Gambar halaman
PDF
ePub

PROVIDING FOR A STATE CONSTITUTIONAL CONVENTION

Since the people of Iowa at the general election in 1920 voted in favor of a convention to revise the fundamental law of the State, it becomes the duty of the General Assembly in 1921 to make proper provision in a convention act for the assembling of a constitutional convention. A discussion of what may properly be embodied in such an act, the usages in other States, and the historical precedents in Iowa, is therefore of timely interest.

WHAT MAY PROPERLY BE EMBODIED IN A CONVENTION ACT

When the revision of a State Constitution is deemed desirable, interest at once centers in the procedure preliminary to the meeting of the constitutional convention. In Iowa, constitutional provisions concerning revision of the fundamental law are found in Article X, Section 3, which reads:

At the general election to be held in the year one thousand eight hundred and seventy, and in each tenth year thereafter, and also at such times as the General Assembly may, by law, provide, the question, "Shall there be a Convention to revise the Constitution, and amend the same?" shall be decided by the electors qualified to vote for members of the General Assembly; and in case a majority of the electors so qualified, voting at such election, for and against such proposition, shall decide in favor of a Convention for such purpose, the General Assembly, at its next session, shall provide by law for the election of delegates to such Convention.

From these simple provisions it is clear that the duty of providing for the constitutional convention is imposed upon the legislature which is confronted with the practical ques

3

tion of what may properly be embodied in a convention act under the constitutional clause which empowers the General Assembly to "provide by law for the election of delegates".

In the discussion of this question, distinctions in the structure and functions of legislative assemblies and constitutional conventions are important. Both may be classed as law-making bodies. The legislature is intrusted with the enactment of statute law; while the convention undertakes the task of framing or revising the fundamental law of the State. Both the convention and the legislature are responsible to the electorate, although with somewhat different degrees of directness: both are selected by the electorate to perform their particular functions. The legislature is bound absolutely by the provisions of the existing Constitution; while the convention, ordinarily bound by the Constitution, may exercise constituent power, subject to ratification by the electorate. Again, it appears that the modern legislature is usually composed of an upper and a lower house; while the convention is universally composed of a single chamber. Finally, the members of the constitutional convention are, in the absence of constitutional provisions, qualified by legislative act; likewise the time, place,

1 Judge John A. Jameson in an exhaustive study of constitutional conventions, took the position that a convention is completely bound by restrictions placed upon it in the legislative act. He did this because he thought it necessary that the convention be subordinate to the existing government. But, as Mr. Walter Fairleigh Dodd points out, "even he hesitated to push this doctrine to its extreme limits; for example, he thought that a convention might disregard a legislative requirement that its work be not submitted to the people, and also took the position that the legislative limitations upon a convention 'must be in harmony with the principles of the convention system, or, rather, not inconsistent with the exercise by the convention, to some extent, of its essential and characteristic functions.'"'- Dodd's The Revision and Amendment of State Constitutions, p. 73; Jameson's Constitutional Conventions, p.

and manner of the assembling of the convention are usually statutory.2

In the Constitution of Iowa there is no provision which aims to restrain the convention in any way. While the phrase to "provide by law for the election of delegates" would seem to imply the minimum of legislative action, this simple provision necessarily includes the power to define the number and qualifications of delegates and their proper apportionment. Indeed, the most careful consideration should be given to this matter by the legislature in framing a convention act. The number of delegates should be such as to provide a convention small enough to assure efficient action and large enough to permit of an adequate representation of State opinion; the qualifications of delegates should be such as to obtain the advantage of experience coupled with an intimate knowledge of the requirements of the State; and the apportionment of delegates should be so arranged that the convention will contain persons having more than local interests.

Likewise it is essential that proper regulations concerning the nomination and election of delegates be embodied in the convention act. In so far as possible the existing State laws should be utilized; but a careful examination of their applicability will be necessary, and perhaps some changes provided to assure to the convention the safeguards that its high importance demands.

Thus, the time, place, and possibly the manner in which the convention shall convene should be provided with careful attention to the seasonableness of the call, the place in which the convention shall at first assemble, and suggestions concerning preliminary organization and procedure. Again, it is not to be overlooked that adequate appropriations both for the proper remuneration of the delegates 2 Jameson's Constitutional Conventions, pp. 356, 357.

and for meeting the expenses incidental to the functioning of a constitutional convention-should be arranged, coupled with an indication of such method of certification as would seem expedient to protect the expenditure of public funds.

In brief, a convention act should provide for all matters that require definite settlement before the delegates convene, and should be of such breadth as to insure in all respects an unhampered convention. Otherwise, the purpose of holding such a convention would be defeated.

With the same purpose in view, the legislature may properly insert in its convention act clauses that tend to facilitate convention procedure; but in doing this it should impose no undue restraint upon independent action. In the convention acts of the last decade such provisions as the following are found: "The Governor shall call the convention to order at its opening session and shall preside over it until a temporary or permanent presiding officer shall have been chosen by the delegates"; the delegates "shall proceed to organize themselves in Convention, by choosing a president and such other officers as they may

deem expedient"; the "journal and proceedings of the said convention shall be filed and kept in the office of secretary of state"; and the "doors of the convention shall be kept open to the public during all of its sessions.”””

Furthermore, the legislature sometimes assumes to confer upon the convention powers of a positive nature. Thus, the convention "and its committees, shall have the same power to compel the attendance of witnesses, or the production of papers, books, records and public documents, as is

3 Jameson's Constitutional Conventions, p. 275.

4 Illinois convention act (approved June 21, 1919), Sec. 7.

• Massachusetts convention act (approved April 3, 1916), Sec. 6.

• Ohio convention act (approved June 6, 1911), Sec. 18.

Michigan convention act (approved June 27, 1907), Sec. 7.

now exercised by the General Assembly, and its committees"; it "shall have authority to determine its own rules of proceeding, and to punish its members for disorderly conduct, to elect such officers as it may deem necessary for the proper and convenient transaction of the business of the convention, and to prescribe their duties";" or it is authorized to "make provisions for the publication of its proceedings or any part thereof; and for the securing of a copyright of any such publication for the state" 10 Sometimes express authority for the performance of its functions is found in a clause stating that the convention "may take into consideration the propriety and expediency of revising the present Constitution of the Commonwealth, or making alterations or amendments thereof. ''11

Such restrictions as those above enumerated would seem to have no other purpose than that of facilitating the work of the convention. In so far as this principle is observed, there is little danger of friction. Mr. Walter F. Dodd ably expresses this conclusion in these words:

Legislative acts are usually necessary for the assembly of conventions, but this dependence of conventions upon legislatures has as yet caused few conflicts. The good sense of the people has ordinarily caused both legislatures and conventions to restrict themselves to their proper spheres. The general obedience of conventions to the legislative acts under which they were called has been due to the fact that legislative acts have usually required only those things which the convention would have done without legislative requirement; cases of conflict arise only when a legislature • Illinois convention act (approved June 21, 1919), Sec. 12.

• Ohio convention act (approved June 6, 1911), Sec. 4.

10 Nebraska convention act (approved March 24, 1919), Sec. 14.

11 Massachusetts convention act (approved April 3, 1916), Sec. 6. In Massachusetts there was no constitutional provision for calling a convention. There are at present twelve States that have no express provision covering this matter; but conventions have been held in eight of them without serious difficulty. Hoar's Constitutional Conventions, p. 41.

« SebelumnyaLanjutkan »