McNally, James B. M.

English

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Shall There Be a Convention to Revise the Constitution and Amend the Same?

St. John's University School of Law

St. John's Law Review Volume 31 Number 2 Volume 31, May 1957, Number 2 Article 2 May 2013 Shall There Be a Convention to Revise the Constitution and Amend the Same? James B. M. McNally Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview Recommended Citation McNally, James B. M. (1957) "Shall There Be a Convention to Revise the Constitution and Amend the Same?," St. John's Law Review: Vol. 31 : No. 2 , Article 2. Available at: https://scholarship.law.stjohns.edu/lawreview/vol31/iss2/2 This Symposium is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact selbyc@stjohns.edu. SHALL THERE BE A CONVENTION TO REVISETHE CONSTITUTION AND 'AMEND THE SAME?JAMES B. XW. McNALLYfA RICLE XIX, Section 2, of the New York State Constitu-tion, requires the submission at the general election to beheld in 1957 of the question "'Shall there be a convention torevise the constitution and amend the same?' ". The Constitu-tion also provides for a method of amendment at the instanceof the Legislature. Ours is a constitutional form of govern-ment. Its successful operation depends on the balance of thethree departments of government: legislative, judicial andexecutive; each autonomous, operating on the same plane,with a minimum of friction and conflict, no one overpoweringthe others. -History has shown that the people cease to bethe source of powet when one governing branch gains markedascendancy.It is inevitable, indeed it is inherent, in the form of con-stitutional government we enjoy, that there be competitionfor the approbation of the governed; with approbation thetendency is to influence and submerge the other branches ofgovernment. When imbalance develops, curbing of theascending branch or stimulation of the other branches isindicated. In all events balance of the three co-ordinatebranches must be achieved. That is not to say, however, thatthe conditions of government are to be frozen. They shouldbe fluid and flexible, able to cope with ever changing timesand conditions. The analogy between our constitutional formof government and the human organism is complete when itappears that each contains the seeds of destruction as wellas the seeds of progress and fulfilhnent, and that in thet Associate Justice of the Supreme Court of the State of New York,Appellate Division, First'Department. Justice McNally was a delegate to the1938 Convention.1957 ] A CONSTITUTIONAL CONVENTION IN 1959? 191human organism the brain serves to balance the inner drivesand in our constitutional government it is the people or, ifyou will, the collective brain power of the governed whichexerts the balancing effort if the government is to operate atoptimum.The constant and unremitting effort of each departmentof government to gain influence carries with it beneficial aswell as disadvantageous effects. That part of the effort whichredounds to the public good is, of course, the end result tobe sought, encouraged and stimulated; that which tends tosubmerge, inhibit and overpower co-ordinate units is chargedwith the poison which undermines free government. Eternalwatchfulness alone can prevent disintegration of free'govern-ment. The time to act is when the evidence tends to supportsuspicion; to await the active stage of the poisoning processis to invite disaster.The amending process of the Constitution, which mayoriginate in the Legislature, does not permit full, objectiveand integrated changes.- The Legislature might be inclinedtoward curtailing and inhibiting the judicial and executivebranches of government. It is possible that it would not beequally zealous in respect of measures which tend to limit itsown activities. Hence the constitutional measures emanatingfrom the Legislature alone might tend toward imbalance ofthe units of government. The only other source of constitu-tional amendment, and, the one least likely to create a dis-torted result, is the constitutional convention. Then andthen only is constitutional government, in its entirety, ex-posed to the critical eye of a group representative of thegoverned and the government.The necessity for constitutional change is vouchsafed bythe submission of the many constitutional questions at eachgeneral election since 1938, in which year the last Constitu-tional Convention was held. The constitutional questionssubmitted since 1938 to the electorate pertained to many sub-jects of public interest, such as the judiciary, railroad gradecrossings, term and compensation of legislators, conservation,fiscal policies, voting requirements, reapportionment, succes-sion to offices, veterans, civil service, public officers, housing,hospitals, welfare, real estate taxes and pensions.ST. JOHN'S LAW REVIEWAt the forefront today is the drive for overhauling thejudicial structure. Whether the suggested plan will meet thecritical problem of congestion in the courts is extremelydoubtful. Informed proponents of the plan do not advanceit as a cure for congestion. Unfortunately the lay public isinclined to believe that the proposed plan is a panacea.Change may be indicated. However, the nature and extentthereof may be best derived from the objective, careful, expertand multilateral consideration possible only at a Constitu-tional Convention. Furthermore, any amendments proposedby a Constitutional Convention will be submitted for finalaction with as much dispatch as amendments proposed bythe Legislatures of 1957 and 1959.If none of the problems with which we are confrontedwas present, it would be sufficient justification for a Consti-tutional Convention if its sole purpose was to appraise theoperations of government and ascertain whether there arepresent forces which tend toward imbalance, and if they arepresent, to recommend corrective measures.[VOL. 31

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Shall There Be a Convention to Revise the Constitution and Amend the Same?

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