Saturday, November 17, 2007

Cleaning the Constitution?

The Michigan Senate recently passed a proposed amendment to the Michigan Constitution. This amendment was proposed by a student at Central Michigan University. The amendment is billed as cleaning up the Michigan constitution, or making benign technical corrections. But is that what the amendment actually does?

The provisions of the Michigan Constitution that this amendment would repeal have the common feature that they are seen as being unconstitutional. That is, contrary to the federal Constitution.

In one case, this is certainly true. The power to vote may not be denied to those over 18 based on age. This change came about through a federal constitutional amendment passed by Congress and ratified by 3/4 of the states. Changing the Michigan Constitution to make it consistent with this provision is certainly appropriate.

However, most of the provisions in question were not nullified by constitutional amendment, but rather were declared "unconstitutional" by federal judges.

Thus the amendment amounts to a surrender to judicial activism. It isn't immediately clear whether the policies found unconstitutional actually are. The brief descriptions in the linked articles raise questions as to the validity of these decisions.

But in any case, the federal courts have no legitimate power to overturn state constitutional provisions. This power was simply asserted in the 1819 Supreme Court case McCulloch v. Maryland.

Whether or not the court is correct on the underlying merits of the provision in question, allowing it to have the final power of decision centralizes power in Washington. This violates the principle of federalism. Centralization of power will lead to worse outcomes on average than decentralization of power.

The proposed amendment would have no immediate impact, as the provisions in question are not currently being enforced. Thus there is no particular need for it. But if the court decisions in question were overturned, the relevant provisions would come back into force.

The proposed constitutional clean-up should be changed substantially so that it does not surrender to judicial activism. If it is not, it should be defeated.

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