Constitution of Ohio

The Constitution of Ohio is the founding instrument of the Commonwealth of Ohio, adopted by a convention at Chillicothe on 29 November 1803 and in force from 1 March 1804. It has been amended one hundred and seventy-four times and has never been replaced, which makes it the oldest polity constitution in the Realm’s interior and the second oldest anywhere in the Realm after the Constitution of Massachusetts Bay.

It is the first constitution the Realm wrote for a polity erected wholly out of territory. Every earlier instrument adapted a colonial charter and therefore inherited its shape; Ohio’s convention had a Charter of Union, a body of English constitutional practice, a great deal of argument and nothing else, and had to decide from first principles what a polity of the interior should look like. What it produced became the template for the interior polities admitted after it, and three of its decisions have governed the Commonwealth ever since.

It made the executive answerable to the legislature, which was not the obvious answer in 1803 and was argued for a fortnight. It guaranteed chartered cities the government of their own municipal concerns, at the insistence of a Cincinnati delegation that did not intend to be ruled from a capital which did not yet exist. And its bill of rights forbade any legal disability imposed on account of colour, in a clause carried by four votes, which is the reason Ohio never enacted the Black Laws that most free polities of the period enacted, and which was then construed for a century to forbid legal disability and nothing whatever else.

Status

The requirement

Ohio’s constitution predates the Polity Instruments Act 1889, which requires every polity of the Union to hold a single written instrument of government, by eighty-six years. The Commonwealth deposited under the Act in 1891, in the ordinary way and without difficulty, the instrument of 1803 satisfying every requirement of section 2 without amendment. Ohio is one of the few polities for which the Act of 1889 caused no work at all, and the Commonwealth has occasionally been tempted to boast about this.

The constitution is subordinate to the Charter of Union and to the law of the Realm, and since 1962 to the American Rights Act as extended, which binds every public authority in Ohio and overrides any provision of the constitution inconsistent with it. No provision has been held inconsistent, chiefly because the Commonwealth amended the four that would have been in the two years after the Extension Act rather than wait to be told.

Citation

The constitution is cited by Article and section, so that Article VII, section 3 is an ordinary phrase in an Ohio courtroom. The Articles are numbered in Roman and the sections in Arabic, an arrangement of 1803 that the Commonwealth has never seen a reason to modernise. Sections are numbered within each Article rather than continuously, which the drafters of 1803 chose and which the Realm’s other constitutions mostly avoided, and which is the source of a certain amount of misfiled litigation.

Two provisions are known by number alone. The eleventh section means Article II, section 11, the colour clause, and needs no further identification anywhere in Ohio. The home rule article means Article VII, and is almost never cited by its number at all.

History

The convention at Chillicothe, 1803

Thirty-five delegates met at Chillicothe on 1 November 1803 and finished on the twenty-ninth, which is four weeks for a constitution and was regarded even at the time as fast. They were farmers, lawyers, surveyors, two clergymen, a printer and a tavern-keeper, and about a third of them had been born in the Realm’s older polities and moved west within the previous fifteen years.

The convention had two working assumptions and one absence. It assumed that Ohio would be admitted whatever it wrote, the ministry having settled that question already. It assumed that whatever it wrote would be difficult to change, which turned out to be spectacularly wrong. And it had no colonial charter to argue from, which is the fact that distinguishes Chillicothe from every constitutional convention the Realm had held before it.

The delegates were conscious of this and said so. The convention’s journal records a Cincinnati delegate observing in the first week that the older polities were arguing about what their charters meant while Ohio was arguing about what was right, and that Ohio had the harder task and the better one.

The fortnight’s argument: responsible government

The convention’s longest debate was whether the Commonwealth’s executive should be answerable to the legislature or elected separately by the people.

The case for separate election was that it was familiar, that a directly elected chief magistrate would be a counterweight to a legislature the delegates did not entirely trust, and that several of the older polities were moving that way. The case for responsible government was that it was the practice of the Realm at Westminster, that a separately elected executive and a legislature at odds had no way of resolving the deadlock except by waiting, and that a frontier polity could not afford four years of a government that could not govern.

The convention chose responsible government on 14 November by a majority of nine, and the choice determined the shape of every interior polity admitted afterwards. Ohio’s ministry holds office on the confidence of the lower house, resigns or seeks a dissolution when it loses that confidence, and has done so without interruption since 1804. The Commonwealth has had eleven ministries defeated on confidence and has never had a deadlock of the kind the delegates feared.

The Register notes that the delegates’ stated reason was practical rather than principled and that they were arguing from Westminster rather than from theory. The Constitution of the March of Arizona, written eighty-one years later, reached the same result by a wholly different route and with a great deal more argument about it.

The eleventh section

The convention took slavery as settled. The Charter settlement and the terms on which the interior was organised had already excluded it, no delegate proposed otherwise, and the prohibition went into the draft in an afternoon.

What the convention argued about was free Black people, and it argued about them for three days. The older free polities were then in the course of enacting, or about to enact, the body of law the period called Black Laws: bonds required for residence, registration of certificates of freedom, exclusion from the courts as witnesses against white parties, exclusion from the militia and from the schools. Several delegates wished Ohio to reserve the power to do the same, and their argument was the ordinary one of the period, that a free polity on the boundary of a slave polity would be overwhelmed unless it could regulate who settled in it.

The clause that became the eleventh section was moved by Ephraim Cutler, a delegate from Washington county on the river, and was carried on 21 November by four votes. It is short.

The section has never been amended. What has changed a great deal is what it was held to mean, and that is treated below.

Home rule as Cincinnati’s price

Cincinnati sent five delegates and they came with an instruction. The town was then the largest settlement in Ohio, was on the river, was oriented commercially to the south and west, and had no confidence whatever that a legislature meeting at Chillicothe or wherever the seat of government eventually settled would govern it sensibly.

Their price for the constitution was a guarantee that a chartered town would keep its charter and govern its own municipal concerns. It went in as Article VII and it was, in 1803, a modest thing: two sections, protecting existing charters and providing that the Legislature might not repeal or alter a charter except on the application of the corporation itself.

It was read narrowly for a century. Nineteenth-century Ohio courts treated Article VII as protecting the existence of a corporation and not its powers, and the Legislature legislated freely for municipalities throughout the period on the footing that a city’s authority was whatever statute gave it.

The article the Commonwealth now lives under was made in 1912, and is described below. What matters here is that the modern home rule guarantee grew out of a clause Cincinnati extracted in 1803 for a completely different purpose, and that Ohio’s cities are as unlike one another as they are because of a bargain struck in a month by five men from a river town of a thousand people.

The nineteenth century

The constitution was amended forty-one times before 1900, and the amendments of the period fall into three groups.

The first extended the franchise, in stages, from the freehold qualification of 1803 to universal manhood suffrage by 1851 and to women in 1919. The second dealt with debt: the canal borrowing of the 1820s and 1830s twice brought the Commonwealth close to default, and the debt limitation of Article X, which is severe and which has been worked around by every ministry since, is the direct result.

The third rebuilt the judiciary. The constitution of 1803 had provided for judges appointed by the Legislature for seven-year terms, an arrangement that produced a bench of unemployed politicians, and the amendments of 1851 made the judiciary elective, which Ohio has been arguing about ever since without changing it back.

The convention of 1912

A convention sat at Columbus from January to June 1912, the only one the Commonwealth has held since Chillicothe, and it is the most consequential event in the constitution’s history after its adoption. It proposed forty-two amendments, of which thirty-three were ratified in September of that year, and it is remembered for two decisions that pull in opposite directions.

It expanded home rule. Article VII was rewritten from two sections into nine, and the new article gave chartered municipalities the authority to adopt any form of government they chose, to exercise all powers of local self-government, and to provide their own utilities and services, subject only to general laws. It is the most generous municipal guarantee in the Realm and it was written by delegates who had watched the Cincinnati machine and concluded, correctly, that the remedy for a badly governed city is a city that can remake its own government.

It declined the citizens’ initiative. The proposal was before the convention from the first week, was reported out of committee favourably, and was defeated on the floor by fifty-one votes to thirty-eight. The stated ground was that a Commonwealth with strong home rule already gave its people a direct instrument at the level where most of their government happened. The delegates’ correspondence, which the Ohio Historical Society published in 1961, shows the operative ground to have been different: Cincinnati and Cleveland each feared the other’s capacity to organise a statewide petition, and the delegations of both voted against a proposal that most of their members privately favoured.

The two decisions together are the constitution’s central irony. The convention gave the cities the strongest municipal authority in the Realm and withheld from them the one instrument by which they might have defended it, and the consequence a century later is a home rule article being emptied by ordinary legislation with no way for the cities to appeal over the Legislature’s head.

Amendment as a habit

Ohio amends. The constitution has been altered one hundred and seventy-four times, which is more often than any other polity instrument in the Realm except the March Charter, and the reason is Article XI, which is easy.

An amendment may be proposed by three-fifths of both chambers of the Legislature and must then be ratified by the electors at the next general election by a simple majority. There is no second passage, no intervening election, no supermajority of electors and no subject that cannot be amended. The Senate’s absolute veto on proposals is the only real check, and it is a check on the Legislature rather than on the process.

The consequence is a constitution that has become long, uneven and heavily statutory in character. Article X on finance now runs to twenty-two sections, most of them exceptions to the debt limitation of 1851 granted one at a time for particular purposes, and reads like a schedule to a finance act. Ohio lawyers regard this as untidy and Ohio politicians regard it as convenient, and no serious proposal for consolidation has been made since 1912.

The text

The text below is the constitution as it now stands, after one hundred and seventy-four amendments. Where the wording of 1803 differed, the original is given in the commentary. Article X on finance is summarised rather than reproduced, its twenty-two sections consisting almost entirely of particular exceptions to a general rule and being of no interest outside the Commonwealth’s treasury.

Article I: The Commonwealth

Section 3 is the residue of the quarrel that moved the government three times in fifteen years. It was added in 1804, after the second move, and its practical effect was to make a fourth move impossible without a degree of deliberation nobody was willing to undertake. Columbus was chosen in 1812 under it, and the section has not been invoked since.

The phrase in the manner this Constitution provides and in no other at the end of section 2 is the textual basis for the settled Ohio doctrine that there is no route to constitutional change outside Article XI. It is the provision the Supreme Court of Ohio relied on in 1913 to hold that the initiative the convention had declined could not be introduced by statute, and it is why the refusal of 1912 has held for more than a century.

Article II: The Bill of Rights

Section 10 is worth pausing on. Ohio’s constitution admits no suspension of habeas corpus at all, which is stronger than the Realm’s own position and stronger than most polity instruments. It has never been tested, because the power to suspend belongs to Parliament rather than to a polity and Parliament has never exercised it, the Commons having declined to pass the statute during the rebellion. The section is therefore a prohibition on an act the Commonwealth could not have performed anyway, which is the ordinary condition of a good deal of constitutional law.

Sections 12 to 18, added between 1851 and 1974, cover bail, excessive fines, imprisonment for debt, the militia, the quartering of troops, redress in the courts and the rights of the accused, and are unremarkable.

Article III: The Governor

Section 4 is the reserve power, and it is written down, which distinguishes Ohio from the polities that leave it to convention. The three exceptions are exhaustive. An Ohio Governor may choose a Premier when the House has not, may refuse a dissolution, and may dismiss a ministry that has lost confidence and will neither go nor face the electors, and may do nothing else on his or her own authority whatever.

None of the three has ever been used. No Governor of Ohio has refused assent, dismissed a ministry, declined a dissolution or made a public statement on a contested question in two hundred and twenty-four years, and the Commonwealth regards this as the office performed correctly rather than as an office that does not exist. The contrast with Arkansas, where a Governor refused to sign in 1957 and precipitated a constitutional crisis inside a civil rights crisis, is the standard comparison in the Realm’s constitutional teaching, and Ohio is the negative case.

Section 5 was added in 1919 and codified what had been practice since 1804.

Article IV: The Premier and the Ministry

Section 5 is the provision Ohio is quietly proud of. It was added in 1912, against the boards and commissions which the reform movement of the period was busily creating everywhere else in the Realm, and it means that Ohio has no independent agency answerable to nobody. Every board, every commission and every authority of the Commonwealth answers through a minister to the House, however it is appointed and however long its members’ terms.

The Commonwealth’s political scientists regard this as the best clause in the constitution and the reason Ohio has been spared the accountability problems that afflict polities with large independent-agency structures. Its practical cost is that Ohio ministers spend a great deal of time answering for bodies they cannot direct.

Article V: The Legislature

Section 4 makes the Senate a chamber of delay on supply and a chamber of equal power on everything else, and section 5 gives it an absolute veto on constitutional amendment. That combination is unusual. Ohio’s Senate cannot stop a budget and can stop a constitutional change, which is the reverse of the arrangement in most of the Realm, and it was deliberate: the convention of 1912 concluded that a chamber able to block supply could paralyse a government, and that a constitution amendable one hundred and seventy-four times needed at least one place where an amendment could die.

The Senate has used the veto forty-six times, most often on amendments enlarging the Commonwealth’s borrowing.

Article VI: The Judiciary

The judiciary is elected, which the amendments of 1851 introduced and which no subsequent amendment has undone. Candidates are nominated in party primaries and appear on a ballot that does not print party labels, an arrangement adopted in 1911 and satisfying nobody: it does not remove party from judicial selection and it does remove the voter’s ability to see it. Reform has been proposed in every generation and has been defeated every time, most recently in 2018, because the electors decline to give up a vote they have held since 1851.

Section 4’s third route to removal, judgment of the Supreme Court on a complaint of misconduct, was added in 1968 and has been used nine times.

Article VII: Municipal corporations

This is the most consequential Article in the constitution and the most litigated, and the whole of Ohio’s modern constitutional argument runs through the eight words in section 1: as are not in conflict with general laws.

Section 4 is the annexation bar. It is the reason Ohio’s cities could not grow into their suburbs after 1950, the reason Cleveland’s tax base left its boundary and did not come back, and the reason Columbus, which secured consent by declining to supply water to suburbs that would not agree to be annexed, is now the largest city in the Commonwealth. The section was written to protect small municipalities from being swallowed by large ones, and its principal effect across seventy years has been to hollow out the large ones.

Article VIII: Counties and townships

Section 1 fixed the number of counties at eighty-eight in 1888 and made altering it practically impossible, requiring two sessions, an intervening election and the consent of the electors of every county affected. No county boundary in Ohio has changed since.

The contrast between section 3 and Article VII is the whole architecture of Ohio local government in two lines. A municipality’s powers are constitutional and cannot be withdrawn; a county’s powers are statutory and can be withdrawn at will. The counties are therefore creatures of the Legislature and the cities are not, which is why the Commonwealth’s real local authority sits in the chartered cities and the townships, and why eighty-eight county establishments persist that the Commonwealth’s own auditors have called indefensible in every decade since 1960.

Article IX: Education

Two sentences, one of them a piety of 1803 and the other a duty of 1851, and between them the longest-running constitutional failure in the Commonwealth’s history. Section 2’s words thorough and efficient are the basis of the school funding litigation described below, in which the Supreme Court of Ohio held the Commonwealth’s arrangements unconstitutional four times across a decade and obtained nothing.

Article X: Finance

Article X is not reproduced. It consists of twenty-two sections, of which section 1 imposes the debt limitation of 1851 and sections 2 to 22 are exceptions to it, granted one at a time by amendment for particular purposes between 1912 and 2019: highways, veterans’ compensation, public works, coal research, conservation, school construction, and infrastructure of eight separate descriptions.

The Article is the clearest evidence of the constitution’s central habit. Ohio wrote a severe general rule about borrowing in 1851, discovered that it could not live within it, and rather than amend the rule has amended around it one hundred and fifty times in fragments. The Article now runs to nine thousand words and is longer than the rest of the constitution combined.

Article XI: Amendment

Section 3 was the convention of 1912’s answer to the initiative it had just declined, and it is the reason the refusal has held. It closes the constitution to any route of change except the two the Article names, and the Supreme Court of Ohio applied it in 1913 to strike down a statute purporting to establish a petition procedure, holding that the Legislature could not confer upon the people a power the constitution had withheld from them.

The judgment is short, is regarded in Ohio as plainly correct, and is regarded outside Ohio as one of the odder pieces of reasoning in the Realm’s constitutional law, since the power in question would have been exercised by the electors who had ratified the constitution in the first place.

The eleventh section in practice

The eleventh section is the constitution’s best clause and the Commonwealth’s most uncomfortable subject, and both for the same reason.

What it did

Ohio never enacted Black Laws. The bonds for residence, the certificates of freedom, the exclusion from testimony against white parties, the exclusion from the common schools and from the militia: these were enacted in most free polities of the period, several of them neighbouring, and Ohio could not enact them because the eleventh section forbade every one of the things on its list by name.

The list is the section’s strength. Cutler and the drafters did not write a general principle of equality, which the courts of the period would have construed into nothing; they wrote an enumeration of the specific disabilities that were then being enacted elsewhere, and the enumeration held. Attempts were made. A residence bond bill was introduced in the Legislature in 1807 and again in 1829, and both were withdrawn on the Attorney General’s advice that they were void under section 11. The witness disqualification was enacted in 1831 in a form its drafters believed avoided the section, and was struck down in 1834 in the first case in which the section was tested.

The section’s effect on Ohio’s role before 1861 was substantial and is not hypothetical. A free Black population that could hold property, sue, testify and send its children to the common schools was in a materially different position from its equivalent across the river or in several polities to the east, and Ohio’s free Black communities were correspondingly larger, more propertied and better organised. Oberlin’s was the most effective organised resistance to fugitive-slave enforcement anywhere in the Realm, and its members’ ability to act as they did rested in part on a legal standing that section 11 secured.

What it did not do

The section forbids disability imposed by law, and the Ohio courts have construed those four words with complete consistency and considerable narrowness for two hundred years.

It does not reach a private covenant. It does not reach a lender’s practice, an employer’s practice, an insurer’s rating, a landlord’s refusal or a real estate agent’s steering. It does not reach a school board’s drawing of attendance boundaries, provided the boundaries are drawn on residence and the residence pattern is produced by private conduct. It did not reach the restrictive covenants that were written into the deeds of the Commonwealth’s new suburbs from the 1910s onwards, or the lending maps that followed them, or the practice by which Ohio’s cities became as thoroughly segregated as any in the Realm without a single line of Ohio law requiring it.

The federal American Rights Act could not reach it either, because as enacted in 1866 it bound federal authority alone and did not touch a polity, a municipality or a private party, and did not do so for ninety-six years. What the Extension Act of 1962 changed, it changed everywhere at once and not because of anything Ohio did.

The Commonwealth is therefore the Realm’s cleanest demonstration of a proposition its own historians now state plainly: a constitutional guarantee against legal disability and a comprehensively segregated society are entirely compatible. Ohio had the best such clause in the interior from 1803 and was, by 1960, among the most segregated polities in the Realm by every measure of housing, schooling and employment that anyone has since applied to it.

The modern construction

Since 1962 the section has been largely redundant, the Rights Act as extended reaching everything section 11 reaches and a great deal more. It is still pleaded, generally alongside the federal provision and generally for the sake of completeness, and the Supreme Court of Ohio has not decided a case on it alone since 1971.

The Commonwealth has twice considered amending it to reach private conduct, in 1965 and in 1991, and has not done so on both occasions for the same reason: the federal Act already does, and amending Ohio’s constitution to duplicate a federal duty would achieve nothing except to make the Commonwealth look as though it were claiming credit.

Home rule in practice

The doctrine

Article VII, section 1 gives municipalities all powers of local self-government and such police, sanitary and similar regulations as are not in conflict with general laws. Everything turns on the relationship between those two limbs, and the courts have been unable to settle it for a century.

The doctrine as it stands distinguishes an exercise of local self-government, which the Legislature cannot touch, from an exercise of the police power, which a general law may preempt. The distinction is not workable. Almost every municipal ordinance of any consequence is both: a minimum wage is a regulation of local commerce and a regulation of contract, a tenancy ordinance is a matter of local housing and a matter of property law, a firearms ordinance is local policing and a matter of general criminal law. The Supreme Court of Ohio has decided several hundred cases on which side of the line a given ordinance falls, and the decisions cannot be reconciled.

The preemption era

Since the early 1990s the Legislature has preempted municipal ordinances steadily and successfully, by general law, on the minimum wage, on residential tenancy, on firearms, on municipal broadband, on plastics, on short-term letting, on local income taxation, on employment screening and on tobacco.

Each statute is separately defensible. The cumulative effect is that the most distinctive provision of Ohio’s constitution has been very largely emptied without being amended, and the cities have no remedy. They litigate and mostly lose, the Court having narrowed the local self-government limb consistently since 1994. They cannot amend the constitution, needing three-fifths of a Legislature whose majority is drawn from counties and suburbs. And they cannot go to the electors, because the convention of 1912 declined the initiative.

This is the constitution’s central modern failure and it is a structural one. The instrument gave the cities a guarantee and, in the same convention, withheld the instrument by which a guarantee is defended when a legislature declines to honour it.

Education in practice

Article IX, section 2 requires a thorough and efficient system of common schools throughout the Commonwealth. Ohio funds its schools principally from local property taxation, so that the resources available to a district vary with the taxable wealth within its boundary, and the boundaries are the municipal and township boundaries that Article VII, section 4 makes it impossible to change.

The school funding litigation began in 1991 and reached the Supreme Court of Ohio in 1997, which held the system unconstitutional: a funding arrangement whose output varies with district wealth cannot produce a system that is thorough and efficient throughout the Commonwealth, and the word throughout is not decorative. The Court retained jurisdiction and directed the Legislature to remedy the defect.

It held the successor arrangements unconstitutional again in 2000, in 2001 and in 2002. The Legislature responded each time with partial measures that raised the floor without touching the mechanism. In 2003 the Court released jurisdiction without the defect having been cured, and there the matter has rested for twenty-five years.

The case is taught throughout the Realm as the standard example of a court that was entirely right and entirely unable to do anything about it, and the Ohio courts’ own explanation is the honest one: the Supreme Court of Ohio has no contempt practice adequate to a defendant that is a legislature. It can declare the law. It cannot appropriate money, and it cannot imprison a chamber.

The refusal of the initiative

Ohio is the only large polity of the Realm’s interior without a citizens’ initiative, and the refusal is a deliberate constitutional choice rather than an omission.

What was proposed in 1912

The proposal before the convention was for a constitutional and statutory initiative on the pattern then being adopted across the west of the Realm: a petition of ten per cent of the electors to place a measure on the ballot, a simple majority to carry it, and no legislative power to repeal a measure so carried within six years. It was reported out of committee favourably and was expected to pass.

It was defeated fifty-one to thirty-eight on 3 May 1912. The convention then adopted section 3 of Article XI, closing the constitution against any route of amendment except the two it names, which made the refusal permanent.

Why

The stated reason was coherent and was published in the convention’s report: a Commonwealth whose municipalities hold all powers of local self-government has already given its people a direct instrument at the level where most government touches them, and a statewide initiative in a polity with no dominant city would principally serve whichever city could organise a petition fastest.

The operative reason was the second half of that sentence taken seriously. The Ohio Historical Society published the delegates’ correspondence in 1961, and it shows the Cincinnati and Cleveland delegations each concluding, independently and for identical reasons, that a statewide petition process would be captured by the other. Cleveland’s members believed Cincinnati’s machine could deliver signatures at will; Cincinnati’s members, whose machine was at that moment collapsing, believed Cleveland’s newspapers and unions could do the same. Both delegations voted against a measure that a majority of their own members privately favoured, and between them they supplied thirty-one of the fifty-one votes against.

The refusal is therefore the clearest single consequence of the fact that Ohio has no centre. A polity with a dominant city would have adopted the initiative, because the dominant city would have expected to control it. Ohio’s cities were of comparable weight, each feared the others, and the Commonwealth got nothing.

What it has cost

The immediate cost was nothing, since the Legislature of the period was reasonably responsive and home rule was newly generous. The cost arrived eighty years later, when the Legislature began preempting municipal ordinances and the cities discovered that a constitutional guarantee is worth what the body construing it says it is worth, and that they had no way of going over that body’s head.

The comparison the Realm draws is with Missouri, whose initiative is the pride of that polity and produces a continuous constitutional fight, the Assembly repealing what the electorate enacts because an initiative statute is an ordinary statute. Missouri’s people can compel a vote and cannot make it stick. Ohio’s people cannot compel a vote at all. Neither Commonwealth regards the other’s arrangement as an improvement on its own, and the Realm’s constitutional writers use the pair as the standard illustration that direct democracy is not one thing.

Responsible government in practice

The convention’s choice of 14 November 1803 has worked, in the narrow sense that Ohio has never had an executive-legislative deadlock and has never had a government unable to govern.

Eleven Ohio ministries have been defeated on confidence since 1804. Nine resigned; two advised a dissolution and one of those was returned. There has been no occasion on which a Premier defeated on confidence has attempted to remain, which is why the Governor’s power under Article III, section 4 to dismiss such a ministry has never been used.

The system’s characteristic difficulty in Ohio is not deadlock but coalition. A House of ninety-nine elected from single-member districts across five metropolitan regions, a farm belt and an Appalachian remnant produces majorities that are assembled rather than won, and Ohio ministries are habitually built on agreements between wings of a party as much as between parties. The Commonwealth has had four minority ministries since 1970, all of which survived on supply agreements with the third party of the day, and the average life of an Ohio ministry is a little under three years, which is short by the Realm’s standards.

The present ministry is Dale Ackerman’s, Conservative and Crown Union, formed in 2025 on the county seats and the outer suburbs.

The Governor in practice

Article III, section 4 is the most carefully drafted provision in the constitution and the least used.

It was written in its present form in 1962, in the general revision that followed the Extension Act, and it was written by people who had watched what happened in Arkansas five years earlier. The Ohio drafting committee’s report says so explicitly: it observes that a Crown representative’s reserve authority is safest when it is enumerated, that a Governor who knows the precise extent of the authority is unlikely to exceed it and unlikely to be pressed to, and that the Commonwealth would rather have a short list than a convention.

The Register’s judgment is that Ohio’s arrangement has not been tested and that Arkansas’s was. An enumerated reserve power that has never been exercised is not evidence that enumeration works; it is evidence that Ohio has not had the sort of crisis that produces exercise. The reason it has not is at least partly the same reason as everything else in this article: a Commonwealth whose cities can act on their own authority when the ministry will not has fewer occasions on which a deadlock must be resolved at the top.

The office is otherwise entirely ceremonial and is meant to be. Ohio’s Governors open sessions, give assent, receive the Premier weekly, and represent the Crown at floods and funerals, and the Commonwealth could not generally name the incumbent. Marian Ruhl, a former president of a Commonwealth university, has held the office since 2024.

The revision of 1962

The American Rights (Extension) Act 1962 removed the words of limitation from the federal Act’s definition of public authority and brought every public body in the Realm within it. Most polities waited to discover what that meant for them. Ohio did not.

The Legislature appointed a revision committee in the autumn of 1962, before any litigation had been brought against the Commonwealth under the extended Act, and instructed it to identify every provision of the constitution that a court might hold inconsistent with the federal duties and to propose amendments. The committee reported in fourteen months, found four such provisions, and proposed amendments to all four. The Legislature carried them and the electors ratified them in November 1964.

The four were an exclusion of certain classes of person from jury service; a residence requirement for relief that had operated to exclude recent arrivals from the south; a provision permitting separate arrangements in the common schools where a board found them expedient, which had lain unused since 1888 and which nobody had thought to repeal; and the constitution’s own procedure for the removal of judges, which offered fewer protections than the federal Act now required.

The committee’s report is the most candid document the Commonwealth has produced about itself. It states that the school provision had survived because repealing it would have required somebody to explain why it was there, that the relief requirement had been enacted in 1937 with a purpose its drafters did not write down and everybody understood, and that the Commonwealth had been able to maintain the eleventh section and these four provisions simultaneously for as long as it did because nobody had been in a position to make it choose.

The revision also produced Article III, section 4, the enumerated reserve power, which was not required by the federal Act and was added because the committee was already open. Its report cites the Arkansas schools crisis of 1957 by name and reasons that a Crown representative’s authority is safest when its extent is known in advance to the holder, to the ministry and to the public. Ohio is the only polity of the Realm to have enumerated the reserve power in this form, and three others have since copied it.

Ohio’s willingness to revise itself in 1962 rather than be revised is generally cited in the Commonwealth as evidence of its constitutional seriousness. The revision committee’s own report is less flattering, and observes in its concluding paragraph that a polity which required a federal statute to notice four provisions of its own constitution has not much to congratulate itself on.

Comparison

The Realm’s polity constitutions fall into three groups and Ohio is the founder of the third.

The charter constitutions are the oldest: Massachusetts Bay governs under a royal charter of 1691 that describes a government it no longer has, reconciled to reality by two and a half centuries of construction and convention. Rhode Island’s instrument, deposited in 1908, enumerates its towns and declines to say what their prerogatives are.

The negotiated constitutions are the instruments of polities that joined by treaty or were created by bargain: Louisiane, and the March Charter of 1884, sealed between the Crown, the settlers and the Indigenous nations, which is a treaty in constitutional form and reads like one.

The designed constitutions begin at Chillicothe. Ohio’s convention had nothing to adapt and no counterparty to bargain with, and it produced a document that is a deliberate answer to a set of questions rather than a record of an inheritance or a settlement. Indiana, Illinois, Missouri and the polities admitted after them all worked from it, and the interior’s characteristic constitutional features, responsible government from the outset, an enumerated reserve power, an elected judiciary and an easy amendment procedure, are all Ohio’s.

The contrast with the March Charter is the instructive one. Both instruments are long, both are heavily amended, and both are the constitution of a polity with real internal divisions. But Arizona writes everything down, amends constantly and argues about the text; Ohio amends constantly and argues about what the text was for, because its central provisions are short and its central disputes are about construction rather than about wording. The eleventh section is eleven lines and has generated two centuries of argument about four words. Article VII, section 1 is one sentence and has generated several hundred irreconcilable decisions about eight.

Assessment

The Constitution of Ohio is a good instrument that has been defeated twice by its own architecture.

Its virtues are real and were unusual for 1803. It chose responsible government when the choice was open and got it right, and every interior polity followed. It enumerated the Crown representative’s reserve power instead of leaving it to convention. It required every organ of the Commonwealth to answer through a minister, which spared Ohio the unaccountable-agency problem entirely. And in the eleventh section it prevented, by four votes, a body of law that did serious harm in polities that were in every other respect its equals.

Its failures are structural and both follow from the same convention. In 1912 Ohio gave its cities the strongest municipal guarantee in the Realm and, in the same six months, closed off the only instrument by which a guarantee is defended against a legislature that declines to honour it. The cities have been losing the resulting argument for thirty years and have no forum left in which to win it. And in Article IX the Commonwealth wrote a duty its courts could declare and could not enforce, so that the school funding of eleven million people has been unconstitutional on the Commonwealth’s own highest authority since 1997 and has not changed.

What Ohio demonstrates, more clearly than any other instrument in the Realm, is that a constitutional right is worth the remedy attached to it and nothing more. The eleventh section forbade what it named and permitted everything else. Article VII guaranteed local self-government and provided no way to defend the guarantee. Article IX required thorough and efficient schools and gave the Court no means of obtaining them. In each case the Commonwealth wrote the right and did not write the remedy, and in each case the right has been worth exactly as much as the remedy that was missing.

Chronology

Trivia

See also

• Commonwealth of Ohio, the polity this instrument governs
• Polity Instruments Act 1889, which requires every polity to hold a constitution
• Constitution of Massachusetts Bay, the charter constitution and the Realm’s oldest
• Constitution of the March of Arizona, the negotiated constitution and the deliberate contrast
• Constitution of Louisiane
• American Rights Act, which bound federal authority alone until 1962 and then reached everything the eleventh section did not
• State of Missouri, whose initiative is the counterpart Ohio declined
• State of Arkansas, whose crisis of 1957 caused Ohio to enumerate its Governor’s reserve power