64 FEDERAL CONSTITUTIONAL CONVENTION Constitution and amend the same?' shall be decided by the electors of the State; and in case a majority of the electors voting thereon shall decide in favor of a convention for such purpose the electors of every senate district of the State, as then organized, shall elect three delegates at the next ensuing general eiection at which members of the Assembly shall be chosen, and the electors of the State voting at the same election shall elect fifteen delegates at large. The delegates so elected shall convene at the capitol on the first Tuesday of April next ensuing after their election, and shall continue their session until the business of such convention shall have been completed. Every delegate shall receive for his services the same compensation and the same mileage as shall then be annually payable to the members of the Assembly. A majority of the convention shall constitute a quorum for the transaction of business, and no amendment to the Constitution shall be submitted for approval to the electors as hereinafter provided, unless by the assent of a majority of all the delegates elected to the convention, the yeas and nays being entered on the journal to be kept. The convention shall have the power to appoint such officers, employees, and assistants as it may deem necessary, and fix their compensation and to provide for the printing of its documents, journal and proceedings. The convention shall determine the rules of its own proceedings, choose its own officers, and be the judge of the election, returns, and qualifications of its members. In case of a vacancy, by death, resignation, or other cause, of any district delegate elected to the convention, such vacancy shall be filled by the vote of the remaining delegates representing the district in which such vacancy occurs. If such vacancy occurs in the office of a delegate-at-large, such vacancy shall be filled by a vote of the remaining delegates-at-large. Any proposed constitution or constitutional amendment which shall have been adopted by such convention, shall be submitted to a vote of the electors of the State at the time and in the manner provided by such convention, at an election which shall be held not less than six weeks after the adjournment of such convention. Upon the approval of such constitution or constitutional amendments, in the manner provided in the last preceding section, such constitution or constitutional amendment, shall go into effect on the first day of January next after such approval. (Art. XIV, sec. 2, Constitution of 1894) so A reading of the above article indicates that once the question of holding a constitutional convention has been decided upon, the constitution intends that the procedures relating to the conventionindeed the work of the convention itself-should be self executing and free from legislative control. This was, of course, a complete change from the conduct attendant with earlier conventions. The above article has clarified and settled two very important questions affecting legislative authority in New York: (1) the structure of the convention, and other details concerning it, and (2) the election of delegates. Prior to 1894, the legislature set the date on which conventions were to convene. However, a dispute in 1886 between the governor and the legislature over the details of the convention postponed the convention for some 8 years even though the people by referendum had voted to hold the convention. Under article XIV, however, once the question of holding a convention is approved, the time is automatically set for the meeting of the convention. So also, with the termination of the convention. Under former procedure the legislature would set a day certain on which the business of the convention was to be accomplished or finished. Experience had shown, however, that it was impractical to so limit the deliberations of the convention and in one instance (1867) the legislature had to pass supplementary legislation extending the time. Under article. XIV any convention, once convened, remain in session "until the business of such convention shall have been completed." The only limitation with regard to this matter is the further provision that 6 week interval must occur between the close of the convention, and the submission of its revised constitution to the people." FEDERAL CONSTITUTIONAL CONVENTION 65 Under article XIV, a majority of the convention constituted a quorum both for doing business and for approving proposed amendments. This provision was inserted to prevent a "mere handful" of delegates from being able to control the affairs of the meeting. It might be observed, however, that if the convention of 1777 had had such a limitation it no doubt would not have promulgated the State's first constitution. This was for the reason that the British, in occupying different parts of the State from time to time, made it impossible for a majority of delegates to be always present. The article also provided that the convention-not the legislature or the courts-determine the rules of its own proceedings, its officers, and all issues relating to the election of the delegates. It is readily understood why a convention should be permitted to adopt rules to govern its own proceedings. However, on the issue of election, the power is not so apparent. The reason advanced at the time this provision was adopted was that by divesting the legislature and the courts of such power, the people, through the conventions, would have, ultimately, such power. It was the only method by which the people, in the final analysis, could have a final say over the legislature and the courts. In any event this safeguard rendered the convention free from legislative control as well as from judicial interference. A reading and study of the constitutional convention history of New York clearly indicates that a convention clause with self-executing provisions is more expeditious than convention clauses calling for legislative control. Legislative action oftentimes results in delays. The governor, for example, may send his recommendations to the legislature and have that body reject them completely, or accept them only in part. The governor, in turn, has the power of vetoing the legislative acts thereby stymying the work of that body. With self-executing provisions, the convention, once agreed to by the people, eliminates these intermediate steps with their possible resulting delays and conflicts. The constitutional convention of 1915 was held in pursuance to the amending article of the constitution providing for a referendum at 20-year intervals. The constitution proposed by this convention was rejected upon the ground that it was "not sufficiently progressive." " In 1936, the people again, pursuant to the amending article of the constitution, voted to hold a constitutional convention. This resulted in the convention of 1938. An interesting sidelight on this convention was the fact that, a convention having been decided upon by the vote of the people, the governor asked the legislature to create a special commission to perform essential preparatory work for the convention just as it had created commissions to do preliminary work for the conventions of 1894 and 1915. However, the legislature did not adopt the governor's recommendation. Thereafter, the governor established an unofficial committee, nonpartisan and nonpolitical in character, which undertook the preparation of factual data on several subjects which were certain to be considered at the convention. The 1938 convention adopted a total of 57 separate measures proposing amendments to the then constitution. To expedite matters it was decided to group 50 of the proposals, which were considered uncontroversial, into i amendment. Eight other proposals were submitted singly and appeared on the ballot for the people's consideration as amendments Nos. 2 to 9, inclusive. These latter proposals were considered controversial and if the people were to reject any of them, it would not affect the remaining amendments.24 At the general elections of 1938, six of the proposed amendments were approved. The only change here pertinent concerned the amending article which was renumbered article XIX. The only substantive change made relating to constitutional conventions was changing the date on which to start the 20-year intervals, so that the next convention will be voted upon in 1957, a year when no impending State or National election is likely to inject its issues into the deliberations of the convention. RÉSUMÉ In review, there have been 8 constitutional conventions in New York State-1777, 1801, 1821, 1846, 1867, 1894, 1915, and 1938and of these, 4 have had their work approved and adopted by the people. The work of 2 conventions became effective without ever being referred to the people, and the work of 2 conventions was rejected. The rejection of the proposed constitution of 1867 engendered & new step in constitutional procedure, for following its rejection, the legislature created the constitutional commission of 1872 to do extensive preliminary work and thus prepare well-reasoned and wellconsidered proposals to the constitution. Again, because of the rejection of the proposed 1915 constitution, the legislature created a judiciary committee, a body of experts with a knowledge of judicial problems, to submit recommendations containing constitutional changes on the judicial provisions of the constitution (article VI). Another noteworthy development has been the establishment of special commissions and committees, prior to the convening of the conventions of 1894, 1915, and 1938, to undertake to make studies and prepare statistical and other data on particular subjects for the conventions' aid and consideration when they meet. While there have been many revisions and many changes and amendments, the New York State constitution has not been much altered in its main structure. In its history, the legislature has restricted the scope of a convention's deliberations authorizing it to consider, in 1 instance, only 2 subjects. It has, however, authorized unlimited revision on other occasions. The conventions in like manner have submitted completely revised instruments for approval and also piecemeal changes, even though some conventions had general revisionary powers. This history also discloses that the trend has been away from legislative and judicial control and toward autonomy on the part of the convention, enabling it to decide for itself the scope of its deliberations as well as the number and kinds of subjects it will consider. This trend has helped in eliminating delays as well as disputes which have arisen between the legislature and the governor. Moreover, the conduct of recent conventions has indicated that there is little likelihood of a so-called runaway convention which would get out of control and promulgate proposals effecting radical, unpopular, or unwanted changes in the constitution. On the contrary, past conventions have suggested only changes which reflected the tempo of the FEDERAL CONSTITUTIONAL CONVENTION 67 times and only then on subjects which were in need of constitutional change. CITATIONS 1 Problems relating to legislative organization and powers, New York State Constitutional Convention Committee (1938), Albany, p. 336. Ibid. 3 New York, Constitution (1777), Art. VII. 6 Lincoln, The Continental History of New York (1906). I. 606. See footnotes to page 2, supra, where eight other state constitutions promulgated during the Revolutionary period expressly provided for con. stitutional changes. There was, however, sentiment in favor of a submission. See W. F. Dodd, The Revision and Amendment of State Constitutions (1910), 12. Lincoln, The Constitutional History of New York (1906), I, 607–608. Lincoln, ibid., I, 610. Problems relating to legislative organization and powers, New York State Constitutional Convention Committee (1938), Albany, p. 337. 'Lincoln, ibid., I, 615. 1 Lincoln, Ibid., 1, 624-628. Lincoln, Messages from the Governors (1909), II, 1055, 1057; Lincoln, fbid., I, 026. Lincoln, ibid., 1, 628-629. 10 Lincoln, ibid., 1, 751. New York, Debates of the 1846 Convention, reported by William G. Bishop and William H. Attres. Lincoln, Ibid., II, 210. Dougherty, Constitutional History of the State of New York (1915), 171–172; see also discussion of this question in chapter 7, supra. Lincoln, ibid., II, 9-217. 14 New York, Constitution (1846), Art. XIII, sec. 2, Lincoln, ibid., II, 210. 18 Lincoln, ibid., II, p. 234. 16 Lincoln, ibid., II, pp. 288, 422. #Lincoln, ibid., II, pp. 464–574. Lincoln, ibid., II, p. 682, III, pp. 1-30. New York, Constitution (1846), Art. XIII, sec. 2, provided that the legislature was to provide by law for the election of delegates. Lincoln, ibid., IV, p. 797. Lincoln, ibid., III, pp. 660-678. New York, Record of the 1915 Constitutional Convention (revised record), (J. B. Lyon Co., Albany, N. Y., 1916), 2 Vols. There was a judicial constitutional convention in 1921 which dealt with the judiciary provisions revision. It was called by the legislature pursuant to the amending article. New York State Constitutional Convention Committee (1998), (J. B. Lyon Co., Albany, N. Y, 1988), vol. I, pp. v-vill New York, What's in the Proposed Constitution, published by National Municipal League (1998). PART VIII CONCLUSIONS AND RECOMMENDATIONS CHAPTER 20 SUMMARY, CONCLUSIONS, AND RECOMMENDATIONS Introduction Article V provides two methods for amending the Constitution: (1) Congress itself may propose amendments for ratification by threefourths of the States; or (2) on application of the legislatures of twothirds of the States, Congress shall call a Constitutional Conventiou for proposing amendments. Twenty-seven proposed amendments have been referred to the States for ratification under the first method,' but there has never been, since the adoption of our Constitution, a Constitutional Convention. Because of the growing number of petitions submitted to Congress during recent years for a convention under the second method, and because of the complex issues involved, the question of when and how Congress shall call a convention creates considerable problems which should be faced and solved by responsible Government officials. Article V of the Constitution is silent as to how and when conventions are to be convened and it does not state how conventions are to be formed or what rules of procedure are to govern their acts. In seeking answers to these problems, little aid can be obtained from the Constitutional Convention of 1787 which raised the issues but left them unanswered." Further, court decisions furnish little more than signpost assistance. They have relegated the matter of constitutional amendment to that area of constitutional law known as political questions. While this leads one to believe that Congress alone may determine the matter there is nonetheless little guidance as to how and for what purposes constitutional conventions shall be convened. Article V, for example, sets no requirements concerning what a State application must contain or what standards it must meet in order to be considered as validly made. One petition from the State of Maryland, for instance, was submitted by its house of delegates only. It seems that such a petition is not an application from the "legisla ture"-both houses of the State. One application of a State legislature was vetoed by its governor.' This raises the question of whether the Constitution requires action solely by the houses of a State legislature or whether applications must be processed in accordance with procedures for enacting State laws which usually includes action by the State's chief executive. Another question is, When have two-thirds of the legislatures made application for the calling of a convention? Some petitions to Con |