POLITICAL SCIENCE

QUARTERLY.

NEW YORK'S CONSTITUTIONAL CONVENTION.1

ARTICLE XIII of the constitution of the state of New

York, adopted in 1846, provides that in the year 1866 and every twentieth year thereafter the question shall be submitted to the people: "Shall there be a convention to revise the constitution and amend the same?" In 1866 that question was so submitted, and a convention to revise and amend the constitution was duly held in 1867. In 1886 that question was again submitted to the people, and the vote in favor of such a convention was the most emphatic ever given in the state upon any question as to the revision or amendment of the constitution. Notwithstanding this emphatic vote, the constitutional convention thus ordered has not been held. The fact marks a failure of constitutional government which deserves the thoughtful consideration of the people of the state. In 1832, when South Carolina undertook to nullify a law of the United States, President Jackson issued a proclamation intimating plainly that if such a course were persisted in he would use the whole military power of the nation to enforce submission. In 1861, when a number of the states of the Union attempted to violate and destroy the constitution of the United States, the question was fought out upon the field of battle through one of the bloodiest wars in history until the constitution of the United States was recognized to be supreme. By a simple failure on the part of the governor and the legislature to agree upon details, the constitution of the state of New York, as touching the guaranty which it affords for a periodic constitutional convention, is set aside, and the popular demand of nearly 600,000 voters that such 1 An address delivered before the Commonwealth Club, New York City, March 18, 1889.

a convention should now be held is made of no effect. Can the people of the state of New York afford to consider this situation. as a matter of indifference, because it is their own officials who thus jauntily thwart the constitution and refuse to give heed to the popular will ?

This is the question in the abstract. Let us consider it for a moment in its details. At the general election of 1886, the people decided by a vote of 575,000 against 31,000 that a constitutional convention should be called. In accordance with the provision of the constitution itself, the two houses of the legislature (the Republican party having a majority in both) united, in 1887, in the passage of a bill to provide for the holding of the convention which had been ordered. This bill the governor vetoed on questions of detail. There the matter has rested until this day. The question, therefore, would appear to be whether, upon questions of detail as to the law under which the convention is to be held, the constitutional guaranty that such a convention shall be held in response to a vote of the people may be set aside. It is true that the same constitution gives to the governor the veto power, and it is through the exercise of this constitutional power residing in the governor that the significant result alluded to has been reached. In my opinion, the result indicates that the use of the veto to prevent the carrying out of the constitutional mandate is a clear abuse of the veto power. That power is a negative power. It gives to the governor the right to say, as to any bill which has passed the legislature: I forbid. Is it not an absurdity to claim that, under such a negative power, the constitution intended to give to one man the opportunity to suspend the operation of the constitution, in its guaranty to the people of the right of a periodic revision of the constitution itself? When the nation found itself involved in the war for the preservation of the Union, some people claimed that unless the Union could be preserved within the methods of ordinary constitutional action it must be allowed to perish. President Lincoln took the much more philosophical view, that it was absurd to suppose that the people of the United States had created a nation which did not have the right to

preserve its own life. Therefore he claimed, and acted upon the claim, that as commander-in-chief of the forces of the United States engaged in a war for the preservation of the Union, he was entitled to exercise, as a war power, whatever power was necessary to preserve the nation's life. The governor's veto of the bill to provide for the holding of the constitutional convention which had been ordered, and his vetoes of the bills in regard to the taking of the census which should have been taken in 1885, proceed upon precisely the opposite theory. According to his action, it is legitimate for one man to hold in suspense, as long as his power lasts, the operation of the constitution in some of its most important provisions.

If this be a proper use of the veto power, the consequences are more far-reaching than the cases to which they immediately apply, important as these are. It is substantially the assertion of a claim on the part of the governor positively to shape legislation. Hitherto, it has been considered that the positive shaping of legislation is a function which pertains to the legislature as such, the relation of the governor thereto being simply to approve or to forbid. When, however, the governor stretches the veto power to the point where he forbids legislation approved of by the legislature for the purpose of carrying out the expressed mandate of the constitution, he practically claims that no legislation of any sort shall be permitted which in its details is not satisfactory to him. In other words, unless the majority in a legislature is sufficient to override a governor's veto, the governor may dictate the form of all legislation which is to become law. I do not believe, for one moment, that such a use of the veto power was contemplated when it was lodged with the governor. It is significant that the governor, when it has suited his convenience to do so, has been very ready to adopt the opposite theory. A few years ago, a bill permitting pools to be sold on race courses passed both houses of the legislature and came to him for action. It was vigorously opposed by many clergymen of the state and by all the element which naturally would sympathize with them, while it was supported, on the other hand, by those who believed it desirable to have such matters regulated

by law. The governor, in permitting the bill to become a law without his signature, filed a memorandum, in which he said. that it was the duty of the legislature to decide as to the propriety of such questions, and that he saw no occasion to interpose his veto at that point.

It is true that since the governor vetoed the bill providing for the constitutional convention, he has been re-elected, and the claim may be made that the people have condoned his mistake, if they have not even practically endorsed his position. This claim would be stronger if it were not at the same time true, that the people of the state have since elected a Republican legislature, thus endorsing substantially the attitude taken by that party also. In 1887, immediately after the controversy, a new legislature was chosen which was strongly Republican, the Senate being more strongly so than it had been for many years. Again, in 1888, an Assembly was elected with a larger Republican majority than for a long period. The truth probably is that both governor and legislature were chosen without special consideration of their attitude upon this question. Otherwise we reach the conclusion that the people of the state have done that peculiarly amiable thing - endorsed two entirely antagonistic positions.

While it has been necessary thus to discuss the steps by which the present situation has been reached, it is the present rather than the past that is now of interest. The fact remains that the constitutional convention which was ordered has not yet been held. How then are we to get it? Clearly the duty of further initiative rests with the legislature. It must continue to send up measures providing for such a convention, until some one of those measures becomes law, or until the people appreciate the issue and pass upon it in the election of their governor. It cannot be doubted that, once clearly understood, the position of the legislature will be sustained.

The purpose of this paper is not to show why a constitutional convention ought to be held. The people, acting in a constitutional way, have ordered that it should be held, so that any further reasons for holding the convention would be superfluous.

We have a right to demand of our own authorities that they grant to us the revision of the constitution which the constitution itself guarantees to us. But while it is superfluous to give further reasons for the holding of such a convention than that it is our right to have it, it is not superfluous to point out the disadvantages from which we are suffering by reason of its not being held. Some of these will appear by considering the steps which have led to the insertion into the constitution of the section which provides for a periodic revision. The first constitution of the state, adopted in 1777, contained no provision either for amendment or revision. The constitution of 1821 contained a provision for amendment, but none for revision. The constitution of 1846 (under which, in this particular, we are still living) made provision not only for occasional amendment, but for periodic revision. In other words, starting with a constitution which was assumed to need no amendment, experience has gradually brought the state to appreciate the necessity not only for amendment, but for revision. It is significant that the convention of 1867 maintained the existing provisions of the constitution in this respect, simply relieving them of ambiguity. It has sometimes been questioned whether, under the constitution of 1846, a new convention can be ordered except by a majority vote of all the people voting at that election; and the convention of 1867 proposed to set all doubt upon that point at rest by providing, in explicit terms, that a convention could be called by a majority of all the votes cast with reference to that question. It is true that the constitution submitted to the people by the convention of 1867 was not adopted; but it is significant that the discussions of that convention showed its judgment in this respect to be the same as that of the convention of 1846. The provision for a periodic revision was not inserted in the constitution of 1846 without debate. It was defended on the expressed ground that it asserted the great fundamental principle that all power resided in the people, a principle less likely to be forgotten if, once in twenty years, they might take the power into their own hands and bring the constitution into review without the intervention of any other