ILLINOIS
Constitution-Making
In the Spirit of the Sixties,
1969-1970

Janet Cornelius
Historical Research and Narrative

"Power to the people!" This revolutionary cry galvanized change in the 1960s.

As dissenters took to the streets to promote civil rights, a Great Society, and an end to the Vietnam War, they demanded that governments become more responsive to "the people." In this climate, even change in seemingly immovable institutions became possible, and a group of staid lawyers and civic leaders were able to spearhead reform of the basic document of Illinois government. Meeting in 1969, four months after Woodstock, a diverse group of the people's representatives created a new Illinois constitution that was more effective and responsive to citizen's needs. The people of Illinois, whose government was never noted for its reform spirit, created and approved a reform constitution in 1969-70.

The constitutional convention of 1969-70 was held in this building which later became the Old State Capitol State Historic Site Source: Illinois State Historical Library

For decades Illinoisans were cognizant of problems with their constitution. The desire for a new constitution reflected a national trend to streamline state constitutions and make them more responsive to public concerns. From the 1940s to the 1960s a group of political and legal leaders had worked to bring about constitutional change, including future governors Adlai Stevenson II and Otto Kerner, future Illinois Supreme Court justice Walter Shaefer, League of Women Voters leaders Katherine Fisher and Marjorie Pebworth, journalists Irving Dilliard and Carl Weigman, and State Senator Richard J. Daley, son of the Chicago mayor and later to be Chicago's mayor himself. The most single-minded crusader for constitutional change, however, was Samuel Witwer. An unlikely revolutionary, Witwer, a courtly, conservative lawyer, was also a dynamic and focused activist who was determined to bring about a reform of the state's 1870 constitution.

State constitutions are regularly amended and rewritten to bring them in line with changing needs and demands. Illinois' first constitution, for example, was hastily written in 1818 and largely borrowed from the constitutions of other states. It quickly became inadequate for a state whose rapid growth, changing settlement and transportation patterns, and economic complexity demanded a new government framework. Illinois' second constitution, in 1848, which also reflected political demands to curb spending and to curb the legislature, proved to be unnecessarily restrictive for a state with a growing population and expanding agricultural and industrial base. The 1870 constitution remedied many of the faults of the 1848 document, and the new constitution was praised as a reform document for its first decades. However, it too was inadequate and difficult, if not impossible, to amend in accordance with the needs of twentieth-century Illinois.

Critics had a fundamental objection to the 1870 constitution: that its limitations had led to serious discrepancies between constitutional language and government practice, discrepancies which eroded faith in government at all levels. Reliance on a restrictive property tax had brought the legislature to a financial crisis each session and required subterfuge to pass a sales tax and to get bills paid. After 1910 the state legislature, with the sanction of the state supreme court, had refused to reapportion to accommodate the rapidly growing Chicago area, so the General Assembly was unrepresentative of the state's population. As urban

44

Samuel Witwer — President Illinois 6th Constitutional Convention

centers developed, the lack of meaningful home rule left control of crucial city management decisions in the hands of the state legislature. These critical problems and others, however, did work to the advantage of a few vested interests, whose intransigence, plus the structural challenges in trying to change the workings of government by the amendment process, frustrated the efforts of Witwer, Stevenson, Pebworth, and others to bring about meaningful reform. The reform-minded group led the successful effort to enact the Gateway Amendment in 1950, which was designed to facilitate the changing of the constitution. However, their efforts to restructure the judicial system and to widen the revenue article by amendment failed repeatedly because of small opposition groups.

Other developments in the 1960s, however, changed all that. First, in Baker v. Carr (1962) and successive decisions, the U. S. Supreme Court, followed by the Illinois Supreme Court, mandated state reapportionment of legislative districts based on population. In a second effort to respond to people's needs, the Illinois legislature finally passed a broader revenue act (including an income tax) that was upheld by the state supreme court in 1969. These legislative acts and court decisions, responses themselves to popular demands for more access to power and more responsible government, removed two serious objections to constitutional reform. Still, expectations were low; in 1967 the General Assembly voted to put a convention call on the 1968 ballot largely because they expected its chances of passage were slim. However, a campaign depicting the 1870 constitution as a horse-and-buggy document no longer suited to the Space Age, convinced voters who also were moved by the atmosphere of 1960s activism to take a chance on a convention. Illinois voters approved a convention call by a vote of three to one.

The constitutional convention opened in December 1969 with a bow to history; the delegates met exactly one hundred years after the last constitutional convention at the Old State Capitol, which had been recently restored to its appearance when Abraham Lincoln gave his "House Divided" speech there in 1858. However, as the delegates deliberated in the spring and summer of 1970, the tensions and problems of the present were always with them. Constitutional convention president Witwer, for example, had asked John Gardner of Common Cause to speak to the convention on constitution making, but Gardner declared he would criticize the Nixon administration's bombing of Cambodia, so he was not allowed to speak. On another day in May, Witwer announced that five thousand National Guard troops had been called up in Illinois and that units had been dispatched to the University of Illinois campus at Champaign-Urbana where students were marching. A few days later students were shot at Jackson State University and Kent State University. As a result of the outside turmoil, the press gave little notice to the convention's squabbles, compromises, and controversial testimony, which gave it valuable anonymity. The public knew or cared little about what was being fashioned in Springfield while they focused on more immediate and dramatic events.

Sixties activism and "good government" leadership influenced the makeup of the convention delegation, which reflected a different group of "the people" than did a typical legislature. The nonpartisan election of delegates had resulted in the election of independent civic leaders not active in either political party as well as some independent Democrats who had defeated organization candidates. These included Peter Tomei, chair of the Chicago Bar Association's Constitutional Study Committee and a guiding light for constitutional change; legal scholars Dawn Clark Netsch and Ronald Smith; and Mary Lee Leahy, who had a particular interest in environmental protection. Evenly balanced between the two major parties, the delegates included party regulars and mavericks, leaders of the American Civil Liberties Union and of a conservative neighborhood block movement, old and young, black and white, female and male. Democratic organization representatives included Richard J. Daley and Michael Madigan. While the largest number of delegates were lawyers, farmers, bankers, labor union officials, school administrators, and teachers were also included.

Members of the committee to consider changes to the state's bill of rights reflected the influence of 1960s issues. Civil libertarians Elmer Gertz and Bernard Weisberg and Albert Raby, an African American civil rights activist, clashed with Thomas Kelleghan, probably the most conservative member of the convention, and Father Francis X. Lawlor, who had led South Side Chicago neighborhood block clubs against integrated housing. Chicagoan Victor Arrigo, born in Sicily and a state legislator, was determined to restrain media links of Italian Americans with organized crime through protection of "individual dignity." Arrigo also joined with Father Lawlor in a failed effort to add an anti-abortion protection of the rights of the unborn into the state Bill of Rights. The committee's hearings were often fractious and frequently dramatic, but productive. Gertz, Weisberg, and others hailed the new Illinois Bill of Rights as one of the best in the nation, with tremendous potential for protection and extension of individual rights. Among other changes, the new article added equal protection of the laws to the due process clause, expanded the provision against unreasonable searches and seizures to include new

45

technology, and wrote in an enlightened concept of the purpose of penalties after criminal conviction. Responding to issues and tensions of the times, the document included declarations of freedom from discrimination on the basis of race in hiring, promotion, and housing as well as ban on discrimination against the handicapped. The 1970 Illinois Bill of Rights condemned communications that undermine individual dignity, thanks to Victor Arrigo, and a majority of convention delegates insisted on retaining a statement declaring the right to keep and bear arms. The Illinois Bill of Rights also included a forthright prohibition of discrimination on the basis of sex—even though in succeeding years Illinois legislatures repeatedly voted against a national Equal Rights Amendment.

The delegates cleaned up the 1870 document, deleting four thousand obsolete words which had been allowed to clutter the document such as provisions for the 1893 Columbian World's Fair. In their revisions, they tried to remember Supreme Court Justice Benjamin Cardozo's warning that constitutions should state not rules for the passing hour, but principles for the expanding future. On the other hand, as constitutional scholar Ann Lousin observed, people who have to ratify the document expect some attention to the problems that preoccupy them at the moment as well. The new provisions in the Bill of Rights were an example of timely as well as continuing concerns. Also reflecting a concern first raised in the 1960s was Article XI, declaring the state's and individual citizen's duty to ensure a healthful environment. Individuals could enforce this right against other individuals or the government through the legal system.

The convention delegates attacked structural flaws in Illinois government that had become apparent since 1870. They expanded legislative independence from the executive governor, made the Senate's presiding officer a member of that body, gave the legislature the power to call itself into special sessions, and created the position of auditor general as a legislative officer. They sought political stability by mandating that the governor and lieutenant governor run as a team. They also, perhaps unintentionally, dramatically strengthened the governor's position by new veto powers. Added to the previous regular and line-item vetoes were a reduction veto on appropriation bills and an amendatory veto. Both of these vetoes have been used aggressively by governors to rewrite legislation and transform the budget, making the Illinois governor the second most powerful state governor, behind New York, in formal constitutional authority.

Home rule marked another substantial change in Illinois government. Led by Richard J. Daley and a contingent determined to bring more powers of self-government home to Chicago, the convention created one of the most liberal home rule provisions among state constitutions. Cities with a population over 25,000 were given wide authority to exercise power, including taxing power, and to govern their own internal affairs. Thirty years after the convention, political analysts consider this liberal and practical home rule provision as one of the most successful accomplishments of the new constitution.

One of the preoccupations of convention leadership was ensuring that the new document was easier to change than the old one. Tomei and others failed to add a general initiative, in which new legislation could be introduced and passed by a majority of voters, to the constitution. However, under Tomei's insistent leadership, the writers stipulated that amendments could be initiated by voter petition to the legislative article only. This legislative initiative was responsible for the "Cutback Amendment" in 1980, when voter fury at a post-election legislative pay raise eliminated cumulative voting and reduced the size of the legislature. The results of the Cutback Amendment, however, have been questionable for the public good. The amendment replaced cumulative voting, which had provided political minorities with an opportunity for representation, with single-member districts, which have increased regional partisan polarization in the Illinois legislature. Political commentators John Dowling and Charles Wheeler have also observed that massive infusions of cash into the few closely contested races in single member districts have contributed to the explosive growth of campaign spending in the state.

In addition to the legislative initiative, convention delegates streamlined the amending process and added a convention call to be automatically submitted to the voters every twenty years. These reforms have worked as planned. Almost every general election since 1970 has included at least one proposed constitutional amendment, and ten have been approved. The first automatic convention call was submitted to the voters in 1988, when it was defeated, and it will be submitted again in 2008.

The constitution's approval by voters depended on both luck and skill to avoid alienating powerful groups. Fortunately for the constitution, the two most thorny public issues, reapportionment and revenue, had been decided before the convention. The reapportionment article implemented practices mandated by the courts in the 1960s. The revenue article of the constitution carried out the taxing powers determined by legislation in 1968, including individual and corporate income taxes (though these were fixed at an 8 to 5 ratio) and allowing reasonable tax breaks such as exempting food and medicine from the sales tax.

46

The delegates gave the state greater flexibility in borrowing, which has allowed direct state financing of highways, school buildings, prisons, and other public works.

Skillful leadership also worked in the convention's favor. Samuel Witwer and other convention leaders were well aware that, in order to get their document approved, they should avoid alienating any significant group. Therefore, they decided to submit divisive issues separately with the proposed constitution for voter approval. Would judges be chosen through appointment? Should the voting age be lowered to eighteen? Should the size of the legislature be reduced and cumulative voting abandoned? Should the death penalty be abolished? The voters said "no" to all these questions, though two were enacted later; perhaps this was an indication of a growing resistance to change.

Voters however, did approve the new constitution. The vote was light—about one-third of the registered voters participated—and the campaign for its approval was low-key based on research that showed that the more people learned about the new constitution, the more likely they were to vote against it. As political analyst Sam Gove observed, this raises disturbing questions about the voter and constitutional change. Should proposals for change be kept quiet in hopes of a low voter turnout? What does this say about democracy?

Though convention leadership successfully avoided controversy and got the constitution approved, the state did pay a price—the lack of meaningful change in education in the 1970 Illinois constitution. During the convention, hearings on education were confusing and contradictory. The delegates generally desired more equality of educational opportunities, but they generally rejected any specific measure that could achieve it. Delegates rejected a proposal that would have nearly eliminated differences in school funding based on local property wealth, for example. Speculation is that if delegates faced this particular vote today after thirty years of lack of progress on educational equality, they might vote differently.

Since the constitution was adopted in 1970, assessments of the convention's work have ranged from "not terribly distinguished" to "a pretty good job." Sam Gove describes the constitution as a "remarkable document," considering that it was written during a turbulent time of student unrest when Illinois' political parties and regions were sharply divided, and in a state noted more for its individualism than its propensity for reform. However, the turbulent time may have kept the constitutional convention's controversies out of public attention, and the climate of the 1960s may have prepared the voters in Illinois for the inevitability and desirability of change.

Click here for Curriculum Material

47