Blazing the Constitution Trail Experience in six states proves value of well planned program of research to drafters of neul state charter.

By KIMBROUGH OWEN*

TCE the trail-blazing achieve- Sh ments of the New York Con- stitutional Convention Commission, in its preparation for the convention of 1915, there has been a slowly increasing recognition of the im- portance of systematic preparation of materials for the assistance of constitutional conventions. Five subsequent conventions have been aided by systematic preparatory re- search.

For the Massachusetts convention of 1917-1918 a Commission to Compile Information and Data for the Use of the Constitutional Con- vention was appointed. The Legis- lative Reference Bureau in Illinois was charged with the collection and publication of data for that state’s convention in 1919.

To prepare for the New York Constitutional Convention of 1938 Governor Lehman appointed a New York State Constitutional Convention Committee. For the Missouri Con- stitutional Convention of 1943 the University of Missouri in connection with the Statewide Committee for

*Dr. Owen is assistant professor of government at Louisiana State Univer- sity and director of research of the Louisiana State Law Institute. During the recent war he was assistant corn- munications officer with the State De- partment’s Courier Service, helping organize and maintain courier service in South America, Africa and Europe. This article is based on Dr. Owen’s ad- dress before the National Conference on Government of the National Munici- pal League, Nashville, November 14.

the Revision of the Missouri Con- stitution prepared a series of manuals. For the recent New Jersey Con- stitutional Convention the Gov- ernor’s Committee on Preparatory Research did valiant work.

The experience of these six con- ventions indicates the value of such preparation. With the tendency to- ward long constitutions, convention delegates need assistance in crystal- lizing major issues, and they need pertinent facts for an intelligent decision on those hues . Prepa- ration means saving in time and consequently in convention costs, but most important of all it helps to produce a better constitution,

Although the organization, re- sources and scope of the activities of these comm’ittees and commissions differ widely, certain conclusions seem apparent as a result of their experience. These conclusions should prove of assistance to other states considering the revision of their fundamental law.

Nonpartisan Character. The most important single characteristic of the six groups was their nonpartisan nature. The preparatory commis- sion is not designed as a steering committee or a pressure group. I ts function is the collection and collation of factual material to facilitate the convention’s work. The personnel of the commission and the material it prepares must reflect this attitude. Time and Money. Although the

Legislative Reference Bureau was

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19481 BLAZING THE CONSTITUTION TRAIL 141

used in Illinois, special committees of the governor in New Jersey and New York (1938), committees author- Ezed by the legislature in Massa- chusetts and New York (191.5), and a citizens group in Missouri, the differences in organization are not so important as are the common necessities of time and money.

Only for three of these six pro- grams did the legislature provide 'initial appropriations. Almost all labored under stringent limitations of time. If the work of preparation is to be of maximum effectiveness, the legislature should recognize its responsibility for providing suf- ficient funds and the research agency should be given adequate time to do the job properIy.

Matters to Be Considered

Type of Material. Substantial agreement is represented by the six groups as to the types of ma- terial m a t helpful to a constitutional convention. The commissions pre- pared certain general materials for all members of the convention and specialized materials geared to specific problems and designed to be especially helpful to convention committees.

General materials included copies of the constitution, annotated if possible. The Massachusetts com- mittee, for example, secured for each member of its convention a copy of the constitut'ion of Massa- chusetts printed from the original parchment, vest-pocket size, bound in limp leather, with a full index and blank pages for daily memo- randa.

A copy of the federal consti-

tution and a general statement of the nature of an ideal constitution plus a summary of criticisms of the existing constitution have frequent- ly been provided for purposes of comparison and orientation. A con- stitutional history of the state or an analysis of the issues presented in the previous Convention has also been considered helpful.

Perhaps more useful is the at- tempt to assist the convention in handling problems of organization and procedure as, for example, the 191.5 New York commission's mono- graph on the constitutional con- vent'ion, Preliminary Work, Proce- dures, and Submission of Conclu- sions, or the Missouri Manual for the Constitutional Convention. The tentative rules prepared for the 1947 New Jersey convention ena- bled that body to complete organ- ization for work at its first meeting. The second type of material com- piled concerned spedific state prob- lems: bills of rights; suffrage and elections; revenue, finance and tax- ation; the executive; the legislature; the judiciary; local government.

Method of Procedure. Apparently in all czes except that of Massa- chusetts the committee itself as- sumed the responsibility of de- termin'ing the problems to be select- ed for study. In Massachusetts the topics for investigation were select- ed on the basis of a poll of inter- ested organizations and of all candi- dates for the constitutional con- vention. The New York committee of 1937-38 was organized into six subcommittees, and each of these determined its own research agenda. Among all the states there was a

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recognition of the necessity of avoiding research for research’s sake. An attempt was made to con- centrate on the most important prob- lems before the convention.

Three methods of presenting in- formation to the convention have been employed. Both New York conventions were provided with printed volumes. The conventions in Illinois, Massachusetts and New Jersey were given bulletins confined generally to single subjects, ranging in number from 37 in Massachusetts and 35 in New Jersey to fifteen in Illinois. The Missouri manuals were a compromise between the printed volumes and the single bul- letins.

There was general agreement that the function of the preparatory agency was the presentation of facts upon which the convention could make an intelligent decision, not the making of decisions for the con- vention. In the illumination of the particular problem, usually the criticisms of an existing institution were given, with historical back- ground of the problem and the ex- perience of other states. Alternatives were then discussed with their ad- vantages and disadvantages.

The New York committee of 1938 appears to have provided the most comprehensive treatment of prob- lems in this manner, The volume on the judiciary, for example, in- cludes a historical analysis of the judiciary article of the state con- stitution, section by section, with pertinent provisions of former con- stitutions, debates in constitutional conventions, and even references to enabling legislation.

The second part of the volume is devoted to such special problems as rule making, age limits of judges, judicial review of administrative de- cisions, grand jury system and pro- secution by indictment or infor- mation, capital punishment, the less than unanimous verdict in criminal cases, reorganization of the judicial structure, and the selection of judges.

The Massachusetts study of pro- portional representation may also be regarded as typical. Proportional representation is defined, a history of its development and progress in the United States is given, together with its advantages and the charges of its critics. Constitutional pro- visions of other states are included for comparison.

Personnel and Materials. The com- missions were ingenious in utilizing free services and available materials. Services of university professors (particularly political scientists), governmental researchers and public officials and employees were ex- tensively utilized at little if any cost. Comparative studies already available were borrowed or adapted in order to enable the greatest possible concentration on the prob- lems of the state itself.

Aid During Convention

Activity During Convention. When the convention has assembled, the commission can still render useful service. To disband the staff is to sacrifice a source of great service to the delegates. Requests for in- formation can be answered more readily by that organization than by specially organized convention staffs. The New York commission of 1915

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was a model in this respect. I t was continued throughout the duration of the convention. A close relationship existed also in Massachusetts and Illinois between the preparatory agency and the convention but this was not equally true of the others.

The experience of preparatory commissions is helpful in affording examples of organization and pro- cedures. Of equal importance to those interested in constitutional revision, however, is the wealth of still useful material available in their publications. The discussion of general constitutional issues by the New York Constitutional Commis- sion of 1915 in The Revision of the State Constitution contains materials pertinent to the problems of the present-day state. Elihu Root’s dis- cussion of “The Principles and Prac- tice of Constitutional Revision,” Henry L. Stimson’s “The Principle of Responsibility in Government,” Frank J. Goodnow’s “The Adap- tation of a Constitution to the Needs of a People,” Albert Shaw’s “The Problems of the Constitutional Con- vention,” and W. F. Dodd’s “The Constitutional Convention : Prelimi- nary work, Procedure and Sub- mission of Conclusions” should be read by everyone interested in con- stitutional revision.

The work of preparatory com- misiions is particularly helpful in connection with certain specific problems that will arise in the re- vision of almost any state consti- tution. All six commissions, for ex- ample, studied the executive budget, the initiative and referendum, the problem of county government, special legislation, civil service, and

court structure. Other subjects upon which at least four of the com- missions compiled data include the governor’s pardoning power, fre- quency of legislative sessions, home rule, selection of judges, consti- tutional restrictions on municipal and state indebtedness, excess con- demnation, judicial review of social legislation and municipal 0wnership.l

In view of this record, it seems unlikely that there will ever be an- other general revision of a state con- stitution without some systematic preparation. It cannot be too strong- ly emphasized, however, that it is the duty of the legislature to see that this preparation is started early enough, with enough money, to per- mit timely completion of a well planned and workmanlike job. Pre- paration for the three most recent conventions had to be started with- out provision by the legislature and neither the Missouri nor the New Jersey job received any appropria- tion. This accounts for obvious gaps in both and for the fact that some of the New Jersey monographs were not ready when the convention started.

Preparation for future conventions can be made progressively easier with a little more conscious co- operation on a national scale. As already noted, each preparatory com- mission has drawn heavily on the work of its predecessors. It is im- portant, therefore, that reports of such commissions be printed in suf- ficient quantity to permit nation- wide distribution to important li-

‘For a list of the New Jersey studies see the REVIEW, September 1947, page 475.

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braries and individuals and organi- zations working on similar problems. Already reports of the 1947 Gov- ernor’s Committee in New Jersey are almost impossible to get because the state apparently did not consider the importance of reciprocity in this field.

Another kind of cooperation might be supplied in increasing measure by national organizations. The National Municipal League, the Council of State Governments and the Library of Congress, for example, have long supplied bibliographical and other information and services to revision bodies. All such bodies need up- to-date texts of other state consti- tutions and comparative data on state administrative and judicial systems, legislative organization and pro- cedures, current proposals for re- form, etc.

The ultimate justification of pre- paratory research is, of course, its usefulness. Experience seems to indicate that a series of relatively short pamphlets is more likely to be used by busy convention delegates than a shelf of thick volumes. The same form of publication is also more helpful to the public which, in committee hearings and lobby, plays a necessary role in any con- vention. Most of the material pre- pared for a convention, especially that dealing with specific problems of fairly broad interest, should, of course, be made available to all inter- ested persons and organizations. This will tend to raise the level of public understanding, avoid needless controversies and save the time of the convention.

CONVENTION ROAD-BLOCKS (Continued from page 132)

such a self-executing provision leads to the situation which has developed in California at the present time. The people of that state voted for a convention in 1934. Since the legis- lature has failed to take the steps necessary to put the plan in motion, its provision for the present revision committee is the closest we have come to the implementation of that mandate. Our present procedure is better than nothing in the way of revision but it is a substitute pro- cedure none the less.

We make much these days, and rightly so, of the importance of strengthening our democracy in an era of renewed external challenge. Certainly we must do this, and one effective phase of the program is to modernize the basic laws of our states instead of letting them be diluted with statutory content or permitting them to weaken from inapplicable and dead sections which do not apply in the atomic age.

As believers in democracy we should have sufficient confidence in our own people to give them the utmost freedom to decide when to have constitutional conventions and whether or not to approve the changes recommended. This is one sure way to combine the enduring fundamentals of the past with a dynamic adjustment to the needs of today. Constitutional flexibility is fundamental in insuring a system of government responsive to construc- tive suggestions and therefore im- pregnable in the face of subversive attack.