The Illinois Constitution reviewed, honored and being taught in a law school classroom

Day in and day out, we hear about politics in the nation’s capitol. Flip on any newscast, and you’re likely to hear the word “constitutional” in some context or another. Images spring to mind of men with quill pens wearing white wigs and doublets; our concept of “Constitution” is closely tied with our mental pictures of the Framers. Many people (many lawyers) forget, though, that our lives are affected by two constitutions. The Illinois Constitution often lives in the deep shadow cast by the federal one. What do the words “Illinois Constitution” call to mind? Certainly not powdered wigs, but probably not the 116 elected Illinois citizens who came together in Springfield in 1969 either.

And yet, so much of Illinois life, and obviously Illinois law, is formed by the fourth and current constitution that was drafted at a convention some 40 years ago. This convention, which was called by the voters in 1968, was made up of delegates elected from 58 districts throughout Illinois. Over the course of nearly a year, these delegates drafted the governing document for Illinois. It took ample negotiation, compromise, and sometimes creativity, but by the fall of 1970, the Constitutional Convention had a finished product. This product was submitted to the people for referendum, and was accepted by a majority.

Many Illinois lawyers and law students have little or no knowledge of the state constitution under which they live. The situation has gotten so bad that not even the purported experts on it, those who argue before the State Supreme Court, have reliable knowledge.1 This is in part due to the fact that, as of this writing, no Illinois law school offers a course devoted to the study of the Illinois Constitution. In January, the John Marshall Law School became the first Illinois law school in several decades to offer such a course. Appropriately, the course is taught by Professor Ann Lousin, who authored the recently released first and only full-length treatise on the Illinois Constitution.2 Having served as a research assistant to the Convention, Lousin is part of a strong connection the law school has to the Constitutional Convention. Indeed, she organizes regular reunions of the Convention delegates. Among the delegates are former and current faculty members at John Marshall, including Professor Ronald C. Smith. The Convention also counted among its members the Illinois Speaker of the House, Michael Madigan, former Comptroller and gubernatorial candidate Dawn Clark Netsch, and soon-to-retire Mayor Richard M. Daley.

The most recent reunion took place at JMLS, on September 11, 2010. The participating delegates were charged with discussing what 40 years of observation had convinced them they did right in drafting the constitution. The delegates also discussed what had been misinterpreted and what they would have done differently to achieve the desired result. One of the issues there seemed to be consensus on was the amendatory veto. One of the main reasons it was approved by the convention was that the General Assembly met less frequently than it does now. Longer breaks between sessions meant that if a mistake was made in a piece of legislation, or the benefit of hindsight necessitated a change, there was no way to immediately correct any errors in a bill. Therefore, it made good sense to allow the governor to amend a bill in part, to make a technical change to the legislation as he (or she) saw necessary.

The delegates in attendance agreed that Dawn Clark Netsch convinced them on these and other grounds that the amendatory veto was an essential element to a functioning state government. This was presumably due in part to Netsch’s background as a drafter of legislation and gubernatorial aide.3 However, over time, governors have used the amendatory veto power in ways the delegates did not intend or foresee. For instance, according to Netsch, Governor Pat Quinn has used the power twice in his gubernatorial tenure. One of those times was to add a rider to a bill, that is, an unrelated amendment which the Legislature would be forced to override separately if they wanted the original bill to become law. In 2010, Governor Quinn amended an election law bill to abolish party declaration by primary voters, which led one state senator to assert that the governor had run afoul of the framers’ intent.4

Many of the intricacies of the power of constitutional offices naturally have their roots in the state constitution and its history. Points like this are just one aspect of the relevancy of the state constitution. The state constitution affects our daily lives in a number of ways, especially in how it differs from the federal one. For instance, Article X of the Illinois Constitution describes education as a fundamental right, and it was intended to be an entitlement by the framers. This starkly contrasts the U.S. Constitution, which is typically viewed to only recognize negative claims on the government, not positive ones. That is, the Illinois Constitution allows citizens to make claims which compel the government to act, not merely restrict it from taking a given action. Further, issues surrounding the tug-of-war between state funding and local control of public schools have their roots in Article X, Section I of the Illinois Constitution (Titled “Goal – Free Schools”).

Readers who don’t practice or intend to practice in state constitutional law may wonder why the state constitution matters to their lives or their practice. The short answer is this: the Illinois Constitution touches every aspect of Illinois government, directly or indirectly. Unlike the federal Constitution, it was drafted merely 40 years ago. This makes it a contemporary body of work, with greater predictive power about what a complex society needs in a governing document. The Bill of Rights alone, in Article I, is explicitly comprehensive and protective in ways the federal Constitution never could be.5 Whether we realize it or not, it is part of our lives. ■

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1. In their 2009 annual conference, the association of state Supreme Court chief justices passed a resolution requesting that the American Bar Association poll law schools regarding their methods and extent of instruction on the respective state constitutions. The reason for this was their belief that the quality of the briefs and arguments they received was poor.

2. Ann Lousin, The Illinois State Constitution: A Reference Guide. Praeger Press, 2010.

3. Cynthia Grant Bowman, Dawn Clark Netsch: A Political Life, 100. Northwestern University Press, 2010.

4. Tom Kacich, “Quinn’s amendatory veto of open-primary law likely kills the legislation” The News Gazette. <http://www.news-gazette.com/news/politics-and-government/2010-07-15/quin...>.

5. Take, for instance, Section 8.1, Subsection 9, which guarantees a crime victim the right to have an advocate and/or support person present at every court proceeding.