POLITICAL SCIENCE

QUARTERLY

CALIFORNIA

SOME IDEAS ON CONSTITUTIONAL REVISION

IN NEW YORK.

HE recent election of delegates to a convention for the

THE

revision of the constitution of the State of New York, challenges attention to certain provisions in that instrument and naturally raises the question: What do the other state constitutions contain on these subjects? Without examination into the causes of the various provisions, a brief comparison is here made for the purpose of indicating the general tendency throughout the country.

I. Revision and Amendment.

When, in the year 1846, the people of the State of New York established their third and still existing constitution, they provided in express terms for a periodical as well as an occasional submission to themselves of the question, whether they desired a revision of their fundamental law. The formal authority for submission of amendments merely, they had already conferred on their legislature in the second state constitution, adopted in 1821, and they continued that authority in the present constitution of 1846. This authority is a very common and useful feature of state constitutions, and is lacking, in fact, in only three such instruments, namely, those of New Hampshire (1792),1 Maine (1820) and Arkansas (1874). The grant of authority to the legislature to submit, at their discretion, the question whether a convention should be called,

1 Throughout this article, the states in Italics are those whose constitutional provisions are older than the present constitution of New York.

is also quite common. This is a commendable method of securing an early expression of the popular will upon so important a matter, but in eighteen states there is no express delegation of the power: Arkansas (1874), Connecticut (1818), Indiana (1851), Iowa (1846, 1857), Louisiana (1845, 1852, 1864 1868, 1879, though contra in 1812), Maryland (1867, though contra in 1864), Massachusetts (1780), Michigan (1850, contra in 1835), Mississippi (1817, 1832, 1868, 1890), New Hampshire (1784, 1792), New Jersey (1844), North Dakota (1889), Oregon (1857), Pennsylvania (1838, 1873), Rhode Island (1842), Texas (1845, 1868, 1876, though contra in 1866), Vermont (1777, 1786, 1793) and Virginia (1776, 1830, 1850, 1870). This grant of authority to submit the question of calling a convention first appeared in the constitution of Delaware,1 in the place of an impracticable scheme of legislative approval to every proposed change.2 Since that time, the power has been conferred directly, but in permissive terms, in eight states: Colorado (1876), Florida (1838, 1865, 1868, 1885), Georgia (1877), Kentucky (1799, 1850, 1891), Missouri (1865, 1875), Montana (1889), NEW YORK (1846) and Tennessee (1870). In three states: Alabama (1865, 1867, 1875), Delaware (1792, 1831) and North Carolina (1876), the legislature is forbidden to call a convention without a prior submission of its expediency to popular vote. And finally, a positive direction to submit is the form used in fourteen constitutions: California (1849, 1879), Idaho (1889), Illinois (1818, 1848, 1870), Kansas (1858, 1859), Minnesota (1857), Nebraska (1875), Nevada (1864), Ohio (1851), South Carolina (1868), South Dakota (1889), West Virginia (1870, 1872), Washington (1889), Wisconsin (1848) and Wyoming (1890). That is, twenty-five states have express provisions on this subject, and of the remaining nineteen, Mississippi and North Dakota alone have constitutions adopted within the last decade. Texas, in 1866, and Maine,

1 Adopted in convention, June 12, 1792, and contained in the present constitution of 1831.

2 In the first constitution of 1776. See on this subject, Jameson, Constitutional Convention, sec. 219 et seq., and the constitutions of Pennsylvania (1776), Georgia (1777), Vermont (1777), South Carolina (1778) and Vermont (1786, 1793).

by an amendment adopted in 1876, entrusted the legislature with the dangerous power of calling a convention, a popular vote being involved merely in the choice of the delegates to serve in that convention; but in the former state this authority was withheld in the subsequent constitutions of 1868 and 1876. The fixing of a definite time at which the people should vote upon the expediency of revising their fundamental law, appeared as early as 1780, in the constitution of Massachusetts, where it was commanded that such an election should be held in the year 1795. The provision, being merely for a single election, expired by its own limitation. In 1784 the constitution of New Hampshire required the holding of an election for delegates to a convention at the expiration of seven years. The constitution of 1792 provided for such an election every seven years, and so the fundamental law of that state remains. In 1789 the constitution of Georgia ordered the election of delegates to consider changes in 1794, and the amendments of 1795 directed another such election in 1797. The constitution of 1798, however, omitted any further direction of this character. a provision appears to have been the natural result of the extremely strict provision in the first state constitution of 1777, which forbade amendments except on petitions from a majority of the voters in a majority of the counties, specifying the desired changes. The constitution of Kentucky in 1792 also called for a popular vote in the year 1797, and if affirmative, then a second vote the next year. The result was the constitution adopted in 1799, in which no further provision of the kind appeared.

Such

The prescription of periodical elections on the question of revision, such as are required in New York by the constitution of 1846, appeared in the constitution of Indiana in 1816, which directed that a popular vote for or against the calling of a convention "to revise, amend or change the constitution," should be taken "every twelfth year." This provision was entirely omitted from the constitution of 1851, and disappeared from the fundamental law of that state. The Iowa constitution of 1846 contained a similar imperative direc

tion, the times fixed being the general election of 1870 and each tenth year thereafter. This provision was retained in the present constitution, adopted in 1857. The constitution of 1850 introduced this feature into Michigan, the times being the general election of 1866 and in each sixteen years thereafter. In Maryland the constitution of 1851 required decennial elections on the question of calling a convention, but in 1864 this provision was assimilated to that of New York by requiring a vote to be taken in 1882, and in each twentieth year thereafter. The time of the first election and the commencement of the twenty-year periods was changed in 1867 to the year 1887. The constitution of Ohio in 1851 provided in terms similar to those of New York for an election in the year 1871, and every twentieth year thereafter. This is still the fundamental law of that state. The constitution of Kansas in 1858 not only empowered the legislature to require a popular vote, but also directed the taking of such a vote in 1863 and in every tenth year thereafter; but the constitution of 1859, still in force, omitted the requirement. The constitution of 1870 substantially introduced into Virginia the twenty-year periods prescribed in New York, commencing with the general election of 1888.

Summarizing, we find that twelve states have, at some time, required a periodical submission of the expediency of calling a convention, and that seven of them still retain the provision.1 The requirement does not, therefore, seem to meet with general favor, and when so many provisions are required in a modern constitution, it should not be retained without weighty reasons.

II. Suffrage Qualifications.

Next in importance to the method of changing the constitution may be ranked the qualifications of the voters who are to make those changes and participate in the elections for the various officers of the government. As the constitution of Wyoming (1889) is the only one which directly confers the

1 The seven states are Iowa, Maryland, Michigan, New Hampshire, New York, Ohio and Virginia. Those who have rejected the provision are Georgia, Indiana, Kansas, Kentucky and Massachusetts.

suffrage on women, it is probable that any such change in the constitution of New York would be submitted as a separate matter; such has been the course where the convention has been doubtful of popular approval. A gentle method of introducing woman suffrage is indicated by the Wisconsin constitution (1848), which authorizes the legislature to extend the right of suffrage by law to "persons" not enumerated in the constitution, provided such law be approved at a general election by a majority of all the votes cast. Under a similar clause of the Colorado constitution (1876), woman suffrage was established in that state at the general election of 1893.

When the people of New York, in 1846, extended the suffrage to every man "who shall have been a citizen for ten days and an inhabitant of this state one year next preceding an election," it may be assumed that they did not intend to afford opportunity for unwise, if not fraudulent naturalizations, with the demoralizing scenes repeated in and around their courts of justice prior to each election. They had had no such provision in the earlier constitutions of 1777 and 1821, and they did but fall in with a movement which has only recently attained its culmination, and which tends strongly to the degradation of American citizenship. There are thirteen states now where the suffrage is conferred upon the man who has but "legally declared his intention to become a citizen of the United States before he offers to vote," with commonly the further requirement of one year's residence in the state.

1

1 Alabama (1875, though not in 1819 or 1865; first appeared in 1867 with a residence of six months only); Arkansas (1874, though not in 1836 or 1864, but first appeared in 1868 with a residence of six months only); Florida (1868 and 1885, though not in 1838 or 1865); Indiana (1851, with a residence of six months in the state and one year in the United States, though not in 1816); Kansas (1859, with a residence of six months in the state, though not in 1855 or 1857; in 1858 the provision appeared with the requirement that the declaration should be made ten days before election); Louisiana (1879, but not in 1812, 1845, 1852, 1864 or 1868); Minnesota (1857, after a residence in the United States of one year, and in the state of four months, and thus retained in the amendment of 1868); Missouri (1865, 1875, provided the intention has been declared not less than one nor more than five years); Nebraska (1866, with time of residence to be fixed by law, but in 1875 the declaration was required to be made thirty days before an election, and the residence to be six months in the state); North