October 2008 • Volume 96 • Number 10 • Page 494
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The Illinois Constitution: A Primer
Here's basic information on the Illinois Constitution and the call for a constitutional convention, which will be submitted to voters at the November general election. For ISBA's position on the upcoming vote, see the President's Page (p 492).
At the November 4, 2008, general election, Illinois voters will have the automatic opportunity to call for a state constitutional convention to revise the 1970 Illinois Constitution. This is a significant constitutional issue that arises in Illinois only once every 20 years. This article will answer some basic questions regarding the constitution and the convention call.1
A dual system
Through the United States Constitution, the people delegated to the federal government only specific or enumerated powers. Therefore, the federal government must rely on the United States Constitution for power to act.
The people also created state governments and conferred upon them the residual general powers of government. The people's representatives in the state legislature exercise the people's lawmaking power. Accordingly, the legislative powers that the people did not assign to the federal government remained with state legislatures, except for those powers the people withheld through state constitutions.
Therefore, a state legislature does not rely on a state constitution for power to enact legislation. Rather, a state legislature looks to the state constitution and the federal Constitution for restrictions on its power to act. The state legislature may act in every area of government, subject to the federal and state constitutions.
However, the people's inalienable fundamental rights cannot be contracted away or transferred to government. Thus, a constitution recognizes and protects individual rights and liberties, but it does not create them.
The framework of government
The Illinois Constitution has several important functions.
First, it declares and guarantees the people's rights and liberties. Each of the 50 state constitutions and the United States Constitution includes a bill of rights or declaration of rights. Because a state legislature may act in every area of government subject to constitutional limitations, the inclusion of certain individual rights and liberties in a state bill of rights places them beyond the reach of state government.
Second, it establishes the framework or structure of government. It follows the classic pattern of separation of powers between the three branches of government: legislative, executive, and judicial. The distribution of power under this theory, with a system of checks and balances, inhibits any single branch of government from unduly extending its power.
For example, the legislative branch enacts laws. However, the executive branch can veto legislation and the judicial branch can declare legislation unconstitutional. The executive branch executes laws and the judicial branch interprets laws. However, the legislative branch can limit the budgets of those branches; enact laws restricting their authority in certain areas, within constitutional limitations; confirm many of their officers and, when warranted, impeach their officers for illegal actions.
The Illinois Constitution and state statutes also determine the existence, form, function, and powers of local government, including home rule for qualifying local governments.
Third, because state government addresses all areas not specifically delegated to the federal government, a state constitution must necessarily be more detailed than the United States Constitution. Accordingly, the Illinois Constitution, like most state constitutions, sets forth fundamental policy on a wide variety of additional subjects, such as finance, revenue, and education.
Four constitutions since 1818
Because a state constitution addresses so many areas in state government, the document must be a "good fit" for the present and the foreseeable future and allow for appropriate alteration to address evolving needs and conditions. This is seen in a brief history of Illinois' four constitutions. Illinois' first constitution was approved in 1818 and was a requirement for statehood.
The structure of government that it established met the needs of what was then a sparsely populated frontier state. However, during the next 30 years, rapid growth and development changed Illinois from a pioneer state to one of the most populous in the nation. Illinois government under the 1818 constitution became inadequate for the people's needs.
In response, Illinois voters approved the 1848 constitution. It created a state government with significantly limited power regarding banking,
finance, and revenue. The 1870 constitution was written partly in response to these needs.
However, after 100 years, Illinois government under the 1870 constitution eventually was perceived as having failed to keep up with changing
conditions. In 1970, a new constitution was written and approved by the voters. The 1970 Illinois Constitution is our fourth and current state constitution.
Constitutional change: amendment or convention
The two formal means of constitutional change are by amendment or a constitutional convention.
Generally, an amendment to the Illinois Constitution is initiated in either house of the General Assembly, and must receive three-fifths approval in each house. If the legislature is unresponsive to the people's demand for change pertaining to that body, the people may initiate a constitutional amendment to the legislative article. In either case, the proposed amendment must win voter approval by either three-fifths of those voting on the amendment or by a majority of those voting in that election.2 To date, the General Assembly has proposed 17 amendments to the 1970 Illinois Constitution and, of these, voters have approved 10.
The more comprehensive approach to constitutional revision is the state constitutional convention. In the convention method, the people elect delegates for the specific purpose of constitutional revision. The product of the convention, a proposed state constitution, is then submitted to voters for approval. Historically and legally, a state constitutional convention is the direct voice of the people in matters pertaining to the revision.
In Illinois, if voters approve a convention call, the Illinois Constitution directs the General Assembly, at the next legislative session, to enact enabling legislation that provides for the convention, including the election of 118 delegates, two from each of the 59 state senate districts; the designation of the time and place of the convention, which must begin within three months after the election of delegates; the compensation of convention delegates and officers; and the funding of necessary convention expenses.3 Although the 1970 Illinois Constitution is our fourth state constitution, it was the product of the Sixth Illinois Constitutional Convention, still remembered simply as "Con-Con."4
The 1970 Illinois Constitution provides for the periodic and automatic placement on the ballot of the question whether a state constitutional convention shall be called. "If the question of whether a Convention should be called is not submitted during any twenty-year period, the Secretary of State shall submit such question at the general election in the twentieth year following the last submission."5
The Illinois Attorney General issued an opinion that the first automatic convention call should be submitted to voters in 1988, rather than 1990. The Attorney General explained that a convention call was last submitted to voters in 1968, which resulted in the Sixth Illinois Constitutional Convention, which produced the 1970 Illinois Constitution. Therefore, 1988 was the twentieth year following the last submission. The automatic convention call failed, receiving 900,109 affirmative votes and 2,727,144 negative votes. 2008 is the twentieth year following the last submission of a call for a state constitutional convention.
The November 4, 2008, general election will present Illinois voters with the opportunity to open up for revision the Illinois Constitution, which authorizes and provides the structure of our state government.
Reflecting on their experience as leaders at Con-Con, Elmer Gertz and Joseph Pisciotte offered the following advice for future generations: "A constitutional convention cannot succeed unless it is really needed and wanted, as was the Sixth Illinois Constitutional Convention. If one is not sure that new deliberations will lead to a better charter, there is little point in starting this long, involved, and frequently frustrating process."
James Hilliard received his BA from Northwestern University and his JD from the University of Illinois College of Law. He is a clerk to Justice Charles
E. Freeman of the Illinois Supreme Court and a member of the Illinois Bar Journal Editorial Board. The views expressed here are his alone.
1. For further information read the 1970 Illinois Constitution. Many other resources are available. See, for example, Frank Kopecky and Mary Sherman Harris, Understanding the Illinois Constitution (Illinois Bar Foundation 2001), available at http://www.isba.org/Sections/constbook.pdf; Samuel K. Gove and James D. Nowlan, Illinois Politics and Government: The Expanding Metropolitan Frontier (Nebraska 1996); David Kenney and Barbara L. Brown, Basic Illinois Government: A Systematic Explanation (Southern Illinois 3d ed 1993); Elmer Gertz and Joseph P. Pisciotte, Charter for a New Age: An Inside View of the Sixth Illinois Constitutional Convention (Illinois 1980); Samuel K. Gove and Victoria Ranney, Con-Con: Issues for the Illinois Constitutional Convention (Illinois 1970), available at http://www.illinoisconcon.org/pdf/concon%20issues%20for%20the%20illinois%20constitutinal%20convention.pdf; Jesse White, Illinois Blue Book 2005-2006 (Illinois Secretary of State 2006), available at http://www.cyberdriveillinois.com/publications/illinois_bluebook/2005_2006/home.html.
2. IL Const Art XIV.
3. IL Const Art XIV, § 1(d).
4. Voters defeated constitutions proposed by the Third Illinois Constitutional Convention in 1862, and by the Fifth Illinois Constitutional Convention in 1922.
5. IL Const Art XIV, §1(b).