One hundred years as “the supreme law”

One hundred fifty years ago, Illinois Governor John Palmer was getting frustrated.

A Civil War general, Palmer had been elected on a platform of government reform in 1868, but he had seen his efforts thwarted time and again in his first legislative session. Not only was he not making any progress on fixing the system, but things appeared to be getting steadily worse.

The bane of Palmer’s existence were the so-called “private bills,” and the state Constitution which kept him from doing anything about them. Private bills were legislation drafted for the benefit of one individual or corporation. The most frequent use of this tactic was for corporate charters, which the drafters of the Constitution then in effect (enacted in 1848) thought they had banned.

But special interests had found a loophole. The 1848 Constitution specified that corporations other than banks could not be formed by legislation, except in those cases “where, in the judgment of the General Assembly, the objects of the corporation cannot be attained under general laws.”

By the late 1860s, the General Assembly was exercising that judgment more and more frequently. In 1867, general laws, or public acts, came to a total of 205 pages. Private acts numbered closer to 2500 pages. Many of these acts were thinly-disguised favors for supporters, and their sheer number made it nearly impossible for the Governor or legislators to review them all.

When Palmer took office in 1869, special interests had found ways to get legislation passed for their purposes: such matters as incorporating land companies, but also specific businesses like hotels and other for-profit firms. Palmer was determined to stop the abuses, and during the first legislative session of his governorship he issued more than 100 vetoes.

However, the Constitution required only a majority vote to override Palmer’s veto, and this the legislature did frequently. In Palmer’s first year, the state chartered 67 banks, 36 insurance companies and 14 loan and trust companies.

“Problems whose solution always brings up short against the stone wall of the State Constitution confront the thinking men of Illinois,” wrote historian A.L. Bowen of the circumstances which pushed the state toward a new Constitution.

Private bills were not the only subject that had worked in favor of a Constitutional revision. In fact, the dominant issue in the days leading up to the convention was transportation: the need for a growing infrastructure to support a growing economy. “The desire to relieve the state and its legislature of the burden of special and private legislation is second only to the determination to improve the transportation system,” Bowen wrote.

The state’s growth had made many elements of the 1848 Constitution obsolete. It fixed the salaries of state officials at levels which now seemed unusually low; “an idealistic pittance” in Bowen’s words; and executive and judicial branch officers were having to find creative ways to make ends meet. The Governor was supplementing his $1500 salary by taking from a fund meant to address expenses in the new Executive Mansion, and judges could also receive extra pay for vaguely-defined “services rendered.” Legislative per diems and other expenses seemed suspiciously high to observers in the 1860s.

Illinois had attempted to revise its Constitution in 1862, amidst the Civil War. But fighting between Governor Richard Yates and the delegates to the Constitutional convention; which included the delegates inserting themselves into war policy and trying to remove all sitting statewide officers from office in the middle of their terms; caused the process to break down and the proposed Constitution of 1862 to fail in a referendum.

After the war the issue came up again. Illinois’ population had exploded: from 851,000 in 1850 to 2.5 million by 1870. Railroads were expanding their reach, bringing in new settlers and industries to every part of the state. In 1867 Governor Richard Oglesby and the 25th General Assembly had agreed to put before the people another referendum for a Constitutional convention. It passed by only 704 votes.

The 85 convention delegates met for the first time in December 1869 in the statehouse in Springfield. Unlike in 1848, this group had more attorneys than farmers, and more transplanted northeasterners than southerners. Over the next five months they would work to produce a document to guide Illinois into the future.

Going forward, the legislature would be empowered to set salaries of state officeholders. The governor’s veto power was strengthened: it would now require a two-thirds vote to override.

“Had this provision been in our existing Constitution, it would have saved us from many injurious and unconstitutional acts, and many chartered monopolies passed by the combinations of interested persons,” delegates wrote in their report on the proceedings of the convention.

This new constitution would now permit a governor to seek a second consecutive term.

The legislative process was slowed down to give legislators time to review bills. “To afford security against hasty and vicious legislation, we have required all bills and amendments thereto to be printed before they are passed,” the delegates would later summarize. Requirements that bills deal with a single subject and be read on three separate days, which are still a part of legislative proceedings, were created. Private bills were sharply curtailed.

“The evils of special and local legislation have become enormous,” delegates wrote. “The expense to the state in passing and publishing such laws, and the combinations by which private speculations have been secured, and monopolies with extraordinary and dangerous powers have been created, are well known. We have prohibited the General Assembly hereafter from passing such laws; and have required general laws in all cases where a general law can be made applicable.”

Noting the partisan-geographic divide of the convention delegates; overwhelmingly Democrat from the southern and western parts of the state, heavily Republican in the east-central and northern areas; delegate Joseph Medill proposed an idea to ensure that the minority party in each region had representation in the General Assembly. His concept called for the House of Representatives to be made up of multi-member districts, each electing three representatives. Each citizen would be able to cast three votes for representative, spreading them among multiple candidates or casting all three for the same candidate.

“By this means, he hoped to erase some of the scars the war had left and to eliminate the lines of sectionalism,” Bowen summarized. This system would outlive the 1870 Constitution and remain in place in Illinois until the early 1980s.

Illinois’ 1870 Constitution eliminated legal barriers to voting based on race. Any male resident of the state could vote so long as he was over the age of 21 and had lived in Illinois for at least one year. Voting rights for women, unfortunately, would have to wait another generation, though there was movement in that direction, led by delegate Elijah Haines from Lake County.

The new Constitution set limits on state debt, reorganized the judiciary and renewed the state’s commitment to the property tax as the fairest way of acquiring the needed revenue for the state. The legislature was limited to proposing one Constitutional amendment per referendum, with a two-thirds vote of each house required to put the proposed amendment onto the ballot.

Completed in early May, the new Constitution went to the voters in a statewide referendum on July 2, 1870. It was accompanied by a point-by-point explanation of each section’s changes and by eight additional proposals which were put up separately so that their possible unpopularity would not drag down the entire Constitution.

Governor Palmer
The vote was overwhelming: 134,227 in support of the new document, 35,443 against. Of the eight separate questions, all were affirmed, with the minority party representation provision the only one which was close, passing by a margin just under 29,000.

On August 8, 1870, Governor Palmer and Secretary of State Edward Rummel certified the vote and affirmed the new Constitution as “the supreme law of the State of Illinois.”

John Moses, who served in the Illinois House in the 1870s and later wrote a history of the 1870 convention would describe the new document thusly: “The pre-eminently distinguishing feature of that instrument is to be found in the new departure made in commanding the legislature to enact laws upon certain subjects, specifically designated.” Bowen would specify these subjects as including “the protection of miners, construction of drains, homesteads and exemptions, and ‘still more important, railroads being declared public highways, the General Assembly is directed to pass laws regulating them and establishing reasonable maximum rates of charges for transportation of passengers and freight.’”

For the first time, railroad and warehouse rates would be regulated, something demanded by farmers in the growing “Granger” movement. Delegates justified this intervention in the marketplace by recalling that many of the railroads had been granted their charters for public service and had gotten at least some of their land through the use of eminent domain.

“Powers were granted to the General Assembly to stop and to prevent discriminations in transportation among individuals and communities,” Bowen wrote. “To correct prevailing customs among railroads that discriminated against the weak and helpless by unjust or onerous rates and extended liberal treatment to more favored sections was one of the things this convention really and sincerely wished to do.”

When the legislature exercised this authority and passed such laws in 1871 and 1873, they survived legal challenges from powerful railroad interests, due in large part to the careful wording of the new Constitution. Surviving such a challenge was a rarity for this era in American history.

The 1870 Constitution was generally popular for several decades. Bowen wrote in 1927, “In Illinois we have taken for granted the constitution of 1870. It has been ready at every call. With the passage of time, it has commanded our growing admiration, as it has demonstrated new resources of vitality and freshness.”

But it was not perfect. Over its first two decades, the Constitution was amended five times, each by wide margins. Changes in the structure and practices of Illinois elections in 1891, starting with the introduction of the secret ballot, made it more difficult to amend the Constitution, and voices began to be heard calling for another wholesale revision.

In the 1890s Governor John Altgeld pointed to shortcomings in the revenue article and the increasing growth of industry in the state as reasons for a new convention. Amidst the wide-ranging progressive reform movement of the early 20th century, Governor Frank Lowden moved the issue forward in 1917 as part of his wholesale reorganization of state government. But an attempt at a new Constitution in the early 1920s failed overwhelmingly.

Over the following decades, amendments were adopted addressing issues like redistricting and reforms to the judiciary. The dispute over the revenue article endured into the 1960s, when the Supreme Court upheld the newly-enacted income tax as constitutional. But by then, other problems with the 1870 Constitution had emerged. That strengthened veto power, for example, had in the minds of many swung the pendulum too far toward the Governor. Between 1870 and 1965 there were 2678 vetoes and only three successful overrides, none since 1936.

Illinois' Constitutional Convention, 1970. Photo from
the Abraham Lincoln Presidential Library & Museum.
In 1965 the legislature created an Illinois Constitutional Study Commission to recommend revisions. That same year also saw the creation of the Commission on State Government – Illinois, or COSGI, and the Commission on the Organization of the General Assembly, known as COOGA, each meant to examine a wholesale re-write of the sections of the Constitution dealing with the executive and legislative branches respectively. Their reports led the 75th General Assembly to submit to the people in 1967 a call for a new convention. It passed by a 1.8 million vote margin.

Following this successful vote, one hundred years after adopting the 1870 Constitution, a sixth Constitutional convention met and drafted the Constitution of 1970, which today stands as “the supreme law of the State of Illinois.”