II. ILLINOIS EXPERIENCE.

Historical Account: The Illinois constitution of 1818 provided for the alteration of that instrument only through the medium of a constitutional convention. Practically all the states came, after experience, to to a realization that specific constitutional amendments might often be desirable, and the assembling of a convention for the purpose of proposing one or two slight amendments is both cumbersome and expensive

The constitution of 1848 was, therefore, in line with the general development in other states when it provided for the proposal of amendments by legislative action as well as through the assembling of a constitutional convention.

The proposed constitution rejected in 1862 made somewhat fuller provisions regarding a constitutional convention than did the constitutions of 1818 and 1848, specifically requiring that alterations made by a convention should be submitted to the people for adoption or rejection. The proposed constitution of 1862 left unaltered the provisions of the constitution of 1848 for legislative proposal of amendments, with the exception that the general assembly was to have power to propose amendments to no more than two articles of the constitution at the same time.

In the convention of 1869-70, difficulty presented itself with respect to the oath to be taken by delegates and also with respect to the filling of vacancies in the convention. To meet these difficulties for the future and to make the convention clause more specific, detailed provisions were adopted as to the composition and organization of a constitutional convention, and it was also required that the work of a convention be submitted to the electors for ratification.

With respect to the power of the general assembly to propose amendments, important changes were made. The constitution of 1848 required the action of two successive sessions of the general assembly for the proposal of constitutional amendments, and the constitution of 1870 simplified the procedure by providing for proposal as a result of one action of the general assembly.

In two other respects, however, the amending process in the constitution of 1870 was made more difficult than that of the constitution of 1848. The constitution of 1848 provided that "the general assembly shall not have power to propose an amendment or amendments to more than one article at the same session". To this provision the constitution of 1870 added the provision that amendments should not be proposed to the same article oftener than once in four years.

The constitution of 1848 provided that an amendment proposed by the general assembly should be submitted at the next general elec

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tion, and should be adopted if "a majority of all the electors voting at such election for members of the house of reperesentatives shall vote for such amendment". The constitution of 1870 provides that submission shall be at the next election of members of the general assembly, and that the amendment shall be adopted if approved by “a majority of the electors voting at said election".

Although in certain respects an amendment of the constitution of 1870 was made more difficult than that of previous constitutions, it is hardly accurate to say that the present constitution is more difficult to amend than previous constitutions. The difficult and cumbersome method of proposing amendments by the legislature under the constitution of 1848 prevented constitutional change, and only one amendment was proposed to the people between 1848 and 1870. In spite of the added difficulties imposed by the constitutional convention of 1869-70, it may be said that each new constitution in Illinois has been easier to amend than the preceding constitution.

One point, however, was not sufficiently considered by the framers of either the constitution of 1848 or of the constitution of 1870. The constitution of 1818 contained little detail, and on that account would not have required as frequent change as the later constitutions. The framers of the later constitutions however did not realize that they were placing in the constitutions a mass of detail, which must be subject to relatively easy change, and did not adjust their amending methods to this fact. If a constitution is to deal with nothing but matters of fundamental and permanent importance, it may properly be difficult to alter, although one generation can hardly determine finally what are to be matters of fundamental and permanent importance for the next generation. If numerous details are to be placed in a constitution, some provision must be made for the ready alteration of such details or the constitution becomes a permanent bar to progress. The framers of the constitutions of 1848 and 1870 placed a large amount of detail in these constitutions, and at the same time adopted amending processes for these constitutions upon the assumption that the constitutions contained only matters fundamental in character and unchanging in principle. These two attitudes were necessarily conflicting and produced serious difficulties.

Amending clause of the constitution of 1870: The amending clause of the constitution of 1870 is, as has been suggested above, simpler than was the amending clause of 1848. However, into the clause. of 1870 were inserted two provisions which have made difficulty, although as to one of them at least this difficulty probably could not have been foreseen by the members of the convention of 1869-70.

The points of difficulty in the constitution of 1870 are: (a) The limitation against the proposal of amendments to more than one article of the constitution at the same session, or to the same article oftener than once in four years. (b) The requirement of a two-thirds vote of all members elected to each of the two houses in order to propose a

constitutional amendment, and (c) The provision that proposed amendments shall be approved by a majority of the electors voting at the general election.

Limitations upon the proposal of amendments: The provision against the proposal of amendments to more than one article of the constitution at the same session first appeared in the constitution of 1848. With respect to the operation of this limitation in the constitution of 1848 Mr. Dement said in the convention of 1870: "Such were supposed to be the defects of the present constitution in several of the articles, that the persons whose attention was directed to abuses in the judiciary department of the state would not propose an amendment unless to that article. Others who viewed the objections to the executive or legislative articles as more serious, insisted that those were the articles that should be first amended-or one of those articles; and the consequence was the general assembly could not unite a majority of two-thirds in favor of any one amendment.1 This situation has continued in the constitution of 1870. More than one amendment may be proposed at the same session if several proposed amendments relate to the same article of the constitution. So, for example, proposals to abolish cumulative voting and establish the initiative and referendum in legislation may under the present constitution be submitted at the same session of the general assembly. But if only one were submitted, the other could not be proposed within the succeeding four years. However, where several amendments to the constitution have been urged at the same time, they have usually related to different articles. In as much as proposed amendments to different articles could not be submitted at the same session, deadlocks naturally resulted among the groups favorable to the amendment of different articles, just as in the period before 1870. It was suggested in 1870 that if more than one amendment could be proposed at the same time, there would be "log rolling" among the advocates of various amendments. An equally serious danger has resulted in the present constitution in that deadlocks may prevent any proposed change, and in that the opponents of a proposed amendment may hide their opposition by advocating some other proposal at the same time.

Aside from the possibility of deadlock presented by the constitutional provision here under discussion, another difficulty presents itself in that a matter sought to be handled by amendment may be dealt with by two separate articles of the constitution. For example, any initiative and referendum proposal both for legislation and for constitutional amendments would have had to alter two articles of the present constitution. In this as in many other cases, but one subject is involved, but to handle that subject as a unit is impossible under the present rule.

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1Debates and Proceedings, Illinois Constitutional Convention, 1869-70, II,

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Each article of the constitution is bound up more or less closely with every other article, and in amending one, some change is apt to be worked in others. With reference to this matter, however, the Supreme Court of Illinois has taken a liberal and common-sense view and has said that the restriction in the constitution "was not intended to prevent implied amendments or changes which were necessarily worked in other articles of the constitution by the express amendment of a particular article of the constitution. Any other view would be so narrow as to prohibit the general assembly in many, if not in all cases, from proposing amendments to a particular article of the constitution, as the several articles of the constitution are so far connected and dependent upon each other that a change in any article generally, if not universally, has the effect to produce changes of more or less importance in one or more of the articles of the constitution other than that which is expressly amended." But this interpretation gives no aid with respect to a proposal which may require changes directly or expressly in more than one article of the constitution.

The limitation that amendments may not be proposed to the same article oftener than once in four years has not made any apparent difficulty since it was inserted in the constitution of Illinois. This has been primarily because the "one article at a time" clause has discouraged amendments and prevented the raising of a situation in which the four-year limitation might operate. Had the other limitation not been present, it is possible that the four-year limitation would have proven an obstacle to amendments. Where an article of the constitution contains as many and as distinct provisions as does the legislative article, there seems to be no logical reason for the four-year limitation. This is especially true in view of the fact that two or more amendments to the same article may be proposed and submitted at the same time under the present constitutional provisions.

Legislative proposal of amendments: The constitution of 1848 required the action of two successive sessions of the general assembly, this action to be taken by two-thirds of all the members elected to each of the two houses in the first session, and by a majority of all the members elected to each house in the second session. The constitution of 1870 simplified this machinery very materially by providing for submission to the people after an affirmative vote of two-thirds of all the members elected to each of the two houses. The requirement of action by two successive legislatures had proven unnecessary, not only in Illinois but in other states, and the tendency in other states has been to discard such a requirement.

The two-thirds vote required by the present constitutional provision would probably not have proven essentially difficult had other limitations upon the amending process not existed. In the states providing for the proposal of constitutional amendments by one legislature only, the more common requirement is that the proposal be one by two

City of Chicago v. Reeves, 220 Ill. 284 (1906).

thirds of the members elected to each of the two houses, although some states require a three-fifths vote, and recently there has been a tendency to require merely a majority vote.

Popular vote required for the adoption of amendments: As has already been indicated, the constitution of 1870 requires that a proposed amendment shall receive the votes of a majority of the electors voting at the next election of members, of the general assembly. The constitution of 1848 on the other hand provided for adoption upon the vote of a majority of all the electors voting at the next general election for members of the house of representatives. The framers of the constitution of 1870 do not seem to have intended to make the adoption of a constitutional amendment by popular vote more difficult, but such a result was actually accomplished by a slight change in phraseology.

The constitution of 1848 provided that amendments should be submitted at the next general election and "if a majority of all the electors voting at such election for members of the house of representatives shall vote for such amendment or amendments, the same shall become a part of the constitution." The constitution of 1870 provides that proposed amendments "shall be submitted to the electors of this state for adoption or rejection, at the next election of members of the general assembly, and if a majority of the electors voting at said election shall vote for the proposed amendments they shall become a part of this constitution". In view of the fact that the highest vote at a general election is apt to be larger than the votes for members of the general assembly, the constitution of 1870 under present voting methods imposes a higher standard of popular vote than did the constitution of 1848. However, this would probably not have been the case in 1870, and there was much plausibility in the contention that the language of the two constitutions was intended to mean the same thing, although, narrowly construed, the language of the consti- . tution of 1870 said something different from that of the constitution of 1848. This view was rejected by a divided court in People v. Stevenson.3

The form of ballot employed in Illinois at different periods has had a pronounced influence upon the result of popular voting. Before 1848 viva voce voting was permitted by the constitution of Illinois. Under this plan when the voter approached the polls he was asked not only to name his choice of candidates but also to vote "yes" or "no" upon any measure that may have been pending. Under the circumstances it was easier to vote than to refuse to answer. This in part explains the fact that the vote in this state upon the question of calling a convention in 1824 was almost equal to the total vote cast for candidates at the same election.

The printed ballot has been in use in Illinois since 1848. Until 1891, however, the printing of ballots devolved upon political parties,

3 * 281 Ill. 17 (1917).