The First Constitution

Elias Kent Kane. Photo from the
Abraham Lincoln Presidential Library & Museum.
August 26 is the birthday of the first Illinois state Constitution. It marks the date in 1818 on which delegates to the first Illinois Constitutional Convention adopted the state’s founding document. It was this brief document which set in motion the creation of a government for the nation’s 21st state.

Our first Constitution was largely drafted by Elias Kent Kane, a Yale graduate and a lawyer from New York. Illinois’ first Constitution was heavily influenced by the founding document of Kane’s home state, as well as those of Ohio and Kentucky. When the Constitutional convention met at Bennett’s Tavern in the territorial capital of Kaskaskia, Kane was among the 33 delegates from 15 counties, with Judge Jesse Thomas serving as presiding officer. Delegates drafted, debated and approved the first Constitution in the space of three weeks. It was not submitted to the people for approval. Its adoption was celebrated with speeches in the capital city and the firing of 20 cannon rounds.

The 1818 Constitution begins with a declaration by the people of Illinois that, “in order to establish justice, promote the welfare and secure the blessings of liberty to themselves and their posterity, do by their representatives in convention, ordain and establish the following Constitution form of government; and do mutually agree with each other to form themselves into a free and independent State by the name of the State of ILLINOIS.”

Article I set forth the division of powers which has become standard in the American republic: three branches with distinct powers, and a prohibition on any branch exercising the powers reserved to another. Article II established the House of Representatives and Senate “both to be elected by the people,” a divergence from the federal Senate, which for another century would have its members appointed by state legislators.

It doesn’t take long to come to a clause which does not endure in 2019. Article II, Section 2 specifies that legislators shall be elected over a period of three days in September, with the next election set for the first Monday in August 1820, “and forever after, elections shall be held once in two years, on the first Monday of August, in each and every county, at such places therein as may be provided by law.”

The minimum age to be a state representative was set at 21, and the person was also required to be a U.S. citizen and an inhabitant of Illinois, though the framers did have to make some accommodation for local residency in counties which were in those days still being established. Unlike today, Senators had to be at least 25. The Senate was divided into two classes, with Senators serving staggered four-year terms, so that one half or the other would face the voters in each general election.

“The number of representatives shall not be less than twenty-seven, nor more than thirty-six,” and “the number of Senators shall never be less than one-third nor more than one-half of the number of Representatives,” reads a portion of Section 5. The Constitution’s framers wrote that these figures would change when the state reached 100,000 in population (from just under 40,000 at statehood), but they did not specify how.

The House would elect a Speaker, two-thirds of members had to be present to constitute a quorum, and each chamber would set its own rules. But when a vacancy occurred, the first Constitution directed the Governor to “issue writs of election to fill such vacancies.” Members were also protected from arrest during session and while traveling to and from the capital, except in cases of “treason, felony, or breach of the peace.” This immunity continues today.

Today’s requirement that bills be read on three separate days in each house is included in the first Constitution, but with the caveat that, “unless in case of urgency, three-fourths of the House where such bill is so depending deem it expedient to dispense with this rule.”

The first Constitution also set the salary of the Governor at $1000 and the Secretary of State at $600.

Article III set up a very weak Governor. Having had a string of bad experiences with executives in the years before statehood, the framers sought to put limits on executive authority in the new state. The Governor would hold a four year term, but could not seek re-election. “He shall be at least thirty years of age, and have been a citizen of the United States thirty years; two years of which next preceding his election he shall have resided within the limits of this State.”

The Governor was required to give a report to the General Assembly on “the state of the government,” and could suggest such legislation “as he shall deem expedient.” The Governor could issue pardons, call special sessions of the legislature, and was also the head of the state militia.

But a major difference between today’s Constitution and that of 1818 concerned the Governor’s influence on legislation. The Governor could not unilaterally veto legislation. Instead, bills passed by both houses could only be vetoed by a “council of revision,” made up of the Governor and the four Justices of the Illinois Supreme Court. Even if the Governor succeeded in getting consent to veto a bill, it could be overridden by a majority of each house.

The 1818 Constitution also allowed the legislature to appoint most of the statewide officials. Only the Governor and Lieutenant Governor were popularly elected. The Governor could appoint the Secretary of State, but the legislature would choose a state Auditor, Attorney General and “such other officers of the state as may be necessary,” a term which was not defined. Legislators and the incoming Governor disagreed over who would be appointed state Auditor, so legislators made sure to keep that power for themselves. That decision planted the seeds of much controversy over the first 30 years of statehood.

One of the last chief executives to serve under the first Constitution, Governor Thomas Ford, wrote that this system of appointments, “led to innumerable intrigues and corruptions, and for a long time destroyed the harmony between the executive and legislative departments.”

The Constitution established the other statewide offices: Lieutenant Governor (who was also “Speaker of the Senate”), Secretary of State, Treasurer and Public Printer.

Article IV vested the judicial power of the state in the Supreme Court, and any “inferior courts” which the General Assembly chose to create. The Supreme Court was made up of four justices, including a Chief Justice, but the Constitution left open the possibility of increasing its membership after 1824. Justices were “appointed by joint ballot of both branches of the General Assembly, and commissioned by the Governor.” They would meet in the capital city, but would also travel a circuit hearing cases when the Supreme Court was not in session. This copied the practice at the time for Justices of the U.S. Supreme Court.

The 1818 document also reflects some of the shameful history of our state and our country. Legislative seats were apportioned among the districts, “according to the number of white inhabitants.” Voting was restricted to “white male inhabitants above the age of twenty-one years,” and an “enumeration of all the white inhabitants of the State shall be made in such a manner as shall be directed by law,” every five years. Article V established a racially-segregated state militia.

Article VI begins with a bold statement about slavery, “Neither slavery nor involuntary servitude shall hereafter be introduced into this State,” but then proceeds to begin outlining exceptions. Some of these exceptions permitted existing slavery within the state’s boundaries “within the tract reserved for the salt works near Shawneetown,”but only for a single year, with a total ban to take effect in 1825.

The first Constitution also allowed those persons, “bound to service by contract of indenture in virtue of the laws of the Illinois territory heretofore existing, and in conformity to the provisions of the same, without fraud of collusion, shall be held to a specific performance of their contracts or indentures,” but made clear that their children, “shall become free, the males at the age of twenty-one years, the females at the age of eighteen years.”

Later articles set forth the procedure for amending the Constitution, laid down “the general, great and essential principles of liberty and free government,” banned religious tests for public office and reaffirmed the right of trial-by-jury.

Governor Edward Coles. Photo from the
Abraham Lincoln Presidential Library & Museum.
This founding document served Illinois for the first 30 years of statehood, but its shortcomings soon became evident. Ford’s concerns over appointment powers would flare into controversy again and again. The single-year limitation on legal slaveholding proved difficult to enforce. Pro-slavery legislators tried to expand slavery, even attempting through legislative chicanery a Constitutional convention in 1824 to enshrine it. They were thwarted by the state’s second Governor, Edward Coles, who led the fight against slavery in Illinois in a public referendum in which the people of Illinois decisively voted down the pro-slavery effort.

By 1846, the demand for revisions had reached a critical mass, and a proposal for a new Constitutional convention passed overwhelmingly. The new Constitution, enacted in 1848 addressed some of the flaws of the first: rebalancing power between the legislative and executive departments, electing Supreme Court Justices and many local officials, abolishing the “council of revision,” and enacting protections against the accumulation of excessive state debt. Unfortunately, an effort to end racial segregation in voting failed, and the debate over slavery would not be conclusively settled until the 1860s, when Illinois became the first state in the nation to ratify the 13th Amendment abolishing slavery.

As the state grew and changed, its Constitution developed with it. A third Constitution was enacted in 1870, and after a failed effort in 1920, a fourth Constitution, which remains in effect, was enacted in 1970. The current Constitution includes articles dealing with Finance, Revenue, Education and the Environment, and features sections outlawing discrimination and guaranteeing individual rights to every Illinoisan. It has been amended more than a dozen times since enactment.

Though it is dramatically different from Illinois’ first Constitution, at least one thing has remained the same. Article IV, Section 8a reads, “The enacting clause of the laws of the State shall be: ‘Be it enacted by the People of the State of Illinois, represented in the General Assembly.’”