State constitutions have played second fiddle since the Civil War. Justice DeWine says that’s bad

In a speech last Tuesday, Ohio Supreme Court Justice Pat DeWine said that since the Civil War, state constitutions “too often” have become “secondary.” 

In the same speech, he highlighted that due-process protections in the Ohio Constitution are different from those in the federal 14th Amendment, which was passed in the wake of the Civil War. That’s when the slaves were freed and the feds said states have to respect guarantees that the government won’t “deprive any person of life, liberty, or property, without due process of law.” 

A DeWine spokesman adamantly denied that the justice was advocating for the Ohio Supreme Court to ignore federal guarantees as it considers cases. Such “nullification,” after all, was the philosophy that led to the Civil War in the first place. 

Rather, the spokesman said, DeWine was merely saying that his colleagues should be aware of differences between the state and federal constitutions as they deliberate, instead of only considering the U.S. Constitution.

He added that Justice DeWine was only speaking generally, and not about any matters that are likely to come before the Ohio Supreme Court.

However, whether the Ohio Constitution’s due-process protections prohibit enforcement of Ohio’s strict new abortion regulations is at the heart of a lawsuit filed in Cincinnati. 

That suit has temporarily stopped enforcement of the new law. But the dispute seems all but certain to be headed to the state Supreme Court, upon which DeWine sits.

And, of course, it’s important context that Senate Bill 23 — the abortion law that is temporarily stopped — was signed by Justice DeWine’s father, Gov. Mike DeWine. 

There seems to be political affinity between the two. Despite criticism, Pat DeWine has refused to recuse himself from a legislative redistricting case involving a commission on which his father sits. And he and his father have supported electoral maps that the Republican-majority Ohio Supreme Court has declared unconstitutional five times.

Historical references

Pat DeWine made his comments in a speech to law students at Ohio Northern University, where his father received his law degree. He prefaced them by voicing a judicial philosophy shared by the majority of the U.S. Supreme Court that on June 24 overturned Roe v. Wade — the 1973 decision that protected a woman’s right to abortion. The philosophy holds that judges’ understanding of the writers’ intentions in the text of laws and constitutions should guide their thinking.

Justice DeWine said that too often, when state supreme court clerks research a case, their first step is to look up earlier court decisions. He said he approaches cases differently.

“If I have something in front of me, what I’m going to do is, I’m going to look at the plain language of that document and try to figure out how it would have been understood by people at the time it was drafted,” he said, explaining that he sometimes goes so far as to look up individual words in 19th century dictionaries to see how they were defined then. 

Such “textualist” thinking has led some judges to discard decades and more of decided law, as the U.S. Supreme Court did when it overturned the 49-year-old Roe decision. 

Then in his speech, DeWine turned to the Civil War and the 14th Amendment. Adopted in 1868, that amendment in recent years has become controversial because the leader of DeWine’s party, former President Donald Trump, has proposed ending its guarantees to birthright citizenship.

When it was written, the 14th Amendment sought to protect former slaves by saying anyone born in the United States is automatically a citizen. When Trump argued to get rid of that right, he claimed he was trying to keep undocumented immigrants from coming here to have children.

In his speech last week, Justice DeWine made statements that could be seen as questioning another part of the 14th Amendment.

“Since the Civil War, too often state constitutions have become secondary,” said DeWine, who is seeking re-election. “A lot of that is the fault of state supreme courts. State supreme courts have often said, ‘Well, we’re just going to interpret our state Constitution exactly like the federal Constitution if there’s a similar provision.’ 

“We’ve done that in Ohio in many cases. And I think it’s been a mistake. Often we’ve interpreted the state Constitution like the federal Constitution even though the state Constitution has very different language.”

Settled law

The due-process language in the state constitution is indeed different from that in its federal counterpart. 

The 14th Amendment protects citizens’ “privileges and immunities,” their “life liberty and property,” and it guarantees each citizen “equal protection of the laws.”

Meanwhile, Article 1 Section 16 of the Ohio Constitution doesn’t seem to go as far. It says “every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law.”

DeWine spokesman Ryan Stubenrauch agreed that the due process rights in the Ohio Constitution are not as extensive as those in the 14th Amendment. But he said DeWine wasn’t arguing that Ohio Supreme Court justices could take a narrower view of due process as they consider cases. 

Stubenrauch noted that judges take an oath to uphold the U.S. Constitution. 

“It’s crystal clear that the federal Constitution has supremacy over any state constitution and you can’t do anything less than the rights that are in the federal Constitution. You can give more rights than are in the federal Constitution,” said Stubenrauch, who is himself a lawyer.

He said that when DeWine was speaking to the law students, he was making a subtler point.

“Functionally, what happened was a lot of states stopped looking at their own constitutions after (the Civil War) and just went with what the federal courts had said,” Stubenrauch said. “A lot of times, that works. But other times, there are state constitutions that go further than the federal Constitution and state supreme courts are doing a disservice by ignoring their own constitutions. That was his point.”

Support from the left

To support his assertion, Stubenrauch referenced a 1977 Harvard Law Review article written by then-U.S. Supreme Court Justice William J. Brennan, a liberal who said the framers believed “in the adaptability of (the Constitution’s) great principles to cope with the problems of a developing America…”

In seeming accord with DeWine’s spokesman, Brennan wrote, The “point I want to stress here is that state courts cannot rest when they have afforded their citizens the full protections of the federal Constitution. State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Court’s interpretation of federal law.”

Brennan went on to list instances in which state supreme courts said their constitutions gave citizens greater access to the courts, greater protections from being unfairly branded as criminals by the police, and greater warnings about voluntary searches and seizures.

Criticizing his colleagues on the high court, Brennan also wrote this: “Under the equal protection clause, for example, the Court has found permissible laws that accord lesser protection to over half of the members of our society due to their susceptibility to the medical condition of pregnancy…”

As examples in which the Ohio Constitution goes further than its federal counterpart, Stubenrauch cited personal gun rights, trial by jury in civil cases, and protections against certain government takings of private property.

But there’s a big difference between the examples cited by Brennan and Steubenrauch and that cited by DeWine at Northern University. DeWine was using an example — due process — in which state protections are weaker than in the federal Constitution. And he used that example to criticize state supreme courts for deferring too much to the federal pact.

Pressed on that, Stubenrauch said, “This was an academic discussion.”

Real life

So if Justice DeWine was actually arguing for greater protections under the Ohio Constitution, what was he getting at? Was he hinting that he would use due-process protections in the state Constitution to extend individual rights to unborn fetuses? 

The idea might not be far-fetched. SB 23, the law restricting abortions signed by his father, refers to a fetus as an “unborn human individual” 22 times.

Stubenrauch, Justice DeWine’s spokesman, declined comment on that, saying justices can’t speculate on matters likely to come before them.

A case that’s highly likely to come before the court argues that due process under the Ohio Constitution protects women from some of the provisions in SB 23 — even after the U.S. Supreme Court said Roe v Wade was wrongly decided and that abortion was a matter for the states.

The law prohibits the vast majority of abortions after about six weeks of pregnancy, which is before many girls and women know they’re pregnant.

In Preterm-Cleveland v (Ohio Attorney General Dave) Yost, the plaintiffs argue that under SB 23 many women are losing due process rights. They include a 25-year-old cancer victim who couldn’t get chemotherapy because she was pregnant, women with ectopic pregnancies who were turned away from hospitals, and a teenager who was placed on suicide watch after being denied an abortion, the suit said.

In arguing for protection from SB 23 under the Ohio Constitution, the plaintiffs make a similar argument to those made by Justice Brennan and Justice DeWine’s spokesman.

“… in 1993 Ohio’s Tenth District Court of Appeals expressly recognized in the abortion context that ‘the Ohio Constitution confers greater rights than are conferred by the United States Constitution,'” it says.

Hamilton County Common Pleas Judge Christian A. Jenkins last Wednesday stayed enforcement of SB 23 for 14 days while the Preterm-Cleveland suit is heard.

In the likely event that the case goes before the Ohio Supreme Court, we might learn more about what Justice DeWine meant last week when he said that when it comes to due process, many state supreme courts have lost their way since the Civil War.

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