A Statistical Approach to Ohio’s Constitutional History...And a Calculation of Its Future

Ohio began its statehood with a constitution of slightly more than 6,000 words. Today, its constitution is almost 54,000 words, more than 9,000 of which are in sections that are collecting dust”, and is growing at an exponential rate. If Ohio stays true to its current course, by 2050 it will have a constitution around 71,500 words long.

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About the Author

Robert Hern is an attorney in Cincinnati. He is a 2011 graduate of the Cleveland-Marshall College of Law.


Introduction

In 1802, Ohio began with a constitution that contained just over 6,000 words, and in its nearly five decades of existence, was never amended. In 1851, Ohio adopted its second constitution, which was 50 percent longer than its predecessor at more than 9,000 words. Ohioans touted that this constitution was “of reasonable length, full and plain in its provisions, and well considered and well arranged by its authors, who embraced many of the wisest and soundest men of the state.”1
 
Then in 1874, after the 1873–74 Constitutional Convention, Ohio voted on whether to adopt its third constitution, which totaled around 15,000 words. The proposed 1874 Constitution was overwhelmingly rejected by a vote of 250,169 to 102,885,2 in part, because it was overly “complex”3 and it had “too much legislation in it.”4
 
Today, the 1851 Constitution now contains over 50,000 words, making it the tenth longest state constitution in the United States5 and in a condition that does not produce the same praising words as it did in 1851. Most notably, Ohio Supreme Court Justice Paul E. Pfeifer dubbed the current Ohio Constitution “a mess”6 when he pointed to the 2009 casino amendment and  livestock standards as provisions clogging the Constitution.7
 
This paper creates a detailed and complete statistical analysis of Ohio’s constitutional history.8 Furthermore, potential causes of Ohio’s constitutional growth will be explored and, using  statistical analysis, Ohio’s constitutional future will be calculated. 
 
Ohio’s Constitutional History
In 1802, Ohio’s constitution had only eight articles, 106 sections and 6,265 words. It remained unaltered until its replacement in 1851 with a constitution containing 16 articles, 168 sections and 9,447 words. Today, the Buckeye State’s constitution is made up of 18 articles, 224 sections and 53,421 words. This equates to a current constitutional length 8.5 times longer than the 1802 constitution and more than 5.5 times longer than the 1851 constitution as adopted.
 
While these numbers show considerable constitutional growth, they may be discounted as a natural consequence to more than 200 years of history. To determine the validity of such a claim, the rate of growth should be evaluated.
 
Linear growth may indicate Ohio has maintained consistent principles concerning how to determine whether subject is worthy of constitutional inscription and the style in which provisions ought to be written. If this is true, Ohio should have experienced a growth rate of about 227 words per year since the 1802 constitution. Applying this same thought process to the 1851 constitution, it should have grown at 276 words per year.
 
Figure A depicts Ohio’s actual constitutional growth, in words, throughout its history. That growth is the result of 164 amendments—76 percent of which have increased the document by more than 47,000 words, while 38 amendments (23 percent) have removed 3,376 words, and two amendments9 (one percent) have had no net effect. Those expecting linear growth may be disappointed to see that the constitution has been growing at an exponential rate.
 
  Download Figure A: "Ohio's Constitutional Growth in Words"
 
This chart cannot answer questions about the causes of Ohio’s constitutional growth, but it does indicate the residents are either expanding what they believe is constitutional subject matter or how they write constitutional provisions, or a combination of the two.
 
Also noteworthy are the two following charts that illustrate Ohio’s constitutional growth since 1802 in terms of the number of sections, as well as the number of articles.
 
Growth Through the Decades
Figure D depicts Ohio’s constitutional growth throughout the decades and helps to emphasize the seriousness of the rate in which the Constitution is increasing.
 
Before the turn of the 21st century, the decade in which the most words were added to the Ohio Constitution by amendment was the 1910s, when 6,502 words were added in 40 amendments. That decade’s growth was primarily due to the 1912 Constitutional Convention, which resulted in 34 adopted amendments that added almost 7,000 words to the constitution.
 
The 2000s, a decade in which only 10 amendments were adopted, increased the Ohio Constitution by 12,394 words—nearly twice as many as the 1910s and accomplished in one-fourth the amendments. This is even more shocking in that the 2000s added 31 percent more words than the entire 1851 constitution as adopted. 
 
The volume of words added in so few amendments during the 2000s suggests that Ohio has made a dramatic shift in how it writes constitutional amendments. 
 
 
The Location of Ohio’s Constitutional Growth
To obtain an even more comprehensive understanding of Ohio’s constitutional growth, it is  beneficial to look at how each article has changed since 1851. Such an evaluation can be done by comparing either the amount of sections or total words that made up each article in 1851 versus today. The following chart illustrates how each article has changed, in terms of sections, since 1851.
 
As seen in Figure E, article II, establishing the legislative branch, contained the most sections in 1851 with 32 and continues to do so today, containing 46. The article experiencing the most growth since 1851, however, is article VIII, providing for public debt and public works,  experiencing an increase of 20 sections.
 
Although article II of the Ohio Constitution contains 13 more sections than the next closest
article, article VIII; in terms of length, article II does not even compare to article VIII, the Constitution’s longest article.
 
In 1851, article VIII contained only 873 words, 701 less words than article II. Today, article VIII totals an astonishing 26,279 words, 2.8 times larger than the entire Ohio Constitution as adopted in 1851. Article II is now the second longest article, containing 7,410 words. Figures E and F together show just how concentrated Ohio’s constitutional growth has been in article VIII. While article II has 39 percent more sections than article VIII, article VIII contains more than 3.5 times as many words.
 
 
Is Ohio Forgetting How to Effectively Write Constitutional Amendments?
Ohio’s constitutional history illustrates that, at some level, its residents have forgotten how to effectively write constitutional amendments. In 1851, Ohio’s constitution had 168 sections averaging 56 words per section. Today, the constitution has 225 sections. If it took roughly the same number of words today to express each subject matter as it did in 1851, a constitution consisting of 225 sections should contain approximately 12,600 words today. The state’s  constitution, however, is 53,684 words long, averaging 239 words per section.
 
This disparity is even more striking considering that 70 of the 168 original sections in the 1851 Constitution have never been altered. Those unaltered sections constitute 31 percent of the total sections in Ohio’s current constitution, but only account for 6 percent—3,352 words—of its length.11 Thus, the remaining 155 sections represent 50,332 words and average 325 words per section.  This growth in the average number of words per section supports the conclusion that Ohio is increasingly writing lower and lower quality constitutional amendments.
 
The following chart, in addition to Figure F above, illustrates that this lapse has been a relatively recent phenomena.
 
Until the 1910s the average number of words per section remained virtually constant. Thereafter, until the 2000s, the constitution experienced gradual and consistent growth in the average  number of words per section. In the 2000s, however, 10 amendments increased the average number of words per section of the entire constitution by 48 words. Again, this is more data supporting the conclusion that the writing quality of constitutional amendments has diminished drastically in Ohio over recent years. 
 
Examples of Ineffective Writing
A prime example of ineffective writing is the 2009 constitutional amendment that allowed four casinos in Ohio, which took article XV, section 6 from 125 words to 2,533 words. As a result, section 6 became flooded with a nearly 1,000-word definition section, which in less than a year became a straightjacket for the state.12
 
Article XV, section 6, defines “casino facility,” “casino gaming,” “casino operator,” “gross casino revenue,” “majority interest,” “slot machines” and “table game”—seemingly all well understood terms. “Casino facility” is defined in such detail that it lists the parcels on which the four permitted casinos in Ohio may be built.13 Unsurprisingly, when disagreement resulted in the location of one of the casinos, to change the location, a constitutional amendment had to be proposed and adopted. Was this level of micromanagement necessary, or, could the amendment have been better written and therefore avoided an additional but necessary 2010 amendment?
 
A critic could say the quality of the casino amendment was not as high because it was proposed by initiative petition, not the General Assembly. Unfortunately, it is just as easy to locate a great example of micromanagement in an amendment proposed by the General Assembly.
 
In 2009, the General Assembly proposed, and the voters adopted, the single largest  constitutional amendment in Ohio constitutional history—article VIII, section 2r, grants the authority to issue bonds to provide compensation to veterans of the Persian Gulf, Afghanistan, and Iraq conflicts, which added 2,681 words to the Ohio Constitution. 
 
Colossal constitutional amendments such as the casino amendment and article VIII, section 2r do not need to be dissected. Regardless of the purpose for the provision, it should not take 2,500 words to enunciate. If it’s not possible to write the provision in a more succinct way, then the subject matter of the provision may not be the kind that should be within a constitution.
 
 
Ohio Does Not Do Any “House Cleaning”
In 1953, six separate amendments were adopted for “deleting or repealing obsolete, unused or unusable sections or parts of sections” of Ohio’s constitution.14 As a result of that joint  resolution, 1,334 words were removed from the document— 40 percent of words ever removed from the constitution through adopted amendments. 
 
Then, in 1976, six amendments were proposed through six separate joint resolutions to remove or clarify unnecessary or obsolete constitutional language.15 As a result, 459 words were removed—14 percent of the total words ever removed from the constitution through amendments. Thus, the 100th and 111th Ohio General Assembly, or two of 129 Ohio General Assemblies, were responsible for more than half of all words ever removed from the constitution.
 
 
Actual Provisions “Collecting Dust”
So what “house cleaning” should be done now? A prime example of a provision of the Ohio Constitution that needs to be removed is section 8, article V, which was adopted in 1992 and limits the terms of Ohio’s U.S. senators and representatives. Three years after adoption, a similar state constitutional provision from Arkansas was held unconstitutional by the United States Supreme Court. In United States Term Limits v. Thornton, the Supreme Court ruled: 
 
“First, ... the power to add qualifications is not within the ‘original powers’ of the States, and thus  s not reserved to the States by the Tenth Amendment. Second, even if States possessed some original power in this area, we conclude that the Framers intended the Constitution to be the exclusive source of qualifications for Members of Congress, and that the Framers thereby  divested’ States of any power to add qualifications."16
 
As a result of the case, Ohio has since knowingly kept an unconstitutional provision in its state constitution for 16 years. 
 
Article VIII is the area with the most serious problem of articles collecting dust—an article that places restrictions on state and local governments concerning state debt.17 The article’s debt limitation, however, may be overcome by specific amendments18 to the constitution and has been bypassed by 22 amendments.19 Of these amendments, 18 were adopted to raise money for a specified purpose through the sale of bonds.20 Nine of those 18 amendments have expired, meaning the bonds have been sold and the debt has been satisfied by the state.21
 
So how many of the expired constitutional amendments have been repealed now that they no longer serve any function? One. Article VIII, section 2a was repealed in 1953, as part of Amended House Joint Resolution No. 94, the purpose of which was “[t]o amend the constitution of the state  of Ohio by deleting or repealing obsolete, unused or unusable sections or parts of sections thereof …”22
 
By simply removing an unconstitutional provision and the eight provisions that are collecting  dust, Ohio could reduce its constitution by 18 percent and absolutely nothing would change.
 
Calculating Ohio’s Constitutional Future: Applying Regression Analysis
 
In Terms of Overall Length
So what will happen to the Ohio Constitution if Ohio does not change how constitutional amendments are written? Using regression analysis, one is not only able to determine the relationship between two variables, but also may be able to forecast the variables’ future relationships.23 Regression analysis is the process of finding the equation of a line that best fits a set of data.24  Speaking generally, one may determine the accuracy by which the line represents the relationship between two variables by looking to the line’s squared correlation coefficient value, or R2.25 This number will be between zero and one, with a value of one indicating the strongest relationship possible.26 In other words, the higher the R2 value for a regression line, the more accurately it represents the relationship between the two variables. The  following applies regression analysis to the data of Ohio’s constitutional history.
 
As discussed above, Ohio’s constitutional growth over time has not been linear, but rather exponential. Figure H applies an exponential regression line to the data of the constitutional growth through the years.
 
The above exponential regression line has a R2 value of 0.96—indicating this regression line illustrates Ohio’s constitutional growth through time quite  accurately. With this strength of the regression line, and using the exponential regression line equation of, where y represents the year and x the amount of words in the Ohio Constitution, we can confidently forecast what the Ohio Constitution may look like in the future if the way in which Ohio drafts constitutional amendments continues on its current path. Therefore, in 2050 Ohio may expect to see a constitution that will contain 71,533 words—33% larger than Ohio’s constitution currently.
 
 
In Terms of Sections
Concerning constitutional growth of the amount of sections in the Ohio Constitution, the growth has been almost continually increasing. However, using regression analysis here is only  moderately helpful. The linear regression line drawn below has a R2 value of 0.67.
 
Therefore, using the linear regression line’s equation of , where y represents the year and x the amount of sections in the Ohio Constitution, in 2050, Ohio may expect to see a constitution that contains around 238 sections—only around 6% larger than Ohio’s constitution currently.
 
 
In Terms of Articles
Finally, the amount of articles in Ohio’s constitution has not drastically changed over the past 160 years. While a lack of change does mean regression analysis is not useful, here, the change of articles in Ohio’s constitutional history does not produce a reliable regression line, as its R2 value is 0.22. Thus, any forecasts of the amount of Articles in Ohio’s constitutional future would be more along the lines of speculation. 
 
 
Conclusion
States must aim to create a constitution that is flexible and adaptable to potential changes. To do so, the drafters must first determine whether the subject matter is one that should be provided for at the highest level of state legal authority and is so important as to justify the invalidation of all legislative and other governmental action in conflict with it. If the subject matter is of constitutional importance, the provision must be written in a way that does not micromanage the state government and be kept simple. If it is not possible to do so, the subject matter may be more appropriate as a statutory matter.
 
After a complete analysis of every adopted amendment’s effect on the Ohio Constitution, it is apparent that the constitution is growing in an exponential manner. Additionally, it is clear that Ohio is radically deviating from quality constitutional writing.
 
As a practical matter, however, correcting Ohio’s constitutional writing style is a long-term goal. In the short-term, Ohio could reduce the length of its constitution by 18 percent if it eliminated all the provisions that are collecting dust. If Ohio chooses not to make any changes in the way constitutional amendments are written and doesn’t remove the obsolete and unconstitutional provisions, the state could have a constitution that is almost 71,000 words long, or 33 percent longer than the current constitution, in less than 40 years.
 
In the end, Ohio state Supreme Court Justice Paul E. Pfeifer’s claim that the Ohio Constitution is “a mess” appears to be more than just an opinion. Rather, it is more closely aligned as a fact supported by an abundance of data.
 
 

Note on Methodology 

The final word count of the Ohio Constitution used in this paper is 53,684 words. It was  calculated using the word count feature in Microsoft Word. Therefore, for example, “Article I” or “§ 1” would each be considered as two words. The word count includes the titles of the  constitution itself and the 18 articles. The titles of the sections, however, are not included, as those are not approved by the voters and are instead supplied by the various publishing companies. Additionally, the word count includes the preamble, but excludes the various schedules.
 

Notes

1 Editorial, Clev. Evening Herald, Mar. 13, 1851.
2 Steven H. Steinglass and Gino J. Scarselli, The Ohio State Constitution: A Reference Guide, 30 (2004).
3 Editorial, New Constitution–Yes or No?, Clev. Plain Dealer, Aug. 17, 1874 (“Indeed the proposed new constitution has to do with so much that is complex and beyond the scope of the popular information that the work of the convention, as a whole, will hardly be voted on intelligently.”).
4 Editorial, The Election on Tuesday, Clev. Plain Dealer, Aug. 19, 1874 (“It was very generally believed that the proposed constitution had too much legislation in it; and that it was too much ‘a lawyers’ constitution.’”). 
5 John Dinan, State Constitutional Developments in 2009, in 2010 The Book of the States 1, 11 (2010) (using an Ohio Constitution word count of 53,421).
6 Alan Johnson, Pfeifer: Revise Constitution, End Death Penalty, The Columbus Dispatch, Jan. 20, 2011.
7 Id.
8 See infra Appendix, Note on Methodology.
9 The first amendment was in 1912, adopting the schedule of the amendments, which as stated in the Note on Methodology, do not become a part of the constitution. The second amendment was in 1918, that conflicted with another adopted amendment. Ultimately, one was held unconstitutional in State ex rel. Greenlund v. Fulton, 99 Ohio St. 168, 124 N.E. 172 (1919).
10 This shaded and white theme will be used consistently in the charts throughout.
11 The seventy unchanged sections average 48 words per section.
12 Today, after article XV, section 6 now has a total length of 2531 words—of which 984 are “definitions” of the terms listed in the following paragraph. OH Const. art. XV, § 6(C)(9).
13 Oh Const. art. XV, § 6.
14 H.J.R. 94, 100th Gen. Assem., Reg. Sess. (Ohio 1953).
15 See H.J.R. 14, 111th Gen. Assem., Reg. Sess. (Ohio 1976); H.J.R. 15, 111th Gen. Assem., Reg. Sess. (Ohio 1976); H.J.R. 36, 111th Gen. Assem., Reg. Sess. (Ohio 1976); H.J.R. 37, 111th Gen. Assem., Reg. Sess. (Ohio 1976); S.J.R. 16, 111th Gen. Assem., Reg. Sess. (Ohio 1976); S.J.R. 17, 111th Gen. Assem., Reg. Sess. (Ohio 1976).
16 Id at 800–01.
17 Supra note 2 at p 219.
18 State ex rel. Ohio Funds Management Bd. v. Walker, 55 Ohio St. 3d 1, 9, 561 N.E.2d 927 (1990).
19 Ohio Const. Art. VIII, §§ 2a-2r, 13–16.
20 Ohio Const. Art. VIII, §§ 2a-2r.
21 Ohio Const. Art. VIII, §§ 2a-2h, 2j.
22 Supra note 16.
23 For a well written article on the basics of regression analysis, see Alan O. Sykes, Introduction to Regression Analysis, in Law and Economics Working Papers (1993) available at http://www.law.uchicago.edu/Lawecon/ wp1-50.html.
24 Id.
25 Id.
26 Id.

 

 

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