A Michigan group wants to “use an eraser” on the state’s constitution to wipe out clauses invalidated by federal laws and court decisions. So how unusual is that?
It turns out that Michigan isn’t alone in its delay in amending its state laws to reflect national changes, including new and old Supreme Court decisions and even federal constitutional amendments.
For example, 47 states still have laws on their books that ban burning the American flag. However, the Supreme Court upheld flag burning as protected free speech under the First Amendment in two cases in 1989 and 1990. But Michigan’s state law reads that, “Any person who shall publicly mutilate, deface, defile, defy, trample upon or by word or act cast contempt upon any such flag, standard, color, ensign, coat-of-arms or shield, is guilty of a misdemeanor.”
The Citizens Research Council of Michigan wants a few statutes “cleaned up” along these lines, even though we didn’t see the flag-burning law among the group’s list. However, there were definitely three laws targeted by the group that could conflict with the U.S. Constitution’s Supremacy Clause.
Article VI clearly says that “this Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”
Among the laws still on Michigan’s books are bans against same-sex marriage (which conflict with the Court’s recent Obergefell decision); a requirement that voters must be at least 21 years of age (in conflict with the 26th Amendment); and a term-limits clause for U.S. House members (which conflicts with a 1995 Supreme Court decision).
To clean up the Michigan Constitution, the state’s lawmakers and voters would need to agree and then act, which may not be a priority for them in the near future. “It makes the Michigan Constitution somewhat sloppy,” Western Michigan University Cooley Law School Devin Schindler told the Associated Press. “But legally, none of these provisions have any effect anyway. It’s difficult for me to get excited about rewriting the constitution solely for the sake of appearances.”
And there can be problems untangling outdated laws from convoluted state constitutions, with Alabama as a text-book example.
The state reportedly has the world’s wordiest constitution, with more than 800 amendments. Those amendments include provisions that mandate segregated schools and the poll tax. Back in 2012, Alabama voters defeated measures to strike those provisions from the state constitution, with support from some black leaders. There were fears that striking out the clauses would result in substitute language that would restrict public education access.
Another area where state constitutions can conflict with federal guidance is the requirement of a religious test for candidates for public office. Eight states still require a form of such testing, such as the acknowledgment of a Supreme Being, before running for office. The Supreme Court’s 1961 decision in Torcaso v. Watkins struck down a Maryland requirement that a person profess a belief in God in order to get a public job.
“Neither a state nor the Federal Government... can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person... to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs,” said Justice Hugo Black.
Today, Maryland still has the religious test provision in its constitution as Article 37.
To be sure, how states deal with deleting same-sex marriage bans enshrined in their constitutions will get attention after the Obergefell decision made same-sex marriage a national right in June. In May 2012, 30 states had such bans on the books before a series of court decisions eventually led to the June 2015 Obergefell decision.
