The Ohio Constitution: Its History and Its Future

This essay is part of a 50-state series about the nation’s constitutions. We’ve asked an expert from each state to dive into their constitution, narrate its history, identify its quirks, and summarize its most essential components for our readers.

The Ohio Constitution is a prism through which to view how the state has responded to the social, economic, and political forces that have affected all Ohioans and influenced the law. It contains provisions unique to the state, as well as provisions that protect individual rights and organize state and local government. This essay will review the history of the Ohio Constitution, including major events in 2023 and 2024, and the uncertainty of its future.

The First Ohio Constitution: Moving to Statehood

In November 1802, 35 delegates elected from nine Ohio counties located primarily along the Ohio River met in Chillicothe to draft Ohio’s first constitution. Written at the behest of President Thomas Jefferson and his supporters, the first constitution jump-started the statehood process outlined in the Ordinance of 1787, better known as the Northwest Ordinance. It resulted in Ohio’s admission to the Union as the 17th state and the first carved out of the Northwest Territory.

The Ohio Constitution of 1802 contained a Bill of Rights, with most of the provisions borrowed from the Pennsylvania Constitution of 1790 and the constitutions of Kentucky and Tennessee, the two most-recently admitted states.

The convention came within a single vote of extending the vote to Black Americans, but it eventually adopted a suffrage provision that limited the vote to “white male inhabitants,” making Ohio the first non-southern state to adopt a racial restriction on voting. 

Ohio’s first constitution was deeply flawed. It granted virtually unlimited power to the state’s bicameral legislature, the General Assembly, including the right to select judges for the Ohio Supreme Court and the courts of common pleas. The governor lacked veto power and had only a limited power of appointment. And the supreme court was required to “ride circuit” by holding court each year in every county but quickly became overwhelmed as Ohio rapidly grew to almost two million people and 87 counties by 1850.

Meanwhile, in 1807, the Ohio Supreme Court in Rutherford v. M’Fadden embraced the power of judicial review, but this case led to an impeachment crisis in which the state House impeached two judges. The state Senate acquitted them by a single vote. As a result, the court, chastened by this experience, exercised judicial review only rarely in the first half of the 19th century.

The first constitution was difficult to amend, requiring a two-thirds vote of the General Assembly to put a convention call on the ballot, and the voters rejected such a call in 1819. In 1850, however, they approved one, setting the stage for Ohio’s second constitutional convention and the ultimate approval by the voters of the 1851 Ohio Constitution.

The Second Ohio Constitution: Limiting the General Assembly

The 1851 Constitution — Ohio’s current constitution — is the sixth oldest in the nation and the second oldest outside New England.

Written during the period that Professor Alan Tarr has characterized as involving an “orgy of nineteenth century constitution-making,” Ohio’s second constitution was a Jacksonian document that transferred power from the General Assembly to the people. The new constitution provided that the voters would elect judges, and it placed procedural and substantive limitations on how the General Assembly operated. The former required the General Assembly to legislate through general, not special, laws; required that all bills be read three times before adoption; and imposed a single-subject rule to block logrolling. Substantively, the constitution barred the incursion of most state debt; prohibited lending the state’s credit to private entities; and eliminated the role of the General Assembly in apportioning state legislative districts.

The 1851 Constitution also opened the amendment process by permitting the General Assembly to propose amendments to the voters without a constitutional convention. And it adopted the Jefferson-inspired principle of requiring that a convention call be placed on the ballot periodically — in Ohio’s case every 20 years — so decisions on whether to hold conventions could be made independently of the General Assembly.

The 1851 Constitution: Preventing Reform

The six decades from the adoption of the Ohio Constitution in 1851 to the 1912 Ohio constitutional convention included the Civil War, Reconstruction and its abandonment, the ascendancy of Jim Crow laws, industrial growth, the political domination by the business arm of the Republican Party, and the emergence of the populist and progressive movements.

During this period, Ohio continued to grow in population while becoming a political and economic powerhouse. Its politics in the late 19th century were dominated by U.S. Sen. Mark Hanna, President William McKinley’s 1896 campaign manager, and his fellow-Republican and rival Sen. Joseph Foraker, a former governor. The urban political bosses, big business, and the special interests (including the oil and gas companies and the utilities) ruled, despite nascent reform efforts in the early 20th century. And even when the General Assembly adopted economic and social legislation, the Ohio Supreme Court, which had shed its reluctance to exercise judicial review, often struck down such measures as not respecting private property or as failing a judicially enforceable test of reasonableness.

Pressure for reform began to build in the first decade of the 20th century among urban reformers, Progressives, labor unions, the women’s movement, the liquor industry, and even the business community — all for different reasons — to hold a convention to adopt a new constitution that would address a myriad of issues.

The 1912 Constitutional Convention: Embracing Progressivism

In 1912, at the height of the Progressive era, Ohio held its fourth and last constitutional convention. The delegates avoided a repetition of the 1874 experience, when the presence of controversial issues contributed to the rejection of a new governing document. Instead of proposing a new constitution, the 1912 delegates strategically recommended 42 separate amendments and the voters approved 34 of them, thus significantly changing the Ohio Constitution.

Among the most important amendments approved in 1912 were those on direct democracy (such as the initiative and referendum), home rule, civil service, and the elimination of the supermajority requirement for amendments proposed by the General Assembly. The 1912 amendments also sought to rein in the courts by overruling at least seven Ohio Supreme Court decisions that had rejected statutes adopted to address social issues and the rights of employees.

Still, the voters rejected proposed amendments to extend the vote to women and non-whites and to ban capital punishment.

The Ohio Bill of Rights: Protecting Individual Rights

The Ohio Bill of Rights, which was moved from Article VIII to Article I in 1851, contains many of the same rights as the federal Bill of Rights. The Ohio Constitution, however, has provisions that have no federal counterparts, and analogous provisions that often use different language to define the underlying rights.

For example, the Ohio Bill of Rights has an inalienable rights provision that resembles the Declaration of Independence (“All men . . . have certain inalienable rights”), a positively worded “equal protection and benefit” clause, a positively worded freedom of speech provision (“Every citizen may freely speak, write, and publish his sentiment on all subjects”), and a distinct “Due Course of Law” provision (“Every person . . . shall have remedy by due course of law”).

The modern Ohio Supreme Court, however, has only rarely relied on these provisions to extend rights independent of those in the U.S. Constitution. It has, however, staked out the ground for future decisions that could provide more protection for individual rights than are available under the federal Constitution.

In 1993 in Arnold v. City of Cleveland, the court expressly recognized that the Ohio Constitution is a document of independent force when it issued what Professor Robert Williams dubbed the “Declaration of Ohio State Constitutional Independence.” Decided before the U.S. Supreme Court’s 2008 discovery of the Second Amendment, the Arnold court held that the right to bear arms was a fundamental right under Article 1, Section 4, of the Ohio Constitution.

In 2000 in Humphrey v. Lane, the court explicitly rejected the prevailing U.S. Supreme Court’s free exercise jurisprudence and held that the analogous provision of the Ohio Constitution, Article I, Section 7, protects religious freedom even against neutral laws of general application in a case brought by a Native American prison guard who was challenging departmental hair length regulations.

In 2006 in Norwood v. Horney, the court rejected the U.S. Supreme Court’s 2005 decision in Kelo v. City of New London on public-use takings under the Fifth Amendment and interpreted the takings provision of Ohio Constitution Article I, Section 19, to require the application of heightened scrutiny when reviewing statutes that regulate eminent domain. The court further held that the fact that an appropriation of property would provide an economic benefit to the government and the community, standing alone, did not satisfy the “public use” requirement of the state constitution.

In 1997, however, in State v. Robinette, the court declared that it “should harmonize [its] interpretation of Section 14, Article I of the Ohio Constitution with the Fourth Amendment, unless there are persuasive reasons to find otherwise.” But in 2003’s State v. Brown the court adopted a different rule for misdemeanor cases by rejecting the U.S. Supreme Court’s 2001 decision in Atwater v. Lago and holding that a person could not be subjected to a warrantless arrest for a minor misdemeanor.

And in 2024’s State ex rel. Cincinnati Enquirer v. Bloom the court held for the first time that the “open courts” provision of Article I, Section 19, contained a presumption of public access to juvenile delinquency proceedings and that such proceeding could not “be closed to the public without an individualized determination balancing the interests at stake.” In so ruling, the court rejected the lockstep approach under which it had often embraced, without independent discussion, U.S. Supreme Court interpretations of analogous or identical provisions. And in that same decision the court announced that the normal principles of stare decisis, which are generally less demanding in constitutional litigation, are not applicable to cases in which the court had “previously, and without analysis, interpreted [a state constitutional provision] in lockstep with the United States Constitution.” Finally, this decision also declared that “in construing our state Constitution, we look first to the text of the document as understood in light of our history and traditions,” thus setting the stage for a reexamination — under originalist principles — of many of its earlier decisions.

The Ohio Constitution’s Unique Provisions

Many provisions of the Ohio Constitution do not have federal counterparts, including provisions on municipal home rule, civil service, direct democracy, retroactive legislation, the duty to “secure a thorough and efficient system of common schools,” casino gaming, the Ohio Livestock Care Standards Board, and the anti-monopoly limitation on the constitutional initiative.

Separation of Powers

The Ohio Constitution does not have an express textual separation of powers requirement, but judicial decisions have recognized the principle of separation of powers. There is a constitutional provision prohibiting the General Assembly from exercising judicial power, and the voters directly elect the attorney general, the secretary of state, the treasurer of state, and the state auditor. The governor got the veto power in 1903.

The role of the courts was strengthened in 2022 in TWISM Enterprises v. State Board of Registration for Professional Engineers and Surveyor, when the Ohio Supreme Court addressed the issue of so-called Chevron deference, a doctrine holding that courts should defer to agencies’ interpretations of statutory language relevant to their work. The court “recalibrate[ed]” its approach to agency deference, declaring that judicial deference to administrative agencies is permissive rather than mandatory and may occur only when a statutory term is ambiguous. And the court further stated that “it is the role of the judiciary, not administrative agencies, to make the ultimate determination about what the law means.” Therefore, the court went on, “the judicial branch is never required to defer to an agency’s interpretation of the law;” it “is simply one consideration a court may sometimes take into account in rendering the court’s own independent judgment as to what the law is.”

Amending the Ohio Constitution

Ohio has multiple paths for amending its constitution. In addition to constitutional conventions (which have fallen out of favor in Ohio and nationally), Ohio permits the General Assembly, by a 60 percent vote, to propose amendments. Since 1912, Ohio voters have approved 109 of 158 such amendments for an impressive 69 percent success rate. Ohio is one of 17 states with a citizen-initiated constitutional amendment option, but since the method’s adoption in 1912, Ohio voters have approved only 20 of 73 amendments proposed by initiative for a modest 27 percent success rate. (Tables of the number of amendments proposed and adopted are available here.) Finally, Ohio has had recent experiences with commission-based constitutional revision in which a bipartisan commission makes recommendations to the General Assembly for proposed amendments to be placed on the ballot. Such a commission was very successful in the 1970s, resulting in 16 voter-approved amendments. But in the 2010s an effort to replicate the earlier experience failed to get the General Assembly to propose any amendments to the voters, and the General Assembly killed the commission four years prior to its scheduled sunset.

Direct Democracy in Ohio

Though adopted in 1912, the constitutional initiative was used sparingly during the 20th century, although it did result in the approval of important amendments, including creating county home rule (1933); banning straight party ticket voting (1949); and imposing term limits on statewide officeholders and members of the General Assembly (1992). But in the 21st century there has been an increase in the use of the initiative. Voters adopted initiated amendments that, among other things, banned same-sex marriages (2004); required a higher minimum wage (2006); authorized casino gambling (2009); guaranteed the freedom to choose health care (2011); expanded rights of crime victims (2017); and enshrined reproductive rights (2023).

Each of these 21st century amendments have a backstory. The 2004 and 2006 amendments on same-sex marriage and the minimum wage (whatever their merits) were placed on the ballot to gin up voting in the fall presidential elections. The well-funded casino gambling amendment was passed in 2009 after voters had four times since 1990 rejected previous provisions that would have permitted casino gambling. The 2011 health-care amendment was a faux populist effort to undercut Obamacare — and, ironically, was relied upon by a trial court in 2022 that temporarily enjoined the restrictive six-week fetal heartbeat abortion law. (Certain questions in the case are pending at the Ohio Supreme Court.) The 2017 victims’ rights amendment, also known as Marsy’s Law, was part of a national effort by families of crime victims.

Finally, the 2023 reproductive rights amendment was proposed in response to the U.S. Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, overruling Roe v. Wade’s holding that the federal Constitution protects abortion rights. It followed an unsuccessful attempt by anti-abortion interests to place obstacles in the way of the anticipated reproductive rights amendment by requiring constitutional amendments to meet a 60 percent threshold. Ohio voters mobilized to reject that proposal in August 2023 by 57 percent vote, and that mobilization contributed to the approval in November 2023 of that reproductive rights amendment, by an almost 57 percent vote.

Citizen Action on Partisan Gerrymandering

On November 5, 2024, an anti-gerrymandering amendment proposed by Citizens Not Politicians was on the ballot in response to the fiasco that followed the failure of the 2015 and 2018 legislatively proposed amendments to curb partisan gerrymandering. The 2022 refusal of Ohio statewide and legislative officials and the prior redistricting commission to respect the rule of law and follow the seven Ohio Supreme Court decisions that held unconstitutional the redistricting maps for the General Assembly and the Ohio districts in the U.S. House of Representatives set the stage for the renewed effort to address partisan gerrymandering. The proposed amendment would have created a 15-person independent redistricting commission on which statewide officials, legislators, and lobbyists could not serve; and the commission would have been charged with preventing partisan gerrymandering, a political tool many believe has undercut the proper functioning of Ohio’s state government.

The campaign for this amendment was hobbled by the Ohio Ballot Board’s adoption of deliberately misleading ballot language that stated that the proposed amendment required —rather than prohibited — gerrymandering; by the failure of the Ohio Supreme Court to reject this language; and by the opposition of the Republican Party, including its presidential candidate. The campaign against the amendment aimed to obfuscate the issues in the expectation that confused voters would throw up their hands and vote no. And these tactics worked. On November 5, 2024, the voters of Ohio rejected, by 54 percent to 46 percent, the proposed anti-gerrymandering amendment.

The Ohio Supreme Court

Ohio has elected its judges since the 1851 Constitution took that power from the General Assembly, and the voters rejected amendments to adopt merit selection in 1938 and 1987. But in 1911, the General Assembly sought to reduce the partisanship in the judicial selection process by enacting the Nonpartisan Judiciary Act, under which judges ran for office on nonpartisan judicial ballots, though partisan primaries were used to nominate judicial candidates.

In 2021, however, the highly gerrymandered Ohio General Assembly attempted to expand the Republican domination of the Ohio Supreme Court by abandoning the nonpartisan judicial ballot and adopting legislation that required all appellate judges to run in general elections on ballots with partisan designations.

In 2023 and 2024, the court decided four cases that involved efforts to undercut the proposed reproductive rights and anti-gerrymandering amendments. In one, a partisan majority of the court permitted the General Assembly to use a joint resolution to schedule at a traditionally low turnout August special election an amendment that would have required, as mentioned above, a 60 percent vote to approve all constitutional amendments — an effort to derail the reproductive rights amendment. In the other three decisions, the court refused to reject ballot language widely viewed as misleading.

Despite these obvious attempts to rig the system, the Ohio voters rejected the 60 percent proposal in August 2023 and approved the initiated reproductive rights amendment in 2023. But on November 5, 2024, Ohio voters rejected the initiated anti-gerrymandering amendment.

In the same election, Ohio voters also rejected the reelection bids of two sitting Ohio Supreme Court justices who were required to run on partisan ballots as well as the election of a new justice to an open seat, thus creating a 6–1 Republican majority on a court that will be charged with implementing the reproductive rights amendment, with addressing the Ohio Bill of Rights, and with protecting Ohio’s legacy of direct democracy.

The Future

The year of 2023 was the most consequential for the Ohio Constitution since the iconic 1912 Ohio constitutional convention. The mobilization of voters that accompanied the successful effort to restore reproductive rights after the U.S. Supreme Court’s reversal of Roe, however, was not adequate to overcome the opposition to an amendment that would have addressed partisan gerrymandering. This has left those who are uncomfortable with the status quo in a quandary as they contemplate using the initiative to adopt constitutional changes that they believe the voters support but that the state’s entrenched political leadership opposes.

Steven H. Steinglass is dean emeritus and professor emeritus at Cleveland State University College of Law. His blog tracks developments of the Ohio Constitution, and his Ohio Constitution: Law and History website contains a wealth of information on the Ohio Constitution.

Suggested Citation: Steven H. Steinglass, The Ohio Constitution: Its History and Its Future, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (May 21, 2025), https://statecourtreport.org/our-work/analysis-opinion/ohio-constitution-its-history-and-its-future