, do you see more constitutional amendments being proposed?

And if so, do you think our elected leaders will shut down this right?

- I'm not sure I got the full question.

I mean, do I think they're gonna be more on redistricting, or is it more general?

- I think, I don't wanna speak for the questioner, but I think it was around in general more proposed amendments.

- Well, I suspect there're gonna be a lot of amendments, but it's not easy.

You know, the romantic notion that we get a bunch of our friends together and say, "Hell, let's get a constitutional amendment on the ballot," just isn't reality.

I mean, sure, you can get a couple of friends at the hunt club to kick in a couple hundred grand each, and maybe you have a couple of million bucks.

I mean, it's expensive to hire the lawyers, to hire the publicist, to get 700,000 signatures, and to wage a credible campaign.

So, it's easy to get 1000 signatures and propose a constitutional amendment, but to really carry it through is very difficult.

I think there'll be groups looking at the constitution and the constitutional amendment process to try to get their proposals, their pet proposals, their good government proposals, adopted, but it's tough.

I mean, Ohio voters have been pretty discriminating about it.

And as I say, from the batting average, only a quarter of proposed, of amendments proposed by initiative get approved.

So, I mean, it's easier to knock something down and get people confused, and you know what confused people say, "No."

So, if you can muck it up enough, people vote against it.

So, it's very, very hard.

You have to be very skillful to get something across.

Now, minimum wage is easy to understand, and it could easily pass.

It's passed in a number of states where you would not expect them to support a minimum wage.

Likewise, Medicaid expansion, as a statutory initiative, has passed in some states.

We did it legislatively, however.

- The last three cycles, Republicans have gerrymandered.

Two prior cycles, 1980 and 1990, when the Democrats were in charge of the commission, they gerrymandered.

We see in Illinois, New York or Florida, each party gerrymandering when they're in charge.

So, you've noted some objections, very well, and you mentioned that there may be potentially dueling amendments.

So, how can this issue be communicated to the public that the concern is not just merely political, that the losing side would just merely do the same if they were in charge?

- Well, I think you have to have principled good government groups and others creating the interest in having what I will call an independent redistricting commission, one that isn't so closely tied to the legislators so that their key priority is incumbent protection.

It happened in Michigan.

It happened in California.

Chief Justice O'Connor identified the Michigan model.

So, there are a number of models out there where there's been an independent commission.

To be sure, it cuts both ways.

I think what Democrats are unhappy about is the Republicans have generally become so good at it.

It's not that the Democrats wouldn't try it if they were in the driver's seat.

So, I think you really need a broader commitment.

And the real test is will you support redistricting reform, even though you're in the majority party?

And in many cases, people will say no.

(audience clapping) - Thank you so much, Dean Steinglass, for joining us at the City Club today.

Today's forum was the Sidney D. Josephs Memorial Forum on the Bill of Rights.

Mr. Josephs and his wife, Nina, believed fiercely in the protections of our freedoms as memorialized in the Bill of Rights.

Mr. Joseph, a longtime City Club member, founded the Ohio chapter of the American Civil Liberties Union and served as president of both the Cleveland and Ohio chapters.

We are grateful to the Joseph family for honoring both Sydney and Nina through this endowment gift in support of City Club programming.

We would also like to welcome guests, the tables hosted by the Cleveland Marshall College of Law, Cuyahoga Community College, and the Legal Aid Society of Cleveland.

Thank you all for being here today.

Be sure to join us next week on Tuesday, November 15th.

We will hear from Sari Horwitz, the four time Pulitzer Prize-winning investigative journalist with the Washington Post.

She will speak about her new book that looks inside the battle to bring down the opioid industry.

On Thursday, November 17th, we'll be joined by Lieutenant General Russel Honore, who will discuss the needs of our country's veterans.

And then on Friday, November 18th, we'll welcome professor Kristen Henning from Georgetown Law, an author of the new book, "The Rage of Innocence: How America Criminalizes Black Youth".

You can find out more about each of these forums at our website, cityclub.org.

And that brings us to the end of today's forum.

Thank you once again to Steven Steinglass, and thank you, members and friends of the City Club.

I'm Cynthia Connolly, and this forum is now adjourned.

(audience clapping) (bell dinging) - [Announcer] For information on upcoming speakers, or for podcasts of the City Club, go to cityclub.org.

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