Republicans pushing Ohio voters to strip ourselves of our own power over the Ohio Constitution on Aug. 8 by raising the threshold for passing amendments to 60% have repeatedly used historically misleading arguments about the U.S. Constitution.
Never mind that U.S. Constitutional amendments require support from two-thirds of lawmakers in each chamber of Congress and three-fourths of state legislatures, not voters. Never mind the absurdity of anyone claiming “the founders” were of one mind on any issue, let alone the Constitution. And never mind that there is an enormous difference between the U.S. Constitution and the constitutions of the various states: The central issue Aug. 8 is that there are forces at work in Ohio including our most powerful politicians and special interest lobbyists attacking popular democracy and attempting to shackle Ohioans under the yoke of extremist minority rule. Their rule.
But for the sake of intellectual exercise during America’s 247th birthday week, let’s take a look today at how our Constitutional system was framed, the priorities of good governance and balance the “Father of the Constitution” James Madison envisioned, the history of the Ohio Constitution, and the dangers of a legislative body usurping power from the people and rigging the system against voters.
In this short column space, we are not going to adjudicate the philosophical arguments around federalism — though it’s safe to say Madison and Thomas Jefferson preferred limiting governmental powers and emphasizing freedom and power of the people to hold government accountable. Nor will we pick apart the foundational hypocrisies or the intense amount of American history where clashes between theory and practice led to bitter and bloody confrontation, political and judicial negotiation, and constitutional adaptation on myriad issues.
What we are going to do is focus on a few fundamentals behind our constitutional republic as its chief architect Madison saw them, the expansion of direct democracy over our Ohio Constitution throughout our history of statehood, and the enormous insult to these American ideals when politicians attack representation in government to render themselves unaccountable.
Madison was the first and original intended victim of gerrymandering, at the hands of anti-constitution Patrick Henry before the term gerrymandering was even coined.
Henry’s goal? To stop the Bill of Rights and eventually call a second constitutional convention to reinstitute confederation. Despite loading Madison’s home Virginia district for the first U.S. Congress against him, newspapers assailed Henry’s plot as a violation of the right of voters to choose their own representatives, and through hard work and smart campaigning Madison prevailed.
Madison is an enigma in political philosophy, evolving throughout his career on the subject of federalism, ever-mindful of the messy business of politics and popular passion, ever-cautious of the tensions between the theoretical and the practical.
But one thing that can be said definitively about him is that during the writing of the U.S. Constitution he sought a middle-ground compromise. Madison sought to “support the due supremacy of the national authority” while not excluding “the local authorities wherever they can be subordinately useful,” as he told George Washington in a letter before the Constitutional Convention.
Defending the new Constitutional framework he negotiated, and arguing for ratification, in Federalist No. 45 Madison summarized: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite.”
This line as much as any other demonstrates Madison’s theory behind limiting the U.S. Constitution as a foundational framework document, with allowance for the states to carry out their own democratic experimentation under their own constitutions with wide latitude. This is what has come to pass and is why every single state constitution in our union is significantly longer and more complex than the U.S. Constitution.
Behind the framework of a constitutional republic was Madison’s underpinning philosophy found in Federalist No. 51 that, “Justice is the end (goal) of government. It is the end of civil society. It ever has been, and ever will be, pursued, until it be obtained, or until liberty be lost in the pursuit.”
Madison argued throughout the 29 Federalist papers that he wrote that our constitutional framework and system of governance was set up to protect both majority and minority factions.
A minority faction would be protected from tyranny of the majority through a system of separation of powers, checks and balances, bicameralism, and federalism, as Madison envisioned. By fracturing and dividing the systems of government at different levels, his theories held, accountability would manifest over time.
I consider his thinking here a bit wishful, as we’ve seen over the last two-and-a-half centuries that it’s been a tremendous, bloody slog to establish and protect minority group rights: Often our progress toward expanded civil and human rights has been sabotaged by cynical operatives taking advantage of the very system Madison hoped would guard against it.
As for protecting a majority of people against the tyranny of a minority, Madison’s idea was simple: The popular majority vote.
As Madison wrote in Federalist No. 10: “If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. (The minority faction) may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution.”
But what happens when you assault a constitution and remove the ability of a majority to find relief from minority “sinister views” and “violence” by a regular vote? The constitutional balance falls apart.
Nevertheless, this is exactly what Issue 1 on Aug. 8 seeks to remove from Ohio voters and our constitution. Ohio voters had to fight hard for more than 100 years to obtain our current majority rule authority, and now more than 100 years after we won it in 1912, minority factions seek to rob it from us once again.
The Ohio Constitution
The original 1802 Ohio Constitution gave voters no authority over the constitution, gave the governor no veto power over the legislature, and left lawmakers able to rule by fiat in defiance of the people. This is similar to Ohio’s current unconstitutionally gerrymandered supermajority legislature that can override the governor’s veto.
Ohio voters have had a majority say over the Ohio Constitution since 1851, when it was rewritten to give voters power to hold the then-unaccountable legislature accountable.
The Ohio Constitutional Convention of 1912 expanded the power of voters even further, introducing the ability of citizen-led initiatives and referendum.
Ohioans have used it incredibly responsibly. Since 1912, Ohioans have brought citizen constitutional amendment ballot initiatives 71 times, with 19 amendments approved, and 52 rejected, for a passage rate of 26%.
Nevertheless, Ohio Republicans claim these citizen-led initiatives, which are so rarely passed, need to have the bar raised because they say out-of-state special interests are taking over Ohio’s Constitution. They have been unable to point to any evidence and meanwhile, their effort is being bankrolled by an extremist Illinois billionaire who has also funded both Jan. 6 and 2020 election deniers around the country.
“I believe in the initiative and the referendum,” Teddy Roosevelt told the Ohio Constitutional Convention of 1912, “which should be used not to destroy representative government, but to correct it when ever it becomes misrepresentative.”
Misrepresentative Ohio government
Ohio government has become undeniably misrepresentative. The most glaring example of this has been redistricting reform. As we’ve discussed many times, cheating voters with gerrymandering poisons everything. It leads to rubber-stamp elections where only primaries matter, and radicalizes legislatures to do the bidding of the most extreme elements within political parties.
But, against the voters’ will, the rule of law, the Ohio Constitution, and seven bipartisan Ohio Supreme Court decisions declaring Republican gerrymandering of Ohio’s Statehouse and Congressional districts unconstitutional, the GOP-majority on the Ohio Redistricting Commission again rigged Ohio political maps with gerrymandering, forcing voters to cast ballots in unconstitutional districts in 2022, and winning even bigger Republican supermajorities at the Statehouse.
In 1870, James Garfield, then an Ohio congressman who would be elected president in 1880, called gerrymandering “evil,” saying that “no man, whatever his politics, can justly defend (it).”
In 1891, another president from Ohio, Benjamin Harrison, condemned gerrymandering as a form of “political robbery.” He said that gerrymandering’s “overthrow of majority control by the suppression or perversion of the popular suffrage” represented “our chief national danger.”
Meanwhile, in our time, Ohio’s gerrymandered Statehouse has not only been captured by wealthy special interests to whom they corruptly funnel billions of dollars in public money, but also captured by right-wing extremists intent on imposing their fanatical ideology on all Ohioans, and for whom Ohio Republicans are ruthlessly attacking democracy itself.
Issue 1 on Aug. 8 is opposed by more than 240 bipartisan Ohio groups, four bipartisan former governors, and five bipartisan former attorneys general. On the other side are anti-abortion lobbyists, religious zealot lobbyists, various gun-ownership absolutists, and the Ohio Chamber of Commerce.
In Ohio, citizens have two options for taking matters into their own hands and proposing changes through a ballot initiative: They can offer a statute, which changes law under Ohio Revised Code, or a constitutional amendment, which amends the Ohio Constitution.
Time and again we hear right-wing partisans say that if voters want a change, they should attempt an initiated statute to change the law, instead of adding an amendment to the Ohio Constitution. But Ohio law offers no protection for a newly passed statute. Lawmakers can immediately repeal or modify whatever changes voters approve. This is why the Ohio Constitution is often the last, best refuge for voters, especially on fundamental issues such as democracy, civil rights, and human rights.
If justice is the end goal of government, then the injustice being perpetrated on Ohioans by our state government is staggeringly abusive and intolerable: Our maps have been rigged, our courts have been stacked, our lawmakers have been captured by special interests, our politicians are riddled with corruption, and now our own majority voter power over our constitution is being assaulted.
Patriotic Ohioans now have a choice to use the powers that we’ve got left to fight until justice is obtained, as Madison said, or until liberty is lost entirely.
OCJ Editor-in-Chief and Columnist David DeWitt has been covering government, politics, and policy in Ohio since 2007, including education, health care, crime and courts, poverty, state and local government, business, labor, energy, environment, and social issues. He has worked for the National Journal, The New York Observer, The Athens NEWS, and Plunderbund.com. He holds a bachelor’s degree from Ohio University’s E.W. Scripps School of Journalism and is a board member of the E.W. Scripps Society of Alumni and Friends. He can be found on Twitter @DC_DeWitt
This commentary was republished from the Ohio Capital Journal under a Creative Commons license.