The appropriate way to determine what rights the Ohio Constitution grants its citizens is by assessing what the public understood the words to mean when the constitution and its amendments were first approved. This “original public meaning approach” is rooted in the Ohio Supreme Court’s earliest precedent, and is particularly appropriate because every provision of the Ohio Constitution was voted on directly by the voters of Ohio, explains Justice R. Patrick DeWine in a new law review article.

Justice DeWine’s article, which will be published in the Ohio State Law Journal later this year, outlines his approach to interpreting the state constitution. He notes that in recent years, legal scholars have been writing about the importance of independently interpreting and applying state constitutions rather than relying solely on legal precedent set by cases dealing with the U.S. Constitution. However, Justice DeWine notes there is little guidance for lawyers and scholars on “how” to interpret state constitutions.

The article, “Ohio Constitutional Interpretation,” is available online along with an abstract, also prepared by the justice. While Justice DeWine focuses on Ohio, the methods he presents likely apply to many other states that followed similar paths in crafting their state constitutions.

“This article is really the first attempt to explain the methods that should be used in interpreting the Ohio Constitution. I hope that it will provide a roadmap to allow litigants to more effectively make and frame arguments under the Ohio Constitution,” Justice DeWine said.

Justice DeWine’s article has already attracted attention from legal scholars. For example, in his influential Legal Theory Blog, University of Virginia School of Law professor Lawrence Solom praised the piece as “interesting, sophisticated and highly recommended.” The article is also listed as one of the top 10 downloaded recent papers in its category by the SSRN research network.

Justice Advocates Using ‘Original Public Meaning Approach’
The article calls for using an original public meaning approach to interpreting the constitution. Justice DeWine says the compelling reason is that every provision of the Ohio Constitution was approved by a popular vote of the people and the Ohio Constitution is relatively easy to amend. While Ohio adopted its first constitution in 1802, it was subsequently revised, and the 1851 version serves as the foundation for today’s constitution.

The 1851 constitution has been amended 170 times, with the approval of Ohio voters, and is now nearly 60,000 words. Amendments to the constitution in 1912 gave citizens the right to directly propose and vote on constitutional amendments. Since proponents of changes to the constitution drafted amendments using language common for their times, the document should be interpreted based on the way its words were understood at the time of adoption, Justice DeWine suggests.

The article notes cases where the Ohio Supreme Court has strayed from its proper role and interpreted the constitution without any attempt to determine the original public meaning of a provision. Another point of concern, Justice DeWine notes, is when the Court has interpreted an Ohio Constitutional provision by looking to a similarly worded passage in the U.S. Constitution. The Court then concludes the state constitution has the same meaning as the federal constitution, and follows precedent based on the cases dealing with the U.S. Constitution. This process is known as “lockstepping,” and Justice DeWine cautions against its use unless a party can provide evidence that Ohioans intended the provision to be interpreted the same way as the federal provision.

Sources That Assist in Understanding the Constitution’s Text
Justice DeWine writes that the text of the state constitution itself should always be the first consideration in interpreting it, and that when the text is clear judges should stop right there. But where the text is not determinative, Justice DeWine discusses the use of other sources that could help provide context to the meaning of a constitutional provision.

Justice DeWine discusses the appropriate place in the interpretive process of other materials including:

• Ohio’s prior constitution and other state constitutions from which provisions of the Ohio constitution may have been derived.
• Constitutional convention proceedings and other historical materials.
• Ballot language and other materials produced by the state for elections.
• Campaign materials from constitutional amendment advocates and opponents.
• News articles and other contemporaneous materials available to voters considering a constitutional amendment.

Another method Justice DeWine suggests for understanding how words were used in the past is through “corpus linguistics.” This is the use of large searchable databases of written materials from different time periods. The databases help explain how certain words were used and reveal how their meanings may have changed over time.

Justice DeWine writes that his article only “scratches the surface” of Ohio constitutional interpretation and hopes others will take up the challenge of providing additional scholarship.