Bar Journal - June 1, 2001
Amending the Constitution by Convention
By: Attorney Eugene M. Van Loan III
Every well-constructed political system must provide some means for changing itself in response to the exigencies of an unknowable future. If it contains no mechanism for change, a social organism will eventually become moribund and die on the vine.
An openness to periodic change is especially critical in political systems founded upon principles of democracy. It is axiomatic that a system which is based upon the consent of the governed must allow those who are its current occupants to determine for themselves the nature of their government. Thomas Jefferson put the case this way:
Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human and suppose that what they did to be beyond amendment. I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of bookreading; and this they would say themselves, were they to rise from the dead. I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with them.1
In democratic societies which have no written constitution, systemic changes tend to be non-formal and gradual. For example, constitutional changes in England evolve within a complex matrix of custom and tradition. Although many different parties participate in the process, the Judiciary, as the chief expositor of the unwritten constitution, is not only a primary agent of constitutional change in such societies, but is also typically the body which announces when such a change has occurred.
In those democratic societies like America with written constitutions, however, the Judiciary’s role is to interpret the law, not make it. Nevertheless, although the Judiciary is not supposed to be an agent of change, it sometimes is. Pursuant to their powers of judicial review, activist judges throughout this nation have often substituted their personal views of what the law should be for what the constitution says it is.
It is critical to the stability of an American-style system that some legal process be available to those who disagree with a judicial decision to be able to do something about it. The opportunity to seek an amendment to the constitution to change what is perceived to be an erroneous judicial decision is thus an important safety valve which makes more drastic measures unnecessary. Otherwise, dissidents are relegated to the remedy provided them by Article 10, Part I, of our constitution: "[W]henever the ends of government are perverted, and ineffectual, the people may, and of right ought to reform the old, or establish a new government."
This brings us to the Claremont cases.2 Whether one agrees or disagrees with the Supreme Court in terms of its social policy pronouncements, most thoughtful commentators acknowledge that the case is a fairly egregious instance of constitutional revisionism. Accordingly, at least in New Hampshire, no judicial decision in recent memory has done more to provoke a public outcry for a constitutional amendment than has the Claremont decision. 3
The fact that many people believe Claremont to have been wrongly decided is not the only reason for the current interest in a constitutional amendment; the Claremont case has stimulated the drive to amend the constitution in another way. Many of the proposals to solve the Claremont-generated school funding crisis involve tax schemes which are not presently permitted by the N.H. Constitution. For example, either a graduated income tax or the dedication of a specific tax solely to an education trust fund would require a constitutional amendment.4
On the other hand, there are other reasons besides Claremont for the recent interest in amending the constitution. In the aftermath of the impeachment of Chief Justice Brock, so-called "judicial reform" is clearly a hot topic in the Legislature. Proposals run the gamut from judicial term limits, to making the Judicial Conduct Committee an independent agency, to providing for legislative oversight over judicial rulemaking. Each of these proposals probably requires a constitutional amendment to be effective.
As a result, there are a lot of New Hampshire citizens who are not pleased with the structure of their existing government and who want to do something to change it. For better or for worse, our constitution fails to offer them any direct means to amend it; amendment by citizen initiative is not permitted. The only ways our constitution may lawfully be changed are (1) by the adoption of an amendment by a three-fifths majority of the entirety of the members of each house of the Legislature, subject to the approval of a two-thirds majority of the voters voting in a statewide referendum, or (2) by the adoption of an amendment by a three-fifths majority of the entirety of the delegates to a constitutional convention, likewise subject to the approval of two-thirds of the voters voting in a statewide referendum.5
The first method places any proposal for a constitutional amendment in competition with the routine business of the House and Senate. In the rough and tumble of the legislative process, the proponents and opponents of, for example, a constitutional amendment to prohibit discrimination on account of gender may find themselves trading votes on this issue for votes on something as momentous as, for example, a bill extending the moose hunting season. When one adds to this the influence of party politics which so dominates the day-to-day relations of our elected representatives, a constitutional amendment can seldom get a "clean shot" in the Legislature.
For this reason and because there are so many proposals floating about which apparently command a decent level of popular support, serious consideration has recently been given to the second method of amending the constitution, holding a constitutional convention.
Thomas Jefferson, for one, believed that every written constitution should automatically and periodically be subjected to wholesale review. In this regard, he was of the opinion that constitutional conventions should be scheduled for such purposes at set intervals based upon the life expectancy of each new generation of citizens:
[L]et us provide in our Constitution for its revision at stated periods. What these periods should be, nature herself indicates. By the European tables of mortality, of the adults living at any one moment of time, a majority will be dead in about nineteen years. At the end of that period then, a new majority is come into place; or, in other words, a new generation. Each generation is as independent of the one preceding, as that was of all which had gone before. It has then, like them, a right to choose for itself the form of government it believes most promotive of its own happiness; consequently, to accommodate to the circumstances in which it finds itself, that received from its predecessors; and it is for the peace and good of mankind, that a solemn opportunity of doing this every nineteen or twenty years, should be provided by the Constitution; so that it may be handed on, with periodical repairs, from generation to generation, to the end of time, if anything human can so long endure. It is now forty years since the constitution of Virginia was formed. The same tables inform us, that, within that period, two-thirds of the adults then living are now dead. Having then the remaining third, even if they had the wish, the right to hold in obedience to their will, and to laws heretofore made by them, the other two-thirds, who, with themselves, compose the present mass of adults? If they have not, who has? The dead? But the dead have no rights. They are nothing; and nothing cannot own something. Where there is no substance, there can be no accident. This corporeal globe, and everything upon it, belong to its present corporeal inhabitants, during their generation. They alone have a right to direct what is the concern of themselves alone, and to declare the law of that direction; and this declaration can only be made by their majority. That majority, then, has a right to depute representatives to a convention, and to make the Constitution what they think will be the best for themselves. 6
Under the N.H. Constitution, there are two ways by which a convention can be called: (1) a resolution calling for a convention may be passed a simple majority of the entirety of each house of the Legislature, after which it must be approved by a simple majority of the qualified voters voting in a statewide referendum; or (2) if the question of holding a convention has not been submitted to the voters during the preceding ten years, the Secretary of State is required to submit such a question to them and they must likewise approve it in a referendum by a simple majority vote.7
In either case, if the voters pass the referendum question by a majority vote, the next stage in the process is the election of delegates. The constitution dictates that delegates are to be elected "in the same manner and proportion as the representatives to the general court are chosen."8 The Legislature has set forth eligibility requirements to become a delegate and the procedures for filing for office in RSA 667:7 through 10. In essence, anyone who is qualified to vote is qualified to be a delegate to the convention. Delegate elections are non-partisan,9 election to office is by a plurality, and tie votes are broken by drawing lots.10
Once delegates have been elected, the constitution prescribes that, "the delegates so chosen shall convene at such time as the legislature may direct and may recess from time to time and make such rules for the conduct of their convention as they may determine."11 By tradition, constitutional conventions have elected a president, formed committees, set deadlines for the submission of proposals, and established other procedural rules typical of parliamentary bodies.12 The only rule which a convention has no discretion to change is the one prescribed by the constitution to the effect that, "The constitutional convention may propose amendments by a three-fifths vote of the entire membership of the convention."13
Assuming that the convention passes one or more proposed amendments by the requisite three-fifths majority, RSA 667:6 provides that the proposals "shall be submitted so that they can be voted on by the qualified voters either separately or by groups as the convention may determine."14 The Constitution, in turn, stipulates that voting upon such proposals shall be done "at the next biennial November election."15 Finally, the legislature has prescribed that if an amendment is adopted by the requisite two-thirds majority of the voters,16 it shall become effective upon a date established by executive proclamation or as stipulated by the convention itself.17
In its approximately 225 years of existence as a state, New Hampshire has convened a constitutional convention on 17 separate occasions. The first convention was in fact the alter ego of the colonial congress of the province of New Hampshire and the constitution which it adopted on January 5, 1776 (which was never submitted to the people for any popular ratification) was essentially just a military edict designed to facilitate the conduct of the Revolutionary War. A second convention met in 1778 and adopted a proposal for a completely new form of government. This proposal was submitted to the voters in 1779, but it failed to secure a favorable result. In 1781, a third convention was organized and, over the next two and a half years, it issued three distinct constitutions. Finally, in 1783, the voters approved the last of these. This constitution took effect in 1784. The Constitution of 1784 forms the basis for our system of government in New Hampshire.
The first post-1784 convention was held in 1791-2 and is known as the Fourth Constitutional Convention. The Fourth Convention was the most prolific in our history, proposing 72 separate amendments, of which 46 were adopted by the voters.18
Although the question of whether or not to hold a convention was submitted to the voters in 1800, 1807, 1814, 1821, 1833, 1834, 1838, 1845, and 1847, it was defeated on each such occasion. Finally, some sixty years after the major revisions of 1792, the voters approved the calling of the Fifth Constitutional Convention, which convened in 1850 under the presidency of Franklin Pierce of Concord.19 The Convention of 1850 proposed 15 questions to the voters, but all of them were rejected in the statewide balloting conducted thereon in March of 1851.20
The Sixth Constitutional Convention was held in 1876.21 The convention adopted 13 separate questions and the voters, in turn, approved 11 of them.22 Seven questions were submitted to the voters by the Seventh Convention, which was held in 1889.Of these, five were ratified by the voters and became part of the constitution.23 In 1902, the Eighth Convention met and sent 10 amendments to the voters, of which only 4 were accepted.24 The Ninth Convention convened in 1912; again, of the 12 amendments which were proposed to the voters, only 4 earned their approbation.25
The Tenth and Eleventh Conventions met in 1918 and 1930, respectively, but neither produced any amendments which passed muster with the voters.26 The next six conventions, the Twelfth, Thirteen, Fourteenth, Fifteenth and Sixteenth Conventions of 1938 & 1940, 1946, 1956 & 1959, 1964 and 1974, respectively, produced a total of 76 recommendations for change.27 Out of this group, a net of 43 garnered the requisite two-thirds vote and became part of the constitution.28 Our last constitutional convention, the Seventeenth, was held in 1984. This produced 10 recommendations for change, 6 of which met with the approval of the voters.29
It is quite likely that we are going to have another constitutional convention in the not-too-distant future. Considering the current political climate, there is a better than even chance that whenever they are presented with the question, a majority of the voters will opt to call a convention. If the Legislature does not give the people of New Hampshire an opportunity to vote on one within the next year, the Secretary of State will do so at the November election of 2002. The only issue, therefore, is timing.30
Some fear a constitutional convention because it exposes the entire structure of government to the threat of change. In theory, no holds are barred and every provision in the constitution is in jeopardy. Reality, however, is much more benign than theory. As our actual experience has demonstrated, the requirement that a proposal be approved by a three-fifths majority of a convention’s delegates before it can even be submitted to the voters has generally served to separate the wheat from the chaff.
More importantly, unless we fear democracy itself, why should we feel uncomfortable with a system in which the authority to fashion proposals to alter our basic charter is delegated to a deliberative body whose members are chosen by direct popular election? Who better to do the job? Certainly not the Court! In the oft-quoted words of Judge Learned Hand, "For myself, it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not."
Then why not let the Legislature do the job? The Legislature is popularly elected; why can’t it adequately represent our interests? Suffice it to say that one of the reasons that we do not place the fate of the constitution exclusively in the hands of the Legislature is that it has a conflict of interest in this area. The Legislature’s own powers and structure are themselves defined by the constitution and any amendment which diminishes that body’s authority is not likely to be favored by our elected representatives. By the same token, the powers of the other two branches of government are also defined by the constitution and the Legislature has more than a passing interest in skewing the balance of power in its own direction. 31
As a body with no permanent existence, a convention does not share with the Legislature this institutional stake in the outcome of the amendment process. Moreover, a convention is less likely to fall victim to the partisanship so characteristic of the Legislature. As noted above, delegates to a constitutional convention are chosen in a nonpartisan election.32 They also tend to be drawn from a different population than is represented in the Legislature.33 For example, because the subject matter of a convention is the structure of government and the rights and responsibilities of citizens, many more lawyers run for and get elected as delegates to a convention than as members of the House and Senate.34 More generally, because the time commitment to a convention is so much less than is required for participation in the Legislature, more people in responsible positions can afford to serve in a convention than in the Legislature.
Some might conclude from all of this that a convention is actually a better way to amend the constitution than doing it through the Legislature. In all fairness, all that can be said is that it is a different way. More importantly, any discussion of the relative merits of initiating constitutional amendments by convention or by legislative resolution is somewhat academic. For, although either of them has the power to propose, it is the people who have the power to dispose - and that is the way it ought to be in a democracy! On this point, the words of Thomas Jefferson are again instructive:
Men by their constitutions are naturally divided into two parties: 1. Those who fear and distrust the people and wish to draw all powers from them into the hands of the higher classes. 2. Those who identify themselves with the people, have confidence in them, cherish and consider them as the most honest and safe, although not the most wise, depositories of the public interest.35
1. Letter to Samuel Kercheval, July 12, 1816. George Washington also had no compunction about amending constitutions when circumstances dictated. As he said in his Farewell Address, "If in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates."
2. Claremont School District v. Governor, 138 N.H. 183 (1993); 142 N.H. 462 (1997).
3. Another notable example of a Supreme Court opinion which precipitated an (unsuccessful) effort to reverse the Court’s decision via a constitutional amendment is State v. LaFrance, 124 N.H. 171 (1983) (striking down a statute prohibiting police officers from wearing firearms in court). See generally, Journal of the Constitutional Convention of 1984.
4. For example, Governor Shaheen’s so-called EXCEL Plan, which would have partially funded the State’s share of education with a 2-1/2% sales tax, included a constitutional amendment dedicating all the proceeds of the sales tax to an educational trust fund.
5. Article 100, Part II, N.H. Const. Until 1964, the use of a convention was the only method by which a constitutional amendment could be initiated. In that year, the constitution was amended to provide the Legislature with the same power that a convention had. See generally, A Modern Constitution for New Hampshire, 6 N.H.B.J. 208 (April 1964); Thoughts on the 1964 Constitutional Convention, 6 N.H.B.J. 215 (April 1964).
6. Op. cit., n. 1, above. The section of the original 1784 New Hampshire Constitution providing for its amendment conformed to Jefferson’s view:
To preserve an effectual adherence to the principles of the Constitution, and to correct any violations thereof, as well as to make such alterations therein as from experience may be found necessary, the General Court shall, at the expiration of seven years from the time this Constitution shall take effect, issue precepts, or direct them to be issued from the secretary’s office, to the several towns and incorporated places, to elect delegates to meet in convention for the purposes aforesaid; the said delegates to be chosen in the same manner and proportioned as the representatives to the General Assembly; provided, that no alteration shall be made in this Constitution before the same shall be laid before the towns and unincorporated places, and approved by two thirds of the qualified voters present, and voting upon the question.
MANUAL OF THE CONSTITUTION OF THE STATE OF NEW HAMPSHIRE (Colby ed., 1912) [hereinafter "Manual"], p. 138-9. However, at the very first convention held under this system, the constitution was amended to eliminate the automatic convening of a convention every seven years. Thus, ever since 1792, the only thing that happens automatically every so many years is that the voters are asked whether they wish to call a convention. Manual, p. 167-9.
7 Article 100, Part II, N.H. Const. If the referendum is held on account of a resolution passed by the Legislature, it may be held at any time the Legislature so specifies. If, however, the referendum is initiated by the Secretary of State, it must occur at the general election in the 10th year following the last submission of such a question.
8 Article 100, Part II, N.H. Const.
9 Opinion of the Justices, 113 N.H. 149 (1973) (use of nonpartisan ballot is permissible even though representatives to the general court are first nominated at a primary and then elected at the general election by a ballot containing party designations).
10 RSA 667:11-17. See also, RSA 667:20. In the event of an election contest, the Convention itself, whose members "shall be the judges of the elections and returns of their own members", has the final say over the matter. RSA 667:3. Cf. Arts. 22 & 35, Part II, N.H. Const.
11 Art. 100, Part II, N.H. Const.; RSA 667:1. However, according to current statutory law, the convention must be held at "the capitol at Concord." RSA 667:1.
12 RSA 667:3 requires that a convention elect a president, but otherwise leaves it open to the delegates to "choose such other officers as they deem necessary" and to "establish rules of proceedings."
13. Art. 100, Part II, N.H. Const. See also, Bednar v. King, 110 N.H. 475 (1970) (when the Legislature proposes amendments to the voters, except for the fact that the three-fifths majority must be of the entirety of its membership, each house is free to determine by its own rules the procedure by which such supermajority is obtained).
14. New Hampshire has an unfortunate practice of not submitting the exact text of a constitutional amendment to the voters. Instead, the practice - which is not required by the constitution, but which has been accepted by the Supreme Court - has been for the legislature or the convention, as the case may be, to craft questions to the voters which purport to summarize the proposed constitutional amendments. The discrepancy between such questions and the precise text of the proposed amendments has on several occasions caused the Supreme Court to hold that a constitutional amendment was not effective despite its related question having been approved by the voters. E.g., Concrete, Inc. v. Rheaume Builders, Inc., 101 N.H. 59 (1957); Gerber v. King, 107 N.H. 495 (1967); Fischer v. Governor, 145 N.H. (March 24, 2000). Compare, Opinion of the Justices, 101 N.H. 541 (1957). The Court has also had to resolve inconsistencies between separate questions approved by the voters at the same referendum. Opinion of the Justices, 121 N.H. 429 (1981) (rationalizing differences between three questions approved by the voters in 1980, all of which related to amendments to Articles 99 and 100, Part II, of the Constitution, i.e., the provisions which themselves described how the Constitution could be amended).
15. Article 100, Part II, N.H. Const.
16. Whether or not a proposal has been adopted by the voters is determined by the Secretary of State, after tallying the returns from the moderators of all the state’s local voting precincts. RSA 663:1. The Secretary is also required to conduct a recount if he or she receives a petition signed by 100 or more voters and the margin of victory or failure of a proposal is less than one percent of the total vote cast. RSA 660:10. (Note that these procedures differ from those applicable in earlier times. It used to be that the convention itself canvassed the returns and determined the results of the popular vote.)
17. RSA 663:4 & 667:6. The Legislature is granted the power to designate an amendment’s effective date by Article 98, Part II, of the Constitution. The Legislature, in turn, may lawfully delegate such power to the convention. Rix v. Asadoorian, 103 N.H. 330 (1961); Opinion of the Justices, 103 N.H. 333 (1961); Opinion of the Justices, 76 N.H. 612 (1889). And, finally, the convention may provide - as it typically has - that an amendment shall become effective "when its adoption is proclaimed by the Governor." Ibid.
18. Manual, p. 140-190. However, since some of the amendments which were adopted depended upon amendments that were rejected, the convention redrafted the constitution to make it a consistent whole and sent it back to the voters for an up or down vote in its entirety. It passed, 2,122 in favor and 978 against. As a result, for many years hence, our constitution was not known as the Constitution of 1784, but as the Constitution of 1792. See New Hampshire Constitutional Amendment Proposals (3d ed., Rinden & Lyman eds., May 1984), p. 6. [hereinafter "Proposals"].
19. Manual, p. 191.
20. Manual, p. 191-213. However, after having canvassed the votes, the Convention resolved to resubmit three of the questions to the voters in March 1852. This was done, but only the question which eliminated the ownership of real property as a qualification for voting was adopted. MANUAL, p. 214-218.
21. Interestingly, the voters approved questions for calling a convention on several occasions between 1850 an 1876, but the Legislature failed to act to set any date for the election of delegates and, thus, no convention was held during this period. Manual, p. 219. See also, Proposals, p. 7-8. This was apparently permitted to happen because, although the constitution provided that it was the "duty" of the Legislature to call a convention if the voters approved one, no date for doing so was prescribed. See generally, Opinion of the Justices, 76 N.H. 586 (1911). Compare, Claremont School District v. Governor, 138 N.H. 183 (1993) (a constitutional "duty" imposed upon another branch of government is enforceable by the Court). Since the constitution now provides that if the voters approve the holding of a convention, "delegates shall be chosen at the next regular election or such earlier time as the legislature may provide," this situation presumably cannot occur again. Art. 100, Part II, N.H. Const. (emphasis supplied).
22. Manual, p. 219-230.
23. Manual, p. 230-238.
24. Proposals, p. 8.
25. Proposals, p. 9
26. Proposals, p. 9.
27. Proposals, p. 9-11. One of the notable features of several of these conventions is the fact that they held multiple sessions and produced separate amendments at each such session. For example, the Fourteenth Convention first met in 1956 and proposed 6 amendments. It was reconvened in 1959, at which time is passed 4 more amendments. Proposals, p. 10. Several previous conventions had also had multiple sessions, some apparently at their own instance and some at the direction of the Legislature. Proposals, p. 9. Another interesting aspect of these Twentieth Century conventions is the fact that not all the amendments generated by any single session of a convention were necessarily submitted by the Legislature to the voters at the same time. For example, the 1964 Convention submitted 21 questions to the voters, 8 in 1964, 7 in 1966 and 6 in 1968. Proposals, p. 10-11. This practice was ended in 1980 when the voters ratified an amendment to Article 100, Part II which required that all amendments generated by a constitutional convention be submitted to the voters at the next general election. Proposals, p. 81.
28. Proposals, p. 9-11.
29. State of New Hampshire Manual for the General Court, No. 49, p. 443-5 and p. 484 (1985). As an aside, the Constitutional Convention of 1984 demonstrates that old adage that the more things change, the more they stay the same. In that regard, some of the proposals that never made it out of the convention addressed the very same issues which are fueling the current fire for a convention: (1) a proposal to subject judges to a retention election every seven years; (2) a proposal to limit judicial terms to ten years; (3) a proposal to subject judicial rule-making to the supervision of the Legislature; (4) a proposal for the State to provide the majority of the funding for all public school education; and (5) a proposal to prohibit any general sales or income tax. Journal of the Constitutional Convention of 1984, Resolutions 160, 42, 78, 82 and 104.
30. Some people - such as myself - have advocated that the Legislature submit a convention question to the voters now. If that were done, and if it passed, delegates could be elected and the convention could be held in time to have any constitutional amendments which survived the convention voted upon at the November general election in 2002. However, I must acknowledge that this would be a first. For despite the fact that the Legislature has had this power since 1964, it has never exercised it. On the contrary, the only occasions in the last thirty-five years upon which the voters have had the opportunity to decide whether or not there should be a constitutional convention have been when the Secretary of State was required to put the question to them. Since the Secretary must do this every ten years and since the last time that New Hampshire’s voters had a chance to vote on holding a constitutional convention was 1992 (when they voted against holding one), the Secretary will put such a question on the ballot at the November, 2002 election. If a convention is then approved, and assuming that the Legislature did not intervene to accelerate the process, delegates would not be chosen until the November election in 2004 and the convention held sometime before the next biennial election in 2006. RSA 667:1. This means that the voters would not get to act upon anything until at least November, 2006. On the other hand, the Legislature could set the date for electing delegates any time after the November 2002 referendum (e.g., at town election time in the Spring of 2003 or at the Presidential Primary in February of 2004) and the time for holding the convention itself soon thereafter. So long as the convention were held by the Fall of 2004, any proposals that passed could be submitted to the voters at the November election of 2004.
31. For example, the Legislature has proposed constitutional amendments which would impose a term limit upon the office of Governor and which would give the Legislature the power to declare a vacancy in the office of Governor in the event of the incumbent’s incapacity. Proposals, p. 70 & 92 (the first of these failed at the polls, but the second was adopted). Note that Legislature has also demonstrated its jealousy of the powers exercisable by constitutional conventions. For example, it used to be the case that only a majority vote was required for a convention to propose a constitutional amendment to the voters. However, not long after the Legislature was granted its own power to propose constitutional amendments in 1964, one of the first proposals it sent to the voters was one of which mandated that conventions act by the same three-fifths supermajority that was required of the Legislature. CACR 9, 1979, Proposals, p. 81.
32. This, of course, does not mean that delegates to a constitutional convention have no party affiliation. However, party affiliation has generally been incidental, not critical, to their election. See, e.g., Hale v. Everett, 53 N.H. 9 , 173 (1868). ("The convention [of 1850] was a remarkable assembly of the highest learning and ability of the state, both the political parties of the time being amply represented in it by men of experience and distinction in public affairs.")
33. This is not to say, however, that there is no overlap between the two bodies. On the contrary, many members of the Legislature do run for and are elected as delegates to a constitutional convention.
34. Some people, of course, might not see this as an advantage. As John Maynard Keynes once remarked, "I have been known to complain that, to judge from results in this lawyer-ridden land, the Mayflower, when she sailed from Plymouth, must have been filled with lawyers".
35. Letter of 1824 to Henry Lee.