Under the state’s current constitution, a ballot proposal is automatically generated every 16 years, asking voters if they would like to rewrite the document.

If passed by voters, the proposal would set in motion a constitutional convention to write the fifth constitution in Michigan’s history. The state would schedule a special election in early 2011 to elect 148 delegates to the convention — likely a mix of lawmakers, professors and community activists. Next October, the convention would convene to rewrite sections or the entirety of the state’s constitution. Once finished, the agreed upon document would go before citizens for a vote, and a simple majority would decide if the new constitution would reign supreme or be thrown in the bin.

The whole process likely would take about two years, MSU law professor Brian Kalt said.

“It’s a pretty big effort,” he said.

History of law

Michigan’s first constitution was written in 1835, two years before its statehood was earned. Just 15 years later, citizens voted to rewrite the document. It remained in power for nearly 60 years, before a convention was called and the constitution of 1908 was written, spurred primarily by the new prominence of the automobile, said state Sen. Tom George, R-Kalamazoo, a proponent of the convention.

“One of the driving reasons for that was the age of the automobile … had arrived and (the state) was in need for building roads and highways,” George said. “The reasons were technological.”

Another 50 years passed before Michigan voted to hold a new convention to rewrite the constitution.

At the convention for the constitution of 1963, the primary concerns were the structure of the government, said state Rep. Mark Meadows, D-East Lansing, who opposes the convention proposal.

“The battle there was to give the governor more authority,” Meadows said. “The state was seen as somewhat dysfunctional in accomplishing its objectives. Everyone was elected every two years, and … virtually every part of the executive branch was elected.”

During the 1963 convention, the governor was given a four-year term, rather than two, and the lieutenant governor also joined the governor’s ticket in elections, preventing an executive power split between parties, George said.

Only one social issue — civil liberties — rose to the forefront in the 1963 convention, Meadows said. The debate culminated in the creation of the Michigan Civil Rights Commission, he said.

“The same battle that was taking place across the United States at this time was played out in the constitutional convention as well,” Meadows said. “The one social issue (talked about) was equality for all of our citizens.”

Controversial changes

Many of the “hot-button” issues, such as gay marriage and human embryonic stem cell research, could see a complete reversal in policy if the constitutional convention were to be approved by voters this year.

In 1846, the Michigan legislature prohibited capital punishment for all state offenses. In the state’s most recent constitution, approved by voters in 1963, the death penalty ban was solidified as not only law, but constitutional law.

Since the 1963 constitution was adopted, numerous amendments have settled controversial social issues.

In 2004, voters changed Article 1 of the constitution – the Declaration of Rights – to define marriage as “the union of one man and one woman.” If the constitution were rewritten, this language could be left as is, taken out with no mention of marriage, redefined to allow gay marriage in Michigan or some shade of gray between these options.

Two high profile U.S. Supreme Court cases, national attention and a long controversy about Michigan universities resulted in a ballot proposal in 2006 to prohibit affirmative action in Michigan. The proposal passed, and the constitution was changed to prohibit Michigan universities, schools and government agencies from using race, sex or ethnicity as grounds for discrimination or preferential treatment in admissions or jobs.

Two years later, voters again weighed in on a polarized social issue — this time, human embryonic stem cell research. The proposal passed, amending the constitution “to ensure that Michigan citizens have access to stem cell therapies and cures,” by prohibiting any limitations on stem cell research, as long as the cells are created for fertility treatments and are taken fewer than 14 days after cell division begins.

Although any of these issues could be overturned at a constitutional convention, it is unlikely, Kalt said.

“It would be more like things like structural changes, like maybe how redistricting is done – things that just change how the government works as a general matter, rather than issue-by-issue,” Kalt said. “Basically, to have something get through into the final draft, there has to be a pretty good consensus on it, and there’s not really that.”

Kalt said the ban on the death penalty likely is safe because of its long history in the state. The prohibition on affirmative action was confirmed by U.S. Supreme Court decisions, and little could be done to alter it, he said. Allowing gay marriage is the only social issue that might see a change at a convention, Kalt said.

“There has been movement (for gay marriage in Michigan), but I don’t think that it’s tipped the balance in the other direction (since the 2004 vote),” Kalt said. “The state has gotten more closely divided.”

Although some delegates might support changes in social issues, voters have to approve the final document, and so writing in controversial issues risks the whole project, George said.

“When you have a constitutional convention and you elect delegates, it’s a part-time job for them and they want their work to be approved,” George said. “They don’t want it to be turned down … and they tend to shy away from overly controversial social issues.”

Could it pass?

Most citizens do not seem convinced that a constitutional convention is the best way to solve the state’s woes, according to a recent poll by East Lansing-based Mitchell Research & Communications Inc. About 44 percent of Michigan voters oppose the plan, about 25 percent support it and about 31 percent are still undecided, the poll reports.

The proposal for the convention likely will not pass because there are other ways to change the constitution, Kalt said. It can be amended through a legislative initiative, requiring a two-thirds vote for approval, or through a petition and citizen ballot initiative.

“A lot of people have a lot of things they would like to change about the constitution, but they look at a convention as not the best way to do it,” Kalt said. “It could take three or four years, and they could spend millions and millions of dollars and not come up with anything we want.”

The cost of the convention, including the elections to choose delegates, is unknown, but estimates place it between $15 million and $50 million, likely closer to the top end of this range.

A convention would be a bitter battle among factions, and is not the best option for fixing the state at this time, Meadows said.

“The chances of us getting (issues) changed at this time through a constitutional convention … are not likely,” Meadows said.

“We might engage in months-long battles over things that are actually unrelated to the function of government.”

But in Michigan’s failing condition, a constitutional convention would be less costly than allowing the problems to continue, George said.

“It gives us the chance to hit the reset button for Michigan’s economy,” George said. “We have a government structure that was built in the ‘60s when we were a rich state, and it has too many pieces in it, so it’s a chance to make government more efficient.”

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