intended that the Board be a dominating authority over the Universities.

This conclusion is materially reinforced by the last sentence of sec. 3.

The convention comment is not necessary to the interpretation, but it was voted upon by the delegates and underscores this interpretation. The delegates explained that they intended the Board to be the unifying and coordinating force for education, receiving information so that the said Board could advise the Universities and the legislature as to the total needs of education within the state.

The comment ends by emphasizing that the section preserves to the Universities (and others) the "power to supervise their respective institutions and control and direct the expenditure of their funds as at present." (Emphasis added.) Emphasis of the words "as at present" is found also in the convention debates, referring to 1962, a time at which there was no question of the absolute independence of the universities vis-a-vis the Board.

Michigan is one of the few states to give independent constitutional status to its universities. When considering and voting upon the new constitution, the voters had before them the constitutional language and the explanatory "Convention Comments" adopted by the delegates. Therefore, it is not the prerogative of this Court to change the plain meaning of words in the constitution "as understood by the people who adopted it." Bond v. Ann Arbor School Dist., 383 Mich. 693, 178 N.W.2d 484 (1970).

We agree with the Court of Appeals that "[t]he authority claimed by the State Board of Education is not granted them by the Constitution."

However, the words, "It shall serve as a general planning and coordinating body for all public education, including higher education, and shall advise the legislature as to the financial requirements in connection therewith" must be granted meaning.

It is our opinion that the Universities must inform the Board of proposed new programs and the estimated financial requirements for each. From

Discussion Notes

1. See generally, Joseph Beckham, "Constitutionally Autonomous Higher Education Governance: A Proposed Amendment to the Florida Constitution," University of Florida Law Review 30 (Spring 1978): 546 (14 states provide some form of constitutionally autonomous higher education governance); Harold W. Horowitz, "The Autonomy of the University of California Under the State Constitution," UCLA Law Review 25 (October 1977): 23; Joseph Beckham, "Reasonable

information before the Court, it appears that the current procedure is to submit proposals for new academic programs on a form supplied by Higher Education Management Services of the Board. This includes estimated total capital outlay needs for the first five years. The proposals are submitted to the Board for "approval.”

We interpret "approval" as meaning only advice to the legislature and to the Universities. This advice relates to the overall planning and coordinating function of the Board and in no way carries with it the power to veto the proposed programs. In this context, the procedure is consistent with the constitutional language.

In other words, the Board is advisory in nature. However, in order to advise, it requires information. It is necessary to the intent of the constitution that the Board be informed of proposed new programs. Failure of the Board to recommend favorably to the legislature or to act at all does not preclude any of the Universities from going directly to the Legislature with its proposals and requests. The only requirement resting upon the Universities is to inform the Board so that it can knowledgeably carry out its advisory duties. The autonomy and independence of the Universities remain "as in the past."

3.

This case arises because two important elements of our government, the Legislature and the Universities, are zealous to perform well their constitutional missions in the service of the People. The Legislature has taken certain action pursuant to its responsibilities to supervise properly the spending of the People's money. The Universities seek to maintain their constitutional integrity to manage funds given into their charge in order best to perform their educational mission. It is obvious that these two functions can touch or overlap each other. Therefore understanding and good will is necessary that the People whom both elements represent be best served.

Independence for Public Higher Education: Legal Implications of Constitutionally Autonomous Status, Journal of Law and Education 7 (April 1978): 177.

2. See also State ex rel. University of Minnesota v. Chase, 220 N.W. 951 (Minn. 1928).

3. Review the materials in Chapter 8, Section C, on the "constitutionalization" of executive agencies and officers.

James Willard Hurst,
The Growth of American Law:
The Law Makers

(Boston: Little, Brown & Co. 1950): 199-204. Reprinted by permission.

Chapter Ten

THE CONSTITUTION-MAKING PROCESSES

1. The Idea of Constitutionalism and the Agencies for Making Constitutions

At the outset we must distinguish between three methods of constitution making: (1) by convention, (2) by legislative proposal, and (3) by the initiative, in the three or four states that adopted this form and put it to use.

We must also distinguish between these institutions for making constitutional law and the idea of constitutional government. This chapter tells of the institutions rather than the idea, except as the latter helped form the institutions. As we continue, we shall see why people went to the trouble of using the formal processes of constitution making in order to pass what amounted often simply to specific legislation.

Plainly the idea of legitimacy, in some form, is inherent in the general notion of a government that exists subject to constitutional limitations. You might expect, therefore, that one of the first things that would concern those setting up constitution-making machinery would be this: they would fix a procedure that would insure against substantial cloud on their ti

tle to make a constitution or on the validity of what they made. But this did not happen; we built our constitution-making procedures out of a generation of practice, rather than out of the logical development of any clear cut idea of constitutionalism. Men did not for some time realize that independence was going to come out of their fight with England; too, they had no precedent for the jobs they faced, of making new states and a new confederacy; and what they had to do, they had to do in a hurry and amid confusion. So there was much legally dubious procedure and a good deal of difference in practice when the first states called constitutional conventions between 1775 and 1789. Most of the bodies that framed constitutions adopted in this formative period had not originally been elected to do any such job, nor had they been given any specific mandate for it. Most of them did not submit to popular ratification the constitutions that they drew.

The Continental Congress, by its resolutions of May 10 and 15, 1776, perhaps meant to recommend that the legislatures in the states adopt permanent instruments of government. From 1776 through 1778 eleven constitutions were so framed and adopted in ten states, by bodies that were, in view of their lack of a mandate for this work, revolutionary in a legal and not merely a rhetorical sense. Only five of the state constitutions adopted by 1789 were put into effect through machinery specially made for the purpose, and one of these was submitted to no form of popular ratification. After 1789, at least thirteen conventions in twelve states newly formed from United States territories were irregularly called, because they were not authorized by Congress; of course in effect Congress later ratified these constitutions when it admitted the states. There were striking departures from regular procedure in the revision of existing constitutions in Pennsylvania in 1789, Delaware in 1792, Rhode Island in 1841, and Maryland in 1850. Six of the constitutions adopted in the formative period before 1790 contained no provision for their amendment. Clearly,

the procedures for constitution making in the states did not spring full grown from some ideal conception of constitutional government. Rather, they grew in fifty years of practice formed by experience.

If we look at what people put into their constitutions, we find a second case where an idea logically inherent in the concept of a constitution did not take hold in practice. Ideally, a constitution embodies only the fundamentals of government. Opponents of proposed amendments often raised this argument in the states. But, at least after the 1840's, the states amended their constitutions to include large amounts of procedural detail and specific legislation. That they did so was remarkable on two counts: Not only did the practice depart from the general notion of the dignity of constitutions; it also violated the proved practical wisdom of not freezing detailed policy into a form hard to change.

When we compare the idea of constitutionalism with the ways in which the constitution-making machinery worked, by far the most important contrast concerns the origins of the popular reverence for "the constitution." Our constitutional law begins in a very practical setting. Men framed, fought over, and adopted the first state constitutions and the Federal Constitution in an atmosphere of the utmost political realism. They saw they were dealing with the balance of power between interests, and they were frankly skeptical of the permanency of what they had done. The sanctity that came to surround the idea of constitutional principles was the growth of years and of many influences. It was fostered by the logic and prose of The Federalist, Marshall, and Webster; by the reverential histories of Fiske, Hildreth, and Bancroft; by the gathering of emotion and tradition about symbols by which generations fought their political battles; by the crystallization of doctrine by Cooley, and its practical development at the hands of big-business lawyers of the late nineteenth century.

Discussion Notes

1. Review the materials in Chapter 1 concerning the making and acceptance of the first state constitutions.

Popular reverence for the "constitution" had important results in our law. For one thing, it secured broad and deep acceptance of the courts' role in enforcing constitutional limitations. In turn, the activity of the courts in appealing to the higher law undoubtedly strengthened people's belief in the value of constitutional limitations. Thus the idea of constitutionalism shaped, and was shaped by, the institutions of constitution making. But, however much it owed to the court, the reverence attached to "the constitution" gained little force from the operation of the more formal process for making constitutional law, by convention or amendment. Nor did the idea of constitutionalism substantially affect the way those processes worked.

This is not quite the paradox that it first appears. Except for the late invention of the initiative, the methods of formal constitution making became well established before 1850. But it is not at least until then, and mainly after the 1880's, that the constitutional idea fully enters the catalog of basic American beliefs. Only after 1880 does it become a powerful weapon in political and economic battles. Moreover, as has been suggested, we went about writing our early constitutions in a very practical atmosphere. Madison's notes of the Federal Convention, Elliot's records of the state ratifying conventions, and the history of such important early state conventions as those that produced the Massachusetts constitution of 1780 and the revision of 1820-1821, the Connecticut constitution of 1818, or the Pennsylvania constitutions of 1776, 1790, and 1838 show a uniformly realistic approach to the job. Like their successors, the first makers of constitutions saw their work in terms of contests for power and advantage, or the security of power and advantage already won. Sanctity, legend, symbolism did not spring from the immediate operations of formal constitution making, nor did they substantially direct those operations.

2. How do our ideas about the symbolism of "the Constitution" vary between the state and federal constitutions?

William F. Swindler, "State Constitutions for the 20th Century"

Nebraska Law Review 50 (Summer 1971): 596-99. 1971 Nebraska Law Review. Reprinted by permission.

In their detailed study of "constitutional rigidity" in the matter of electoral majorities required for amending and modernizing state constitutions, Professor Kenneth Sears and Charles V. Laughlin a quarter of a century ago pointed out that needed changes in state charters were often thwarted by a mechanical demand of the amendment article, that a majority of all persons voting in the election in question would also have to vote for the constitutional