                    CONSTITUTIONAL
                     CONVENTIONS

               THEIR NATURE, POWERS, AND
                      LIMITATIONS

                          BY

            ROGER SHERMAN HOAR, A.B., LL.B.

      FORMER STATE SENATOR AND ASSISTANT ATTORNEY
                       GENERAL
         MEMBER OF THE COMMISSION TO COMPILE
                 INFORMATION AND DATA
      FOR THE USE OF THE MASSACHUSETTS CONVENTION
                        OF 1917

        "A frequent recurrence to fundamental principles is
      absolutely necessary to preserve the blessings of liberty."



       BOSTON LITTLE, BROWN, AND COMPANY

                         1917



                     Copyright, 1917,
           By LITTLE, BROWN, AND COMPANY.
                    All rights reserved.
                   Published, June, 1917

                        Printers
          8. J. PARKHILL & CO., BOSTON, U.S.A.

                TO ELVA STUART HOAR



                      PREFACE

THE impendency of constitutional conventions in Illinois, Indiana, 
Massachusetts, Nebraska and New Hampshire, has stirred up a vast amount of 
legal and lay discussion as to the nature and powers of such bodies. The 
Illinois, Nebraska and New Hampshire conventions are expressly authorized by 
the constitutions of those States. But the Indiana and Massachusetts 
conventions, not being so authorized, are generally regarded as being 
revolutionary, and are considered by many to be wholly unconstitutional and 
void.

Where can one turn for authoritative information on these questions? The 
only treatise exclusively on Constitutional Conventions is the one by Judge 
Jameson, published in 1867, and to some extent revised in 1887. Even in its 
day, this book was rendered less valuable by the fact that it was written to 
support a preconceived theory, in the interests of which theory Judge 
Jameson freely distorted both law and facts.[1] To-day this book is obsolete 
(most of the judicial decisions on the subject being since 1887), and is out 
of print.

The fact that there is no modern or even ancient accessible work on the 
nature and powers of constitutional conventions, has led me to attempt to 
fill the gap with the present book, which represents no preconceived theory, 
but rather merely an impartial collection of all the available law and 
precedent. 

The best modern treatment of the subject is contained in Dodd's "Revision 
and Amendment of State Constitutions" (1910), which however is written more 
from an historical than from a legal point of view, and which deals chiefly 
with methods of constitutional amendment, other than the convention method. 
I am greatly indebted to this work. Jameson's book also has been constantly 
before me, and much that is still valuable therein has been used.

But, in the main, I have consulted original sources themselves, rather than 
any author's interpretation of them. For the texts of the various 
constitutions themselves, I have used Thorp's compilation which was 
published by Congress in 1909.

My two colleagues on the Commission to Compile Material for the 
Massachusetts Convention of 1917, namely, Professor William B. Munro2 of 
Harvard University and Lawrence B. Evans, Esq.,3 of the Boston Bar, also 
Honorable Robert Luce4 and my wife, have very kindly read my manuscript and 
have aided me with many valuable suggestions.

ROGER SHERMAN HOAR.

MAY 1, 1917.

1. "Judge Jameson's work constructed a theory regarding constitutional 
conventions, which conformed more or less closely to the facts, but in which 
the facts were subordinated to the theory." Dodd, p. vi. But Jameson, 
speaking from the grave as it were, in reply to Dodd and the present author, 
says: "which, in substance, is an intimation that this work is what the 
Germans call a tendenz work, written to maintain a particular thesis, the 
subordination of the Constitutional Convention to the law of the land. ... 
what work upon history or constitutional law was ever written which was not 
a tendenz work in the same sense; that is, written from some special point 
of view to establish truths, of which the author is strongly convinced, and 
to refute errors deemed dangerous, and, if not combatted, likely to 
prevail?" Jameson, pp. 656-657.

2. Head of the department of government at Harvard; author of several well 
known works on Canadian and Municipal Government.

3. Author of "Leading Cases on American Constitutional Law," and other legal 
and historical works.

4. Creator of the Massachusetts direct primary system. Former Lieutenant 
Governor of Massachusetts.



                TABLE OF CONTENTS

LIST OF CASES CITED

REFERENCES

                      CHAPTER I

THE ORIGIN OF CONVENTIONS

The four sources of the American theory of constitutions; the first American 
constitutions; the birth of the convention idea (Massachusetts, New 
Hampshire, and Federal); provisions for amendment in early constitutions; 
the development of the three methods now in use.

                      CHAPTER II

FUNDAMENTAL PRINCIPLES

Popular sovereignty; representative government; delegated powers; the right 
to change government; three methods of exercising this right; the electorate 
as a representative body; factional conventions; ingenious theories as to 
who are the people; classes of constitutional cases; a "state of nature."

                     CHAPTER III

ANALYSIS OF QUESTIONS

The meaning of "constitutional"; other definitions; the three classes of 
conventions; authorized conventions; popular conventions; spontaneous 
conventions; the nature of conventions; the relative powers of departments 
of government; a forecast of this book.

                     CHAPTER IV

POPULAR CONVENTIONS ARE LEGAL

The status of conventions, when not mentioned in the Constitution; instances 
in which they have been held; the Rhode Island doctrine; Attwill's theory; 
the Massachusetts theory; conventions valid even though expressly 
prohibited; perhaps popular in nature even when expressly authorized; the 
extraconstitutional nature of conventions.

                      CHAPTER V

WHO CALLS THE CONVENTION?

Who enacts the convention act; under the Initiative; when authorized by the 
constitution; when the legislature calls an unauthorized convention; when 
the legislature submits the question to the people; even when the people 
merely elect the delegates; legislative statute; the need of legislative 
assistance; the desirability of dispensing with it.

                     CHAPTER VI

LEGISLATURES AS CONVENTIONS

In Indiana they cannot so act; in North Dakota they can; comparison of the 
two views.

                     CHAPTER VII

EXECUTIVE INTERVENTION

The convention a fourth branch of the government; interference by State 
executive veto in constitutional cases; in extraconstitutional cases; by 
Federal executive; intervention to suppress; intervention to assist; 
executive recognition; interference with pending convention.

                     CHAPTER VIII

THE CONVENTION ACT NOT AMENDABLE

Questions involved; the validity of the legislation; who enacted the 
convention act; if the legislature enacted, they can amend it; if the people 
enacted, the legislature cannot amend it; but legislatures have done so on 
occasions.

                     CHAPTER IX

LEGISLATIVE CONTROL

Five methods of control; depends on who passed the act; cross-references on 
powers of the convention; probably no right to restrict; instances of 
successful restriction; instances of unsuccessful restriction; the doctrine 
of reasonable restrictions; abolition of the convention; indirect 
interference; recognition and non-recognition.

                      CHAPTER X

POPULAR CONTROL

Depends on who passed the act; the people can control; the people can amend, 
if they passed the act; if the legislature passed the act; in cases of 
doubt; abolition of the convention; instructions to delegates.

                     CHAPTER XI

EXTRAORDINARY POWERS CLAIMED

Convention sovereignty; certain conventions not precedents; interference 
with the executive; power to legislate; legislation under the guise of 
constitutional amendment; submission of legislation to the people; 
incidental legislative powers; powers granted by United States Constitution 
to legislatures; complete usurpation of powers.

                     CHAPTER XII

JUDICIAL INTERVENTION

In proceedings under constitution; in extraconstitutional proceedings; when 
still pending; when completed; internal convention affairs; a political 
rather than judicial question; interference with usurped powers; judicial 
assistance; judicial advice.

                     CHAPTER XIII

DOES THE CONSTITUTION APPLY?

Cannot prevent the convention; constitutional provisions directory; 
mandatory if adopted by the people; constitution not applicable even to 
constitutional proceedings; Federal. Constitution applicable.

                     CHAPTER XIV

INTERNAL PROCEDURE

Judge of own elections; filling vacancies; expulsion of members; hall; 
officers; rules; committees; supplies; records; printing; maintenance of 
order; binding the State's credit; reconvening to codify the amended 
constitution.

                     CHAPTER XV

STATUS OF DELEGATES

Are they public officers? precedents on oaths; anomaly of oath of members; 
of assisting officers; privileges and immunities of individual delegates.

                     CHAPTER XVI

SUBMISSION OF AMENDMENTS

History; necessity when required by constitution; when required by act; when 
not required; can legislature change time? can convention change time? 
separate submission; enlarged or reduced electorate; methods of submission.

                    CHAPTER XVII

THE DOCTRINE OF ACQUIESCENCE

Lapse of time; government acquiescence; popular acquiescence; in 
constitutional cases; in extraconstitutional cases; does not validate the 
means.

                    CHAPTER XVIII

CONCLUSIONS

History; fundamentals; legality and source of conventions; amending the 
convention act; executive intervention; control of the convention; 
convention sovereignty; judicial intervention; the constitution; conduct of 
the convention; consent of the governed.

INDEX



LIST OF CASES CITED

A.

Armstrong v. Berkey, 23 Okla. 176 ...... 149

Atty. Gen. v. Tillinghast, 203 Mass. 539 ...... 187

B.

Birmingham Ry., Ex parte, 145 Ala. 514 ...... 122, 129, 141, 145

Bott v. Secy. of State, 62 N. J. L. 107 ...... 206, 218

Bradford v. Shine, 13 Ha. 393 ...... 52, 131, 144

Bragg v. Tuffts, 49 Ark. 554 ...... 142

Brittle v. People, 2 Neb. 198 ...... 79, 158, 215

C.

Carton v. Secy. of State, 151 Mich. 337 ...... 63, 90, 92, 107, 112,
134, 163, 198

Chicago v. Reeves, 220 Ill. 274 ...... 83

Collier v. Frierson, 24 Ala. 100 ...... 40, 150, 151

Commonwealth v. Griest, 196 Pa. 396 ...... 81

Commonwealth v. Kimball, 24 Pick. 359 ...... 25

Cranmer v. Thorson, 9 S. D. 149 ...... 153

Cummings v. Missouri, 4 Wall. 277 ...... 207

D.

Denny, Re, 156 Ind. 104 ...... 150

Duncan, Re, 139 U. S. 449 ...... 25

Durfee v. Harper, 22 Mont. 354 ...... 149

E.

Ellingham v. Dye, 178 Ind. 336 ...... 14, 42, 48, 64, 68, 74, 80-85, 87,
129 

F.

Foley v. Dem. Com., 70 So. 104 ...... 162, 218

Franz v. Autry, 18 Okla. 561 ...... 142, 152, 153

G.

Gibbes v. Railroad, 13 S. C. 228 ...... 141, 145

Goodrich v. Moore, 2 Minn. 61 ...... 23, 179

Green v. Shumway, 39 N.Y. 418 ...... 205

Grigsby v. Peak, 57 Tex. 142 ...... 146

H.

Hatch v. Stoneman, 66 Cal. 632 ...... 150

Holmberg v. Jones, 7 Ida. 752 ...... 149

K.

Kamper v. Hawkins, 3 Va. 20 ...... 3, 27, 28, 39, 66

Knight v. Shelton, 134 Fed. 423 ...... 161

Koehler v. Hill, 60 Ia. 543 ...... 149, 157, 158, 215

L.

La. Ry. v. Madere, 124 La. 635 ...... 122, 124, 190

Linde v. Robinson, 160 N.W. 512 ...... 215

Livermore v. Waite, 102 Cal. 113 ...... 83, 84, 150

Loomis v. Jackson, 6 W. Va. 613 ...... 69, 158, 215

Luther v. Borden, 7 How. 1 ...... 94, 101, 157, 158, 162, 215

M.

McBee v. Brady, 15 Ida. 761 ...... 149

McConaughty v. Secy. of State, 106 Minn. 392 ...... 149

McCready v. Hunt, 2 Hill Law 1 ...... 12, 63, 72, 121, 124, 135, 136,
137, 160

McCulloch v. Maryland, 4 Wheat. 316 ...... 39

McMullen v. Hodge, 5 Tex. 34 ...... 133

Miller v. Johnson, 92 Ky. 589 ...... 112, 156, 183, 195, 215

N.

Nesbit v. People, 19 Col. 441 ...... 214

O.

Opinion of Mass. Justices, 1917 ...... 50, 66, 99, 164, 167

Opinion of N. Y. Justices, unreported. ...... 56, 99, 116, 164

Opinion of Justices, 3 Pick. 517 ...... 172

Opinion of Justices, 6 Cush. 573 ...... 44, 45, 46, 64, 123, 164, 198,
199, 217

Opinion of Justices, 115 Mags. 602 ...... 209

Opinion of Justices, 136 Mass. 578 ...... 209

Opinion of Justices, 160 Mass. 586 ...... 64

Opinion of Justices, 76 N. H. 586 ...... 33, 164

Opinion of Justices, 76 N. H. 612 ...... 138, 164, 197

Opinion of Justices, 14 R. I. 649 ...... 15, 33, 43, 46, 47, 49, 56, 57,
198 

P.

Pac. States Tel. Co. v. Oregon, 223 U. S. 118 ...... 119, 162, 169 

Paving Co. v. Hilton, 69 Cal. 479 ...... 149

Paving Co. v. Tompkins, 72 Cal. 5 ...... 149

People v. Curry, 130 Cal. 82 ...... 149

People v. Loomis, 135 Mich. 556 ...... 149

People v. Militzer, 272 Ill. 387 ...... 210

People v. Strother, 67 Cal. 624 ...... 149

Plowman v. Thornton, 52 Ala. 559 ...... 141

Q.

Quinlan v. Houston Ry. Co., 89 Tex. 356 ...... 144, 145, 146

R.

Reliance v. Prison Com., 161 Ky. 135 ...... 12

Richards v. Whisman, 36 S.D. 260 ...... 100

Ridley v. Sherbrook, 43 Tenn. 569 ...... 94

S.

Schertz v. Bank, 47 Ill. App. 124 ...... 143

Scown v. Czarnecki, 264 Ill. 305 ...... 210

Senate File, Re, 25 Neb. 864 ...... 149

Smith v. Good, 34 Fed. 204 ...... 161

Sproule v. Fredericks, 69 Miss. 898 ...... 90, 134

State v. Am. Sugar Co., 137 La. 407 ...... 40, 65, 68, 70, 123, 167 

State v. Brookhart, 113 Ia. 250 ...... 149

State v. Brooks, 17 Wyo. 344 ...... 150

State v. Capdevielle, 104 La. 561 ...... 70, 122

State v. Cox, 3 Eng. 436 ...... 82

State v. Dahl, 6 N.D. 81 ...... 40, 48, 63, 67, 87, 93, 163

State v. Davis, 20 Nev. 220 ...... 149

State v. Favre, 61 La. Ann. 434 ...... 73, 167

State v. Neal, 42 Mo. 119 ...... 146, 207

State v. Powell, 77 Miss. 543 ...... 149

State v. Swift, 69 Ind. 505 ...... 149

State v. Tooker, 15 Mont. 8 ...... 149

State v. Tufly, 19 Nev. 391 ...... 149

T.

Taylor v. Beckham, 178 U. S. 548 ...... 25

Taylor v. Commonwealth, 101 Va. 829 ...... 104, 112, 156, 199, 215 

Thomasson v. Ruggles, 69 Cal. 465 ...... 149

W.

Wells v. Bain, 75 Pa. 39 ...... 16, 17, 19, 24, 28, 32, 72, 74, 75, 76,
90, 109, 117, 136, 137, 152, 160, 165, 170, 195, 213

Weston v. Ryan, 70 Neb. 211 ...... 214

Williams v. Suffolk Ins. Co., 3 Sumner 220 ...... 157

Wood's Appeal, 75 Pa. 59 ...... 19, 73, 110, 111, 121, 124, 129, 136,
152, 155, 159, 162

Woods v. Wobum, 220 Mass. 416 ...... 210

Y.

Young v. Duncan, 218 Mass. 346 ...... 210

REFERENCES

"Columbia Dig."; "Index-Digest of State Constitutions." Prepared by
Columbia University, and published by the New York Constitutional
Convention Commission, 1915.

Dodd: "The Revision and Amendment of State Constitutions." Walter
Fairleigh Dodd. Johns Hopkins Press, Baltimore, 1910.

Holcombe: "State Government in the United States." Arthur Norman
Holcombe. Macmillan Co., 1916.

Jameson: "Constitutional Conventions." John Alexander Jameson.
Fourth edition. Callaghan & Co., Chicago, 1887.

"N. Y. Revision of Consts."; "Revision of the State Constitution."
Published by the New York Constitutional Convention Commission,
1915.

Thorpe: "Federal and State Constitutions." Francis Newton Thorpe. 7
vols. Government Printing Office, Washington, 1909.

"Trial of Dorr"; "Trial of Thomas Wilson Dorr for Treason." George
Turner and W. S. Burges. B. F. Moore, Printer, Providence, 1844.



            CONSTITUTIONAL CONVENTIONS

                     CHAPTER I

            THE ORIGIN OF CONVENTIONS

[1. Nature of constitutions.]

{1} CONSTITUTIONAL conventions, as a means of amending written 
constitutions, are distinctly an American institution. In fact, written 
constitutions themselves originated in this country.

The idea of a constitution is Anglo-Saxon. The word is used on both sides of 
the Atlantic to signify something superior to legislative enactments; in 
other words, a body of fundamental principles of government which are beyond 
the control of the Legislature.

A constitution is a social compact, by which the whole people covenants with 
each citizen, and each citizen with the whole people, that all shall be 
governed by certain laws for the common good.[1] In other words, it is the 
Anglo-Saxon theory that government is in some way based upon a contract 
between the people and the State.

The American colonies, however, were bound not only by the terms of the 
unwritten British constitution, but more directly by the charters or other 
written instruments whereby Great Britain directed their government. These 
charters, of course, became suspended the moment the colonies declared their 
independence, as did also the operation on the colonies of even the British 
constitution itself. As it has sometimes been expressed, the colonies 
reverted to a state of nature.[2]

It was inevitable that in their attempts to emerge from this state of nature 
and organize a new social contract, each colony should make its contract 
embody the fundamental principles of the British constitution, and that they 
should promulgate these contracts in written form, like their former 
charters. Several {2} of the colonies, in fact, re-adopted their charters to 
serve them as constitutions.[3]

The political experience and theories of the colonists thus supplied four 
principles: (1) The employment of definite written instruments, prescribing 
the nature and form of government; (2) the idea of a constitution superior 
to ordinary legislation; (3) the conception of certain natural rights 
asserted by such a constitution; and (4) the theory of the social contract. 
The written constitution, born in America, was the embodiment of these four 
principles.[4] 

[2. Constitutional and representative conventions developed in America.]

The constitutional convention, as we know it to-day, also developed in 
America. It is true that governments had in the past been changed:by 
conventions (i.e. comings-together), but these had always been 
unrepresentative and spontaneous. As Braxton says:

     The first and crudest conventions were in no sense
     representative bodies; but were mere voluntary, irregular,
     illegitimate assemblies of individuals, acting on their own
     motion and on their own behalf, who felt themselves
     sufficiently powerful to resort to the ultimate right of
     Revolution, and wrest, by violence, from their sovereigns,
     such governmental concessions as they desired. The
     existence of such bodies was neither provided for, nor
     recognized by, the laws or existing social system. They
     relied merely on the right of vis major to justify their
     actions and support their demands. Such was the
     Convention of the Barons at Runnymede in 1215, that
     framed, and, in a sense, enacted, Magna Charta, the first
     faint suggestion in England of a written constitution.[5]

But in America the representative convention developed. It was a step as far 
beyond Runnymede as our constitutions were beyond Magna Charta.

The first American constitutions originated in a variety of ways. In order 
to understand the foundation upon which each rested, it will be necessary to 
consider: first, the origin of the Revolutionary legislative body in each of 
the thirteen States; and secondly, the method in which each constitution was 
enacted. Only three States went through the form of continuing {3} the 
charter legislature, to wit: Delaware, Connecticut, and Rhode Island.[6]

Massachusetts is usually incorrectly classified as being among this number, 
owing to a failure to appreciate that the Provincial Congress of 1774 was 
not a continuation of the General Court of the preceding June.[7]

Similarly with Virginia. We learn from a decision of her own Supreme Court 
that the Revolutionary government was not a continuation of the House of 
Burgesses.[8] The rest of the States held unauthorized elections with little 
or no pretense at legality.[9]

In nearly all of the States, certain more or less voluntary organizations, 
called committees of safety, shared the governing power.[10]

     The dissolution of the constitutional assemblies, by the
     governors appointed by the crown, obliged the people to
     resort to other methods of deliberating for the common
     good. Hence the first introduction of convention: bodies
     neither authorized by, or known to the then constitutional
     government; bodies, on the contrary, which the
     constitutional officers of the then existing governments
     considered as illegal, and treated as such. Nevertheless,
     they met, deliberated, and resolved for the common good.
     They were the people, assembled by their deputies; not a
     legal, or constitutional assembly, or part of the government
     as then organized. ... They were, in effect, the people
     themselves, assembled by their delegates, to whom the
     care of the commonwealth was especially, as well as
     unboundedly confided.[11]

Regardless of the legality or illegality of the inception of these various 
governing bodies, they become, by virtue of military force and of popular 
acquiescence,[12] the de facto governments of their respective States.

[3. How conventions established constitutions.]

Let us now consider the methods in which these de facto governments brought 
about the establishment of written constitutions.[13]

{4} In eight instances the legislative body adopted and promulgated the 
constitution in the same manner in which it would have passed a mere 
statute, without either advance authority from, or ratification by, the 
people.[14]

In five instances the action was taken by a legislative body expressly 
authorized thereto by popular vote; but the constitution was not submitted 
in any manner to the people.[15]

In four instances the constitutions were enacted by the legislature under 
express authority from the people, and copies were distributed some time 
before enactment, in order to give the people an opportunity to object and 
suggest changes.[16]

In one instance, the legislature submitted a constitution to the people 
without previous authority, but it was rejected.[17]

The legislative bodies above referred to were in some cases legislatures 
attempting to frame constitutions, and in other cases conventions exercising 
legislative powers. The distinction is immaterial; they were the only 
regular legislative bodies of their respective States.

In three instances, constitutions were framed by special conventions, 
separate from the regular legislative bodies, and were submitted to the 
people.[18] These three conventions, together with the conventions which 
framed and adopted the Federal Constitution, mark the birth of the 
constitutional convention movement in this country, and accordingly deserve 
more than passing notice.

In New Hampshire and Massachusetts, during the Revolutionary War period, 
there was developed the convention as we know it to-day; that is, an 
independent body for the sole purpose of framing a constitution, and 
submitting it to a vote of the people. But it should be remembered that 
before this development took place, both of these States had established 
fairly stable governments, New Hampshire by its constitution {5} of 1776, 
and Massachusetts by an amended form of its colony charter. In neither was 
there urgent need of a new government; in neither was there an aggressive 
Tory element. Neither of these States was threatened by military operations 
at the time. In neither State was there any danger to be apprehended from 
the creation of an independent convention and the submission of its work to 
a vote of the people. 

The history of the development of the convention method in these two States 
was as follows.

Massachusetts, unlike Rhode Island, which remained under its colony charter 
until 1842, was one of the earliest States to adopt an independent form of 
government. In the spring of 1774, Governor Gage forcibly prorogued the 
Massachusetts legislature. The people promptly prepared to elect a 
provincial congress of their own to take its place. To offset this move, 
Gage called for the election of a new legislature. The people elected 
practically the same delegates to both the provincial congress and the 
legislature, whereupon Gage cancelled his call. Nevertheless, the 
legislature met and adjourned over to merge with the congress. This congress 
and its successor, which sat for five months in 1775, renacted the charter 
in a slightly amended form, which served Massachusetts as a constitution 
until 1780. Under it the Great and General Court (i.e. the legislature) and 
the Governor's Council were regularly elected as formerly, the latter 
exercising the executive powers.

Soon after the Declaration of Independence, steps were taken in 
Massachusetts toward framing a new form of government. In accordance with a 
recommendation of the previous legislature, the two branches of the 
legislature of 1777-1778 met together as a convention and submitted a 
constitution, which, however, was indignantly rejected by the electorate, 
because they resented the legislature's assumption that it could call a 
convention without first obtaining an authorization from the people.

In the following year the chastened legislature called upon the voters to 
state whether they wished a constitution and whether they would authorize 
the legislature to call a convention. The vote on both questions was 
affirmative, and the legislature accordingly called the convention which 
drafted {6} the present Massachusetts constitution. This constitution was 
adopted in 1780.[19]

The experience of New Hampshire was very similar. In response to a 
recommendation by the Continental Congress, the provincial congress of New 
Hampshire adopted a temporary constitution on January 5, 1776, although in 
the face of strong protest from many parts of the State. The agitation in 
the western towns became so serious that it was necessary for the provincial 
congress to send a committee to assure that section that the form of 
government adopted was purely temporary.

Delegates from certain of the towns met in Hanover in June, 1777, and passed 
resolutions that any permanent plan of government should be framed by a 
convention convened solely for that purpose. Subsequent constitutional 
procedure in New Hampshire followed those suggested lines.

The legislature of 1777 asked that the various representatives be instructed 
by their towns as to the expediency of holding a convention. Many of the 
members of the next legislature were so instructed, and accordingly it was 
voted in February, 1778, that a convention be held in June of that year. The 
convention, called by virtue of this vote, drafted a constitution; but it 
was rejected by the people.

This procedure was repeated in calling a second convention, which met in 
1781 and submitted a constitution, which also was rejected. The same 
convention submitted a revised copy in 1782, and a second revision in 1783, 
which was finally adopted.[20]

As already said, it was the idea of a separate convention which defeated the 
constitution framed by the Massachusetts legislature in 1777-1778. As a 
recent writer has said:

     The material factor which defeated the constitution was the
     widespread belief that the only convention which could
     stand for all the people and best define its rights and
     determine its form of government, was a convention
     consisting of delegates to whom the powers of the people
     were delegated for the sole purpose of {7} framing a
     constitution, and not a body of representatives entrusted at
     the same time with other duties.[21]

Dodd gives to the towns of the New Hampshire grants, meeting in Hanover in 
June, 1777, the credit of originating the convention idea.[22] But to the 
town of Concord, Massachusetts, belongs the honor of antedating the towns of 
the New Hampshire grants. On October 21, 1776, the town voted on the 
question of authorizing the legislature to frame a constitution:

     That the Supreme Legislative, either in their proper
     capacity, or in Joint Committee, are by no means a body
     proper to form and establish a Constitution, or form of
     Government; for reasons following: first, because we
     conceive that a Constitution in its proper idea intends a
     system of principles established to secure the subject, in
     the possession and enjoyment of their rights and privileges,
     against any encroachments of the governing part, second,
     because the same body that forms a constitution have of
     consequence a power to alter it, third, because a
     constitution alterable by the Supreme Legislative is no
     security at all to the subject against any encroachment of
     the governing part on any, or on all of their rights and
     privileges.

Accordingly they recommended the calling of a convention.[23]

This procedure of constitution-framing by a convention chosen for that 
express purpose, which idea was originated in Concord, Massachusetts, and 
was copied by the New Hampshire towns, was also followed in Vermont in 1786, 
and with respect to the Federal Constitution.

Jameson points out that the congress which framed the Articles of 
Confederation possessed not a single one of the elements necessary to give 
it legitimacy as a constitutional convention.[24] The body which framed the 
permanent Constitution of the United States was scarcely more legitimate.

The Annapolis convention had met merely to settle the commercial disputes of 
the American States, but had recommended that the succeeding convention at 
Philadelphia should {8} consider "other objects than those of commerce." 
Accordingly, a convention met in May, 1787, at Philadelphia, "to devise such 
further provisions as shall appear to them necessary to render the 
constitution of the Federal Government adequate to the exigencies of the 
Union."[25] This convention was really a diplomatic treaty-making body, 
rather than a constitutional convention in the purest sense of the term.

But the conventions of the eleven States which ratified the Constitution 
were all regularly-called constitutional conventions. The same may be said 
of the conventions of North Carolina, Rhode Island, and Vermont, which 
ratified the Constitution after it was declared established.[26]

[4. Convention to amend constitution.]

So much for the origin of the idea of a written constitution, and for the 
employment of conventions to draft these instruments. Let us now consider 
the growth of the idea of the convention as a method of amending or altering 
constitutions already established.

The absence of any provision for alteration in the early constitutions 
should not be taken as an indication that their framers thought the regular 
legislatures competent to alter them, but rather that they did not consider 
the matter at all.[27]

Thus six of the early constitutions, and the rejected Massachusetts 
constitution of 1778, provided no method for their own amendment.[28]

Of the eight constitutions which did provide for amendment, three provided 
for legislative action (in a manner different and more difficult, however, 
than the passage of a mere statute),[29] two provided for submission by a 
council of censors for ratification by a specially called convention,[30] 
one provided for a convention called by petition,[31] and one for a 
convention called by a popular vote at a certain fixed date.[32]

{9} The New Hampshire constitution of 1784 contained a similar provision, 
but with the added qualification that the work of this convention should be 
submitted to the voters for their approval.

[5. Legislature as convention.]

But soon it became apparent that it would be convenient for each State to 
have two methods of changing its constitutions; although only four 
constitutions had, up to 1835, adopted both the legislative and convention 
methods.[33] Up to 1917, one hundred and thirty-nine constitutions have been 
framed by that many conventions. Of these, nine have contained no method of 
amendment, twenty-nine have contained provisions for amendment by convention 
alone, thirty-six by the legislative method alone, and sixty-five by both 
modes.[34]

In all of the States except New Hampshire, specific provision is now made 
for the amendment of State constitutions, by action by the legislature.[35]

In twelve States, the constitution may now be amended by popular initiative 
without the interposition of either the legislature or a convention.[36]

Only twelve of the State constitutions now in force omit to provide for the 
holding of constitutional conventions.[37] Yet conventions have been held in 
all of these States except Rhode Island, Indiana, and Vermont. The question 
of holding a convention has twice been submitted in Rhode Island, in spite 
of a Supreme Court opinion declaring the convention method unconstitutional, 
and there have been authoritative expressions of opinion in Vermont and 
Indiana that a convention could be held there.[38] 

It may therefore be said that New Hampshire is the only state in which 
amendments may not be proposed by the legislature, and that Rhode Island is 
perhaps the only exception to the rule that conventions may be held for the 
revision of State constitutions.[39]

{10} The Federal Constitution provides for the holding of a Federal 
convention as an alternative to the usual method of submission of amendments 
by Congress.[40]

Thus the convention method and the legislative method of amending 
constitutions have now become equally established throughout the length and 
breadth of the United States.

------

1. Mass. Const., Preamble.

2. See [Ch. II 8] pp. 26-28, infra. 

3. Massachusetts until 1780; Connecticut until 1818; Rhode Island until 
1842.

4. Dodd, pp. 2-3.

5. A. Caperton Braxton, in VII "Va. Law Beg.," 79, 82.

6. Dodd, p. 14; Jameson, pp. 113 and 128-129.

7. George Tolman, "Preliminaries of the Concord Fight" (1902), p. 6.

8. Kamper v. Hawkins (1793), 3 Va. 20, 68-74.

9. Jameson, pp. 113, 114 n. 1, 119, 122.126, 130, 132-134.

10. Jameson, p. 113.

11. Kamper v. Hawkins (1793), 3 Va. 20, 68.

12. See Chapter XVII, infra.

13. The following classification is based upon Dodd, pp. 24-25, with some 
regrouping, however, based upon an analysis of the full accounts.

14. North Carolina (April, 1776), South Carolina (1776), Georgia (1776), 
Virginia (1776), New Jersey (1776), and the continuation of the charters in 
Massachusetts, Rhode Island, and Connecticut.

15. New Hampshire (1776), Delaware (1776), Georgia (1777), New York (1777), 
and Vermont (1777). Jameson (pp. 128-130) gives Delaware the credit of 
holding the first regular convention, but see Dodd, p. 15

16. Maryland (1776), Pennsylvania (1776), North Carolina (Dec. 1776), and 
South Carolina (1778).

17. Massachusetts (1778).

18. New Hampshire (1778 and 1781-1783) and Massachusetts (1780).

19. George Tolman, "Preliminaries of the Concord Fight" (1902); 1917 Manual 
of the General Court (Mass.), pp. 86-87; Dodd, pp. 8-10; Frothingham, Const. 
and Govt. of Mass.; II "Mass. Law Quarterly," 1.

20. Dodd, pp. 3-8.

21. Arthur Lord in II "Mass. Law Quarterly," 1, 5; cf. Journal, Mass. Conv., 
1779-1780, p. 225.

22. Dodd, p. 6.

23. "Mass Archives," Vol. 156, No. 182. A facsimile is to be printed in the 
manual of the Mass. 1917 Convention.

24. Jameson, pp. 147-148. 

25. Jameson, pp. 149-150. 

26. Jameson, p. 153.

27. Dodd, p. 27.

28. South Carolina (1776), Virginia (1776), New Jersey (1776), New Hampshire 
(1776), New York (1777), and North Carolina (Dec. 1776).

29. Maryland (1776), Delaware (1776), and South Carolina (1778).

30. Pennsylvania (1776) and Vermont (1777).

31. Georgia (1776).

32. Massachusetts (1780). The vote was unfavorable, no convention was held, 
and thus this method lapsed by non-use. There was a similar provision in the 
Kentucky constitution of 1792, and under it was framed the constitution of 
1799.

33. United States (1787), South Carolina (1790), and Delaware (1792 and 
1831).

34. Jameson, pp. 550-551; Dodd, pp. 119-120. Arizona and New Mexico in 1910; 
Louisiana in 1913.

35. "Columbia Dig.," pp. 10-21.

36. "Columbia Dig.," p 771. These States are Arizona, Arkansas, California, 
Colorado, Michigan, Missouri, Nebraska, Nevada, North Dakota, Ohio, 
Oklahoma, and Oregon.

37. "Columbia Dig.," p. 21. These States are Arkansas, Connecticut, Indiana, 
Louisiana, Massachusetts, Mississippi, New Jersey, North Dakota, 
Pennsylvania, Rhode Island, Texas, and Vermont.

38. See Chapter IV, infra.

39. Dodd, p. 120.

40. U. S. Constitution, Art. V. 

------------


                     CHAPTER II

            FUNDAMENTAL PRINCIPLES

[1. The people are sovereign.]

{11} IN order to understand the nature, powers, and limitations of 
constitutional conventions, it will be necessary first to discuss a few 
fundamental principles of government; for the convention, designed as it is 
to tinker with such a basic instrument as the constitution, must of 
necessity get closer to fundamentals than any other governmental agency.

Government in America is based upon popular sovereignty. The Federal 
Constitution was ordained and established by "the people of the United 
States,"[1] and guarantees to each of the several States "a republican form 
of government."[2] This means, in other words, a representative form.

It is founded upon the theory that the people are fit to rule, but that it 
would be cumbersome for them to govern themselves directly. Accordingly, for 
the facilitation of business, but for no other purpose, the people choose 
from their own number representatives to represent their point of view and 
to put into effect the collective will.

As Jameson expresses it:

     Of the American system of government, the two leading
     principles are, first, that laws and Constitutions can be
     rightfully formed and established only by the people over
     whom they are to be put in force; and, secondly, that the
     people being a corporate unit, comprising all the citizens of
     the state, and, therefore, too unwieldy to do this important
     work directly, agents or representatives must be employed
     to do it, and that, in such numbers, so selected, and
     charged respectively with such functions, as to make it
     reasonably certain that the will of the people will be not
     only adequately but speedily executed.[3]

{12} These principles were recognized by our forefathers in framing the 
various Bills of Rights, which declare in substance that, as all power 
resides originally in the people, and is derived from them, the several 
magistrates and officers of government are their substitutes and agents, and 
are at all times accountable to them.[4]

The various agents of the people possess only such power as is expressly or 
impliedly delegated to them by the constitution or laws under which they 
hold office; and do not possess even this, if it happen to be beyond the 
power of such constitution or laws to grant.

As the Supreme Court of South Carolina said in an early decision:

     Whatever authority this Court or any other constituted
     authority in this State possesses, it possesses by delegation
     from the people, and is exercised in their right. What they
     have failed to delegate, even if it operates injuriously and in
     bad faith towards their confederates, the Court cannot
     possess.[5]

The Declaration of Independence, which is the first great declaration of 
American principles, says truly, "We hold these truths to be self-evident: 
That all men are created equal; that they are endowed by their Creator with 
certain unalienable rights; that among these are life, liberty, and the 
pursuit of happiness. That, to secure these rights, governments are 
instituted among men, deriving their just powers from the consent of the 
governed."

[2. People have unalienable right to change government.]

It follows, as a necessary conclusion from this statement in the great 
Declaration, that the people have an unalienable right to change their 
government whenever the common good requires. In fact, that very conclusion 
is drawn by the Declaration itself.

Yet, because of the training of our ancestors, this idea was difficult of
establishment. As Braxton points out:

     Both Church and State taught and enforced the dogma
     that governments were of divine origin, and existed by
     divine right; and to this proposition the corollary was
     obvious, that the people had no right to alter what God
     had established. Finally the idea took {13} root and began
     to develop, that while government, in its general sense, as
     distinguished from anarchy, may be said to be a divine
     institution, yet no particular form of government could lay
     just claim to any divine right of preference over any other
     form. In this one idea lay the germ of all modern political
     and civil liberty. Yet, simple and elementary as it seems to
     us, in this age of enlightenment, it was many years before
     this idea could be reconciled to the tender consciences of
     many pious person who had been taught from their
     childhood, as a part of their religion to hold in superstitious
     veneration this "Icon Basilike" and all that it stood for.[6]

Practically every one of the original State constitutions of America
contains an assertion of this fundamental right of the people to change
their form of government. The following quotations from these
constitutions may prove instructive on this point:

     Some mode should be established by common consent,
     and for the good of the people, the origin and end of all
     governments, for regulating the internal polity of this
     colony.[7]

     All political power is vested in and derived from the
     people only.[8]

     All government of right originates from the people, is
     founded in compact only, and instituted solely for the good
     of the whole.[9]

     When any government shall be found inadequate or
     contrary to these purposes, a majority of the community
     hath an indubitable, inalienable, and indefeasible right to
     reform, alter, or abolish it, in such manner as shall be
     judged most conducive to the public weal.[10]

     Whenever these great ends of government are not
     obtained, the people have a right, by common consent, to
     change it, and take such measures as to them may appear
     necessary to promote their safety and happiness. ... The
     community hath an indubitable, unalienable, and
     indefeasible right to reform, alter, or abolish government in
     such manner as shall be by that community judged most
     conducive to the public weal.[11]

     The people, from whom all power originates and for
     whose benefit all government is intended.[12]

     {14} Whenever these great objects are not obtained, the
     people have a right to alter the government, and to take
     measures necessary for their safety, prosperity, and
     happiness. ... The people alone have an incontestable,
     unalienable, and indefeasible right to institute government;
     and to reform, alter, or totally change the same, when their
     protection, safety, prosperity, and happiness require it.[13]

     All government of right originates from the people, is
     founded in consent, and instituted for the general good.
     Whenever the ends of government are perverted, and
     public liberty manifestly endangered, and all other means
     of redress are ineffectual, the people may, and of right
     ought, to reform the old, or establish a new government.
     The doctrine of non-resistance against arbitrary power,
     and oppression, is absurd, slavish, and destructive of the
     good and happiness of mankind.[14]

     All just authority in the institutions of political society is
     derived from the people, and established with their
     consent, to advance their happiness; and they may, for this
     end, as circumstances require, from time to time, alter their
     constitution of government.[15]

It is important to note that these "self-evident truths," these "fundamental 
rights" are admitted rather than guaranteed by the constitutions. See the 
following:

     Now no truth can be self-evident, which becomes evident
     only under particular conditions, as when it is deducible
     only from ... the provisions of some positive code. ... If the
     truth in question is a self-evident truth, it is one which
     would obtain equally whether asserted in the constitution
     ... or not.[16]

It needed no reservation in the organic law to preserve to the people their 
inherent power to change their government.[17]

The Supreme Court of Rhode Island stands alone in denying the principles 
laid down in the Bills of Rights. In 1883 it said:

     It has been contended that there is a great unwritten
     common law of the states, which existed before the
     Constitution, and which the Constitution was powerless to
     modify or abolish, under which the people have the right,
     whenever invited by the General Assembly, ... to alter and
     amend their constitutions, ... Our Constitution {15} is ...
     the Supreme law of the State! We know of no law, except
     the Constitution and laws of the United States, which is
     paramount to it.[18]

And this in the teeth of the fact that the Bill of Rights then in force in 
Rhode Island proclaimed:

     The basis of our political systems is the right of the people
     to make and alter their constitutions of government.[19]

And of the fact that the Rhode Island convention which ratified the Federal 
Constitution included in the ratification these words:

     That the powers of government may be re-assumed by the
     people, whensoever it shall become necessary to their
     happiness.

Holcombe has an ingenious theory that the Federal Constitution destroyed 
this right referred to in the various State constitutions, but he is 
apparently alone in this.[20]

[3. How may people change government?]

How may the people exercise this right to change their government? They may 
do it in any one of three ways: namely, (1) by some authorized procedure; 
(2) by a lawful act of the whole people in their sovereign capacity; or (3) 
by the spontaneous act of an unrepresentative part of the people.

By the term "authorized procedure," I mean some method provided by the 
charter or constitution under which the State in question is governed, or by 
the express permission of some sovereign government, in case the people in 
question are a subject people. An example of the latter sort is when 
Congress passes an act permitting some subject territory of the United 
States to frame a form of government preparatory to its admission to 
statehood.

The whole people in their sovereign capacity, acting through the forms of 
law at a regular election, may do what they will with their own frame of 
government, even though that frame of government does not expressly permit 
such action, and even though the frame of government attempts to prohibit 
such action. This method of change of government will be amplified and 
justified in Chapter IV.

{16} When a part of the people or even a majority of them act outside the 
forms of law, they have no power except the power of force to bind those who 
do not join in the movement. Such a change or attempted change of government 
is nothing but factional, even though it may be conducted in a most orderly 
manner. Factional changes of government, or "spontaneous changes," as 
Jameson calls them, will be discussed more fully toward the end of this 
chapter.[21]

The Pennsylvania Supreme Court has attempted to draw a distinction between 
these three methods of change of government. The court's language is as 
follows:

     The words "in such manner as they may think proper," in
     the declaration of rights, embrace but three known
     recognized modes by which the whole people, the state,
     can give their consent to an alteration of an existing lawful
     frame of government, viz.:

          1. The mode provided in the existing
          constitution.

          2. A law, as the instrumental process of
          raising the body for revision and conveying to
          it the powers of the people.

          3. Revolution.

     The first two are peaceful means through which the
     consent of the people to alteration is obtained, and by
     which the existing government consents to be displaced
     without revolution. The government gives its consent,
     either by pursuing the mode provided in the constitution,
     or by passing a law to call a convention. If consent be not
     so given by the existing government the remedy of the
     people is in the third mode, -- revolution.

     If the legislature, possessing these powers of government,
     be unwilling to pass a law to take the sense of the people,
     or to delegate to a convention all the powers the people
     desire to confer upon their delegates, the remedy is still in
     their own hands; they can elect new representatives that
     will. If their representatives are still unfaithful, or the
     government becomes tyrannical, the right of revolution yet
     remains.[22]

The author would suggest that the following changes be made in the parts 
which he has italicized: namely, that the first "revolution" be changed to 
"spontaneous action, ratified by acquiescence," and that the second and 
third "revolution" be changed to "spontaneous action."

{17} Let us not however attempt to decide at just this point whether the 
Pennsylvania Court correctly used the term "revolution." This is really a 
question of terminology rather than of fundamentals. The definition of the 
word will be discussed in Chapter III,[23] and in Chapter IV there will be 
considered the question as to whether popular conventions may properly be 
designated as "revolutionary."[24]

On the fundamental points expressed, the Pennsylvania Court was entirely 
correct. It laid down the principles that the electorate is really a 
representative body, a body representing "the people."

[4. Who the "people" are.]

The people here meant are the whole -- those who constitute the entire 
state, male and female citizens, infants and adults. A mere majority of 
those persons who are qualified as electors are not the people, though when 
authorized to do so, they may represent the whole people. 

The electors who can pronounce the voice of the people are those alone who 
possess the qualifications sanctioned by the people in order to represent 
them, otherwise they speak for themselves only, and do not represent the 
people.

                       ------------

A majority of the adult males having the qualifications of electors can bind 
the whole people only when they have authority to do so.

                       ------------

The great error of the argument of those who claim to be the people, or the 
delegates of the people, is in the use of the word people. Who are the 
people? Not so many as choose to assemble in a county, or a city, or a 
district, of their own mere will, and to say -- we the people. Who gave them 
power to represent all others who stay away? Not even the press, that 
wide-spread and most powerful of all subordinate agencies, can speak for 
them by authority. The voice of the people can be heard only through an 
authorized form, for, as we have seen, without this authority a part cannot 
speak for the whole, and this brings us back to a law as the only authority 
by which the will of the whole people, the body politic called the state, 
can be collected under an existing lawful government.[25]

{18} And Braxton says, in the same connection:

     The "people" to whom our Bills of Rights refer, the only
     "people" whom civilization recognizes as having any
     sovereign or political rights, are the people, not in a state
     of nature, but as organized into social government. When,
     therefore, we are discussing any problem or doctrine of
     government, or of political or civil rights, let us lay aside all
     consideration of the people in a "state of nature"; let us
     omit all reference to that idle dream of the early theorists,
     about the people meeting together in a "vast plain" -- a
     thing they, of course, never did and never possibly could
     have done; and instead, let us ever consider the people,
     not as a capricious, erratic, lawless monster, but as an
     all-powerful, but orderly, force moving only in lawful form,
     in accordance with the great rules and principles, and in
     pursuance of the methods, which are essential to its
     organized existence.[26]

The people do not vote at a popular election any more than they vote at a 
session of the legislature. They speak only through representatives in 
either instance. The people include men, women, and children. In some 
governmental functions, these people speak through the electors, in other 
instances through the legislature, but always through representatives.

[5. Electors as the "people".]

Some writers have even gone to the extent of stating that the electors are 
the people. Witness the following:

     Under our system of government it is apparently well
     settled that the ultimate sovereignty is in the people, in the
     restricted sense of those who are enfranchised. The power
     to change the fundamental -- the written constitution -- is
     in them alone. It is this principle which causes the courts to
     recognize generally the right of the legislature, as the organ
     of the people, to submit a call for a convention of the
     people, and to regard such a convention as a valid method
     of constitution making, although the existing constitution
     contains no provision to that effect.[27]

The Massachusetts Supreme Court has recently held that "people" as mentioned 
in the Bill of Rights are all the people, whereas "people" in provisions 
relative to elections are merely the qualified voters.[28] This would seem 
to be a very sensible distinction. 

But be that as it may. A majority of the electors can represent {19} the 
people only at a duly held election. The action of a majority of the 
electors in any other manner is just as ineffective as would be the action 
of a majority of the legislators taken during a legislative recess.

The Pennsylvania Court expresses these thoughts in the following language: 

     The people, that entire body called the state, can be
     bound as a whole only by an act of authority proceeding
     from themselves. In a state of peaceful government they
     have conferred this authority upon a part to speak for the
     whole only at an election authorized by law. It is only
     when an election is authorized by law, that the electors,
     who represent the state or whole people, are bound to
     attend, and if they do not, can be bound by the expression
     of the will of those who do attend.[29]

Law is the highest form of a people's will in a state of peaceful 
government, when a people act through a law the act is theirs.[30]

[6. Spontaneous convention does not represent the "people".]

Judged by these standards, it will be seen that a spontaneous convention is 
not really a movement of the whole people, no matter how large a percentage 
of the voters it actually represents.

This may answer the suggestion which is often made by loose thinkers on this 
subject; namely, if some rich man or some body of men were to pay the 
expenses of holding a state-wide election, and were to invite all the voters 
to attend, would not an amendment adopted at such an election become a valid 
part of the constitution through thus receiving the popular sanction? But 
the Pennsylvania Court replies as follows:

     Let us suppose a voluntary election unauthorized by law,
     and delegates elected. It is plain a convention composed
     of such delegates would possess no power to displace the
     existing government, and impose a new constitution on the
     whole people. Those voting at the unauthorized election
     had no power to represent or to bind those who did not
     choose to vote.

     Suppose a constitution formed by a volunteer convention,
     assuming to represent the people, and an attempt to set it
     up and displace the existing lawful government. It is clear
     that neither the {20} people as a whole nor the
     government having given their assent in any binding form,
     the executive. Judiciary and all officers sworn to support
     the existing constitution would be bound, in maintenance of
     the lawfully-existing institutions of the people, to resist the
     usurpation, even to the whole extent of the force of the
     state. If overpowered, the new government would be
     established, not by peaceful means, but by actual
     revolution.[31]

The leading example of factional convention in the United States is the 
"People's Convention" in 1841 in Rhode Island, which culminated in what is 
generally known as "Dorr's Rebellion," to be discussed a little later.

In Maryland, in 1837, there were conditions like those in Rhode Island in 
1841, and the supporters of reform elected a convention without any 
authorization from the regular government, but the convention took no 
action, for the legislature hastened to adopt the most important proposed 
reforms.[32]

Somewhat similar to the Maryland case was that of the convention at Topeka 
in the territory of Kansas in 1855. This convention was assembled upon the 
recommendation of meetings and associations of private individuals. The 
constitution which it framed was submitted to a popular vote and received a 
majority of the votes cast upon the question of its adoption, although only 
its friends voted upon this question. This constitution was never recognized 
by Congress, though it would seem that the irregularity of its formation and 
adoption might have been cured by congressional ratification, had Congress 
cared to take such action.[33]

The territory of Michigan in 1835 adopted a constitution and applied for 
admission into the Union. Congress passed an act that Michigan should be 
admitted if she would agree to a restricted boundary. The new State rejected 
the condition. Thereupon a popular movement was begun, and delegates were 
elected to a convention, which assembled without either congressional or 
State authorization, and assented to the condition imposed by Congress. 
Congress accepted this action as satisfactory and by its acceptance ratified 
the action of the irregular convention.[34]

{21} Thus what is originally merely a factional convention may in some cases 
become an authorized convention by subsequent ratification; in such cases, 
by Congress. But apart from some curing ratification, we have seen that, 
although the people are supreme, they have no method of expression except 
through their representatives, the voters; and they in turn can only speak 
by means of elections regularly called and held.

It was this little technical point alone which justified the prosecution of 
Thomas W. Dorr for supporting the "People's Constitution" of 1841 in Rhode 
Island. Under his leadership the people of that State attempted to overthrow 
the tyrannous rule of the landholding classes who were still entrenched 
behind the King's charter. Caucuses of the adult male citizens throughout 
the State sent delegates to a convention which submitted a fair and 
democratic constitution to a special election called by it. At this election 
a clear majority of all the adult males voted for the new frame of 
government. Not only this, but among those voting in favor was a clear 
majority of those duly registered as voters under the charter. Dorr was 
subsequently elected Governor. He attempted to assume office, but John 
Tyler, Whig President of the United States, interfered at the request of the 
Whig charter government, and forced Dorr and many of his followers into 
exile, by threatening to send Federal troops into the State. This partisan 
action, by the way, is chiefly what drove the Whigs from power in the 
succeeding national election. Equally partisan was the Democratic 
congressional report on Tyler's action, which report will be cited elsewhere 
in this volume.

On Dorr's return, a few years later, he was tried and convicted of high 
treason. In the meantime, the Charterists themselves had submitted a 
constitution, which had received the votes of less than one third of the 
adult males, less than half of the registered vote.

Yet technically this became the constitution of the State, and the People's 
Constitution did not. Neither method of procedure was authorized by the 
charter. The valid one received seven thousand votes; the invalid one nearly 
fourteen thousand. Yet the difference in validity lay in this: the seven 
thousand voted at a duly called election, and hence had authority {22} to 
speak for the whole people; whereas the fourteen thousand voted at an 
irregular election, and hence spoke only for themselves.[35]

The following quotations from the unreported opinion of the Rhode Island 
Supreme Court rendered at Dorr's trial may prove instructive.

     This court can recognize no other [i. e. constitution] than
     that under which it holds its existence. ... Any irregular
     action, without legal authority, is no action at all, that can
     be taken notice of by a court of law. ... It matters not
     therefore whether a majority, or what majority, voted for a
     pretended constitution, as is alleged by the prisoner, and
     as he now asks to be permitted to prove. The numbers are
     nothing; we must look to the legality of the proceeding,
     which, being without form of legal authority, is void and of
     no effect.[36]

See also the following quotations from the argument of Daniel Webster in the 
famous case of Luther v. Borden in which the United States Supreme Court 
went very fully into the validity of Dorr's Rebellion, although deciding the 
case on other grounds:

     When it is necessary to ascertain the will of the people, the
     legislature must provide the means of ascertaining it.

                       ------------

     There must be an authentic mode of ascertaining the public
     will somehow and somewhere. If not, it is a government of
     the strongest and most numerous.[37]

[7. Factional conventions.]

One of the five instances in which new States have been formed within the 
boundaries of other States, presents an example of a factional convention. 
Vermont is not such an instance, as she had maintained her independence 
against the State of New York and the United States for fourteen years;[38] 
and hence, however irregular had been her original organization, her 
government had become regular through lapse of time and acquiescence of her 
people.[39]

But in the case of West Virginia, the legality of its admission {23} into 
the Union depends to a large extent on the legality of the absolutely 
revolutionary pro-union government, which was set up in the State of 
Virginia shortly after the outbreak of the Civil War. This government 
appears to have been ordained by a convention extremely factional, 
representing but a fraction of the people of a fraction of the State; and 
yet the assent of this government to the dismemberment of Virginia was 
rendered effective by force of Federal arms, just as the factional 
government in Rhode Island was rendered ineffective by the same force.[40]

The possibility of spontaneous changes being legal has been suggested in the 
following dictum:

     It may well be questioned whether, had the Legislature
     refused to make provision for calling a convention, the
     people in their sovereign capacity would not have had the
     right to have taken such measures for framing and
     adopting a constitution as to them seemed meet.[41]

The Committee of Congress, chosen for partisan purposes to prepare a report 
on Dorr's Rebellion, discreditable to President Tyler, framed an ingenious 
theory along the lines of the above dictum, to the effect that a majority of 
the adult males constitute the people. This theory they expressed in the 
following language:

     That the (political) people include all free white male
     persons, of the age of twenty-one years, who are citizens
     of the State, are of sound mind, and have not forfeited
     their right by some crime against the society of which they
     are members.[42]

It is true that the original Virginia Bill of Rights says that "a majority 
of the community hath an indubitable, unalienable and indefeasible right, 
etc."[43] And Walker says that the right of revolution exists "whenever a 
majority desire it."[44]

But in the light of the foregoing discussion, it is probable that what 
Walker and the framers of the Virginia constitution really {24} meant was 
the right of the people, speaking through a majority of their electors.

At any rate, particularly in these days when women are clamoring that they 
too are people, it is easier to follow the Pennsylvania view that all male, 
female, and minor citizens are people, but that the people can speak only 
through duly qualified voters.[45]

Of course, it is true that many factional movements have succeeded in 
overturning the government. But they have been ratified by subsequent 
events, which made up for the illegality of their beginnings. The 
spontaneous governments of the American colonies succeeded when force 
triumphed over England. The "People's" government of Rhode Island failed, 
and the Union government of West Virginia succeeded, because of force, 
applied by the Federal authorities.

     Revolutionary conventions ... are not peculiar to any
     country, but have existed wherever, and will continue
     occasionally to exist as long as, the ultimate and eternal
     right of revolution remains -- a right which, it is said,
     depends solely upon the power to successfully invoke it.[46]

If overpowered, the new government would be established, not by peaceful 
means, but by actual revolution.[47]

Thus authorized movements depend upon either constitutional or congressional 
authority; popular movements depend upon the power of the people; 
spontaneous movements depend upon force, or at least upon acquiescence.

No exact line can be drawn between the three different classes of change of 
government; each merges into the next, and many instances are on the line.

Daniel Webster has summed up, in the following words, the ground which we 
have just covered, and this summary has twice received the approval of the 
United States Supreme Court:

     Mr. Webster's argument in that case took a wider sweep,
     and contained a masterly statement of the American
     system of government, as recognizing that the people are
     the source of all political power, but that as the exercise of
     governmental powers immediately by the people
     themselves is impracticable, they must be exercised {25}
     by representatives of the people; that the basis of
     representation is suffrage; that the right of suffrage must be
     protected and its exercise prescribed by previous law, and
     the results ascertained by some certain rule; that through
     its regulated exercise each man's power tells in the
     constitution of the government and in the enactment of
     laws; that the people limit themselves in regard to the
     qualifications of electors and the qualifications of the
     elected, and to certain forms for the conduct of elections;
     that our liberty is the liberty secured by the regular action
     of popular power, taking place and ascertained in
     accordance with legal and authentic modes; and that the
     Constitution and laws do not proceed on the ground of
     revolution or any right of revolution, but on the idea of
     results achieved by orderly action under the authority of
     existing governments, proceedings outside of which are
     not contemplated by our institutions.[48]

[8. Meaning of constitutionality.]

One more fundamental point, not directly related to the foregoing, must 
however be discussed: namely, the meaning of constitutionality and 
unconstitutionality, and the relation between the constitution and 
governmental affairs in general.[49]

This is a subject under which there exists a good deal of misapprehension, 
with the result that lawyers, writers, and even judges have been found 
laying down the principle that anything which is not authorized by the 
constitution must, therefore, be considered as prohibited by the 
constitution. And yet the great distinction drawn by Chief Justice Lemuel 
Shaw between Federal and State constitutions rests upon a denial of this 
assumption.[50]

The purport of his decision was that there exists midway between the class 
of actions prohibited by the constitution and the class of action authorized 
by the constitution, a twilight zone consisting of those actions which are 
neither authorized nor prohibited.

As the Federal government has no powers other than those expressly or 
impliedly given to it by the Constitution, all Federal activities within the 
twilight zone are just as illegal as those which fall into the expressly 
prohibited class. As the people reserve to themselves all powers not 
expressly or {26} impliedly granted to the three branches of the government, 
it follows that with respect to the State constitutions, any action falling 
within the twilight zone is lawful through not being prohibited.

Thus it is seen that there are three classes of cases in constitutional law, 
namely: (1) things authorized; (2) things neither authorized nor prohibited; 
and (3) things prohibited.

To this may perhaps be added a fourth class, namely, things which the 
constitution has no power either to authorize or to prohibit.

Thus with respect to the control of State constitutions over the question of 
amending the constitution, any given method may be either (1) expressly 
authorized; (2) permitted because not prohibited; (3) prohibited; or (4) 
beyond the jurisdiction of the constitution.

This fourth class is perhaps a subdivision of the second. Any amendatory 
method which is beyond the control of the constitution falls into class 4, 
regardless of whether the constitution attempts to authorize or prohibit it, 
or merely remains silent on the subject.

A word more relative to this fourth class. Some persons will deny that there 
can exist a class of actions, which are neither constitutional nor 
unconstitutional, being beyond the control of the constitution. To such a 
person, the following question should be put: "Under the State constitution, 
is it constitutional or unconstitutional for the President of the United 
States to call out the State militia?" The answer is:

     "The State constitution has nothing to do with the matter."
     This is merely one example to show the possibility of the
     existence of extra- or even supra-constitutional matters.

Now to another point: the suggestion was made in Chapter I that when the 
colonies declared their independence, they reverted to a state of 
nature.[51] This suggestion deserves a little analytical attention.

Dodd quotes with approval the following from a resolution passed at a 
meeting of New Hampshire towns in 1776:

     It is our humble opinion, that, when the Declaration of
     Independency took place, the Colonies were absolutely in
     a state of {27} nature, and the powers of Government
     reverted to the people at large.[52] 

And the Supreme Court of Virginia has said:

     The instant that the declaration of independence took
     effect, had the convention proceeded no farther, the
     government, as formerly exercised by the crown of Great
     Britain, being thereby totally dissolved, there would never
     have been an ordinary legislature, nor any other organized
     body, or authority in Virginia. Every man would have been
     utterly absolved from every social tie, and remitted to a
     perfect state of nature.[53]

But Braxton says:

     What, then, is this "right of the people" (or of a majority of
     them) to "alter their government," which the advocates of
     conventional omnipotence invoke to support their views?
     Is it the right to resolve themselves into a "state of nature,"
     to "scatter the elements of government around them," and
     to " stand upon the foundations of society" -- "to conjure
     up chaos?" Surely not.

To the religious man, government, in its broadest sense, is still regarded 
as ordained by God, and therefore the people have no right to abolish it; to 
the non-religious, it is still an absolute essential for the existence of 
society. What right, then, have the people to abolish government? The 
"people," as we have seen -- the only "people" whom political society can 
recognize are the people organized into a government of some sort. If, then, 
they should abolish all government, they would manifestly destroy their own 
existence.

When we speak of the right of the people to govern themselves we do not mean 
what the words literally imply, but merely their right to alter or amend 
their government, or to replace it with a new one, at their pleasure.

The existence of government is absolutely essential to the existence of the 
"people" in any political sense; and the only way in which the people have a 
right to abolish the government is by substituting a new one in its stead. 
There can be no hiatus between them.

The idea of the people resuming -- taking back into their own hands -- all 
the powers of government is a delusion. The people can never take the powers 
of government into their own hands; {28} the utmost they can do is to 
enlarge or curtail, amend or alter, those powers in the hands of their 
government, or to transfer them from one government to another; but they can 
never "resume" them in toto. Not only have they no right, but they have no 
power to do so. They can abolish government, and thereby destroy their own 
political existence, but they can never directly exercise the powers of 
government -- only a government of some sort can possibly do this.[54]

In other words, the people are all-powerful like Samson; but when they pull 
down the temple of the state, they thereby destroy themselves.

Of course, Braxton is right; but is he not setting up a man of straw so as 
to knock it down again? He is attacking the oratorical flights of fancy of 
those who assert convention sovereignty,[55] rather than attacking the real 
foundations of their arguments.

Most other writers assume that which Braxton sets out so elaborately to 
prove. Thus Jameson says that the people are a corporate unit, comprising 
all the citizens of the state.[56] The Pennsylvania Supreme Court has 
defined the people as "the body politic called the state."[57]

And the Supreme Court of Virginia reaches the same conclusion, although 
basing the result upon the inconvenience rather than the impossibility of a 
state of nature.[58]

From all the foregoing discussion, we can deduce the following fundamental 
principles to guide us in considering the status, powers, and limitations of 
constitutional conventions.

Ours is a representative government, founded on popular sovereignty.

"The people" are the people as organized into a state of social government; 
they cannot abolish government without thereby terminating their own 
existence as the people.

Governments derive their powers from the consent of the governed; therefore 
the governed have a right to withdraw that consent and to change their 
government at will. They can exercise this right either by an authorized 
procedure, by a {29} lawful though unauthorized act of the whole people, or 
by a spontaneous act, provided that in the case of such spontaneous act, it 
be later ratified by some higher power, i. e. either Congress in the case of 
a Territory, or the people themselves in the case of the State. The people 
can speak only through their representatives, the voters, and the voters can 
speak only at a regular election.

It is not necessary that a given action be either authorized or prohibited 
by the constitution; it may be permitted by not being mentioned at all, or 
it may be valid because outside the power of the constitution.

------

1. U. S. Const., Preamble.

2. U. S. Const., Art. IV,  IV

3. Jameson, p. 1; "Works of Daniel Webster," VI, pp. 221-224.

4. Mass. Decl. of Rts., Art. V. 

5. McCready v. Hunt (1834), 2 Hill Law (S. C.) 1, 270. Cf. Reliance v. 
Prison Com. (1914), 161 Ky. 135, 142.

6. VII "Va. Law Reg.," 79, 84.

7. S. C. Const. (1776), Preamble.

8. N. C. Const. (1776), Decl. of Rts., Art. I.

9. Md. Const. (1776), Art. I. 

10. Va. Const. (1776), Bill of Rts.,  3.

11. Pa. Const. (1776), Preamble and Decl. of Rts. Art. V.

12. Ga. Const. (1777), Preamble. 

13. Mass. Const., Preamble and Bill of Rts., Art. VII.

14. N. H. Const. (1784), Preamble and Bill of Rts., Art. X.

15. Del. Const. (1792), Preamble.

16. Jameson, pp. 235-236. 

17. Ellingham v. Dye (1912), 178 Ind. 336, 344.

18. Opinion of Justices (1883), 14 R. I. 649, 654.

19. R. I. Const., Art. I,  1.

20. Holcombe, "State Government," p 33. See [Ch. XIII 3] p. 168, infra.

21. See [7] pp. 19-23, infra. Cf. Jameson, p. 104.

22. Wells v. Bain (1872), 75 Pa. 39, at 47-48.

23. See [Ch. II 7] pp. 31-33, infra. 

24. See [Ch. IV 7] p. 54, infra.

25. Wells v. Bain (1872), 75 Pa. 39, at 46, 47, 49, and 53. 

26. VII "Va. Law Keg.," 79, 87.

27. XXIX "Harv. Law Rev.," 529.

28. 1917 Mass. Senate Doc. 512. See pp. 208-209, infra.

29. Wells v. Bain (1872), 75 Pa. 39, 47. See also in this connection the 
quotation on [7] page 22, infra.

30. Wood's Appeal (1874). 75 Pa. 59, 71-72.

31. Wells v. Bain (1872), 75 Pa. 39, 48-49.

32. Jameson, p. 216; Dodd, p. 61.

33. Jameson, pp. 202-204; Dodd, p. 61.

34. Jameson, pp. 188-189; Dodd, pp. 61-62.

35. For full accounts of "Dorr's Rebellion" see Committee Rept., 546, 1st 
Sess., 28th Cong.; Mowry, "The Dorr War" (1901); Luther v. Borden (1849), 7 
How. 1.

36. "Trial of Dorr," p. 38.

37. 7 How. 1, 31-32.

38. Jameson, p. 139.

39. See Chapter XVII, infra.

40. Jameson makes a half-hearted claim that all this was perfectly 
constitutional. Jameson, pp. 168-172. 

41. Goodrich v. Moore (1858), 2 Minn. 61, 66.

42. Committee Rept., 546, 1st Sess., 28th Cong., p. 50.

43. Va. Bill of Rights,  3.

44. Walker, "American Law" (11 ed.), p. 231.

45. See quotation from Wells v. Bain, p. 17, supra.

46. Braxton, VII "Va. Law Beg.," 79, 82.

47. Wells v. Bain (1872), 75 Pa. 39, 49.

48. Re Duncan (1891), 139 U. S. 449, 461; Taylor v. Beckham (1899), 178 U. 
S. 548, 579. 

49. For a definition of "constitutional," see [Ch. III 1] p. 30, infra. 

50. Commonwealth v. Kimball (1837), 24 Pick. 359.

51. P. 1, supra.

52. N. H. State Papers, Vol. VIII, p. 425; Dodd, p. 2.

53. Kamper v. Hawkins (1793), 3 Va. 20, 72.

54. VII "Va. Law Reg.," 79, 88-89.

55. Convention sovereignty will be considered on its merits in Chapter XI. 

56. Jameson, p. 1.

57. Wells v. Bain (1872), 75 Pa. 39, 53.

58. Kamper v. Hawkins (1793), 3 Va. 20, 72.

------------

                    CHAPTER III

             ANALYSIS OF QUESTIONS

[1. Definitions.]

{30} IN the light of the historical development of constitutional 
conventions and of the fundamental principles already discussed, we are now 
prepared to analyze the various questions, for the object of answering which 
this book is written.

First, let us observe the French proverb, "Definissons nos termes!"

The term "constitutional convention" is not felicitous, for the word 
"constitutional" may mean to some people "authorized by the constitution," 
and to others merely "relating to the constitution." Hence the apparent 
anomaly of the phrase "an unconstitutional constitutional convention." 
Therefore, a "constitutional convention," as used in this book, may be 
defined as "a convention employed as a step toward framing or revising a 
constitution." To avoid ambiguity, such conventions will nearly always be 
referred to merely as "conventions," omitting the word "constitutional." To 
the same end, the word "constitutional" will never be used immediately 
preceding the word "convention" to indicate the constitutionality of the 
convention; but rather some circumlocution will be employed.

Even when used to refer to the constitutionality of the convention, the 
terms "constitutional" and "unconstitutional" present an ambiguity. 
"Constitutional," as we have seen in the preceding chapter, may refer either 
to something authorized by the constitution, or to something valid through 
not being prohibited by the constitution, or even to something which is 
legal because beyond the control of the constitution. "Unconstitutional" may 
mean the reverse of any of those three things. As used in this book, the 
term "constitutional" will be used only to apply to matters over which the 
constitution has control, and which in the exercise of that control it 
either authorizes or omits to prohibit.

{31} A circumlocution will be used, whenever possible, in place of the word 
"submission"; for this word might equally well mean "acquiescence in" or 
"reference to."

[2. Are popular conventions revolutionary?]

"Revolution," as applied to conventions, is a word upon which there can be 
no possibility of agreement. Jameson, Dodd, Braxton, and others insist that 
popular conventions are not revolutionary, and reserve the term "revolution" 
for spontaneous conventions alone.

Dodd says:

     The convention ... is in no sense a revolutionary ... body.[1]

Braxton says:

     A constitutional convention is a normal and legal institution,
     ... it involves neither revolution nor a dissolution of the
     ordinary government, even in theory.

     In the earlier days existing social systems did not
     contemplate the legal possibility of, and therefore made no
     provision for, any fundamental change in their constitutions:
     hence, the only means of effecting such change was, by
     revolution, to overthrow the existing government, and, by
     force, either to engraft upon it the desired changes, or else
     to substitute an entirely new system in its place. But, as the
     science of government became better understood, and the
     great doctrine of the right (not merely the power) of the
     people to change their government, was promulgated, it
     was found that it was not necessary to resort to revolution
     in order to change or modify government, but that such
     changes or modifications might be made as peacefully, as
     orderly and as legally as any ordinary function of
     government could be exercised. From the idea involved in
     this doctrine grew the modern Constitutional Convention,
     an institution so far unconnected and inconsistent with
     revolution, either peaceful or violent, that its whole
     purpose and raison d'etre is to prevent, and do away with,
     the necessity of excuse for revolution -- in fact, it might
     properly be called the "Anti-Revolutionary Convention."[2]

But it is to be remembered that Dodd and Braxton wrote in States (Illinois 
and Virginia respectively) where conventions are held under the authority of 
constitutions. Accordingly their views as to all conventions are colored by 
the fact that the {32} conventions with which they have had to deal have 
been of the authorized variety. Similarly the present author's point of view 
may be colored by the fact that conventions in Massachusetts are generally 
recognized as being revolutionary. The Supreme Court of Pennsylvania says:

It is not pretended that the late convention sat as a revolutionary body.[3]

If they are correct in their theory that conventions, sanctioned by the 
inalienable right of the people and assisted by the existing legislature, 
are not revolutionary, then, by their test, the secession conventions of the 
Southern States were not revolutionary, nor is even the coming 
constitutional convention in Russia.

By "revolution" they probably mean "revolution by violence." But violence or 
lack of violence ought not to be the test in determining the fundamental 
nature of a governmental overturn.

In the words of Reverend William B. Greene:

     It is not necessary, in order that there be a revolution, that
     there should be blood shed, powder burned, and other
     attendants of war displayed. A revolution may take place
     peaceably, and if the right is once recognized in a country,
     it should take place peaceably, because in the recognition
     of that right, is also the recognition of the duty of
     obedience upon the part of the Government.[4]

Walker uses the word "revolution" in the same sense when he says: 

     But it is needless to enlarge upon the general right of
     revolution. It must of necessity exist, whenever a majority
     desire it, even though the existing government should be in
     terms made perpetual, as some of the provisions in our
     constitutions are declared to be.[5]

Gen. Benjamin F. Butler, leader of the majority in the Massachusetts 
convention of 1853, expressed the sentiments of his party when he said in 
that body:

     {33} Are we not now engaged in a revolution -- a
     peaceful revolution by the ballot-box, and not by the
     sword and the bayonet? Sir, these are revolutionary times,
     so far as the Government is concerned. We are assembled
     to revolutionize, so far as it may be judged expedient, the
     organic structure of our present Constitution. I look upon
     this whole proceeding of calling a convention as a mode of
     revolution by which we may peaceably accomplish that
     which in other countries is attained by the sword, and by
     force. Here, through the medium of the ballot-box, the
     people take to themselves the supreme control of the
     whole machinery of the government.[6]

However, as already said, it will be impossible to agree on this term. 
Dispute would be profitless. Accordingly, let us agree that, for the 
purposes of this book, the author will use the word "revolution" to mean any 
overturn unauthorized by the constitution.

The New York Supreme Court nearly reaches this definition, when it says:

     A change in the fundamental law, when not made in the
     form which that law has prescribed, must always be a
     work of the utmost delicacy. Under any other form of
     government than our own, it could amount to nothing less
     than a revolution.[7]

They might have added, "And under ours it is revolutionary, even though not 
a revolution."

And the Rhode Island Supreme Court, although denying the lawfulness of 
conventions, says that if there is any such law, it is a law of 
revolutionary rather than of constitutional change.[8]

Ruling Case Law says:

     An attempt by the majority to change the fundamental law
     in violation of the self-imposed restrictions is
     unconstitutional and revolutionary.[9]

[3. Sorts of constitution conventions.]

Having disposed of the foregoing definitions, we ought next to proceed to 
classify the various sorts of constitution conventions. Now, the convention 
is only one of the many means for altering the form of government. 

{34} We have seen, during the discussion of fundamental principles in the 
last chapter, that changes of government may be either authorized, popular, 
or spontaneous.[10]

Among the authorized methods are: amendment by legislative action, amendment 
by popular vote after submission by the legislature, amendment by the 
initiative, and amendment by convention.

With respect to a popular uprising, the convention is apparently the only 
method whereby the form of government can be legally changed in disregard of 
constituted authority; although if the question of amendment could get on to 
the ballot at a regular election in some other unauthorized way, the action 
of the electors in ratifying it would probably be just as binding.

Spontaneous methods of change of government all, in the last analysis, 
depend upon force for their success; therefore it is immaterial in which of 
the many possible spontaneous ways a constitution is promulgated, if it be 
later established by force. The force is all that is material. Success 
succeeds, and failure fails; no other difference is apparent between 
successful and unsuccessful spontaneous conventions.

Thus each of the three classes of changes in constitutions -- to wit, 
authorized, popular, and spontaneous -- may take the form of a convention; 
and accordingly we have as the three sorts of conventions to be considered 
in this book, the authorized convention, the popular convention, and the 
spontaneous convention.

The spontaneous convention we may disregard, as it is bound by no law and 
derives whatever force it may have from subsequent events, rather than from 
the way in which it is either constituted or conducted. Spontaneous 
conventions are without the form of law and, therefore, cannot possibly 
provide us with useful precedents.

This book aims to discuss the nature, powers, and limitations of both 
authorized and popular conventions. The nature of authorized conventions 
depends largely upon the source of the authority. But popular conventions 
all probably derive their authority from the people, although this is 
disputed by Jameson, who asserts that they derive their authority from the 
legislature. A whole chapter will be devoted to discussing this point of 
{35} disagreement.[11] The question of whether the legislature calls the 
convention leads us to the question of whether the legislature can call 
itself a convention, to which question a chapter will be devoted.[12]

The question naturally arises in connection with popular conventions as to 
whether, inasmuch as they are not authorized by the constitution, they are 
not thereby rendered unconstitutional and void. A chapter will be devoted to 
this point also.[13]

[4. Relation of conventions to other departments of government.] 

Aside from the question of the source of authority of the two sorts of 
conventions, there are the questions of their relation to the other 
departments of government, the relative powers of the various departments, 
and the extent to which any of the departments can interfere with the 
convention or the convention interfere with any of the departments.

Accordingly, inter alia, we shall consider whether the State executive has 
power to interfere with both sorts of convention under various provisions or 
lack of provisions in the State constitutions, and also whether the Federal 
executive has power to intervene in determining the legality of convention 
action in one of the States. One chapter will be devoted to these 
considerations.[14]

Next as to the legislative department. Judge Jameson's entire work on 
constitutional conventions was written with the view to proving the 
supremacy of the legislative branch over the convention.[15] For the 
purposes of his discussion, he assumed that all conventions, whether called 
at the one extreme under the provisions of the State constitution, or at the 
other by a direct vote of the people, were in either event the creatures of 
the legislature and hence subject to its control. Also, he treated the 
question of the power of the legislature to amend the statute calling a 
convention, as being merely a question of the right of the legislature to 
control the convention; whereas in reality it involves three questions: i. 
e. the power of the legislature, the source of the statute, and whether the 
legislature can amend an act passed by the people.

The question, here involved, of the power of the legislature, is the same 
question that is involved in considering whether the {36} legislature can 
restrict a convention by the terms of the original convention act.

The question of who enacts the convention act is the same question as that 
already referred to, relating to the source of authority of popular 
conventions. The question as to whether the legislature can amend a statute 
passed by the people in their sovereign capacity is self-explanatory.

These three questions last referred to are each treated in a separate 
chapter.[16]

The restricting of the convention by the original convention act, if it be 
submitted to the people, instead of being, as we have just supposed, enacted 
by the legislature alone, involves the question of the power of the people 
to restrict the convention. This same question is involved when we discuss 
whether constituents have a right to give binding instructions to a 
convention delegate. Popular control of conventions is the subject of one of 
the chapters.[17]

[5. Convention becomes sovereign.]

In contradistinction to the idea of legislative or even popular control, is 
the theory that the convention, once launched, becomes the sovereign, and 
remains supreme so long as it is in existence. Conventions, claiming this 
degree of sovereignty, have exercised extraordinary powers, including the 
enactment of legislation and the removal of executive officers. They have 
even tried to amend the convention act by which they themselves were 
created. Extraordinary powers claimed by conventions, including interference 
with the legislative and executive branches, form the contents of one 
chapter.[18]

Two questions closely related to each other are: whether the constitution 
applies to conventions, and whether the courts will interfere with 
conventions. Some people might assume that these are the same question; but 
it is clear that the constitution may perhaps apply, and yet that the courts 
may in some cases refuse to interfere with the convention, on the ground 
that it is a coordinate government body, and is therefore the judge of its 
own constitutional limitations; in other words, that the questions involved 
are political rather than legal. On the other hand, the courts may interfere 
with a convention, on grounds {37} not furnished by the constitution. Then, 
too, a court might also render assistance to a convention in enforcing its 
rights and powers. Accordingly, the author has tried to divide those 
somewhat interrelated questions into two chapters, one dealing with judicial 
intervention,[19] and the other dealing with the question as to whether the 
constitution applies to conventions.[20]

It is obvious that as all bodies have some incidental powers beyond the 
strict duties of such bodies, so also the convention must have some 
incidental powers which do not strictly relate to the framing of a 
constitution. These are discussed in a separate chapter, which deals with 
the internal control of the convention by itself; and to this chapter the 
author has added some words on the privileges of the individual members.[21]

Not only is the legal status of the convention important, but also the legal 
status of the individual delegates. Are they public officers, and should 
they take an oath to support the constitution which they are engaged in 
overturning? Ought they to take any oath of office? These questions form the 
subject matter of another chapter, on the status of delegates.[22]

The questions of the need and method of submission of amendments by the 
convention to the electorate, are incidentally touched upon under almost 
every phase of the subject of constitutional conventions. There is involved 
the applicability of constitutional provisions, the binding force of the 
convention act, the power of the legislature to amend that act, and the 
right of judicial, executive, or popular interference. Yet the questions of 
the need and method of submission of the amendments are so important in 
themselves that the authorities and precedents have been collected in one 
chapter.[23]

A final matter for consideration is the doctrine that the validity and 
effect of all constitutional changes depends, in the last analysis, upon 
"getting away with it"; in other words, on the people and the existing 
government accepting and acquiescing in the change. One chapter is devoted 
to this doctrine of acquiescence.[24]

The concluding chapter of the book is a summary of the answers to the 
questions presented and analyzed in this chapter.[25]

------

1. Dodd, p. 72.

2. VII "Va. Law Beg.," 79, 96, 81.

3. Wells v. Bain (1872), 75 Pa. No. 39, 48.

4. Deb. Mass. Conv. of 1853, I, 129.

5. Walker. "American Law" (11 ed.), p. 231.

6. Deb. Mass. Conv. of 1853, I, 78-79.

7. Journal, 69th N. Y. Assembly, p. 920.

8. Opinion of Justices (1883), 14 B. I. 649, 654.

9. 6 R. C. L.,  16.

10. See [Ch. 2  3] p. 15, supra.

11. Chapter V, infra.

12. Chapter VI, infra.

13. Chapter IV, infra.

14. Chapter VII, infra.

15. Dodd, p. 73.

16. See Chapter IX on the power of the legislature; Chapter V on the source 
of the statute; and Chapter VIII on the power to amend.

17. Chapter X, infra.

18. Chapter XI, infra.

19. Chapter XII, infra.

20. Chapter XIII, infra.

21. Chapter XIV, infra.

22. Chapter XV, infra.

23. Chapter XVI, infra.

24. Chapter XVII, infra.

25. Chapter XVIII, infra.

------------

                    CHAPTER IV

       POPULAR CONVENTIONS ARE LEGAL

[1. Legal status of popular conventions.]

{38} THE exact legal status of popular conventions (i. e. those conventions 
which are held in such an orderly manner as clearly to represent the popular 
will, and yet which are not expressly authorized by the existing 
constitution) is a very important matter to consider.

As we saw in Chapter II, any given method of amending the constitution of a 
State may be either (1) authorized by the constitution, or (2) permitted 
because not prohibited or because the constitution is powerless to prohibit, 
or (3) effectually prohibited.[1]

In which class does the popular convention fall? There are authorities for 
placing this sort of convention in each of the three classes.

It might seem at first glance that the convention method of amending the 
constitution could not possibly be legal except in the cases in which the 
State constitution expressly authorizes this method; and yet if this were 
so, the legality of at least one of the many such conventions which have 
been held throughout the United States, would certainly have been questioned 
before this. 

We have already discussed historically a number of these instances.[2] 
Practically all the original constitutions of the thirteen colonies and 
Vermont were framed by popular conventions held by revolutionary governments 
without any further legal sanction than the will of the people as expressed 
through their electorate. Thus the Supreme Court of Virginia has said:

     The convention of Virginia had not the shadow of a legal,
     or constitutional form about it. It derived its existence and
     authority from a higher source; a power which can
     supersede all law, and {39} annul the constitution itself --
     namely, the people, in their sovereign, unlimited, and
     unlimitable authority and capacity.[3]

Some of these constitutions, now recognized as valid, did not even have this 
sanction, and may therefore be regarded as merely factional.

[2. Conventions ratifying U.S. Constitution violated Articles of 
Confederation.]

The Constitution of the United States was superimposed upon the various 
State constitutions without any authority derived from any of them, and in 
direct violation of the provision of the Articles of Confederation.[4] Not 
only this, but it might legally have been adopted by the people of the 
various States, against the will of the various State governments, for the 
United States Supreme Court has said:

     The assent of the States, in their sovereign capacity, is
     implied in calling a Convention, and thus submitting that
     instrument to the people. But the people were at perfect
     liberty to accept or reject it; and their act was final. It
     required not the affirmance, and could not be negatived,
     by the State governments. The constitution, when thus
     adopted, was of complete obligation, and bound the State
     sovereignties.

     It has been said that the people had already surrendered
     all their powers to the State sovereignties, and had nothing
     more to give. But, surely, the question whether they may
     resume and modify the powers granted to government
     does not remain to be settled in this country.[5]

Most of the secession conventions were popular, or even spontaneous. Many 
new States have been admitted to the Union under constitutions framed by the 
people without the authority of Congress, but Congress has ratified the 
illegal action in admitting them.

But the most important precedents for the purposes of the present discussion 
are States, which, although at peace under a duly established constitution 
which did not provide for the holding of a constitutional convention, 
nevertheless held conventions, the legality of which has not been 
questioned. 

Jameson mentions twenty-seven such conventions held prior to 1887.[6]

{40} Dodd reports three more prior to 1908, to wit: Missouri in 1890, 
Louisiana in 1898, and Connecticut in 1902.[7] Since 1908, no popular 
conventions have been held: but Massachusetts is holding one in 1917, and 
Indiana is to hold one in 1918.

Jameson has the following to say on the legality of such conventions:

     The question of the legitimacy of Conventions thus called,
     I shall have occasion to consider in other parts of this
     work, when treating of the relations of legislatures to
     Conventions, and of the powers of the former resulting
     from those relations. I shall, therefore, here only observe,
     -- 1. That, whenever a Constitution needs a general
     revision, a Convention is indispensably necessary; and if
     there is contained in the Constitution no provision for such
     a body, the calling of one is, in my judgment, directly
     within the scope of the ordinary legislative power; and, 2.
     That, were it not a proper exercise of legislative power,
     the usurpation has been so often committed with the
     general acquiescence, that it is now too late to question it
     as such. It must be laid down as among the established
     prerogatives of our General Assemblies, that, the
     Constitution being silent, whenever they deem it expedient,
     they may call Conventions to revise the fundamental law.[8]

Cooley and the Supreme Courts of Alabama, Louisiana, and North Dakota have 
also said that, in the absence of any prohibition in the State constitution, 
a convention may be lawfully held.[9]

Dodd says, following Jameson's line of thought:

     It has now become the established rule that where the
     constitution contains no provision for the calling of a
     convention, but has no provision expressly confining
     amendment to a particular method, the legislature may
     provide by law for the calling of a convention -- that is,
     the enactment of such a law is within the power {41} of
     the legislature unless expressly forbidden, and is
     considered a regular exercise of legislative power.[10]

[3. States without constitutional provisions for conventions.] 

There are now twelve States which have no express constitutional provisions 
for the calling of conventions,[11] yet in eight of these, to wit, Arkansas, 
Connecticut, Louisiana, Mississippi, New Jersey, Pennsylvania, Texas, and 
Massachusetts, conventions have been held without any serious question being 
made as to their legality.

In Rhode Island the question of holding a convention was in 1853 twice 
submitted to the people, but further submission of the question has been 
effectively discouraged by an adverse opinion of the Supreme Court of that 
State.[12]

In Vermont, the special commission appointed in 1908 to present to the next 
legislature proposals of amendment to the constitution, although it proposed 
some changes in the amendment clause, nevertheless omitted to propose the 
convention method and yet suggested the possibility of holding a convention, 
thus showing that in its opinion express constitutional authorization would 
be unnecessary.[13]

The North Dakota Supreme Court has decided that the unauthorized convention 
would be lawful in that State.[14] This opinion has recently been reiterated 
by the Attorney-General of that State.[15]

Some doubt has been expressed as to whether the Indiana convention of 1850 
furnishes a precedent for holding a convention under the present 
constitution there. Although the constitution then in force authorized the 
holding of conventions, it cannot be considered as authorizing the 
convention of 1850, for the conventions authorized by the constitution were 
to be held in 1828, 1840, 1852, etc. It would seem, however, that it is even 
a stronger disregard of the constitution to hold a convention whenever you 
please, under a constitution which says you may hold it in 1828, 1840, or 
1852, than to hold a convention whenever you please, under a constitution 
which makes no mention of conventions; just as it would be more disobedient 
{42} for a child to go down-town at 2:00, after obtaining permission to go 
at 3:00, than it would if his parents had never in all his life mentioned 
the subject of going down-town. 

The Supreme Court of Indiana has asserted the legality of this 
convention.[16] The present constitution of Indiana contains no provision 
for the holding of conventions, yet one is about to be held there in 1918. 
But it is possible that this State, by striking out the convention provision 
from her constitution, manifested an intention never again to have a 
convention.[17]

Thus we see that in all of the twelve States whose constitutions are silent 
on the subject, except Rhode Island, and possibly Indiana, conventions can 
now be held.

[4. Legal authorities for conventions being legitimate.]

Let us now consider the legal authorities which hold that this ought not to 
be so.

In several of the conventions of this class, the objection has been raised 
that they were illegitimate bodies because called without special authority 
in the respective constitutions.[18]

But as Jameson points out:

     The objection has commonly been urged by a minority,
     whose party or other interests inclined them to look with
     disfavor upon any change in the existing Constitution.[19]

In spite of the ulterior nature of their motives, however, their views have 
found the way into some textbooks and encyclopedias. The following is an 
example:

     The people must act by majorities, and in adopting the
     constitution the majority which does so has in effect
     prescribed the method by which the majority of the people
     may alter or amend it. An attempt by the majority to
     change the fundamental law in violation of the self-imposed
     restrictions is unconstitutional and revolutionary.[20]

And, as Jameson says, these objections gain some plausibility because of the 
existence of other methods of amending the respective constitutions.

There having been provided, it has been said, a mode in which constitutional 
changes might be effected, it was a violation of legal {43} analogy to infer 
a power to do substantially the same thing in another way, not authorized 
specifically by the Constitution, according to the well established rule, 
expressio unius est exclusio alterius.[21]

This was exactly the line of reasoning pursued by the only real legal 
authority against the validity of popular conventions, namely, the Supreme 
Court of Rhode Island. In an opinion rendered to the legislature in 1883, 
this court said:

     The ordinary rule is that where power is given to do a
     thing in a particular way, there the affirmative words,
     marking out the particular way, prohibit all other ways by
     implication, so that the particular way is the only way in
     which the power can be legally executed.

     The mode provided in the Constitution for the amendment
     thereof is the only mode in which it can be constitutionally
     amended. ... Expressio unius est exclusio alterius. . . .
     One of the greatest of modern jurists, Chief Justice Shaw,
     was of the same way of thinking, and, conjointly with his
     associates, declared it to be his opinion that the
     Constitution of Massachusetts is constitutionally
     amendable only as therein provided. ... Any law
     inconsistent with it is void, and, therefore, if the provision
     which it contains for its own amendment is exclusive,
     implying a prohibition of amendments in any other manner,
     then, of course, any act of the Assembly providing for a
     convention to amend the Constitution is unconstitutional
     and void.[22]

It will be noticed that this opinion apparently cites the Supreme Court of 
Massachusetts as being of like mind; yet a careful analysis of the language 
used by each court will show that the Providence Court does not so cite the 
Massachusetts Court, and that the Massachusetts Court did not so hold.

Before discussing the Massachusetts opinion itself, however, let us first 
take up another interpretation of it. Attorney-General Attwill of 
Massachusetts, in a legal opinion rendered to the legislature of 1917, 
squarely cites the Massachusetts Supreme Court as denying the validity of 
constitutional conventions in that State; but having unnecessarily cited the 
court as taking this extreme position, he then proceeds to overrule the 
court by himself taking the opposite extreme position of holding that the 
convention is not only legal, but is expressly {44} authorized by the 
Massachusetts constitution. The material parts of his opinion are as 
follows:

     If the convention called to revise, alter or amend the
     Constitution pursuant to the vote of the people at the last
     annual election, under Gen. St. 1916, c. 98, is authorized
     by the provisions of our present Constitution, the position
     of a delegate to the convention is a "place under the
     authority of the Commonwealth."

     It has been asserted by many, and seems to have been the
     opinion of the justices of the Supreme Judicial Court in an
     opinion to the Legislature (reported in 6 Cush. 573) that
     article IX of the Amendments to the Constitution,
     providing a method for the adoption of specific and
     particular amendments to our Constitution, excluded by
     implication any authorization to the people to revise or
     change it by the convention method, and this view is not
     unsupported by other authority.[23]

He then quotes the various provisions of the Massachusetts constitution 
which recognize the right of the people to alter their form of government, 
and continues:

     This incontestable, unalienable and indefeasible right,
     which indeed is the essence of a republican form of
     government, cannot, in my judgment, be taken away
     except by plain and unmistakable language. That the
     people of one generation can deprive the people of a
     succeeding generation of their unalienable right to reform,
     alter or totally change their form of government, except in
     a restricted manner, when their protection, safety,
     prosperity and happiness require it, is repugnant to our
     theory of government, that the right to govern depends
     upon the consent of the governed. It seems to me a much
     more reasonable, if not a necessary, construction of the
     Constitution to hold that article IX of the Amendments
     provides only a manner of amending the constitution in
     addition to other methods that may be adopted by the
     people of changing their form of government, under the
     fundamental right guaranteed by the Bill of Rights,
     whenever "their protection, safety, prosperity, and
     happiness" require it. ...

     Accordingly, I am of the opinion that the Convention will
     be held under the authority of the Commonwealth.[24]

Thus Attorney-General Attwill, the latest authority on the subject, goes to 
the opposite extreme from the Rhode Island {45} Court, and goes further in 
sustaining the validity of popular conventions than any one before him. It 
would seem that he goes unnecessarily far.

Mr. Attwill's opinion would just as strongly support his conclusions 
(without, however, being as at present a rather forced construction of the 
constitution), if he had changed the italicized words (the italics are 
mine), by substituting for the word "authorized" the words "not effectually 
prohibited,"[25] and for the word "guaranteed" the word "admitted."[26] Read 
over his language with these two words changed.

Thus we find the Rhode Island Court apparently citing the Massachusetts 
Court as deciding that popular conventions are unconstitutional and void; 
and we find Mr. Attwill clearly so citing the court, but attempting to 
overrule it.

Let us now take up the Massachusetts case itself, and see what it really 
decided. The opinion reads as follows:

     Under and pursuant to the existing Constitution, there is no
     authority given by any reasonable construction or
     necessary implication, by which any specific and particular
     amendment or amendments of the Constitution can be
     made, in any other manner than that prescribed in the ninth
     article of the amendments adopted in 1820. Considering
     that previous to 1820 no mode was provided by the
     Constitution for its own amendment, that no other power
     for that purpose, than in the mode alluded to, is anywhere
     given in the Constitution, by implication or otherwise, and
     that the mode thereby provided appears manifestly to have
     been carefully considered, and the power of altering the
     Constitution thereby conferred to have been cautiously
     restrained and guarded, we think a strong implication
     arises against the existence of any other power, under the
     Constitution, for the same purposes.[27] 

It will be noticed that all that this court decided was that "under and 
pursuant to the existing constitution" there is no authority for any other 
method of amendment than the one {46} therein provided; in other words, that 
there exists no other method "under the constitution." 

The Rhode Island Court may have recognized this, for it cites the 
Massachusetts Court as holding that "the constitution of Massachusetts is 
constitutionally amendable only as therein provided."[28]

The restrictions placed on their opinion by the Massachusetts Justices will 
be better understood, if we glance at the opening words of that opinion, 
which are not usually quoted in this connection. The legislature had 
attempted to ascertain from the court whether amendments to the constitution 
could be made in any other manner than that prescribed in the constitution 
itself. The court avoided making a square answer to this question, although 
it was obvious that what the legislature wanted to know was whether they 
could legally call a convention to revise the constitution. The court opened 
its opinion with these significant words:

     The court do not understand, that it was the intention of
     the house of representatives, to request their opinion upon
     the natural right of the people in cases of great emergency,
     or upon the obvious failure of their existing constitution to
     accomplish the objects for which it was designed, to
     provide for the amendment or alteration of their
     fundamental laws; nor what would be the effect of any
     change and alteration of their constitution, made under
     such circumstances and sanctioned by the assent of the
     people. Such a view of the subject would involve the
     general question of natural rights, and the inherent and
     fundamental principles upon which civil society is founded,
     rather than any question upon the nature, construction, or
     operation of the existing constitution of the commonwealth,
     and the laws made under it. We presume, therefore, that
     the opinion requested applies to the existing constitution
     and laws of the commonwealth, and the rights and powers
     derived from and under them. Considering the questions in
     this light, etc., etc.[29] 

Modern interpretations of this early Massachusetts opinion are as follows: 

     It was assumed in the opinion, that the opinion requested
     applies to the existing constitution and laws of the
     Commonwealth and the rights and powers derived from
     and under them, and did {47} not depend upon the
     natural right of the people in cases of great emergency, or
     upon the obvious failure of their existing constitution to
     accomplish the objects for which it was designed, to
     provide for the amendment and alteration of their
     fundamental laws.[30]

It was contended that there was precedent for this opinion [i. e. the Rhode 
Island one] in an earlier opinion of the supreme court of Massachusetts. A 
careful study of the opinion of the Massachusetts court, however, shows that 
its opinion related to another matter.[31]

Thus the Massachusetts Court recognizes the existence of the fundamental 
principles considered in the second chapter of this book, and the existence 
of a higher authority than that of the constitution itself. And although the 
court speaks of this higher right as existing "in cases of great emergency, 
or upon the obvious failure of their existing constitution,"[32] yet the 
right has not been limited to such cases in actual practice in 
Massachusetts.

There the legislature in 1851 and again in 1852, without the existence of 
any emergency, submitted to the voters the question of holding a 
constitutional convention. On its second submission, the question carried, 
and a convention was held.

Judge Morton of the Massachusetts Supreme Court, after joining with his 
colleagues in expressing the already cited opinion that the convention 
method was unauthorized by the constitution, ran for the convention of 1853 
and took a seat in that body. In the course of one of the debates, he said 
of the statute which had called the convention into being that it was law 
because it had been sanctioned by the votes of the people.[33]

The Massachusetts and the Rhode Island courts were perhaps right in saying 
that the existence of one express method for amending the constitution, 
impliedly prohibits the use of any other method of amendment; but the Rhode 
Island Court stands alone in drawing from this the conclusion that popular 
conventions are, therefore, invalid. The trouble with the Rhode {48} Island 
Court was that it could not conceive of anything not constitutional being 
valid.[34]

[5. Conventions valid even if prohibited.]

If the express authorization of the legislative method of amendment 
impliedly prohibits the convention method, a fortiori would the express 
authorization of the convention method impliedly prohibit the holding of a 
convention in ways not provided for. Yet conventions have been successfully 
held in Georgia in 1788, in Indiana in 1850, in Delaware in 1852, in Florida 
in 1865, and in Pennsylvania in 1789, in direct violation of such 
provisions.[35]

The Supreme Court of Indiana has recently asserted the legality of such 
conventions:

     It may be answered, that the General Assembly, in the
     action taken in those years, made no attempt to assume
     the power, under the general grant of authority to legislate,
     to formulate a new Constitution, or to revise the existing
     one. It merely asked the people to express their will in
     relation to calling a convention to revise or amend the
     Constitution, to be expressed through the ballot, and when
     it was expressed it was a warrant and a command which
     the legislative agency carried out as given. Under such
     circumstances, the calling of a convention, as Jameson in
     his work shows, is in accordance with sound political
     principles, and a well-recognized and established practice.
     The rule thus established in American constitutional law by
     the evolution of the constitutional convention from the two
     revolutionary conventions of England in 1666 [sic] and
     1689, he shows is applicable to states like ours, having a
     limited provision for amendment, through the initiative of
     the legislature, but no provision for a convention for a
     general revision.[36]

Compare:

     The decided weight of authority and the more numerous
     precedents are arrayed on the side of the doctrine which
     supports the existence of this inherent legislative power to
     call a constitutional convention, notwithstanding the fact
     that the instrument itself points out how it may be
     amended.[37]

Not only have conventions been successfully held without question in States 
whose constitutions either are entirely silent {49) as to methods of 
amendment, or impliedly prohibit this method by naming another; but they 
have been even held in States whose constitutions expressly prohibit them.

In Delaware, where the constitution of 1776 provided that the constitution 
should not be "altered, changed or diminished, without the consent of five 
parts in seven of the assembly, and seven members of the legislative 
council," the legislature of that State in 1791 called a constitutional 
convention in spite of the provision that the constitution should be altered 
in only one way.[38]

So also the Maryland legislature called the convention of 1850, although the 
constitution of 1776 specifically provided that the constitution should be 
altered only by a bill passed by two successive general assemblies of that 
State.[39] The Georgia constitution of 1798 contained a provision with 
respect to amendment similar to that in the Maryland constitution of 1776, 
but in this State also conventions were nevertheless held, namely, in the 
years 1833 and 1839.[40]

To these four examples of the legal holding of a constitutional convention, 
although expressly prohibited by the constitution, may be added the 
convention which framed the Constitution of the United States, as this 
convention was expressly prohibited by the following language in the 
Articles of Confederation:

     The articles of this Union shall be perpetual; nor shall any
     alteration at any time hereafter be made in any of them;
     unless such alteration be agreed to in a Congress of the
     United States, and be afterwards confirmed by the
     Legislature of every State.[41]

The Rhode Island Supreme Court said in the already-cited opinion that "an 
implied is as effectual as an express prohibition.[42] The court might well 
have said: "An express prohibition is as ineffectual as an implied."

These five examples apparently completely dispose of Mr. Attwill's theory 
that popular conventions derive their validity through being expressly 
authorized by the constitution. Would not a better view be that the various 
Bills of Rights admit the existence of a higher power than the constitution, 
to wit, the {50} will of the people; rather than that they graciously grant 
to succeeding generations a privilege which it would be in their power to 
withhold.

The Supreme Court of Massachusetts has recently refused to pass on the 
question of whether popular conventions are legal, and if so, whether they 
are held under the constitution; saying merely that if they are held under 
the constitution, such and such is the law. They say:

     The validity and the powers of this convention are not
     necessarily involved in these questions. ... If the convention
     to revise and alter the Constitution is held under the
     Constitution, it is because the people of the
     Commonwealth have under the Constitution the right to
     alter their frame of government according to orderly
     methods as provided by law, and through the medium of
     an act of the Legislature.[43]

But even if these provisions in Bills of Rights may be considered as 
expressly granting such a power to the people, they may be regarded as in 
much the same position as the man who was trying to show his authority over 
his dog by ordering him to sit up and beg. The dog refused to obey. Finally 
the man, still determined to show his authority, cried out: "Well, then, lie 
down! I will be obeyed!" If the constitution really does authorize the 
convention, this authorization is immaterial; for the constitution, as we 
have seen, would have no power to prohibit it.

This view may be carried still further to apply to even those constitutions 
which expressly authorize the holding of a convention. If these 
constitutions, too, would have no power to prohibit the convention, their 
authorization of it is at the most the mere providing of a means for the 
expression of a superior popular right.[44] Most of the constitutions 
concede the right of the people to be at least consulted before a convention 
is held.

[6. Popular nature of conventions however called.]

Thus the popular nature of even expressly authorized conventions is now 
generally recognized in practice, if not in theory. That the constitution is 
merely helping out a superior right, rather than granting a privilege to the 
people, is shown by the {51} fact that the people may accept so much of the 
constitutional assistance as they wish, and may disregard the constitutional 
limitations. Delaware furnishes us an example of this.

The Delaware constitution of 1831 provided that no constitutional convention 
should be called except by authority of the people, and that the only way to 
obtain this authority would be to take a vote on the third Tuesday of May of 
any year and obtain the affirmative vote "of a majority of all the citizens 
of the state having a right to vote for representatives." Acting under this 
provision of the constitution, the general assembly in 1851 passed an act to 
take the vote of the people. At the election held under this act a majority 
of the votes cast were in favor of a convention, but the number was not 
sufficient to constitute a majority of all citizens who had a right to vote 
for representatives. Nevertheless the legislature declared that the question 
had carried and passed another act calling a convention.[45] 

If the constitution of Delaware could effectively limit the right of the 
people to call a convention, then this convention was illegal and void. If, 
on the other hand, the people can lawfully disregard the constitution even 
in cases where the constitution provides for a convention, then this 
convention was valid. The question arose in the convention itself, and the 
majority opinion of the delegates was that the clause of the constitution 
was merely recommendatory, not peremptory.[46]

Similarly with respect to the Indiana convention of 1850. The Indiana 
constitution in 1816, then in force, authorized the calling of a convention 
every twelfth year, but a convention was held within one of the twelve-year 
periods, and was never questioned.[47]

The Pennsylvania convention of 1789 also belongs in this class. The 
constitution then in force in that State provided that it should be amended 
only in a manner therein directed, namely, by a convention called by the 
council of censors. An attempt was twice made to obtain a majority of the 
censors in favor of calling a convention, but both attempts failed. Finally, 
just prior to the sitting of the next council, the general assembly took the 
matter into its own hands by obtaining {52} a popular expression of opinion 
on the expediency of holding a convention. This was done by an informal 
canvass during a recess of the legislature. The result satisfied the members 
that the people wished a convention, and one was accordingly called, which 
framed and established the constitution of 1790.[48]

Similarly with respect to the series of Georgia conventions in 1788-1789. 
The constitution of 1777, then in force, authorized a convention upon the 
petition of a majority of the voters of a majority of the counties. The 
legislature disregarded this provision and appointed a convention in 1788 to 
draft a new constitution. The people elected delegates to a convention in 
the fall of that year which modified the constitution drafted by the first 
convention and submitted it to a third convention elected by the people in 
1789.[49] Yet Jameson refers to the "regularity" of this procedure.[50]

Similarly with respect to the Florida convention of 1865. The constitution 
of 1838 of that State provided that "no convention of the people shall be 
called, unless by the concurrence of two thirds of each House of the General 
Assembly.'' Yet the Florida constitution of 1865 was drawn by a convention 
called by the Governor, and was sustained by the Supreme Court of the 
State.[51]

These five examples would seem to establish the principle that conventions, 
even when expressly authorized by the constitution, are nevertheless popular 
in their nature, and have pretty much the same standing as though the 
constitution had been silent on the subject. In other words, constitutional 
provisions permitting the holding of conventions are, like legislative acts 
on the subject, merely recommendatory to the people.

[7. Conventions valid if called by election.]

Thus we come back to the fact that all conventions are valid if called by 
the people speaking through the electorate at a regular election. This is 
true, regardless of whether the constitution attempts to prohibit or to 
authorize them, or is merely silent on the subject. Their validity rests not 
upon constitutional provision nor upon legislative act, but upon the 
fundamental sovereignty of the people themselves.

{53} Judge Jameson makes an interesting attempt to reconcile his theory of 
legislative supremacy with the fundamental principles from which he, as an 
able jurist, is unable to escape. It may prove instructive to analyze his 
views on this point.

He says as follows:

     Revolution can never be resorted to under the Federal
     Constitution, or under any other Constitution, legally; but,
     when the evils under which a commonwealth languishes,
     become so great as to make revolution, including
     insurrection and rebellion, less intolerable than an
     endurance of those evils, it will be justifiable, although the
     Federal relations of that commonwealth may be such as to
     array against her forces vastly greater than they would be
     were she and the other States independent and isolated
     communities. The right of revolution stands not upon the
     letter of any law, but upon the necessity of
     self-preservation, and is just as perfect in the single man,
     or in the petty State, as in the most numerous and
     powerful empire in the world. This right, the founders of
     our system were careful to preserve, not as a right under,
     but, when necessity demanded its exercise, over our
     Constitutions, State and Federal.

     Thus, the Declaration of Independence affirms, "that
     whenever any form of government becomes destructive "
     of the ends of government, "it is the right of the people to
     alter or abolish it, and to institute a new government, laying
     its foundation on such principles, and organizing its powers
     in such form as to them shall seem most likely to effect
     their safety and happiness."

     Not only so, but it classes this affirmation among the
     self-evident truths: "We hold these truths to be
     self-evident."

     Now, no truth can be self-evident, which becomes evident
     only under particular conditions, as when it is deducible
     only from the construction of legal instruments, or from the
     provisions of some positive code. It must be a truth
     independently of such conditions, as would be
     indispensable to give it rank as a legal truth. If the truth in
     question is a self-evident truth, it is one which would
     obtain equally whether asserted in the Constitution and
     laws or not.

     The second class of documents consists in the Bills of
     Rights of a large number of our Constitutions, containing
     broad general assertions of the right of a people to alter or
     abolish their form of government, at any time, and in
     such manner as they may deem expedient. The
     peculiarity of these documents is, that they seem to assert
     {54} the right in question as a legal right; at least, they
     furnish a plausible argument for those who are willing to
     have it believed that the right is a legal one; when, in fact,
     it is a revolutionary right. The framers of those
     Constitutions generally inserted in them provisions for their
     own amendment. Had nothing further been said, it might
     have been inferred, that no other mode of securing needed
     changes was under any circumstances to be pursued, but
     that prescribed in those instruments. Such, however, was
     not the intention of their framers. They meant to leave to
     the people, besides, the great right of revolution, formally
     and solemnly asserted in the Declaration of Independence.
     They, therefore, affirmed it to be a right of the people to
     alter or abolish their Constitutions, in any manner
     whatever; that is, first, legally, in the mode pointed out in
     their Constitutions, or by the customary law of the land;
     and secondly, illegally, that is, for sufficient causes, by
     revolutionary force.[52]

Judge Jameson lays down these fundamental principles absolutely correctly. 
He recognizes that a change of government under the fundamental right of the 
people is a right over our constitutions rather than a right under them. In 
other words, it is an extraconstitutional or supraconstitutional right, 
rather than a constitutional right. He recognizes that the self-evident 
truths laid down by the Declaration of Independence and the Bills of Rights 
would obtain equally, whether asserted in the constitution or not. In other 
words, constitutions do not guarantee these rights; they merely admit them.

Where he errs is when he tries to apply these principles to his preconceived 
theory. He divides conventions into merely two classes, i. e. legal and 
revolutionary. This classification would fit very nicely were it not for the 
existence of the four cases already referred to, in which conventions were 
held in the very teeth of prohibitory provisions in the existing 
constitutions. Jameson himself refers to three of these conventions, and 
admits that they were wholly illegitimate in their origin. He goes on to 
say:

     It is obvious, that to justify such proceedings, on legal
     grounds, would be to take away from the fundamental law
     that characteristic quality by which it is the law of laws --
     the supreme law of {55} the land. If it be not the supreme
     law, for all the purposes of a Constitution, in the American
     sense, it might as well be a piece of blank paper. ...

     There is in my judgment, no way in which the action of
     those bodies, in those cases, can be justified, except by
     affirming the legal right of the inhabitants of a given
     territory, organized as a body politic, to meet at will, as
     individuals, without the authority of law, and, on their own
     claim that they are the people of the State, to dictate to the
     government such changes in its laws, Constitution, or
     policy, as they may deem desirable.[53] 

Thus Jameson has to classify these conventions as merely spontaneous, 
although forced to admit at least their de facto validity. Is it not simpler 
to classify these conventions, together with conventions held in the absence 
of any mention in the constitutions, as in a class standing halfway between 
constitutional cases and cases in which the convention requires armed force 
for its assistance? In other words, the following out of the fundamental 
principles, as laid down by Jameson himself, forces us to the classification 
adopted at the opening of Chapter III, namely, authorized conventions, 
popular conventions, and spontaneous conventions.

Judge Walker, in the latest edition of his monumental work on American law, 
has this to say relative to popular sovereignty:

     This indeed is self-evident, since all power comes from the
     people. They have created the government, and may
     destroy it, when it ceases to satisfy them. Delegated
     power, as above stated, is not irrevocable. ... But it is
     needless to enlarge upon the general right of revolution. It
     must of necessity exist, whenever a majority desire it, even
     though the existing government should be in terms made
     perpetual, as some of the provisions in our constitutions
     are declared to be.[54]

Judge Jameson's description of legitimate revolution, quoted a little way 
back,55 fits exactly the great class of conventions which the present author 
has denominated "popular," and which Jameson himself admits are not 
authorized by any constitution. Following his definition, we may assume that 
popular conventions are extra- or supra-constitutional.

{56} As he himself punningly puts it, the right of the people to change 
their government is not a right under the constitution, but is rather a 
right over the constitution.[56]

Or to quote from the Supreme Court of Virginia in an early decision:

     The convention of Virginia had not the shadow of a legal,
     or constitutional form about it. It derived its existence and
     authority from a higher source; a power which can
     supersede all law, and annul the constitution itself --
     namely, the people, in their sovereign, unlimited, and
     unlimitable authority and capacity.[57]

Or from the Supreme Court of New York:

     Neither the calling of a convention, nor the convention
     itself is a proceeding under the constitution. It is over and
     beyond the constitution.[58]

It is true, however, that the Rhode Island Supreme Court and Dodd can be 
cited in opposition to this idea of a sanction above and superior to the 
constitution.

Dodd says that the convention is in no sense an extraconstitutional 
body.[59] But that statement may very well be true with respect to 
conventions in his State, Maryland, where the constitution expressly 
authorizes them; without, however, being at all true with respect to popular 
conventions.

The Rhode Island Court says:

     Finally, it has been contended that there is a great
     unwritten common law of the states, which existed before
     the Constitution, and which the Constitution was
     powerless to modify or abolish, under which the people
     have the right, whenever invited by the General Assembly,
     and as some maintain, without any invitation, to alter and
     amend their constitutions. If there be any such law, for
     there is no record of it, or of any legislation or custom in
     this State recognizing it, then it is, in our opinion, rather a
     law, if law it can be called, of revolutionary than of
     constitutional change. Our Constitution is, as already
     stated, by its own terms, the supreme law of the State. We
     know of no law, except the Constitution and laws of the
     United States, which is paramount to it.[60]

{57} But we must take into consideration the fact that the court were 
undoubtedly influenced by a recollection of Dorr's Rebellion, and so denied 
not only the existence of any such thing as extraconstitutional law, but 
also the validity of the popular convention, which even Dodd admits.

This is also admitted by the Declaration of Independence and practically all 
of the various American Bills of Rights.[61]

Thus we may conclude that although popular conventions are not 
constitutional, it does not necessarily follow from this that they are void, 
although the Rhode Island Supreme Court so contends.[62] They are really 
authorized by a power above the constitution, to wit, the sovereignty of the 
people, and hence are supraconstitutional and perfectly valid.[63]

------

1. See [Ch. II  8] p. 26, supra.

2. See Chapter I, supra.

3. Kamper v. Hawkins (1793), 3 Va. 20, 74.

4. Articles of Confederation, Art. XIII. See [ 5] p. 49, infra.

5. McCulloch v. Maryland (1819), 4 Wheat. 316, 404.

6. Jameson, p. 210, n. 1. These conventions are as follows: Arkansas, 1874; 
Connecticut, 1818; Georgia, 1833 and 1839; Indiana, 1850; Louisiana, 1852 
and 1879; Massachusetts, 1853; Missouri, 1845, 1861, and 1865; New Jersey 
1844; New York, 1801, 1821, and 1846; North Carolina, 1835; Pennsylvania 
1837 and 1872; Rhode Island, 1824, 1832, 1841, and 1842; South Carolina 
1790; Tennessee, 1870; Texas, 1876; Virginia, 1829 and 1850. To this list 
there should probably be added at least the following: Massachusetts 1820; 
Delaware, 1791 and 1852; Maryland, 1850.

7. Dodd, p. 44.

8. Jameson, pp. 210-211. 

9. Cooley, Const. Lims. (7 ed.), p. 56; Collier v. Frierson (1854), 24 Ala. 
100 108; State v. Am. Sugar Co. (1915), 137 La. 407, 413; State v. Dahl 
(1896), 6 N. D. 81.

10. Dodd, p. 44.

11. "Columbia Dig.," p. 21.

12. Opinion of Justices (1883), 14 R. I. 649. 

13. Report of Jan. 6, 1910, pp. 3, 18.

14. State v. Dahl (1896), 6 N. D. 81.

15. N. D. House Journal, Jan. 26, 1917.

16. Ellingham v. Dye (1912), 178 Ind. 336, 377-378.

17. N. D. House Journal, Jan. 26, 1917.

18. Jameson, p. 211, n. 3.

19. Jameson, p. 211.

20. 6 R. C. L.,  16.

21. Jameson, p. 211.

22. 14 R. I. 649, 651.

23. 1917 Mass. House Doc. 1711, p. 2.

24. 1917 Mass. House Doc. 1711, pp. 2-3.

25. See [ 5] p. 50, infra.

26. The Bills of Rights cannot guarantee the self-evident rights asserted in 
the Declaration of Independence. As Jameson says: "If the truth in question 
is a self-evident truth, it is one which would obtain equally whether 
asserted in the Constitution ... or not." Jameson, p. 236, cf. [ 7] p. 53, 
infra. Grinnel, in II Mass. Law Quarterly," p. 275, agrees with the author 
in the foregoing criticism.

27. 6 Cush. 573. 574.

28. 14 R.I. 649, 651.

29. 6 Cush. 573, 574.

30. Arthur Lord, in II "Mass. Law Quarterly," 1, 24 (1916).

31. Holcombe, "State Government," p. 95.

32. The Rhode Island court, even, has recognized the right to hold 
unauthorized conventions "ex necessitate." Opinion of Justices (1883), 14 R. 
I. 649, 653. 

33. Deb. Mass. Conv. of 1853, Vol. I, p. 76.

34. On extraconstitutional validity, see [Ch. II  8] p. 26, supra.

35. For descriptions of these conventions, see [ 6] pp. 51-52, infra.

36. Ellingham v. Dye (1912), 178 Ind. 336, 377-378.

37. State v. Dahl (1896), 6 N. D. 81, 87. Op. Atty. Gen., in N. D. House 
Journal, Jan. 26, 1917. 

38. Jameson, pp. 214-215. 

39. Jameson, pp. 215-216. 

40. Dodd, p. 44, n. 28. 

41. Art. XIII.

42. Opinion of Justices (1883), 14 R. I. 649, 654.

43. 1917 Mass. Senate Doc., 512. 

44. A similar argument was successfully used in a contested election case in 
the Illinois convention of 1862. See [Ch. XV 1] p. 185, infra.

45. Jameson, p. 209, n. 1.

46. Jameson, p. 209, n. 1.

47. Jameson, p. 210, n. 1.

48. Jameson, pp. 213-214. 

49. Dodd, p. 42.

50. Jameson, p. 135.

51. Bradford v. Shine (1871), 13 Fla. 393, 415.

52. Jameson, pp. 235-236. 

53. Jameson, p. 217.

54. Walker, American Law (11 ed.), p. 231.

55. Jameson, p. 235. See [ 7] pp. 53-54, supra.

56. Jameson, p. 235.

57. Kamper v. Hawkins (1793), 3 Va. 20, 74.

58. Journal, 69th N. Y. Assembly, p. 919.

59. Dodd, p. 72.

60. Opinion of Justices (1883), 14 R. I. 649, 654.

61. See [Ch. II 2] pp. 12-14, supra. 

62. Opinion of Justices (1883), 14 R. I. 649.

63. Frank W. Grinnell, one of the ablest of the ultra-conservative members 
of the Massachusetts bar, has an article in No. 4 of Vol. II of the 
"Massachusetts Law Quarterly" (pp. 274-280) (appearing too late to quote in 
this book), in which article he too asserts the extraconstitutionality of 
conventions which are not expressly mentioned in the constitution. On the 
general subject of this chapter, see particularly "Methods of Changing the 
Constitutions of the States, Especially that of Rhode Island," by Charles S. 
Bradley, ex-Chief Justice of the Supreme Court of Rhode Island. Boston, 
1885.

------------

                     CHAPTER V

         WHO CALLS THE CONVENTION?

[1. Types of convention.]

{58} WHETHER the legislature has the power to amend the act by which a 
convention is called is an important question to be treated later in this 
book. It depends in part upon a consideration of whether it is the 
legislature or the people who originally enacted that act. In fact, the 
whole matter of the status of the convention and of its members depends to 
some extent upon a solution of this problem, to which this chapter will 
accordingly be devoted.

First let us eliminate certain types of convention to which this discussion 
does not properly relate. Since the introduction of the initiative and 
referendum in the West and Middle West, not only may constitutional 
amendments be made in twelve States by an initiative petition without the 
interposition of either the legislature or a convention;[1] but also in six 
additional States, the people can initiate and adopt a measure providing for 
the holding of a convention; and may, by referendum, veto any statutes by 
which the legislature attempts to interfere with a convention.[2] In all of 
these States except Arkansas, Maine, and North Dakota, the constitutions 
provide that legislative acts for the calling of a convention must be 
referred to the people;[3] and in these three under the referendum, the 
people can compel the reference of this question to them. Thus in these 
States the convention is entirely, absolutely, and unquestionably within the 
control of the people, and hence owes nothing of its authority to the 
legislature.

So, too, if we adopt the theory that conventions which are {59} expressly 
authorized by the constitution derive their authority from that document 
rather than from the people, we may disregard such cases for the purposes of 
this discussion.

[2. Must legislatuve get popular approval for convention?]

Most of the constitutions which contain provisions for the calling of 
conventions now provide that they be called after the legislature has 
submitted the question of a convention to the people and has obtained their 
approval, such a popular vote to be taken whenever the legislatures 
themselves may think proper. The first provisions of this character were 
those contained in the Delaware constitution of 1792,[4] the Tennessee 
constitution of 1796,[5] the Kentucky constitution of 1799,[6] and the Ohio 
constitution of 1802.[7] The Kentucky provision of 1799, which was 
substantially repeated in the constitution of 1850, threw great obstacles in 
the way of calling a convention, by requiring two successive popular votes; 
but this plan was not followed by other States except in the one case of the 
Louisiana constitution of 1812.[8] The Kentucky constitution of 1891 
discarded the requirement, but does require the vote of two successive 
general assemblies to propose the question to the people.[9] The plan of 
permitting the legislature at its discretion to submit to the people the 
question of calling a constitutional convention, has for many years been the 
most popular one, and is now in force by the constitutions of twenty-five 
States.[10]

Some States do not even leave it to the discretion of the legislature as to 
when the people shall vote on the question of calling a convention, but 
specifically provide by their constitutions that popular votes shall be 
taken at definite intervals. There are now six States which require the 
periodical submission of this question.[11] The constitutions of four of 
these permit the legislature to submit the question to the people at other 
than the regular periodical times.[12]

{60} The Oklahoma constitution requires the legislature to submit the 
question at least once in every twenty years, leaving the particular time to 
the legislature's discretion.[13]

Thus the practice of obtaining the popular approval for the calling of a 
convention may be said to have become almost the settled rule. Thirty-two 
State constitutions require such a popular expression of approval, and even 
where it has not been expressly required, such a popular vote has been taken 
in a majority of cases in recent years.[14]

Maine and Georgia are the only States whose constitutions now provide for 
the holding of a constitutional convention, without also containing a 
provision for first obtaining the approval of the people.[15]

In the case of these States it may be argued that the convention derives its 
authority from the legislature alone; although in the case of Maine it may 
well be argued that the convention derives its authority from popular 
acquiescence, as manifested in the failure of the people to circulate a 
referendum petition; and in both cases it might possibly be argued (on the 
analogy of the Pennsylvania decision to be discussed a little later in this 
chapter) that the people ratify the legislative statute by participating in 
the election of delegates under it.

In the case of the thirty-two State constitutions which require a popular 
vote in advance of calling the convention, it may be contended that the 
people call the convention under a permission graciously conferred on them 
by the constitution, but the Delaware, Indiana, Pennsylvania, Georgia, and 
Florida cases discussed in the last chapter,[16] in which cases valid 
conventions were held in open disregard of constitutional provisions 
relative to the manner of holding conventions, lend weight to the theory 
that a convention authorized by the constitution stands upon no different 
footing with respect to the source of its authority, than a convention which 
is not so authorized, or than one which is even prohibited.

As we saw, when discussing fundamental principles in Chapter II, if 
conventions are beyond the jurisdiction of the constitution, it matters not 
whether the constitution attempts to {61} prohibit or to authorize them, or 
is silent on the subject; all such conventions are supraconstitutional.[17]

Nevertheless, the New Hampshire Supreme Court has said that where a 
convention is authorized by the constitution, it becomes an ordinary 
legislative matter to call the convention and arrange the details.[18] The 
question of who calls the convention was not, however, before the court.

[3. Conventions under fundamental law.]

This brings us to that class of conventions, the discussion of which is the 
chief object of this book, namely, conventions held under the authority of 
supraconstitutional fundamental law.

When the legislators, acting as the representatives of the people, call such 
a convention without first submitting the question to their constituents, it 
is clear that in the absence of any other controlling circumstance, the 
convention owes its existence to the legislature. But there is some doubt as 
to whether the legislature can legally call a convention without obtaining 
the popular permission.[19]

When the legislature submits to the people the question of holding a 
convention, there is much disputed authority and precedent as to whether the 
convention act is enacted in whole, in part, or at all, by the people. There 
are two classes of cases for us to consider: (1) those in which the 
convention act is passed prior to the submission of the question to the 
people, and (2) those in which the people first express their opinion and 
then the legislature calls the convention. Let us first consider the former 
class of cases.

This question is to some extent wrapped up in the question of the power of 
the legislature to amend the convention act, to be discussed in a later 
chapter,[20] and the two questions have been more or less confused by the 
courts and textbook writers. The author will endeavor, however, to 
disentangle them.

[4. Legislature has power to call conventions.]

We saw, in the preceding chapter, that Jameson justified the legality of 
popular conventions on the ground that "the calling of one is, in my 
judgment, directly within the scope of the ordinary legislative power."[21]

{62} And Dodd follows him with, "The enactment of such a law ... is 
considered a regular exercise of legislative power."[22] Dodd has somewhat 
modified his views since he wrote the last quotation, as is shown by the 
fact that in a more recent article of his he omits to make any such 
statement.[23] Jameson's idea raises at once the question as to whether the 
calling of a convention is within the powers of a legislature at all; for if 
not, that settles the question of the authorship of the convention act. This 
is exactly the line of reasoning pursued by the New York Supreme Court, 
which said:

     The legislature is not supreme. It is only one of the
     instruments of that absolute sovereignty which resides in
     the whole body of the people. Like other departments of
     the government, it acts under a delegation of powers; and
     cannot rightfully go beyond the limits which have been
     assigned to it. This delegation of powers has been made
     by a fundamental law, which no one department of the
     government, nor all the departments united, have authority
     to change. That can only be done by the people
     themselves. A power has been given to the legislature to
     propose amendments to the Constitution, which, when
     approved and ratified by the people, become a part of the
     fundamental law. But no power has been delegated to the
     legislature to call a convention to revise the Constitution.
     That is a measure which must come from, and be the act
     of the people themselves.[24]

Compare Thompson, speaking in the Virginia convention of 1829:

     No one ever supposed that the Acts to take the sense of
     the people, and to organize a Convention, were Acts of
     ordinary legislation; or, properly speaking, Acts of
     legislation at all, as little so as an election by that body of
     any officer. ... The truth is, the action of the ordinary
     legislature on this subject ... is not of the character of
     ordinary legislation. It is in the nature of a resolve or
     ordinance adopted by the agents of the people, not in their
     legislative character, for the purpose of collecting and
     ascertaining the public will, both as to the call and
     organization of a Convention and upon the ratification or
     rejection of the work of a Convention.

     {63} It being a matter of interest to know what the acts
     were, if not acts of legislation, the speaker thus explained
     his views on that subject:

     The Acts spoken of were called for by their constituents,
     resulted from the necessity of the case, and were justified
     by that supreme and paramount law, the salus populi. In
     short, they supplied the only mode by which the original
     right of the people to meet in full and free Convention to
     reform, alter, or abolish their form of government, could
     be exercised without jeopardizing the peace, tranquillity,
     and harmony of the State.[25]

And compare the following from the Supreme Courts of South
Carolina, Michigan, North Dakota, Massachusetts, and Indiana
respectively:

     The legislature in passing the act for calling together the
     convention, were not acting in their legislative capacity.
     The act has no relation to the general powers of
     legislation.[26]

Nowhere in article 4, entitled "Legislative Department," is any reference 
made expressly or impliedly to amendments or revisions of the Constitution. 
Only by section 2, article 20, has the legislature any power to act upon a 
revision of the Constitution. The power there conferred is ministerial 
rather than legislative. But the name is immaterial. It does not require the 
approval of the governor to make it valid. It is made the sole agency by 
which the people may determine (1) whether they desire a revision, and (2) 
if they decide that they do, to provide for the election of delegates.[27]

That it did not take the form of an ordinary law is too clear for 
controversy. The joint resolution has no title. Its enacting clause is not 
couched in the language prescribed by the constitution to be employed in the 
enactment of ordinary laws; nor was it ever submitted to the governor for 
approval. Whenever it is necessary that the expression of sovereign will 
should take the form of ordinary legislation, these requirements must be 
strictly observed. But, in declaring its purpose that a specific proposition 
should be submitted to the people for their approval or disapproval, the 
legislature is not discharging the ordinary function of enacting laws.[28]

{64} The Constitution has vested no authority in the legislature in its 
ordinary action to provide by law for submitting to the people the 
expediency of calling a Convention of delegates for the purpose of revising 
or altering the Constitution of the Commonwealth.[29]

In assuming to legislate in relation to structural changes in the 
government, the legislature is not acting within the power it takes under 
the general grant of authority to enact, alter and repeal laws under and 
pursuant to the Constitution.[30]

Compare Dodd: "The process of amendment is a process of superior 
legislation."[31]

[5. Is convention act fundamental law?]

Now, if a convention act is not ordinary legislation, does it not therefore 
verge on being a "fundamental law"? Jameson has himself pointed out that:

     Of the power of the people to enact fundamental laws
     there is not only no doubt, but it is clear that no other body
     has power to enact them, except by express warrant for
     the particular occasion.[32]

And compare Braxton:

     The People alone have the power of enacting or changing
     the Fundamental Law; ... from them alone does the
     Convention derive its powers in that regard.[33]

These quotations ought to be sufficient to differentiate the passage of 
ordinary laws from the passage of laws which verge on the fundamental. 

Another point which bears strongly on this is that although the legislature 
of Massachusetts, prior to the adoption of the XLII Amendment, could not 
lawfully refer to a popular vote any question within the legislature's own 
legislative powers,[34] yet the legislature could lawfully refer to a 
popular vote, a statute calling a constitutional convention, thus showing 
that such a statute is not within the legislative powers of the legislature, 
but is within the legislative powers of the electorate.[35]

{65} A still further consideration is as follows: If it be the legislature 
which enacts the convention act and thus calls the convention into being, 
then the legislature can confer on another body (i.e. the convention) a 
power (i.e. to propose a constitution) which the legislature itself does not 
possess;[36] which is absurd.[37]

The most recent court decision on the subject might appear, from the 
following language, to agree with Jameson's original idea that a convention 
act is ordinary legislation:

     In the absence of any provision in the Constitution on the
     subject it seems that the legislature alone can give validity
     to a convention. See 6 R. C. L.,  17, p. 27.[38]

But when we look up the court's reference to R. C. L., a different face is 
put on the matter, for R. C. L. says:

     In the absence of any provision in the constitution on the
     subject, it seems that the legislature alone can give legality
     to a convention. Where a change in the constitution is
     made under proceedings initiated by the legislature it is not
     because the legislature possesses any inherent power to
     change the existing constitution through a convention, but
     because it is the only means through which an authorized
     consent of the whole people, the entire state, can be
     lawfully obtained.[39]

And later, in the court decision itself, it is held that the particular 
convention referred to was the creature of the people.[40]

Thus, regardless of whether the legislature may all by itself legally call a 
convention, it is clear that the weight of authority is against the view 
that the calling of a convention is among the regular legislative powers.

[6. Legislature calling convention is convenient.]

Judge Cooley does not ascribe to the regular legislative powers the right to 
institute convention proceedings, but rather ascribes this right to the fact 
that some department must start the ball rolling and that the legislature is 
the best fitted for this, being nearest the people.[41]

{66} The Massachusetts Supreme Court in its recent opinion says that if the 
convention is held under the constitution (which we have seen it is not), 
the people have a right to proceed through the medium of an act of the 
legislature. But they do not state whether or not this act becomes the act 
of the people.[42]

It is undoubted that conventions have in the past been called by 
legislatures without advance permission from the voters, but the growing 
tendency has been to first take a popular vote.[43]

Thus Jameson, although he is the chief exponent of the doctrine of absolute 
legislative supremacy, says:

     The intervention of the legislature is necessary to give a
     legal starting-point to a Convention, and to hedge it about
     by such restraints as shall ensure obedience to the law; but
     as a Convention ought to be called only when demanded
     by the public necessities, and then to be as nearly as
     possible the act of the sovereign body itself, it would seem
     proper to leave the matter to the decision of the electoral
     body, which stands nearest to the sovereign, and best
     represents its opinion. Such seems to be the prevailing
     sentiment in most of the States.[44]

And in New York in 1820 a convention act was vetoed for the following 
reasons:

     It is worthy, therefore, of great consideration, and may
     well be doubted, whether it belongs to the ordinary
     legislature, chosen only to make laws in pursuance of the
     provisions of the existing Constitution, to call a Convention
     in the first instance, to revise, alter, and perhaps remodel
     the whole fabric of the government, and {67} before they
     have received a legitimate and full expression of the will of
     the people that such changes should be made.[45]

Compare the following:

     That in the opinion of this Convention, without intending to
     call in question the motives of the members of the
     Legislature, by the call of this Convention, the Legislature,
     at its late extraordinary session, was unauthorized by the
     people; and that said act, in peremptorily ordering a
     Convention of the people of the State, without first
     submitting to them the question whether there should be a
     Convention or no Convention, was an unwarranted
     assumption of power by the Legislature; at war with the
     spirit of republican institutions, an encroachment upon the
     rights of the people, and can never be rightfully invoked as
     a precedent.[46]

     . . . the agents of the people, who have not been selected
     on that particular issue, should not take upon themselves
     the responsibility of burdening the people with the expense
     of such a movement, without first submitting to them the
     question of whether they desire such a convention to be
     called. The argument against the taking of the initiative by
     the legislature in such cases, without first ascertaining
     public sentiment on the question, is so strong, and lies so
     plainly on the surface, that in many states the constitution,
     in terms, requires the submission of the proposition to
     popular vote, and a majority vote in its favor, before the
     legislature can legally summon the people to meet in
     convention to revise their organic law.[47]

[7. Convention acts without popular consent.]

The coming Indiana convention of 1918 sharply diverges from this tendency, 
for the legislature passed the convention act, not only without popular 
permission, but actually in the teeth of a popular refusal.[48] The 
legislature of 1913 submitted to the electorate the question of calling a 
convention, and the electorate overwhelmingly voted in the negative. 
Nevertheless, the legislature went right ahead, just as though they had 
obtained the authority from a favorable vote,[49] and passed the convention 
act of 1917. But the courts of Indiana are prone {68} to upset any 
legislative encroachments upon the process of altering the fundamental 
law;[50] and so, until we see whether or not the courts interfere with this 
convention, it would be best not to regard it as a precedent.

But see a 1915 court opinion, which cites Cooley:

     None of the Constitutions of the state of Louisiana
     contains provisions relative to conventions of the people,
     except the Constitution of 1812.

     This silence of the organic law on the subject-matter
     leaves the question of calling such convention to the
     representatives of the people in legislative session
     convened.[51]

Later passages, however, in this same opinion show that the court, like
Judge Cooley, regarded the legislature as the mere initiator of the
proceedings, and regarded the electorate as the real source of the
convention's powers.[52]

Compare Ruling Case Law:

     Call of Constitutional Conventions. -- The customary
     manner of calling constitutional conventions in the United
     States is by resolution of the legislature followed by a
     submission of the question to the electorate.[53]

And compare a 1916 writer:

     The weight of opinion to-day seems to be that the
     legislature may properly submit to the people the question
     of holding a convention to revise the constitution, and if the
     voters elect to hold such a convention the amendments
     proposed by that convention, if ratified by the people,
     become a part of the fundamental constitution, in the
     absence of any provisions of the constitution prohibiting
     such a method of amendment.[54]

[8. Is popular permission required to call convention?]

Thus convention-calling is not a regular function of the legislature, and
there is a growing tendency toward the view that the legislature has no
power to call a convention without first obtaining permission from the
people. In case that permission is obtained, who is it that calls the
convention?

The Supreme Court of Massachusetts said in 1833:

     {69} If ... the people, by the terms of their vote, decide to
     call a convention of delegates ... we are of opinion that
     such delegates would derive their whole authority and
     commission from such vote.[55] 

Marcus Morton, one of the judges to join in rendering this opinion, 
amplified it as follows in the Massachusetts convention of 1853, in which he 
sat as a delegate:

     This Act derives its force directly from the people. The
     legislature only proposed the Act, and the people of the
     Commonwealth having sanctioned it by their votes, it
     became law. ... The legislature had the right of proposing
     the Act calling a Convention, and of submitting it to the
     people; but its whole force is derived from acceptance of
     the Act by the people of the Commonwealth
     themselves.[56]

The New York Supreme Court in 1846 had likewise said:

     A convention is not a government measure, but a
     movement of the people, having for its object a change,
     either in whole or in part, of the existing form of
     government.

     As the people have not only omitted to confer any power
     on the Legislature to call a Convention, but have also
     prescribed another mode of amending the organic law, we
     are unable to see that the Act of 1845 had any obligatory
     force at the time of its enactment. It could only operate by
     way of advice or recommendation, and not as a law. It
     amounted to nothing more than a proposition or suggestion
     to the people, to decide whether they would or would not
     have a convention. The question the people have settled in
     the affirmative, and the law derives its obligation from that
     act, and not from the power of the Legislature to pass it.

     The people have not only decided in favor of a
     Convention, but they have determined that it shall be held
     in accordance with the provisions of the Act of 1845. No
     other proposition was before them, and of course their
     votes could have had reference to nothing else.[57]

See also the following quotations to the same effect:

     A constitutional convention lawfully convened, does not
     derive its powers from the legislature, but from the
     people.[58]

     {70} It is the People, and the People alone, who enacted
     the call for this Convention, by adopting the proposition
     submitted to them by the Legislature in 1900.[59]

     When the call for the Convention was adopted by the
     People, in 1900, it became the act of the People, and not
     of the Legislature, which merely framed and proposed
     it.[60]

     The people, when they voted for the holding of the
     Convention, voted for it to be held "in accordance with
     Act No. 52 of 1896."[61]

     The Constitutional Convention ... derives its authority
     directly from the people.[62]

     We cannot suppose that the voters meant that it was their
     will that a Convention should be called, without any regard
     to the time, place, or manner, of calling the Convention;
     for that was all prescribed in the Act of 1852, under which
     they voted. ... The voters must have well understood the
     whole matter when they were called upon to signify their
     will. When, therefore, they voted that it was expedient to
     call a Convention to revise the Constitution, that vote must
     have carried with it a desire that the Convention should be
     called with regard to the time, place, and manner,
     indicated in the Act; and that the vote carried with it
     everything contained in the Act in relation to the manner of
     voting, the holding of meetings, where they should be
     called, and where the elections should be held. They
     expected and intended all these to conform to the Act
     when they gave that Act their sanction.[63] 

     When the people, acting under a proper resolution of the
     Legislature, vote in favor of calling a convention, they are
     presumed to ratify the terms of the call, which thereby
     becomes the basis of the authority delegated to the
     convention.[64]

[9. Convention authority derived from legislature?]

Opposed to this idea of popular origin is Jameson's theory that "so far
as those Acts were ever to have force as laws, they were to derive it
from the legislature."[65]

Hon. Joel Parker maintained the correctness of this position in the 
Massachusetts convention of 1853, as follows:

     {71} The contingency attached to it [convention act of
     1852] gave it no different character from that of any other
     act upon the statute book. It was passed under the
     constitution and by the legislature as a legislative act. The
     act provided for putting the question to the people and the
     question was put. The people answered in such a way that
     the rest of the act took effect as an act of the legislature
     and not as an act of the people distinct from the legislature;
     it gave to the act no other character than that which it had
     possessed before as a legislative act.[66]

Rufus Choate has expressed a more moderate point of view than Jameson and 
Parker, in the following words:

     What did the people, in point of fact, do in regard to this
     point of the law of 1852? Was it not exactly this? The
     legislature caused to be presented to them, according to
     the forms of law, the question for substance, whether they
     deemed it expedient that a Convention should be called to
     consider of revising the Constitution. They answered yes;
     and there they rested. ... 

     Under that repose, under that inaction of the people, after
     that manifestation of their will in that general form, it
     became a matter for mere law in its ordinary course, to
     devise and enact details.[67] 

But we should not forget that the act discussed by the New York Supreme 
Court and by them held to have been enacted in its entirety by the 
electorate, was exactly similar to the one discussed by Rufus Choate.

Thus it will be seen that there are two theories with respect to who enacts 
the convention act, under which the people vote to hold a convention. The 
theory with the greatest weight of authority behind it is based upon the 
fact that there would be no convention unless the people voted 
affirmatively, that an affirmative vote would result in holding exactly the 
soft of convention in every detail provided in the act, and that the people 
are presumed to know the terms of the act under which they vote. The 
conclusion drawn from this is that the convention act in its every detail is 
enacted by the people voting under it.

The opposing theory, as laid down by Choate, is based upon the fact that the 
only question expressly submitted to the people is "Shall there be a 
convention?"; that if the legislature had merely submitted this question 
without providing the {72} details in advance, it would have been competent 
for the legislature to have provided the details after an affirmative vote 
by the electorate. From this they conclude that the providing of details 
before the vote of the electorate is equally as much the action of the 
legislature.

In view of the almost evenly divided opinion on this subject, both points of 
view are fully expressed here without discrimination, although the author 
personally strongly inclines to the former.

[10. Without popular ratification, convention act is act of people?]

Several court dicta go to extremes in asserting the popular origin of 
conventions. Thus the Pennsylvania Supreme Court has held that the mere 
voting for delegates, under a convention act which the legislature has not 
submitted to the people, makes that statute the act of the people. Their 
exact language is as follows:

     When, therefore, the people elected delegates under the
     second Act, they adopted the terms it contained by acting
     under it.[68]

Dodd comments adversely on this decision as follows:

     In the Pennsylvania decision cited above: the question of
     holding a convention was submitted to the people and
     decided in the affirmative; the subsequent legislative act
     calling the convention (this act was not submitted to the
     people) sought to impose certain restrictions upon the
     convention, and the court then said that these restrictions
     were imposed by the people; the facts found by the court
     did not conform to the real facts of the case.[69]

It is clear, of course, that the people in voting for delegates to a 
convention have no way of expressing either approval or disapproval of the 
terms of the act under which the convention is called; here clearly there is 
no popular adoption of restrictions sought to be imposed upon a convention 
by legislative act.[70]

Yet the Pennsylvania idea has been accepted in other decisions, as the 
following quotations show:

     The people elected delegates in reference to this call; it
     was not contemplated that they should do any act which
     was not necessary to give effect to the object and purpose
     of the people.[71]

     {73} The convention was called upon the lines which
     were suggested by the Legislature, and in exact conformity
     with the will of the sovereign, as expressed at an election
     duly held in keeping therewith, and the delegates duly
     chosen thereto were regularly convened.[72]

     When a people act through a law, the act is theirs, and the
     fact that they used the legislature as their instrument to
     confer their powers, makes them the superiors and not the
     legislature.[73]

Under the Pennsylvania theory, all convention acts, under which the 
electorate chooses the delegates, become thereby the product of a popular 
vote. 

[11. Without popular consent, convention act is abdication.] 

The only alternative theory would appear to be the ingenious one suggested 
by Holcombe in the following language:

     Where the call for the convention is not submitted to the
     people for an expression of their consent, such power as
     the convention may possess is apparently delegated to it
     by the legislature on its own authority. It is an accepted
     principle of the unwritten constitution, however, that
     legislative power may not be delegated by the body on
     which the people have conferred it. The calling of a
     convention, therefore, without a vote of the people must
     be regarded as an abdication of power by the regular
     legislature in favor of an extra-constitutional body. Such a
     body is a revolutionary rather than a constitutional
     convention, and the extent of its powers would apparently
     be determined by itself, subject only to the limits which the
     people in their capacity of ultimate sovereign may be able
     to impose.[74]

So much for cases in which the legislature frames the convention act before 
the popular vote. Even when the act is framed after the popular vote, the 
legislature is not proceeding under its general powers, but rather under a 
special grant of power contained in the favorable vote. Thus the people 
choose the legislature as their agents to frame the convention act.

Dodd says:

     There are dicta to this effect based upon the theory that
     the people in voting for a convention confer upon the
     legislature authority to limit the powers of such
     conventions.[75]

{74} And the Supreme Court of Indiana has said:

     The General Assembly ... merely asked the people to
     express their will in relation to calling a convention ... and
     when it was expressed it was a warrant and a command
     which the legislative authority carried out as given.[76]

Of course, in case the entire act is expressly submitted to the people for 
ratification (as is required by the constitutions of Oregon and Oklahoma, 
and as is regularly practiced in many other States),[77] there would seem to 
be no doubt that it derives its force and validity from the popular 
approval.

Dodd, however, points out that it is necessary in such a case for the people 
to pass on two questions in one, namely, whether they want a convention, and 
whether they want one under the terms proposed by the legislature; and he 
infers from this that there is some doubt as to whether even such a statute 
is the act of the people.[78] This seems like far-fetched reasoning, 
however.

The only situation in which one could be absolutely certain that the 
convention act was the product of the legislature alone, would be if the 
legislature called the convention and itself chose the delegates.[79] Yet 
there is argumentative authority even against this, for in the case of the 
Pennsylvania convention of 1872, the convention act was not submitted to the 
people, and the legislature chose part of the delegates; yet the entire 
proceeding was held by the courts to be popular in its nature.[80]

[12. Disparity of legislative and popular powers.]

But, as we saw early in this chapter, the whole question of whether the 
legislature or the people enacts the convention act may be cleared up by a 
consideration of the relative powers of the legislature and the people. We 
have already seen that the people have a supraconstitutional right to take 
steps to change their government, and that this right is conceded by most 
constitutions.[81] Where does the legislature derive any right to take steps 
to change the form of government except in cases {75} in which that right is 
expressly conferred upon the legislature by either the constitution or the 
people? Legislatures have no inherent rights. Their powers are derived from 
the constitution and hence in States whose constitutions do not provide for 
the holding of a constitutional convention, it would seem that the 
legislature cannot call a convention,[82] and hence that a convention in 
order to be valid must be the act of the people.

Yet, although the legislature cannot lawfully call a convention unless it 
possesses authority derived either from the constitution or directly from 
the people, on the other hand the people cannot call a constitutional 
convention without some means being first provided for the expression of 
popular opinion.[83] It is also necessary, either before or after the people 
have expressed their wish for a convention, for some law to provide for the 
election of the delegates.

At one time in the early history of the country the view was entertained 
that the people could legally assemble in convention and revise their 
constitution without the sanction of the legislature, but this doctrine is 
no longer recognized.[84]

The Pennsylvania Supreme Court has said in this connection:

     When a law becomes the instrumental process of
     amendment, it is not because the legislature possesses any
     inherent power to change the existing constitution through
     a convention, but because it is the only means through
     which an authorized consent of the whole people, the
     entire state, can be lawfully obtained in a state of peace. ...
     If the legislature, possessing these powers of government,
     be unwilling to pass a law to take the sense of the people,
     ... the remedy is still in their own hands; they can elect new
     representatives that will. ... The people required the law,
     as the act of the existing government, to which they had
     appealed under the Bill of Rights, to furnish them legal
     process to raise a convention for revision of their
     fundamental compact, and without which legal process the
     act of no one man could bind another.[85]

Judge Jameson comments on this decision in the following words, the 
conciseness of which leaves nothing further to be said on the subject.

     {76} Admitting the competency of the people to call
     conventions, it would be impracticable, except through
     legislative interposition.[86] 

A supraconstitutional right requiring the assistance of constitutional 
authority is certainly an anomaly, and yet that is what exists in the case 
of conventions. It has already been pointed out in Chapter II that the 
reason for the failure of Dorr's Rebellion in Rhode Island was this one 
technical point -- he did not have the assistance of duly constituted 
authority, and hence there was no means of ascertaining whether he 
represented the people or merely a faction of the people.[87]

And yet as Dodd points out,[88] the legislature may stand in the way of the 
fulfillment of the popular will, just as the legislatures have in some cases 
nullified constitutional provisions by refusing to pass an enabling act 
thereon. The remedy of electing new representatives, as suggested by the 
Pennsylvania Supreme Court,[89] is not sufficient.

[13. Difficulty of implementing popular authorization.]

In one case at least, difficulty has been encountered in obtaining the 
passage of a law for the assembling of a convention authorized by the 
people. In 1886 a popular vote taken in New York (under the constitution of 
1846, which provided for such a vote once every twenty years) was 
overwhelmingly in favor of the calling of a convention. But, owing to a 
disagreement between the legislature and the Governor, who belonged to 
different political parties, it was impossible for some time to obtain the 
passage of a law authorizing the convention, and the convention did not 
actually meet until eight years after the popular vote. In the constitution 
adopted by this convention, it was sought to avoid such a difficulty for the 
future by making the constitutional provisions regarding a convention 
self-executing.[90]

Not merely is the popular vote on the question of holding a convention to be 
taken at twenty-year intervals, but the last vestige of intervention by the 
legislature in the matter is swept finally away. In case the people vote in 
the affirmative, the constitution itself provides, minutely, for the 
apportionment, election, organization, and procedure of the convention. Thus 
there is now imbedded in the constitution of New York a complete system {77} 
for total revision of the constitution of that state beyond the control of 
the legislature. The people initiate, the convention drafts, the people 
enact.[91] 

The popular will was similarly thwarted in New Hampshire in 1860 and 
1864.[92]

The Michigan constitution of 1908 accomplishes the same result by provisions 
similar to those of the New York constitution of 1894. The Missouri 
constitution of 1875 also makes the assembling of a convention independent 
of legislative action, after the people have voted that a convention shall 
be held; the constitution itself containing full provisions regarding the 
apportionment and election of delegates. Writs for an election are required 
to be issued by the Governor after a favorable vote of the people.[93]

But, in all of the States except those mentioned above, the assembling of 
conventions is to a large extent dependent upon legislative action, even 
after the people have voted that a convention shall be held.[94]

[14. Who enacts convention act.]

From all the foregoing, we can make the following deductions as to who it is 
that calls a convention; in other words, who it is that enacts the 
convention act.

If the act originates by an initiative petition, it is clear that the people 
pass the act, although there may be some dispute as to whether they proceed 
under the authority of the constitution, or under a supraconstitutional 
authority, with the mere assistance of the constitution.

In case the constitution provides for the holding of a convention without 
either legislative or popular action, such a convention will probably derive 
its whole force and validity from the constitution. If the constitution 
provides for the holding of a convention after action by the legislature 
alone, it is probable that such a convention derives its validity from the 
constitution and is called into being by the legislature. But in the last 
two cases it may well be that the people, by acting under the convention act 
or constitutional provision, ratify it and make it theirs.

{78} If the constitution authorizes a convention after popular vote, it may 
be that the convention is the creature of the people with the permission of 
the constitution; but owing to the fact that the constitution could not 
withhold this permission, and in the light of the four cases in which the 
constitutional methods were disregarded, it is possible that even such a 
convention derives its whole authority from the popular vote, and that the 
constitution merely provides the means, the same as a statute would have 
done.

When the legislature passes a convention act without submitting it to the 
people, if there is a previous vote of the people authorizing a convention 
in general terms, it may be that this vote delegates to the legislature the 
power to enact details.

When the legislature submits the question to the people, either with or 
without the sanction of the constitution, the weight of authority is that 
the convention derives its whole sanction from the popular vote, and that 
such details as are enacted by the legislature prior to the popular vote 
derive their binding force from the people and not from the legislature; a 
fortiori, if the legislature submits the entire act for popular 
ratification.

Yet we have seen that there is need of a means through which the people may 
express their will. This may be provided either by a statute or by a 
constitutional provision; preferably the latter, as that frees the 
convention from the danger of legislative usurpation.

------

1. These States are Arizona, Arkansas, California, Colorado, Michigan, 
Missouri, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, and Oregon. 
"Columbia Digest," p. 771.

2. These States are Idaho, Maine, Montana, South Dakota, Utah and 
Washington. "Columbia Digest," p. 771.

3. "Columbia Digest," p. 21.

4. Thorpe, Vol. 1, p. 580.

5. Thorpe, Vol. 6, p. 3421.

6. Thorpe, Vol. 3, p. 1288.

7. Thorpe, Vol. 5, p. 2908.

8. Thorpe, Vol. 5, p. 1390.

9. Thorpe, Vol. 5, p. 1355.

10. These States are Alabama, California, Colorado, Delaware, Florida, 
Idaho, Illinois, Kansas, Kentucky, Minnesota, Missouri, Montana, Nebraska, 
Nevada, North Carolina, Oregon, South Carolina, South Dakota, Tennessee, 
Utah, Virginia, Washington, West Virginia, Wisconsin, and Wyoming. "Columbia 
Digest," pp. 22-23.

11. These States are: Maryland, New Hampshire, Iowa, Michigan, New York, and 
Ohio. "Columbia Digest," p. 22.

12. Iowa, Michigan, New York, and Ohio. "Columbia Digest," p. 22. 

13. "Columbia Digest," p. 22.

14. See infra, [ 6] p. 66.

15. "Columbia Digest," p. 21.

16. Supra, [Ch. IV  6] pp. 51-52.

17. Supra, [Ch. II  8] p. 26.

18. Opinion of Justices (1911), 76 N. H. 586, 587.

19. See [ 7] pp. 66-68, infra.

20. See Chapter VIII, infra.

21. Supra, [Ch. IV 2] p. 40. Jameson, p. 211.

22. Dodd, p. 44.

23. I "Cyc. American Government," 427.

24. Journal, 69th N. Y. Assembly, p. 919. This opinion was approved in full 
by a committee headed by Elihu Root, in a report to the New York Convention 
of 1894. Rev. Record, Vol. I, pp. 258-260, 270.

25. Jameson, pp. 579-580. 

26. McCready v. Hunt (1834), 2 Hill Law (S. C.) 1, 271.

27. Carton v. Secy. of State (1908), 151 Mich. 337, 341. 

28. State v. Dahl (1896), 6 N. D. 81, 82. 

29. Opinion of Justices (1833), 6 Cush. 573, 574-575.

30. Ellingham v. Dye (1912), 178 Ind. 336, 357.

31. Dodd, p. 232.

32. Jameson, p. 395, n. 1.

33. Braxton, VII "Va. Law Reg.," 100, 101.

34. Opinion of Justices (1894), 160 Mass. 586, 589. See also Jameson, pp. 
420-421, and n. 1.

35. This was successfully done in 1819 and 1852.

36. See [Ch. VI 7] p. 85, infra.

37. Senator Niles, in Jameson, p. 196.

38. State v. American Sugar Co. (1915), 137 La. 407, 413.

39. 6 R. C. L.,  17, p. 27.

40. State v. American Sugar Co. (1915), 137 La. 407, 415.

41. Cooley, Const. Lims. (7 ed.), pp. 56, 59-60. 

42. 1917 Mass. Senate Doc. 512. 

43. Dodd, pp. 46-47, and n. 36; Jameson, p. 210, and n. 1. Jameson's note 
does not differentiate between conventions called with, and those called 
without, popular permission. Dodd's note is inaccurate. Of the conventions 
cited by them, the author has only been able to find that the following were 
called by the legislature acting alone New York, 1801; Connecticut, 1818; 
Rhode Island, 1824, 1834, 1841 and 1842; New Jersey, 1844; North Carolina, 
1876; Louisiana, 1879; Mississippi, 1890, and a majority of the secession 
and reconstruction conventions. The New York convention came so shortly 
after the Revolution as to be almost a War convention. Those of Connecticut 
and Rhode Island were called by charter legislatures with unlimited powers. 
The New Jersey constitution of 1776 was amendable by the legislature. The 
rest of the conventions were Southern, doubtless based on Civil War 
precedents.

44. Jameson, p. 111.

45. Jameson, p. 670.

46. Journal, Miss. Conv. 1851, pp. 48 and 50.

47. State v. Dahl (1896), 6 N. D. 81, 86. 

48. The only precedent for such action is the Rhode Island convention of 
1824. But the people repudiated the work of this convention, two to one. 
Mowry, "The Dorr War," pp 30-33.

49. See [ 11] pp. 73-74, infra.

50. Ellingham v. Dye (1912), 178 Ind. 336.

51. State v. Am. Sugar Co. (1915), 137 La. 407, 413.

52. State v. Am. Sugar Co. (1915), 137 La. 407, 415.

53. 6 R. C. L.,  17, p. 27.

54. II "Mass. Law Quarterly," 1, 26.

55. Opinion of Justices (1833), 6 Cush. 573, 575.

56. Deb. Mass. Conv. 1853, Vol. I, p. 76.

57. Journal, 69th N. Y. Assembly, p. 919.

58. Loomis v. Jackson (1873), 6 W. Va. 613, 708.

59. Braxton, VII "Va. Law Reg.," 100, 103.

60. Braxton, VII "Va. Law Reg.," 100, 104.

61. State v. Capdevielle (1901), 104 La. 561, 569.

62. Braxton, VII "Va. Law Reg.," 79, 97.

63. Speech of Mr. Hyde, Deb. Mass. Conv. 1853, Vol. I, p. 124.

64. R. C. L.,  18, p. 27; State v. Am. Sugar Co. (1915), 137 La. 407, 415.

65. Jameson, p. 398.

66. Deb. Mass. Conv. 1853, Vol. I, pp. 154-155.

67. Deb. Mass. Conv. 1853, Vol. I, pp. 117-119.

68. Wells v. Bain (1872), 75 Pa. 39, 55. 

69. Dodd, pp. 76-77.

70. Dodd, p. 75.

71. McCready v. Hunt (1834), 2 Hill Law (S. C.) 1, 222-223. 

72. State v. Favre (1899), 51 La. Ann. 434, 436.

73. Wood's Appeal (1874), 75 Pa. 59, 72.

74. Holcombe, State Government, p. 126.

75. Dodd, p. 87, n. 26. But he disagrees with this, saying: "There would be 
a strong presumption that in voting tor a convention they meant to vote for 
one with full power." Dodd, p. 76. Compare pp. 103-104, infra.

76. Ellingham v. Dye (1912), 178 Ind. 336, 377-378.

77. Dodd, p. 75.

78. Dodd, p. 75.

79. As in the case of the Georgia convention of 1788. Jameson, p. 135.

80. Wells v. Bain (1872), 75 Pa. 39, 52. 

81. Supra, [Ch. II  2] pp. 13-14.

82. Supra, [ 4] pp. 62-65

83. Supra, [Ch. II  3] pp. 16-19.

84. 6 R. C. L.,  17, p. 27.

85. Wells v. Bain (1872), 75 Pa. 39, 47-48.

86. Jameson, p 539.

87. See [Ch. II  6] pp. 21-22, supra. 

88. Dodd, pp. 55-56, and n. 53.

89. Wells v. Bain (1872), 75 Pa 39, 47. 

90. Dodd, p. 55.

91. Judson, Essentials of a Written Const. (U. of Chi. 1903), p. 21. 

92. Dodd, p. 55, n. 53. 

93. Dodd, pp. 55-56.

94. Compare the discussion of this same point, [Ch. IX  6] pp. 116-117, 
infra. 

------------

                    CHAPTER VI

         LEGISLATURES AS CONVENTIONS

[1. Legislature powerless to resolve itself into a constitutional 
convention]

{79} IN the preceding chapter we discussed the power of the legislature to 
call a constitutional convention. There we found that, although the present 
tendency is to regard a reference of the question to the people as 
absolutely essential, yet, in the early days, this was not always done.[1] 
In fact, on occasions, the legislature has even elected a part or all of the 
delegates itself.[2]

The original conventions of the period of the Revolutionary War combined the 
functions of conventions and legislatures,[3] but as the convention system 
developed, the two bodies gradually became more and more differentiated. 
Thus we see the western towns of New Hampshire protesting in 1777 against 
the framing of a permanent plan of government by the legislature,[4] and we 
see the people of Massachusetts in 1778 overwhelmingly voting down a 
constitution drafted by a legislature which had resolved itself into a 
constitutional convention.[5]

A constitution drafted by a legislative commission in Michigan in 1873, and 
constitutions drafted by the Rhode Island legislature and submitted in 1898 
and 1899, were rejected by the people.[6]

The only example of successful drafting of a constitution by a legislature 
occurred in the Territory of Nebraska in 1866. But it is interesting to note 
that the Supreme Court of that State held the entire proceeding to be 
irregular, being cured, however, by the admission of the State into the 
Union.[7]

Legislatures generally have not presumed that they had any power to resolve 
themselves into constitutional conventions, {80} until we come to the case 
of Indiana in 1911. The general assembly of that year drafted and 
incorporated in a bill what was therein termed a proposed new constitution, 
which was really a copy of the existing constitution with twenty-three 
changes in its provisions, and submitted it to a vote of the people at the 
general election to be held in November, 1912.[8]

The Indiana legislature doubtless proceeded upon the theory that, if a 
legislature can call a convention and choose the delegates to it, the 
legislature can call itself a convention and choose its own members as the 
delegates. Doubtless the legislature thought that, even though this method 
of procedure was contrary to both the customary convention method and the 
constitutional method of submission by two successive legislatures; yet, 
nevertheless, a popular ratification of the proposed new constitution would 
cure all irregularities in its inception.

Maybe the legislature was right in this latter assumption,[9] but that can 
never be ascertained, for the Supreme Court of the State nipped the 
proceeding in the bud by enjoining the submission of this new constitution 
to the people. The Supreme Court of California had also, in an earlier 
decision, given some intimation as to what the law would be in a case like 
this.

[2. A constitution is a legislative act of the people.]

These two decisions have developed the following principles of law relative 
to the powerlessness of the legislature to resolve itself into a 
constitutional convention. First: A constitution is a legislative act of the 
people. On this point the Indiana Court says:

     A state constitution has been aptly termed a legislative act
     by the people themselves in their sovereign capacity, and,
     therefore, the paramount law.[10]

[3. Legislatures and people have different powers.]

Secondly: There is a marked distinction between the legislative powers of 
the people and the legislative powers of the legislature. On this see the 
following:

To erect the State or to institute the form of its government is a function 
inherent in the sovereign people. To carry out its purpose of protecting and 
enforcing the rights and liberties of which the ordained constitution is a 
guaranty, by enacting rules of civil {81} conduct relating to the details 
and particulars of the government instituted, is the function of the 
legislature under the general grant of authority. It needed no reservation 
in the organic taw to preserve to the people their inherent power to change 
their government against such a general grant of legislative authority.[11]

A constitution is legislation direct from the people, acting in their 
sovereign capacity, while a statute is legislation from their 
representatives, subject to limitations prescribed by the superior 
authority.[12]

The Parliament of Great Britain, is possessed of all legislative powers 
whatsoever. It can enact ordinary statutes, and it can pass laws strictly 
fundamental. Not so with our legislatures.[13]

The two houses and the governor constitute the entirety of the body which 
considers and finally determines all matters of legislation. But it is the 
two houses and the great mass of the electors of the commonwealth combined 
which constitute the body which considers and determines the questions of 
constitutional amendment. With all matters of legislation the people in 
their capacity of electors have nothing to do. But with constitutional 
amendments they have everything to do, for the ultimate fate of all proposed 
amendments depends absolutely upon their approval. If they approve, the 
proposed amendment at once becomes a part of the constitution; if they 
disapprove, it fails utterly and never comes into existence. The fundamental 
distinction which thus becomes most manifest, between the mere legislative 
machinery of the government, and that machinery which alone possesses the 
power to ordain amendments to the constitution of the commonwealth is most 
radical and extreme.[14]

We have seen that, in the United States, the constitutional Convention 
belongs to the genus legislature, -- by which it is meant that its proper 
function is to elaborate, to a certain extent, to be determined by the tenor 
of its commission, the fundamental law, much as the legislature enacts the 
ordinary municipal law. Of these two species of law, the distinction between 
which has been already explained, it is the important thing to note, that 
the one denominated fundamental is, generally speaking, the work only of a 
Convention, a special and extraordinary assembly, convening at no regularly 
recurring periods, but whenever the harvest {82} of constitutional reforms 
has become ripe; while, on the other hand, the ordinary statute law, whose 
provisions are tentatory and transient, is, regularly at least, the work of 
a legislature, -- a body meeting periodically at short intervals of 
time.[15]

[4. Legislature does not frame constitution in its legislative capacity.]

Thirdly: The legislature, in taking any steps toward the framing of a 
constitution, does not act in its legislative capacity. This we have already 
seen in the last chapter, where were reviewed many authorities to the effect 
that the calling of a convention, being a step in the framing of fundamental 
law, is not strictly within general legislative powers.

Many decisions bearing more or less on this point, but relating more 
particularly to the extralegislative nature of the proposal of 
constitutional amendments, are collected in the Indiana decision.[16]

Furthermore, the Indiana decision says that in the ordinary legislative 
method of constitutional amendment, the legislature is quoad hoc empowered 
to act as a convention.

By express constitutional provision, they act in conventional capacity, in 
the way of recommending specific amendments to their constitution.[17]

The Indiana Court quotes with approval the following from the Supreme Court 
of Arkansas:

     The General Assembly, in amending the constitution, does
     not act in the exercise of its ordinary legislative authority,
     of its general powers; but it possesses and acts in the
     character and capacity of a convention, and is quoad hoc,
     a convention expressing the supreme will of the sovereign
     people.[18]

[A]nd Jameson's following comment thereon:

     It expresses with admirable brevity, force, and clearness,
     the true doctrine in regard to the power of our General
     Assemblies under similar clauses of our Constitutions.[19]

This, however, cannot be meant literally, for it is easily observable that 
the courts will enforce strict compliance with the {83} constitutional 
provisions for the legislative method of amendment, whereas they are much 
more cautious in interfering with the popular method of amendment through 
the medium of a convention.

The language used, however, is all right as illustrating the principle that 
the legislature, in framing a constitutional change, is not acting as a 
legislature, but is rather acting under an extra-legislative power 
specifically delegated to it by the people for this purpose.

[5. Legislature must have express grant of power to frame constitutional 
changes.]

Fourthly: The legislature gets by express grant, its power to frame 
constitutional changes. See the following quotations:

     In submitting propositions for the amendment of the
     constitution, the legislature is not in the exercise of its
     legislative power, or any sovereignty of the people that has
     been intrusted to it, but is merely acting under a limited
     power conferred upon it by the people.

     The extent of this power is limited to the object for which
     it is given, and is measured by the terms in which it has
     been conferred, and cannot be extended by the legislature
     to any other object, or enlarged beyond these terms.[20]

     This right to propose amendments to the constitution is not
     the exercise of legislative power by the General Assembly
     in its ordinary sense, but such power is vested in the
     legislature only by the grant found in the constitution, and
     such power must be exercised within the terms of the
     grant.[21] 

     Where authority is specifically granted to the legislature by
     the constitution to prepare and submit amendments, that
     establishes its competency, and, to the extent of the
     specific authorization and within its limitation, it is always
     to be considered as chosen for the purpose.[22]

     Power over the Constitution and its change has ever been
     considered to remain with the people alone, except as they
     had, in their Constitution, specially delegated powers and
     duties to the legislative body relative thereto for the aid of
     the people only.[23]

[6. Legislature must have express grant of power to act as convention.]

Fifthly: It follows that the legislature cannot act as a convention without 
a similar express grant, either in the constitution, {84} or given by the 
people under their extraconstitutional powers.

The legislature is not authorized to assume the function of a constitutional 
convention, and propose for adoption by the people a revision of the entire 
constitution under the form of an amendment.[24]

This is quoted with approval by the Indiana Court.[25] Jameson has said:

     It is thoroughly settled that, under our Constitutions, State
     and Federal, a legislature cannot exercise the functions of
     a convention -- cannot, in other words, take upon itself
     the duty of framing, amending, or suspending the operation
     of the fundamental law.[26]

This also is cited with the approval by the Indiana Court.[27]

[7. General grant of legislative powers not enough for legislature to act 
as or call convention.]

Sixthly: The general grant of legislative powers is not enough to empower 
the legislature either to act as, or to call, a convention; for, as we have 
seen, the framing of fundamental law is not a strictly legislative duty.[28] 
Thus the Indiana Court says:

     But this general grant of authority to exercise the legislative
     element of sovereign power has never been considered to
     include authority over fundamental legislation. It has
     always been declared to vest in the legislative department
     authority to make, alter and repeal laws, as rules of civil
     conduct pursuant to the Constitution made and ordained
     by the people themselves and to carry out the details of
     the government so instituted.[29]

In assuming to legislate in relation to structural changes in the 
government, the legislature is not acting within the power it takes under 
the general grant of authority to enact, alter and repeal laws under and 
pursuant to the Constitution. For, to deal with organic law -- to determine 
what it shall be, when it needs change, the character of the change and to 
declare and ordain it -- is peculiarly {85} a power belonging to the people, 
and this fact they have declared, as we have seen, in the first section of 
the bill of rights.[30]

Had it been thought then that the general grant of legislative authority 
placed in the hands of the General Assembly the power to accomplish the same 
work which that body was asking the people to authorize a constitutional 
convention to do, it is not to be supposed that the fruitless efforts to 
secure a convention would have continued. But, on the contrary, it is highly 
probable that the General Assembly would itself have done the work of 
revision or refraining amendments, and thus have avoided the delay and the 
greater expense, entailed by a convention. No one then claimed that the 
framing of fundamental law might be done by legislative act under the 
general grant of legislative authority.[31]

[8. Legislature can assist people to hold constitutional convention.]

Seventhly: Nevertheless, by long custom the legislatures have acquired the 
power to assist the people to hold a constitutional convention. Thus Jameson 
has said:

     It is clear that no means are legitimate for the purpose
     indicated but Conventions, unless employed under an
     express warrant of the Constitution.[32]

The author's conclusion is, that the change or amendment of the written 
constitutions which prevail under the American system is confined to two 
modes: 1, by the agency of conventions called by the General Assembly in 
obedience to a vote of the people, and usually pursued when a general 
revision is desired; and 2, through the agency of the specific power granted 
to the General Assembly by constitutional provision to frame and submit 
proposed amendments, which is considered preferable, when no extensive 
change in the organic law is proposed.[33]

The extraconstitutional legality of such conventions has already been 
discussed in Chapter IV.

Thus the Indiana decision appears to have established the law that the 
legislature has no authority to resolve itself into a constitutional 
convention.

But this law is likely soon to be upset by precedent in the neighboring 
State of North Dakota. There, the present constitution requires amendments 
to be twice passed by the legislature {86} before submission to the 
people;[34] yet at the last session the majority party (i. e. the Farmers' 
Nonpartisan League) introduced a bill for the immediate submission of a 
complete new constitution, embodying the reforms pledged by the Farmers' 
platform.[35] This bill passed the House, but was blocked by the hold-over 
members of the Senate. If, as now seems possible, the Farmers gain control 
of both Houses at the next election, the bill will be adopted, and will 
undoubtedly be sustained by the Supreme Court, which is now dominated by the 
Farmers.

Thus, until we learn the result of the North Dakota experiment, the Indiana 
decision must remain open, especially as it was made by a court of the 
opposite political party than the party which at the time controlled the 
legislature.[36]

In this connection it is interesting to compare the following from a recent 
opinion by the Attorney-General of North Dakota:

     An examination of our State and Federal Constitutions
     shows that no procedure for revision or for the adoption
     of a new State Constitution, as an organic whole, is
     provided for.

The Constitution of North Dakota, Section 2, however, does contain the 
following declaration:

     "All political power is inherent in the people. Government
     is instituted for the protection, security and benefit of the
     people; and they have the right to alter or reform the same
     whenever the public good may require."

[9. People retain undelegated power to frame or change constitutions.]

Moreover, in our system of government, constitutions derive their power from 
the people, not the people from constitutions. The rights and powers of the 
people existed before a constitution was formed. In other words, before the 
establishment of a constitution, the people possessed sovereign power. -- 
That power they still possess, except in so far as they may have delegated 
it to State or National Governments, or have voluntarily restricted 
themselves in its exercise under their constitutions.

Many of our states have adopted express methods of revising their 
constitutions through constitutional conventions. However, {87} for 
generations, many states had no express method of revision, and at least a 
dozen states, North Dakota being among them, have none today.

It is urged that, since our Constitution provides a method of amendment, by 
exclusion the Legislature is prohibited from initiating a revision itself by 
drafting a new Constitution. This argument is untenable when dealing with 
sovereignty of the people seeking expression through revision. It is an 
instance where the ordinary doctrine of exclusion applicable to contracts is 
not binding. Moreover, if such an argument were applicable to legislative 
revision it would be equally applicable to revision by convention, and on 
that subject our own Supreme Court, in 68 N. W. 421 (N. D.), has said:

     "The decided weight of authority and the more numerous
     precedents are arrayed on the side of the doctrine which
     supports the existence of this inherent legislative power to
     call a constitutional convention, notwithstanding the fact
     that the instrument itself points out how it may be
     amended."

     The sovereign power of revision having reached the
     threshold of the legislature without express written
     authority and solely by its irresistible right to expression,
     what mysterious power can then, without vestige of
     authority, assume the right to bridle it and lead it tamely
     down the narrow, though highly respectable, avenue of
     revision by convention?

     In my opinion any method followed by the legislature
     in placing before the people a new constitution for
     adoption or rejection in their sovereign capacity is
     legal.[37]

He differentiates the Indiana case as follows:

     In connection with this I will also say that the case of
     Ellingham vs. Dye, 99 N. E. 1, apparently opposed to the
     legality of legislative revision, is clearly not applicable to
     the situation in this State, owing to an unusual and,
     perhaps, entirely unique occurrence in the history of
     Indiana when the provisions for revision contained in the
     Indiana constitution up to 1851 were then stricken out
     with the express intention that never again would the
     Indiana constitution be revised, but only changed by
     amendment.[38]

{88} Whatever may be said for the correctness of his differentiation, the 
fact remains that in his main argument he overlooks two points: (1) that the 
legislature having probably no power to call a convention without popular 
permission,[39] a fortiori has no power to call itself a convention without 
such permission; and (2) that his citations, not given above, on the power 
of the legislature to submit a whole constitution, relate to submission in 
the regular constitutional manner, and not irregularly as attempted in 
Indiana and North Dakota.[40]

Nevertheless, as already suggested, it would be well to await the success of 
the North Dakota experiment before definitely passing upon the subject 
matter of this chapter.

------

1. See [Ch. V 6] p. 66, supra.

2. See [Ch. V 11] p. 74, supra.

3. See [Ch. I 2] p. 4, supra.

4. See [Ch. I 3] p. 6, supra.

5. See [Ch. I 3] pp. 5, 6-7, supra. 

6. Dodd, p. 39, n. 20. 

7. Brittle v. People (1873), 2 Neb. 198, 216.

8. Ind. Laws, 1911, c. 118.

9. See [Ch. XVII 2] p. 216, infra. 

10. Ellingham v. Dye (1912), 178 Ind. 336, 345.

11. Ellingham v. Dye (1912), 178 Ind. 336, 344.

12. Ellingham v. Dye (1912), 178 Ind. 336, 345.

13. Ellingham v. Dye (1912), 178 Ind. 336, 347.

14. Commonwealth v. Griest (1900), 196 Pa. 396, 410-411.

15. Jameson, p. 422.

16. Ellingham v. Dye (1912), 178 Ind. 336, 347-352. Cf. State v. Hall (1916) 
159 N. W. 281, 282.

17. Ellingham v. Dye (1912), 178 Ind. 336, 347.

18. State v. Cox (1848), 3 English (Ark.) 436, 444; quoted 178 Ind. 336, 348

19. Jameson, p. 586; quoted 178 Ind. 336, 348. Cf. Collier v. Frierson 
(1854) 24 Ala. 100, 102.

20. Livermore v. Waite (1894), 102 Cal. 113, 118.

21. Chicago v. Reeves (1906), 220 111. 274, 288.

22. Ellingham v. Dye (1912), 178 Ind. 336, 353.

23. Ellingham v. Dye (1912), 178 Ind. 336, 357.

24. Livermore v. Waite (1894), 102 Cal. 113, 118.

25. Ellingham v. Dye (1912), 178 Ind. 336, 349.

26. Jameson, p. 422.

27. Ellingham v. Dye (1912), 178 Ind. 336, 352.

28. See full discussion of this point, [3] pp. 80-83, infra.

29. Ellingham v. Dye (1912), 178 Ind. 336, 343.

30. Ellingham v. Dye (1912), 178 Ind. 336, 357.

31. Ellingham v. Dye (1912), 178 Ind. 336, 360-361.

32. Jameson, p. 549.

33. Ellingham v. Dye (1912), 178 Ind. 336, 355.

34. N. Dak. Const., Art. XV,  202.

35. 1917, N. D. House Bill 44. 

36. VI "Am. Polit. Sci. Rev.," 43, 44.

37. No. Dak. House Journal for Jan. 26, 1917.

38. No. Dak. House Journal for Jan. 26, 1917.

39. See [Ch. V 4] pp. 62-65, supra. 

40. Dodd, pp. 260-261. 

------------

                    CHAPTER VII

            EXECUTIVE INTERVENTION

[1. Conventions independent of other branches of government.] 

{89} THE question of the power of one of these departments to interfere with 
a convention largely depends upon a determination of the exact status of the 
convention. Regardless of whether or not the convention is revolutionary, 
there can be no doubt that, either with or without constitutional sanction, 
the convention has become established as a regular organ of American 
government. The separation of the departments of government is a fundamental 
principle of American constitutional law. Nearly all of our constitutions 
lay down the rule that:

     The legislative department shall never exercise the
     executive and judicial powers, or either of them; the
     executive shall never exercise the legislative and judicial
     powers, or either of them; the judicial shall never exercise
     the legislative and executive powers, or either of them.[1]

And not only may no department exercise the powers of any other, but each 
department is also forbidden to interfere with the functions of any other.

This is important in connection with Dodd's theory as to the relation which 
the convention bears to the three regular departments. He says:

     The better view would seem to be that the convention is a
     regular organ of the state (although as a rule called only at
     long intervals) -- neither sovereign nor subordinate to the
     legislature.[2] 

The following quotations from various authorities sustain this view:

     But a rather better view, less extreme than either of the
     preceding ones, regards the convention as a regular organ
     of the existing government coordinate with the other
     branches. In its {90}sphere of constitution making it
     should be supreme, subject only to limitation by the
     people.[3]

     The convention is an independent and sovereign body
     whose sole power and duty are to prepare and submit to
     the people a revision of the constitution, or a new
     constitution to take the place of an old one.[4]

     Nothing could conduce more to simplicity of view, than to
     consider this institution as a branch of that system by
     which the state, considered as a political society, works
     out its will in relation both to itself and to the citizens of
     which it is composed. And this ... I am satisfied is the
     correct view to take of the question.[5]

     A Constitutional Convention is a legislative body of the
     highest order. It proceeds by legislative methods. Its acts
     are legislative acts. Its function is not to execute or
     interpret laws, but to make them. That the consent of the
     general body of electors may be necessary to give effect
     to the ordinances of the Convention, no more changes
     their legislative character, than the requirement of the
     Governor's consent changes the nature of the action of the
     Senate and Assembly.[6]

     It is the highest legislative body known to freemen in a
     representative government.[7]

     It is of the greatest importance that a body chosen by the
     people of this state to revise the organic law of the state,
     should be as free from interference from the several
     departments of government, as the legislative, executive
     and judiciary are, from interference by each other.[8]

The only authority contra appears to be the Supreme Court of Pennsylvania, 
which has said:

     The convention is not a co-ordinate branch of the
     government. It exercises no governmental power, but is a
     body raised by law in aid of the popular desire to discuss
     and propose amendments.[9]

{91} Thus the weight of authority is to the effect that the convention, when 
in session, is a fourth branch of the government, with the same immunity 
from interference as that possessed by the other three. The executive and 
judiciary have no more right to interfere with the fourth branch than they 
do with the other legislative branch, namely, the legislature. The 
legislature has no right to interfere with a legislative body of higher 
standing.

[2. Ways in which executive department might intervene.]

Let us now consider intervention by the executive department, either of the 
state or nation. The converse question, i. e. the power of the convention to 
interfere in the affairs of the executive department, will be considered in 
a later chapter.[10]

First, with respect to the State executive. By this is meant the chief 
executive, i. e. the Governor, or the Governor acting with the consent and 
assistance of some advisory body.

The executive branch, like the other two branches, derives its delegated 
authority entirely from the constitution, and has no powers except those 
expressly or impliedly granted therein, and no powers even when granted, if 
they are such as to be beyond the power of the constitution to grant. This 
must be borne in mind throughout this chapter.

The first manner in which a governor might interfere with a convention would 
be to prevent the holding of a convention by vetoing the convention act.

Under the initiative and referendum, in all the States in which it is in 
force,[11] a convention initiated by the people would not be subject to 
executive veto, as the constitutions of those States do not authorize such a 
veto.

With respect to conventions expressly called by the constitution, or 
conventions the call for which is submitted to the people by the 
constitution without legislative action, it is likewise clear that there is 
no way in which the Governor could veto the project.

With respect to constitutions which authorize the passage of conventions 
acts, the results differ in different States. In Alabama and Delaware the 
convention act need not be submitted to the Governor for his approval, and 
is expressly {92} declared to be valid without his approval.[12] No other 
constitutions make express provision in this connection, but it would appear 
that an act of the legislature calling for a popular vote would not be 
subject to veto, no veto power being mentioned in this connection; although 
a legislative act providing for the details of holding the convention, if 
regarded as ordinary legislation, would be subject to the regular veto power 
of the Governor.[13]

The usual practice in such States has been to submit to the people the 
question of holding a convention; without asking for the Governor's 
approval. This would naturally follow from the fact that a convention act is 
not a bit of ordinary legislation.

It does not require the approval of the governor to make it valid.[14]

Yet in Nebraska, which is a State of this sort, and where therefore the 
submission of this question to a popular vote would seem to be clearly 
within the power of the legislature, independent of the Governor, a joint 
resolution in 1903 upon this subject was vetoed by the Governor, and no 
further action was taken.[15]

In New York, the Governor by quarreling with the legislature, postponed for 
eight years the holding of the convention authorized by a popular vote in 
1886.[16]

But although the executive veto of an act to take the sense of the people 
has been successfully employed on these occasions, yet executive approval is 
usually dispensed with. What authority there is sustains this custom, which 
thus has the support of the weight of both judicial and actual precedent.

[3. Convention "act" may be joint resolution not requiring executive 
approval.]

In the absence of constitutional provisions authorizing the holding of a 
convention, we have seen that the people require the assistance of the 
legislature in order to express their will on the subject, yet the act 
rendering this assistance is not strictly legislative in its nature. Thus, 
although it is customary to refer such an act to the Governor for his 
approval, this has been held to be unnecessary:

     {93} That it did not take the form of an ordinary law is
     too clear for controversy. The joint resolution has no title.
     Its enacting clause is not couched in the language
     prescribed by the constitution to be employed in the
     enactment of ordinary laws; nor was it ever submitted to
     the governor for approval. Whenever it is necessary that
     the expression of sovereign will should take the form of
     ordinary legislation, these requirements must be strictly
     observed. But, in declaring its purpose that a specific
     proposition should be submitted to the people for their
     approval or disapproval, the legislature is not discharging
     the ordinary function of enacting laws.[17]

If the people, by voting to have a convention, thereby impliedly authorize 
the legislature to enact details,[18] such authorization may well be on the 
same plane with an authorization contained in the constitution and hence 
justify the submission of such acts to the Governor. This is the general 
practice.

Thus it is seen that the Governor can prevent the holding of a convention by 
vetoing the legislative act providing for the details of a convention. The 
Governor, however, has no power to prevent the holding of a convention 
called under the popular initiative, or provided for by the constitution in 
a manner which does not allow legislative interference.

All of the foregoing sorts of interference by the Governor are seen to be 
really a part of his legislative power, rather than of his executive power.

Whenever a legislature would have power to interfere by inaction with the 
holding of a constitutional convention,[19] the Governor probably possesses 
a coextensive power to interfere by vetoing legislative action.

[4. Executive may have role if convention legitimacy disputed.] 

The Governor, in his executive capacity, however, can assume a very 
important role, in case the legitimacy of the convention or of any of its 
actions comes into dispute. In the case of two conflicting sets of claimants 
to office in any department, one set claiming under the old constitution and 
the other set claiming under the new, the Governor and the other executive 
officers who have control of the State finances may be in a position, by the 
giving or withholding of salaries, to determine effectually which set of 
officers is legal.

{94} So, too, in jurisdictions where the courts consider the legality of the 
acts of a popular convention to be a political rather than a judicial 
question,[20] the recognition or nonrecognition of the new constitution by 
the Governor may be the deciding point in determining its validity or 
invalidity.

Braxton says that any act of the existing government in recognition of an 
irregular constitutional change should be regarded as acquiescence and 
ratification on the part of the people.[21]

Thus the Military Governor of Tennessee, acting on the authority of the 
President, ratified the constitution which had been submitted by the purely 
spontaneous convention of 1865.[22]

The Federal executive can very often determine whether a convention is valid 
or merely factional. The clauses of the Federal constitution guaranteeing to 
each State a republican form of government and permitting the President to 
maintain order in any State if requested by the State legislature or by the 
State executive if the legislature is not in session,[23] give the President 
the power to interfere with a constitutional convention.

The power of deciding whether the exigency has arisen upon which the 
government of the United States is bound to interfere, is given to the 
President. He is to act upon the application of the legislature or of the 
executive, and consequently he must determine what body of men constitute 
the legislature, and who is the governor, before he can act. The fact that 
both parties claim the right to the government cannot alter the case, for 
both cannot be entitled to it. If there is an armed conflict, like the one 
of which we are speaking, it is a case of domestic violence, and one of the 
parties must be in insurrection against the lawful government. And the 
President must, of necessity, decide which is the government and which party 
is unlawfully arrayed against it, before he can perform the duty imposed 
upon him by the act of Congress.[24]

On two occasions the President of the United States has interfered to decide 
whether the government of a State was valid or factional. In the case of 
Rhode Island, as pointed {95} out in the foregoing quotation, the President 
acting on the application of one of the two claimants of the governorship, 
who incidentally was a member of his own political party, recognized him as 
the executive of the State and took measures to call out the militia to 
support his authority. Thus President Tyler upset the People's Constitution 
of 1841 in Rhode Island.[25]

On the other hand, President Lincoln gave validity to the extremely 
factional loyal government of Virginia by recognizing it as the lawful 
government of that State. This recognition is all that gives validity to the 
dismemberment of that State and the creation of West Virginia.

The repeated acts of the United States in all its departments, recognizing 
the loyal government of Virginia of which the legislature in question was a 
part, as an existing State government, stamped that government and 
legislature as legal and valid. For over four years after the establishment 
of the loyal government of Virginia, the President of the United States was 
engaged, in concert with that government, in expelling from her borders the 
rebel invaders.[26]

These two instances demonstrate not only the power of the Federal executive, 
but also the power of the state executive. In one case it was the Governor 
under the old regime, and in the other the Governor under the new regime 
that took the steps to secure intervention by the President of the United 
States. 

It should be noted, however, that the President has no power, under the 
constitution, to intervene in the internal affairs of a State except upon 
the request of some one claiming to be the State government.

[5. When the Federal government may intervene in a State.]

The two objects for which the Federal government may intervene are to 
protect the State against internal violence, and to guarantee to the State a 
republican form of government.

If the intervention is for the purpose of protecting the State from internal 
violence, the express terms of the constitution provide that such protection 
shall be furnished only "on application of the Legislature, or of the 
executive (when the Legislature cannot be convened)."[27] 

In the case of intervention for the purpose of guaranteeing {96} a 
republican form of government, this requirement of a request is not so 
clear, not being expressly mentioned. Thus Braxton suggests:

     If any State of the American Union should attempt to lay
     aside its republican form of government, and substitute in
     its stead that of an irresponsible, omnipotent Convention,
     combining in itself all the powers of Government,
     (Legislature, Judicial and Executive,) even for a single day,
     it would clearly be ground for the forcible intervention of
     the Federal authority, to put down and stamp out a
     government so foreign to all ideas of a free republic.[28]

But it is arguable that this clause, too, is for the protection of the 
States, and cannot be invoked unless a State itself requests it.

Thus we see that in some instances executives can prevent the holding of a 
convention and in some instances ratify or nullify its action, but there has 
been no way suggested in which an executive may, pending a conventional 
change, interfere with the details of the convention procedure.

------

1. Mass. Decl. of Rts., Art. XXX.

2. Dodd, p. 80.

3. XXIX "Harv. Law Rev.," 520.

4. Carton v. Secy. of State (1908), 151 Mich. 337, 340.

5. Jameson, p. 315. Compare the quotation from Jameson, pp. 319-320, on [Ch. 
XV 2] p. 187, infra. And compare Jameson, pp. 23-24.

6. Report of Judiciary Committee, headed by Elihu Root, and unanimously 
adopted by the Convention. Rev. Record, N. Y. Conv. 1894, Vol. I, p. 245.

7. Sproule v. Fredericks (1898), 69 Miss. 898, 904.

8. Report of Judiciary Committee, headed by Elihu Root, and unanimously 
adopted by the Convention. Rev. Record, N. Y. Conv. 1894, Vol. I, p. 250. 
Quoted with approval in Deb. Mich. Conv. 1907-1908, p. 1275.

9. Wells v. Bain (1872), 75 Pa. 39, 57. 

10. Chapter XI, infra.

11. Namely Arizona, Arkansas, California, Colorado, Michigan, Missouri, 
Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon, Idaho, Maine, 
Montana, South Dakota, Utah, and Washington. "Columbia Digest," p. 771.

12. Ala. Const., XVIII, 286; Del. Const., XVI, 2, 4. 

13. Dodd, p. 56, n. 55. 

14. Carton v. Secy. of State (1908), 151 Mich. 337, 341.

15. Dodd, p. 57, n. 55. 

16. Dodd, p. 55.

17. State v. Dahl (1896), 6 N. D. 81, 82.

18. See [Ch. V 9] p. 72, supra.

19. See [Ch. IX 6] pp. 116-117, infra. 

20. See [Ch. XII 7] pp. 162-163, infra.

21. VII "Va. Law Reg.," 79, 97.

22. Ridley v. Sherbrook (1866), 43 Tenn. 569, 577.

23. U. S. Const., Art. IV,  4.

24. Luther v. Borden (1849), 7 How. 1, 43.

25. See [Ch. II 6] pp. 21-22, supra, on "Dorr's Rebellion."

26. Jameson, p. 172.

27. U. S. Const., Art. IV,  4.

28. VII "Va. Law Reg.," 79, 91.

------------

                    CHAPTER VIII

    THE CONVENTION ACT NOT AMENDABLE

[1. Three questions about convention acts.]

{97} Judge Jameson's book on constitutional conventions was written for the 
sole purpose of proving the supremacy of the legislature over the 
convention. He treated the question of the power of the legislature to amend 
the statute calling a convention as being merely a question of the right of 
the legislature to control the convention; whereas in reality it involves 
three questions: i.e., the power of the legislature, the source of the 
statute, and whether the legislature can amend an act passed by the people.

The first of these three questions, namely, whether the legislature can 
control the convention, will be considered in the next chapter. In that 
consideration we shall see that restrictions, which the legislature attempts 
to impose upon a convention, are probably not binding unless ratified by the 
people; precedents to the contrary being divisible into cases in which the 
electorate did the restricting, cases in which the restrictions were 
acceptable to the convention, and cases in which the restrictions were 
imposed by an outside sovereign. The instances, there discussed, of 
legislative interference by other means than the original convention act or 
amendments thereto do not concern us here.

The second of the three involved questions was considered in Chapter V. 
There we saw that the people enact the convention act where they have the 
initiative, or where the legislature submits the entire act to them for 
ratification; probably, where they vote to hold a convention under the act; 
and possibly, where they merely elect delegates under the act, or where they 
acquiesce in an act by not invoking the referendum against it. It is 
possible that even constitution provisions for the holding of a convention 
become popular enactments because the people act under them, either by 
voting for the convention, or even merely by voting for delegates.

{98} The present chapter will be devoted to the third question involved, 
namely, whether the legislature can amend an act of this sort, assuming it 
to have been passed by the people.

[2. Legislature may only amend its own convention act.]

Where the facts show, or judicial decisions hold, that the convention act 
was passed by the legislature, the legislature clearly has the power to 
amend this act; unless we adopt the theory of the Pennsylvania Supreme 
Court, already discussed,[1] to the effect that the mere participation by 
the people in the election of delegates under a convention act passed by the 
legislature alone amounts to a ratification and adoption of that act by the 
people, and makes it the act of the people rather than of the legislature. 
Under that theory, all convention acts would owe their force and validity to 
a popular vote, unless we can assume the case of a convention with delegates 
which are chosen by the legislature.[2]

This leads us to the main question to be considered in this chapter: namely, 
whether, if the people enacted the convention act, the legislature can amend 
it.

In order to present this sole question, without any diverting complications, 
we must assume: (1) that the people did originally pass the convention act 
in its entirety,[3] and (2) that the matter which the legislature proposes 
now to add to it is matter within the scope of ordinary legislative 
powers.[4] Let us therefore make these two assumptions, merely, however, for 
the purposes of this chapter.

A discussion of the main subject has usually been very much involved in a 
consideration of the other two, which we are here attempting to exclude. An 
attempt will be made, however, to select for the purposes of this chapter so 
much of the authorities as relates solely to the subject matter of this 
chapter.

The clearest statement on this subject is contained in the opinion rendered 
by the New York Supreme Court to the 69th New York Assembly in 1846. It is 
as follows:

     {99} The next question is, "Whether this legislature has
     any power to alter or amend that law." As a general rule,
     the legislature can alter or annul any law which it has
     power to pass. A proper solution of the question
     proposed by the Assembly involves, therefore, an inquiry
     concerning the source from which the act of 1845 derives
     its obligation.

     If the Act of the last session is not a law of the legislature,
     but a law made by the people themselves, the conclusion
     is obvious, that the legislature cannot annul it, nor make
     any substantial change in its provisions. If the legislature
     can alter the rule of representation, it can repeal the law
     altogether, and thus defeat a measure which has been
     willed by a higher power.[5]

Another expression of opinion to the same effect is as follows:

     In ascertaining the powers of the Convention, we cannot
     look to the Act of February, 1901, passed after the
     Convention had been ordered by the People; and that the
     limitations imposed by that Act, which was never
     submitted to, nor ratified by the People, are of no binding
     force.[6]

The author knows of no decisions or court opinions contra. The recent 
opinion of the Supreme Court of Massachusetts, although it appears to 
support the author's proposition, is not in reality in point, for the ground 
on which it declares the particular convention act to be unamendable, is 
merely the unconstitutionality of the particular subject matter.[7]

Jameson has collected a number of decisions to the effect that the 
legislature may amend statutes which have been submitted to the people for a 
vote.[8] This is undoubted law. But we should note: (1) that none of these 
decisions related to convention acts, and (2) that convention acts are not 
an exercise of ordinary legislative power.[9] These two considerations 
should be sufficient to differentiate the cases cited by Jameson.

[3. Under initiative and referendum.]

If Jameson had lived in the days of the initiative and referendum, he might 
well have added cases like the following:

     {100} The Supreme Court of every state having an
     initiative and referendum constitutional provision similar to
     that of this state which has been called upon to determine
     the question has held that the Legislature has the power to
     repeal or amend the initiated law.[10]

But in these cases, the powers of the legislature to amend are always 
expressly based upon the theory that the people, in initiating legislation, 
are merely exercising the legislative function which for ordinary occasions 
they have delegated to the legislature. Ratione cessante, cessat ipsa lex. A 
convention act, not being within the legislative function,[11] it is not so 
amendable. In fact, as the extralegislative power which the legislature has 
to frame a convention act exists only ex necessitate,[12] it is probable 
that this power does not exist in States which have adopted the initiative 
and referendum. Thus neither the cases cited by Jameson, nor the more modern 
cases arising under the initiative and referendum are authority for the 
proposition that the legislature can amend a convention act.

The author has been unable to find any authorities which express an opinion 
that the legislature may amend a convention act, if originally enacted by 
the people; and it is possible that, in the cases in which legislatures have 
actually amended convention acts, they have proceeded upon the theory that 
such acts were not enacted by the people, rather than upon the theory that, 
although the people had enacted them, the legislature could amend them. Even 
when the legislature has passed the original convention act after the 
popular vote authorizing the convention, it is arguable that the people 
choose the legislature as their agent for the special extralegislative 
purpose of framing the convention act,[13] and that when this purpose is 
fulfilled, the legislature becomes quoad hoc, functus officio. In plain 
English, the job being completed, the legislature has no further powers in 
that connection.

[4. Cases in which legislatures have tried to amend convention acts.]

In the following described cases, convention acts have been amended
by legislatures.

{101} New York Assembly of 1845 passed a statute for the holding of a 
convention in a certain detailed manner, if the people should so vote at the 
next election. The people so voted. The Assembly of 1846 then proceeded to 
amend the convention act, so as to change the system of apportionment of 
delegates. But before doing this, they asked the opinion of the Supreme 
Court of that State as to whether they had the power to do so.

The court replied that the convention act was the act of the people, and 
that therefore the legislature had no power to amend it. The court's 
language in this connection has been given earlier in this chapter.[14] The 
legislature, however, disregarded the advice of the court and amended the 
act, and the delegates to the convention were elected under the act as 
amended.[15]

The validity of this action by the legislature was never questioned by the 
convention. But this is not to be wondered at; for had the delegates 
declared this action to be illegal, they would thereby have declared their 
own election illegal, and their own seats vacant, and would have thus 
rendered themselves incompetent to make the very decision which they were 
making. The only tenable decision which the delegates could make was to 
sustain the validity of the act under which they had obtained their seats.

A similar situation was pointed out by the United States Supreme Court when 
it held that the only possible tenable decision by a state court would be to 
uphold the legality of the constitution under which the judges themselves 
held their seats. The language of the court in this connection is as 
follows:

     And if a State court should enter upon the inquiry
     proposed in this case, and should come to the conclusion
     that the government under which it acted had been put
     aside and displaced by an opposing government, it would
     cease to be a court, and be incapable of pronouncing a
     judicial decision upon the question it undertook to try. If it
     decides at all as a court, it necessarily affirms the existence
     and authority of the government under which it is
     exercising judicial power.[16]

{102} Not only was this action by the New York Assembly never questioned by 
the convention; it was never questioned at all. Thus here we have a case of 
a legislature successfully overruling a court.

The Berlin controversy in Massachusetts furnishes another example of a 
legislature successfully amending a convention act.

In 1853 the legislature of Massachusetts, emboldened by the example of the 
New York Assembly, attempted to follow that example. After the ratification 
of the convention act of 1852 by the people, the legislature struck out the 
provision that the election of delegates should be by secret ballot. The 
election was held under the amended law, for the candidates had no other 
alternative except to withdraw from the contest. Nevertheless, great 
indignation was aroused by this action of the legislature.

One of the first and most bitterly debated questions, therefore, which arose 
in the convention of 1853 was whether the legislature had any right so to 
override the action of the people. A complete repudiation of this action, 
however, would as in the New York case, have had an embarrassing result; for 
if the legislative action was illegal and void, why then the election held 
under it was void, and the delegates so elected would not be entitled to 
their seats. 

Similarly with the delegates to the Massachusetts convention of 1853. 
Accordingly they seated themselves, thereby ratifying the action of the 
legislature, and then proceeded to excoriate the legislature for its action.

The vacancy from the town of Berlin furnished the opportunity for 
criticizing the legislature. Henry Wilson, the "Natick Cobbler," who later 
became Vice President of the United States, had been elected from both 
Natick and Berlin, and had declined election from the latter. The question 
arose as to how to instruct the selectmen of Berlin to fill the vacancy. Ben 
Butler seized the opportunity and moved that the vacancy be filled in the 
manner provided by the original convention act, rather than in the manner 
provided by that act as amended by the legislature. Rufus Choate led the 
defense of the legislature, but he was overwhelmingly defeated. Thus the 
convention went on record as repudiating the idea that the {103} legislature 
can amend a convention act after its adoption by the people.[17] 

These were both cases in which the people had voted for the convention, 
under the convention act.

We saw in an earlier chapter that there was some authority for the 
proposition that the people assume, ratify, and become responsible for a 
convention act, by merely participating in the election of delegates to the 
convention to be held under it.[18] In one such case there has been an 
attempt at legislative amendment. This occurred in the bloody days in Kansas 
just prior to the Civil War. The Kansas legislature of 1855 took the sense 
of the electorate at the October election of 1856 on the advisability of 
holding a constitutional convention. The electorate approved. The 
legislature accordingly passed an act providing for the choice of delegates 
in June and for a convention in September, which was to have full discretion 
as to how to submit its constitution for ratification. So far in the 
proceedings, the slavery men had been in control, and they controlled the 
convention. The convention submitted two alternative constitutions to be 
voted on, December 21, 1857, but did not provide any method for the 
rejection of both.

The free-state legislature, which was elected in October of that year, met 
December 17 and voted to submit the whole question of the constitution on 
January 4. The form with the strongest slavery provisions carried in 
December, but both constitutions were rejected in January; only slavery men 
participating in the first election and only free-staters in the second.

Thus the question was presented to Congress as to the authority of the 
legislature to amend the convention act after the people had elected 
delegates under it and thereby ratified it. The national House decided that 
the legislature did have this power, but President Buchanan and the national 
Senate decided that it did not; so no decision was reached, and the matter 
was deadlocked.[19]

Virginia presents the most recent example of an attempt to amend a 
convention act. The legislature of 1900 submitted to the voters the question 
"Shall there be a convention to revise the constitution and amend the 
same?"[20] The vote was {104} favorable. Accordingly in 1901 the legislature 
passed a statute prescribing the details for the convention.[21] Now the 
people having voted that the convention should revise and amend the 
constitution, a provision in the second act requiring the convention merely 
to frame and submit was considered by many to be an attempt by the 
legislature to amend a vote of the people.[22] Accordingly the convention 
refused to submit, and the constitution promulgated by the convention was 
accepted by the State officials and was sustained by the courts.[23]

So far as the author knows, these are the only cases where a legislature has 
attempted to amend a convention act, enacted by the people rather than by 
the legislature.

From all the foregoing we see that, although an ordinary bit of legislation 
enacted by the people is amendable by the legislature, nevertheless a 
convention act, not being ordinary legislation, is not so amendable. But it 
is possible for certain sorts of amendments to succeed, by reason that the 
nature of the amendment leaves to the convention and the people no choice 
but to acquiesce in the amendment or to give up the convention. Successful 
examples of this limited sort are not precedents for the general proposition 
that the legislature can make any sort of amendment.

------

1. See [Ch. V 10] p. 72, supra.

2. This was the case with respect to the first of the two Georgia 
conventions in 1788. Jameson, p. 135. Constitutional commissions may perhaps 
be regarded as such conventions. Dodd, pp. 262-265.

3. See Chapter V, supra.

4. This assumption is incorrect (see [Ch. V 4] pp. 62-65, supra), but must 
be postulated for the purposes of the present argument. If the argument 
fails (as it does) even with this assumption, a fortiori when this 
assumption is found to be incorrect.

5. 1 Journal, 69th N. Y. Assembly, pp. 919 and 920.

6. Braxton, VII "Va. Law Reg.," 100, 101-102.

7. 1917, Mass. Senate Doc., 512. 

8. Jameson, pp. 398-401. 

9. See [Ch. V 4, Ch. VI 3] pp. 62-65, 80-83, supra.

10. Richards v. Whisman (1915), 36 S. D. 260, 272.

11. See [Ch. V 4, Ch. VI 3] pp. 62-65, 80-83, supra.

12. See [Ch. IV 4] p. 47, supra.

13. See [Ch. V 10] pp. 73-74, supra. 

14. See [Ch. VIII 3] p. 99, supra.

15. Jameson, p. 387.

16. Luther v. Borden (1849), 7 How. 1, 40. Compare the cases quoted, pp. 
157-158, infra.

17. See Jameson, pp. 333-338.

18. See [Ch. V 10] p. 72, supra.

19. Jameson, pp. 534-536. 

20. Va. Acts 1900, c. 778.

21. Va. Acts 1901, c. 243.

22. VII "Va. Law Reg.," pp. 100-106.

23. Taylor v. Commonwealth (1903), 101 Va. 829.

------------

                     CHAPTER IX

              LEGISLATIVE CONTROL

[1. Five ways legislature may interfere with convention.]

{105} THE question of legislative control of the convention was the main 
consideration which induced Judge Jameson to write his book.

Dodd says:

     Judge J. A. Jameson in his work on Constitutional
     Conventions took the position that a convention is
     absolutely bound by restrictions placed upon it in the
     legislative act by which it is called. Judge Jameson took
     this view because he thought it necessary that a convention
     be completely subordinate to the existing government.[1]

Under Judge Jameson's theory a constitutional convention called by a vote of 
the people may be restricted by simple legislative act so that it may not 
revise or propose the revision of any part of the existing constitution 
which the legislature may forbid it to touch. The convention is made 
subordinate to an organ of the existing government. Judge Jameson proceeded 
on the assumption that a constitutional convention must possess sovereign 
power -- that is, all of the power of the state -- or that it must be 
strictly subordinate to the regular legislature. He could conceive of no 
middle ground between these extremes. In attempting to demolish the theory 
that the convention is sovereign, he went to the other extreme and really 
made the legislature the supreme body with respect to the alteration of 
state constitutions, for under his view a convention may be restrained by a 
legislature as to what shall be placed in the constitution, and no 
alteration can be made without legislative consent.[2]

Legislative interference with a convention may take place in any of five 
ways, namely (1) by inserting restrictions in the original convention act; 
(2) by amending that act; (3) by inaction; (4) by withholding support; or 
(5) by governmental {106} recognition. These five methods will first be 
analyzed and then discussed in order. The question of the power of the 
legislature to control the convention by means of the original convention 
act depends largely on the question of whether the legislature passes that 
act at all, which has already been considered in Chapter V. If it be found 
that the voters enacted any given convention act, the question will then 
take the form: Can the electorate control the convention? The question in 
this form will be considered in Chapter X.

The power of the legislature to control the convention by means of an 
amendment to the original convention act depends largely upon whether the 
legislature has any right to amend the act. This was considered in the 
preceding chapter. The questions of legislative inaction and of legislative 
recognition of a new constitution require no analysis.

[2. By original act or amendment thereto.]

Let us, then, first consider the general power of the legislature to control 
the convention by means either of the original act or of an amendment 
(otherwise lawful) thereto. Jameson built up his book around the doctrine of 
legislative supremacy, because he could not conceive of conventions and 
legislatures being coordinate. The antithesis of the doctrine of legislative 
supremacy is the doctrine of convention sovereignty, which will be discussed 
in a later chapter.[3] The reverse of the theory that the legislature has 
power to control the convention is the theory that the convention has 
extraordinary power to enact ordinary legislation. This is a phase of the 
doctrine of convention sovereignty. The question of whether the legislature 
has power to require oaths by the convention delegates and submission of the 
new constitution to the people will be discussed in the chapters on those 
subjects.[4]

Has the legislature the power to restrict the convention in advance? Under a 
number of the present State constitutions, it may be definitely said that a 
legislature cannot bind a convention in any way. In New York and Michigan, 
conventions, when authorized by a vote of the people, assemble without any 
legislative action; for in these States constitutional provisions have been 
adopted for the express purpose of making conventions entirely independent 
of legislative control; and there any effort by the legislature to control 
the convention's {107} action would clearly be a violation of the 
constitution.[5] The same statement holds with reference to the Missouri 
constitution, by the terms of which the only step to be taken by the 
legislature is that of submitting to the people the question as to whether a 
convention shall be held.[6] And the same is probably true with reference to 
constitutions which impose upon. the legislature the one specific duty of 
providing for the election of delegates after the people have decided that a 
convention shall be held. Inasmuch as both bodies are legislative in 
character, a specific power conferred upon the regular legislature may 
perhaps be said by implication to exclude any other control over the 
convention.[7]

By necessary implication, the legislature is prohibited from any control 
over the method of revising the Constitution. The convention is an 
independent and sovereign body whose sole power and duty are to prepare and 
submit to the people a revision of the Constitution, or a new Constitution 
to take the place of the old one. It is elected by the people, answerable to 
the people, and its work must be submitted to the people through their 
electors for approval or disapproval.[8]

The Alabama constitution of 1901 expressly confers full power upon a 
convention to act in the drafting of a new constitution, thereby excluding 
the possibility of legislative interference.[9]

The process of amendment of State constitutions in the legislative manner is 
absolutely under the control of the State legislatures, except in the States 
which have adopted the popular initiative. Under this procedure no action 
may be taken except upon the initiative of the legislature, this method of 
altering constitutions thus being absolutely subject to legislative control.

The calling of constitutional conventions is also to a large extent subject 
to legislative control, but the convention method of altering constitutions 
is considerably more independent of the regular legislature, unless Judge 
Jameson's theory be adopted. The convention loses a large part of its 
usefulness as an organ of the State if it be treated as strictly subject to 
control by the legislature.[10]

{108} This view was well expressed by the Judiciary Committee of the New 
York convention of 1894:

     It is of the greatest importance that a body chosen by the
     people of this State to revise the organic law of the State,
     should be as free from interference from the several
     departments of government as the legislative, executive
     and judiciary are, from interference by each other. Unless
     this were so, the will of the people might easily be nullified
     by the existing judiciary or legislature.[11]

Thus the weight of authority, at least with respect to conventions 
authorized by the constitution, is that the legislature cannot, or at least 
ought not to be permitted to, restrict the convention in advance.

[3. Cases in which the legislature did succeed in restricting the 
convention.]

Let us, however, discuss a few actual cases in which the legislature did 
succeed in restricting the convention. One common method of attempted 
restriction has been for the legislature to provide that no delegate should 
be permitted to take his seat in the convention until he should have taken 
an oath to proceed in a certain manner. This course was pursued with respect 
to the North Carolina conventions of 1835 and 1875, the Georgia convention 
of 1833, the Illinois conventions of 1862 and 1869, and the Louisiana 
convention of 1898. The last-named convention expressly recognized the 
restrictions as binding upon it.[12]

The Georgia convention also took the oath required. The North Carolina 
conventions objected to the oath, but nevertheless took it and observed the 
restrictions.[13] The two Illinois conventions took the oath in a very 
modified form. Several of these cases lose their value as precedents in this 
connection, however; for the convention act was submitted to and approved by 
the people, and hence the restrictions may be said to have been placed on 
the convention by the people and not by the legislature.[14] 

Dodd says:

     It would seem that these conventions might, had they
     thought proper, have declined to take the oaths, and have
     organized and {109} proceeded to act without doing so,
     just as was done by the Illinois convention of 1862.[15]

In the first of the two Pennsylvania cases arising out of the convention of 
1872, the Supreme Court issued an injunction restraining the convention from 
submitting its constitution to a popular vote in a manner different from 
that prescribed by the legislature.[16]

     The Pennsylvania constitution of 1838 contained no
     provision with reference to the calling of a convention, but
     the legislature of 1872 provided for the assembling of a
     convention, after having first submitted to the people the
     question as to whether or not a convention was desired.
     The act of 1872, under which the convention assembled,
     provided that the constitution which it framed should be
     voted upon at an election held in the same manner as
     general elections. ... The convention disregarded the
     legislative act by providing machinery of its own for the
     submission of the constitution in Philadelphia, and
     appointed election commissioners for this special purpose.
     . . . An injunction was granted restraining the
     commissioners appointed by the convention from holding
     the election in Philadelphia. The court ... declared that the
     submission of the constitution in a manner different from
     that provided by law was clearly illegal. The court said that
     the convention had no power except that conferred by
     legislative act, and that any violation of such act or any
     action in excess thereof would be restrained.

     If the calling of a convention is thus assumed to be an
     exercise of regular legislative power, may it not be
     plausibly argued that the convention, when called, is
     absolutely subject to the conditions of the legislative act?
     This is, to a large extent, the argument of Wells v. Bain.[17]

But this decision loses weight in this connection from the fact that the 
court expressly held the convention act to be the creature of the people and 
not of the legislature.

Jameson bases his theory of legislative supremacy largely upon the 
Pennsylvania decision just discussed. But in doing so he fails to notice 
that a later case in the same volume of Pennsylvania {110} reports holds 
squarely that the legislature cannot limit the convention, but that the 
people can and did in this instance.

Thus the first Pennsylvania case, interpreted in the light of the second, is 
clearly no authority at all for the doctrine of legislative supremacy. The 
exact language of the second Pennsylvania decision is as follows:

     It is simply evasive to affirm that the legislature cannot limit
     the right of the people to alter or reform their government.
     Certainly it cannot. ... When the people act through a law,
     the act is theirs, and the fact that they used the legislature
     as their instrument to confer their powers makes them the
     superiors, and not the legislature.[18]

And compare the following:

     The restrictions sought to be placed upon conventions by
     legislative acts have not in practice been recognized as of
     binding force, except in a few cases.[19]

     First. That a constitutional convention lawfully convened,
     does not derive its powers from the legislature, but from
     the people.

     Second. That the powers of a constitutional convention
     are in the nature of sovereign powers.

     Third. That the legislature can neither limit or restrict them
     in the exercise of these powers.[20]

Although there is some authority to the effect that the people, in voting to 
permit the legislature to call a convention, thereby constitute the 
legislators their agents to restrict the convention,[21] yet Dodd is 
strongly of the opinion that, on the contrary, the popular vote should be 
interpreted as calling for an unrestricted convention.[22]

Jameson cites a large number of minor instances in which conventions adhered 
to the terms of the convention act,[23] but in at least half of these the 
act had been submitted to the people, and in the rest these restrictions 
were apparently satisfactory to the convention, as it accepted them without 
protest.

{111} The instances of successful restraint of territorial conventions by 
Congress, cited by him,[24] are not in point, for Congress is an outside 
sovereign, not at all comparable to the legislature of the territory itself.

[4. Cases in which the legislature failed in restricting the convention.]

Thus there is a marked scarcity of instances in which the legislature has 
succeeded in restricting the convention. In the following instances the 
legislature failed to impose these restrictions successfully.

The second Pennsylvania case turned, among other things, on the point that 
the convention act had imposed the restriction that the convention should 
not alter the Bill of Rights. The convention altered the Bill of Rights, and 
this was held not to invalidate the new constitution.[25] If we follow 
Jameson in treating this as a legislative restriction, we have here an 
example of a successful disregard of a restriction, and of the judicial 
sustaining of this disregard. The convention itself treated this as a 
legislative restriction, and altered the Bill of Rights, not because they 
thought it needed altering, but solely as a slap at the legislature.[26] 
Treated, however, as a popular restriction, this decision will be discussed 
in the next chapter.

We have already seen that the Illinois conventions of 1862 and 1869 
successfully disregarded the legislative requirements of an oath by the 
delegates.[27]

The Georgia convention of 1789, called for the sole purpose of accepting or 
rejecting a constitution which had been prepared by the convention of 1788, 
proposed certain alterations, which were laid before a third convention.[28]

The New York convention of 1867 sat beyond the time fixed by the legislature 
for the submission of its work to the people, and submitted its work at a 
later date.[29] The Alabama convention of 1901 increased the pay of its 
delegates above the amount limited by the legislature.[30] 

The statute calling the Michigan convention of 1908 provided that the 
constitution should be submitted to the people in April. The convention 
ordered its submission in November. The Secretary of State doubted the power 
of the convention {112} to fix a date other than that set by the legislature 
and refused to comply with the order of the convention; whereupon the 
officers of the convention obtained a mandamus from the Supreme Court and 
compelled submission at the date set by the convention.[31] The reasons for 
the mandamus were varied, but two of the court, including the Chief Justice, 
said: 

     By necessary implication, the legislature is prohibited from
     any control over the method of revising the constitution.
     The convention is an independent and sovereign body. ...
     It is elected by the people, answerable to the people, and
     its work must be submitted to the people through their
     electors for approval or disapproval. ... The convention
     was the proper body to determine at what election it
     should be submitted unless that is fixed in the present
     constitution. ... I find no language in the constitution from
     which any implication can arise that this power was vested
     in the legislature.[32]

Even Judge Hooker in his dissenting opinion in that case said, "The 
convention has a sphere in which the legislature cannot intrude, a 
discretion that it cannot control."[33]

The Kentucky convention of 1890-1891 made in the constitution some changes 
which they did not submit to the people, although required to do so by the 
legislative act.[34] The Virginia convention of 1901-1902 promulgated its 
entire constitution without a popular vote, although required by the 
convention act to submit the constitution to the people.[35] In both of 
these cases, the changes were recognized by the existing government and 
acquiesced in by the people; and the courts refused to interfere.[36] 
Similarly the Illinois convention of 1847 omitted to submit one of its 
amendments.[37]

The Alabama legislature, in its act providing for the convention of 1901, 
forbade the convention to do certain things and required that it incorporate 
certain provisions into the new constitution. The legislative restrictions 
were not {113} observed in full, and an effort was made to prevent future 
legislative interference with conventions by inserting into the constitution 
of 1901 the provision that "Nothing herein contained shall be construed as 
restricting the jurisdiction and power of the convention, when duly 
assembled in pursuance of this section, to establish such ordinances and to 
do and perform such things as to the convention may seem necessary or proper 
for the purpose of altering, revising or amending the existing 
constitution."[38]

The insertion of this provision was clearly intended as a rebuke to the 
legislature.

Dodd sums up the matter of legislative restrictions in the following words: 

     From the above discussion it may be seen that where the
     question has been raised the conventions and courts have
     in but a few cases taken the view that constitutional
     conventions are absolutely bound by restrictions sought to
     be placed upon them by legislative acts. The restrictions
     placed upon conventions have certainly not in practice
     been recognized as of binding force, except in a few
     cases, and theoretically the convention in the performance
     of its proper functions should be independent of the
     regular legislative organs of the state. ... The good sense of
     the people has ordinarily caused both legislatures and
     conventions to restrict themselves to their proper spheres.
     The general obedience of conventions to the legislative
     acts under which they were called has been due to the fact
     that legislative acts have usually required only those things
     which the convention would have done without legislative
     requirement; eases of conflict arise only when a legislature
     attempts to restrict a convention in such a manner as to
     interfere with its proper functions, and such cases have not
     been numerous. ... The possibility of conflict is avoided if
     the convention as an organ for constitutional revision is
     entirely freed from the control of the regular legislature.[39]

Both the legislature and the convention are chosen by the people, and when 
it is remembered that abler men are usually chosen to conventions than to 
legislatures, it is perhaps clear that conventions are apt to be equally as 
competent to exercise the limited powers committed to them as are 
legislatures to instruct the conventions as to what they shall or shall not 
do. The convention is less apt to abuse its power in the drafting of a {114} 
constitution, than is the legislature in placing limitations upon the 
convention, if the legislature were assumed to have such power.[40]

[5. Constitutional conventions are subject only to two restrictions.]

As a rule, then, constitutional conventions are subject only to the 
following restrictions: (1) those contained in or implied from provisions in 
the existing state and federal constitutions, and (2) in the absence of 
constitutional provisions, those derived or implied from the limited 
functions of conventions. To these restrictions Jameson and others would add 
those imposed by legislative acts under which conventions are called, but 
such restrictions are certainly not yet recognized as of absolute binding 
force, except in Pennsylvania, and should not be so recognized if the 
convention is to be an instrument of great usefulness.[41]

Even Jameson hesitated to push his doctrine of legislative supremacy to its 
extreme limits.[42] For example, he took the position that legislative 
interference with a convention is subject to the limitation, that its 
requirements must be in harmony with the principles of the convention 
system, or, rather, not inconsistent with the exercise by the convention, to 
some extent, of its essential and characteristic function.[43] 

Thus Jameson in effect promulgates the doctrine of reasonable restrictions; 
that is, he believes that the validity of legislative restrictions depends 
upon whether or not they interfere with the natural prerogatives of a 
convention. This knocks the very bottom out of the theory of legislative 
supremacy.

The right of the legislature to impose reasonable restrictions upon a 
convention is very similar to the right of the legislature to impose such 
restrictions upon the judiciary: i. e., the legislature may prescribe 
reasonable means and methods for the administration of justice, but has no 
power to deprive the courts of any of their inherent functions.

But even this is open to doubt. The power to restrict the judiciary is based 
upon the fact that court legislation is indispensable, and must emanate from 
the legislative body. But the convention is a legislative body of a higher 
order than the legislature,[44] and can legislate for itself.[45] Ratione 
cessante, cessat ipsa lex.

{115} From all the foregoing we see that the legislature probably has no 
power to restrict either an authorized or a popular convention; whenever it 
has succeeded, this has been due more to force of circumstances than to 
legal rights. Even the power to impose reasonable restrictions is doubtful.

[6. Interference with the convention during its pendency.]

So much for the question as to whether the legislature can bind a convention 
in advance. Let us next consider whether the legislature can interfere with 
the convention method during its pendency.

Dodd says:

     Judge Jameson pushed his theory to its logical conclusion
     and held that a convention, even after elected and
     assembled, might be dissolved by legislative act, or that
     the legislature might prevent the submission of its work to
     the people.[46]

On this point Jameson himself says:

     If the provisions made by a convention for submitting its
     work to the people are deemed to be inexpedient,
     whether made with or without authority of law, the proper
     law-making authority of the state may repeal or alter them
     at pleasure.[47]

But it is interesting to note that Jameson amplifies this thought by saying 
that the question has never arisen in practice, and by justifying his 
proposition only in case of treason by the convention.[48]

Hon. Joel Parker, however, went even further than Jameson, saying:

     I say it was legally competent for the legislature, at the time
     they modified that law, to have repealed it totally, so far as
     it stood a law upon the statute book, to have put an end to
     all further action under it. It might have been done legally. I
     do not say that a revolution might not have occurred in
     consequence of such a proceeding; that is another thing. I
     am aware. Sir, that such a disregard of the will of the
     people might justify a resort to force; but that is another
     thing. As a law upon the statute book, having the force
     and vigor of a law upon the statute book, and no more,
     the legislature have the same power over it which they
     have over any other law, and they might have repealed it if
     they had seen fit to do so. Why did they not do it?
     Because they ought not to; {116} because it was not
     proper, under the circumstances, that they should exercise
     that power, and they exercised their power in a way that
     they did not think proper. I maintain further, Sir, that I am
     willing to place myself upon the issue, that this Convention
     sits here today under that as a statute law and nothing
     more; and the legislature being still in session here, may
     constitutionally and legally put an end to the existence of
     this Convention as a body assembled under the
     Constitution and under law, before that session closes.
     (Sensation.)[49]

The only reported instance of an attempt by the legislature to interfere 
with a pending convention was when the free-state legislature of Kansas, 
during the bloody days just prior to its admission to the Union, attempted 
to change the date set by a convention for the submission of its 
constitution to the people. The pro-slavery men voted at one election and 
the free-state men at the other, with two different results. Congress on one 
hand disagreed with President Buchanan and the Senate on the other as to 
which result was valid, and so the constitution adopted at the date 
originally set by the convention failed of national recognition.

The New York Supreme Court, however, pooh-poohs the idea that the 
legislature has the power to nullify the work of the convention:

     If the legislature can alter the rule of representation, it can
     repeal the law altogether and thus defeat a measure which
     has been willed by a higher power.[50]

Dodd's foregoing reference to Jameson is seen by the context to be 
disapproving. And all the authorities to the effect that the legislature 
cannot amend the convention act, are a fortiori authorities for the 
proposition that it cannot repeal it.

Thus the weight of authority is that the legislature may not restrict a 
convention or nullify its work, but that the people may. This power of the 
people will be discussed in the next chapter.

[7. By inaction or withholding support.]

There is, however, one way in which the legislature can very effectively 
interfere with amendment by convention. We have already seen the dependence 
of the people upon legislative {117} means for expressing their will.[51] 
Without the assistance of either constitutional provisions or legislation, 
the people cannot pass on the question of calling a convention. Without such 
assistance, a convention cannot be elected and held. Thus in those States in 
which the constitution does not provide all the necessary details for 
holding a convention, the legislature can successfully block the popular 
will by mere inaction. We have already seen how in 1886 in New York, the 
popular vote to hold a convention was thwarted by the legislature, so that 
this convention was not held until 1894.[52]

Similarly in New Hampshire. Although the vote taken under act of July 4, 
1860, showed a majority in favor of calling a convention, the Senate and 
House of Representatives at the June session, 1861, failed to agree upon a 
bill for that purpose. Again the vote under act of August 19, 1864, showed a 
majority of the voters in favor of calling a convention; but the legislature 
of the June session, 1865, by joint resolution decided to take no action in 
the matter.[53]

The courts have recognized this power of the legislature to prevent the 
holding of a convention. Thus the Supreme Court of Pennsylvania says of the 
vote of the people in favor of calling a convention:

     It was not even a mandate, further than the moral force
     contained in an expressed desire of the people. It is very
     evident, had the matter dropped there, and the legislature
     had made no call, no convention and no terms would ever
     have existed. Not a line, nor a word, nor a syllable in this
     act expresses an intent of the people to make the call
     themselves, or on what terms it shall be made, or what
     powers should be conferred.[54]

Similarly there are many ways in which the legislature, although keeping 
within its proper functions and powers, can greatly hamper the work of a 
convention. Holcombe in his recent book has clearly pointed out the 
distinction between legal and illegal attempts at interference. He says:

     The convention should be free to disregard any special
     limitations which the legislature may seek to impose
     subsequently to the {118} vote by the people sanctioning
     the call of the convention, but it should not be free to
     disregard the general law of the state, whether expressed
     in the constitution or in the acts of the legislature. A
     convention, for example, may disregard a legislative act,
     not submitted to the people for their approval, which
     seeks to limit the duration of the deliberations of the
     convention, but it may not disregard a legislative act
     providing that appropriations for the support of the
     convention shall lapse after a limited period. In other
     words, the executive or judiciary of the state would not be
     justified in turning a convention out of doors after the
     period set by the legislature for the termination of its
     deliberations had expired, but they would be justified in
     withholding further funds. The convention might continue in
     session, but it would have to look to the people for
     indemnification for any further expenses that might be
     incurred.[55]

Thus we see that although the legislature cannot directly interfere with a 
convention, it can do so indirectly by inaction, or by withholding 
governmental support. In event the latter is attempted, however, the 
convention probably has full incidental powers to support itself, for it can 
pledge the faith of the State to pay for its legitimate expenses.[56]

[8. By failure to recognize or acquiesce and ratify.]

There is one further way in which the legislature can interfere with a 
convention. It can determine the validity or invalidity of the new 
constitution, if that be a political question. Thus Braxton says that any 
act of the existing government in recognition of irregular constitutional 
changes should be regarded as acquiescence and ratification by the 
people.[57]

And we have already seen that when the Federal executive interferes to 
recognize or suppress a State government, the State executive participates 
to some extent in this action by requesting it.[58] Similarly the State 
legislature may participate; in fact, the Federal Constitution provides that 
intervention to restore order shall be done only at the request of the 
legislature of the State if that legislature be in session.[59] 

Thus, from all the foregoing discussion, we see that, although the 
legislature apparently has no power to restrict a convention {119} in 
advance, or to nullify its results by abolishing it or by preventing the 
submission of its work to the people, yet the legislature does have power in 
many cases to prevent the holding of a convention. And in event of a dispute 
as to the validity of a new constitution, the legislature may possibly be in 
a position to determine this question by the political act of either 
recognizing or refusing to recognize the change, or by calling on the 
Federal government for support or suppression.

The legal standing of a convention may also depend upon recognition or 
nonrecognition by the Federal legislature.[60] In the case of a territorial 
convention, this power is absolute.[61]

On legislative control in general see also the first three pages of the next 
chapter.

------

1. Dodd, p. 73.

2. Dodd, pp. 77-79.

3. Chapter XI, infra.

4. Chapters XIV and XVI, infra.

5. Dodd, p. 55.

6. Dodd, pp. 55-56.

7. Dodd, p. 74.

8. Carton v. Secy. of State (1908), 151 Mich. 337, 340-341. 

9. Dodd, p. 74.

10. Dodd, p. 79.

11. Report of Judiciary Committee, headed by Elihu Root, and unanimously 
adopted by the convention. Rev. Record, N. Y. Conv. 1894, Vol. I, p. 250.

12. Dodd, p. 81.

13. Dodd, p. 81.

14. Jameson, p. 284.

15. Dodd, p. 81, n. 15. The matter of oaths will be more fully discussed in 
a later chapter. See pp. 187-190, infra.

16. Wells v. Bain (1872), 75 Pa. 39.

17. Dodd, pp. 83-84 and n. 21.

18. Wood's Appeal (1874), 75 Pa. 59, 71-72.

19. I "Cyc. American Government," 430.

20. Loomis v. Jackson (1873), 6 W. Va. 613, 708.

21. Dodd, p. 87, n. 26. 

22. Dodd, p. 76. Cf. Braxton, VII "Va. Law Reg.," 100-106.

23. Jameson, pp. 369-375. 

24. Jameson, pp. 367-368. 

25. Wood's Appeal (1874), 75 Pa. 59.

26. Deb. Pa. Conv. 1872, Vol. VIII, pp. 54, 57, 63.

27. Jameson, p. 284.

28. Jameson, pp. 135-136. 

29. Dodd, p. 82.

30. Dodd, p. 82.

31. Dodd, pp. 84-85.

32. Carton v. Secy. of State (1908), 151 Mich. 337, 340-343. 

33. Carton v. Secy. of State (1908), 151 Mich. 337.

34. Dodd, pp. 85-86.

35. Dodd, p. 86.

36. Miller v. Johnson (1892), 92 Ky. 589; Taylor v. Commonwealth (1903), 101 
Va. 829.

37. Dodd, p. 86, n. 23. 

38. Dodd, p. 82.

39. Dodd, pp. 91-92.

40. Dodd, p. 80, n. 13. 

41. Dodd, p. 92.

42. Dodd, p. 73.

43. Jameson, p. 364.

44. See [Ch. VII 1] p. 90, supra.

45. See [Ch. XI 11] pp. 146, 147, infra.

46. Dodd, p. 79.

47. Jameson, p. 421.

48. Jameson, p. 421, n. 2.

49. Deb. Mass. Conv. 1853, Vol. I, p. 155.

50. Journal, 69th N. Y. Assembly, p. 920.

51. See [Ch. V 13] pp. 76-77, supra. 

52. See [Ch. V 13] p. 76, supra.

53. Colby, 1912 Manual of N. H. Const., pp. 209-211.

54. Wells v. Bain (1872), 75 Pa. 39, 50-51.

55. Holcombe, State Government, pp. 127-128.

56. See [Ch. XIV 5, 7] pp. 173, 177, infra.

57. VII "Va. Law Reg.," 79, 97.

58. See [Ch. VII 4] p. 95, supra.

59. U. S. Const., Art. IV,  4.

60. Cf. Pac. States Tel. Co. v. Oregon (1912), 223 U. S. 118. 

61. U. S. Const., Art. IV,  3.

------------

                     CHAPTER X

                POPULAR CONTROL

[1. The electorate can restrict the convention in advance.]

{120} CAN the electorate control the convention? This question is 
differentiable and has been differentiated from that of legislative control, 
discussed in the last chapter. Thus Dodd says:

     Mr. Braxton takes the view that a convention is bound by
     a legislative act which has been approved by the people
     upon a popular vote, but not by other legislative acts.[1]

Braxton himself says:

     The Legislature has no authority to enlarge or curtail the
     powers of the constitutional convention, which derives its
     authority directly from the people.[2]

If it be true, as the writer endeavored to show in his first article above 
referred to, that the people alone have the power of enacting or changing 
the Fundamental Law; that from them alone does the Convention derive its 
powers in that regard; and that they can confer just so much, or so little, 
of those powers upon the Convention as they please -- then it necessarily 
follows that the Legislature (which is not "the People") cannot prescribe 
the Convention's powers.

If this conclusion be sound, it follows that, in ascertaining the powers of 
the Convention, we cannot look to the Act of February, 1901, passed after 
the Convention had been ordered by the People; and that the limitations 
imposed by that Act, which was never submitted to, nor ratified by the 
People, are of no binding force.[3]

This draws a clear distinction between the lack of power of the legislature 
to control the convention, and the power of the people to control it. This 
distinction is the real answer to the question of whether the convention is 
bound by the convention {121} act. If the convention act be the creature of 
the people, the convention is bound.

Most of the cases usually cited in support of legislative supremacy will be 
found on analysis merely to sustain the doctrine of popular supremacy, i. e. 
the limitation of the convention to the powers expressly or impliedly 
delegated to it by the people. Thus the Pennsylvania case, which is usually 
cited as the chief support of the doctrine of legislative supremacy is seen 
in the light of a statement later made by the same court to hold merely that 
the people can restrict the convention by the terms of the convention 
act.[4] Most of the cases cited in favor of legislative supremacy are open 
to the same construction. Similarly any case which may possibly be cited in 
denial of the right of the people to limit the convention may be found on 
analysis to depend upon a misconstruction of the situation, the court 
assuming that the question of legislative supremacy was involved and hence 
intending to deny merely the existence of any legislative control.

[2. Only the electorate can restrict the convention in advance.]

The foregoing distinction, namely, that although the legislature may not 
restrict the convention, the people may, has been variously expressed as 
follows:

     It is true that the legislature cannot limit the Convention;
     but if the people elect them for the purpose of doing a
     specific act or duty pointed out by the act of the
     legislature, the act would define their powers. For the
     people elect in reference to that and nothing else.[5] 

     Proceeding from the accepted rule that whatever powers
     the convention may possess must be derived from the
     people, he argues that the terms of the vote actually
     adopted by the people are the evidence of the extent of
     these powers, and that any restrictions which the
     legislature may seek to impose without the express
     approval of the people are unauthorized and hence invalid.
     The legislature may propose to the people whatever
     limitations it pleases, but these limitations must be
     accepted by the people in order to take effect upon the
     convention.[6]

Where, then, it may be asked, must we look for the real limitations of the 
Convention's powers, if not to the Act of February, {122} 1901? The answer 
is obvious: To the Act of March 5, 1900, under which the Convention was 
ordered to be called. But, it will be objected, this is also an Act of the 
Legislature, and can therefore have no more force than the Act of February, 
1901, which, being subsequent, is really controlling. It will be seen, 
however, that the Act of March, 1900, so far as the Legislature was 
concerned, settled nothing; it was a mere proposition, which acquired 
binding force only by its acceptance by the People, who alone may be said to 
have enacted it.[7]

So much for the distinction between the results of legislative and popular 
enactment. The above quotations establish the principle that the people may 
control their convention in advance. The following quotations also support 
this view.

     The people, therefore, in voting for the holding of a
     convention, not only limited the powers of the convention
     to the amendment and revision, of the constitution of
     1875, but required that its action be submitted back to
     them.[8]

     This enabling act, which was subsequently adopted by the
     people, prohibited, etc.[9]

     The people, when they voted for the holding of the
     Convention, voted for it to be held "in accordance with
     Act No. 52 of 1896," thus instructing their delegates,
     elected at the same time, to observe the limitations placed
     upon the power of the Convention by the act of the
     Legislature.[10]

     Considering that the constitution has vested no authority in
     the legislature, in its ordinary action, to provide by law for
     submitting to the people the expediency of calling a
     convention of delegates, for the purpose of revising or
     altering the constitution of the commonwealth, it is difficult
     to give an opinion upon the question, what would be the
     power of such a convention, if called. If, however, the
     people should, by the terms of their vote, decide to call a
     convention of delegates to consider the expediency of
     altering the constitution in some particular part thereof, we
     are of opinion that such delegates would derive their whole
     authority and commission from such vote; and, upon the
     general principles governing the delegation of power and
     authority, they would {123} have no right, under such
     vote, to act upon and propose amendments in other parts
     of the constitution not so specified.[11]

     Act No. 1 of the Extra Session of 1913 calling for a
     convention with full power and authority to frame and
     adopt, without submission to the people, a new
     Constitution of the state, subject, however, to a number of
     restrictions enumerated in said act, having been adopted
     by the people, constituted a mandate to the convention of
     1913.[12]

The author knows of no judicial authority in opposition to the doctrine that 
the people can restrict the convention in advance.

[3. To have a convention the people may have to adopt restrictions 
suggested by legislature.]

A recent article in the Harvard Law Review, however, doubts the 
practicability of the popular power to restrict the convention by adopting a 
convention act framed by the legislature.

     Where the limitations are included in the popular call for a
     convention, they should be binding, probably. If the
     people initiated the call, this would be clear. But where, as
     is more usual, the legislature frames the call, this may in
     substance give the legislature power to restrict. The only
     way in which the people could avoid such a restriction
     would be to reject all proposals containing it, and elect a
     legislature which would submit a proposal without it; a
     clumsy and inadequate remedy.[13]

In other words, when the Legislature frames the convention act, the people 
must either adopt the restrictions suggested by the legislature or else give 
up having any convention at all.

Thus it may well be argued that, actually if not theoretically, the power of 
restriction is in the hands of the legislature.

Similarly when, under the Pennsylvania theory, the people adopt the 
convention act by merely proceeding under it to the election of delegates. 
The Pennsylvania court points out that, even in such a case, it is the 
people and not the legislators who restrict the convention.

     The people have the same right to limit the powers of their
     delegates that they have to bound the power of their
     representatives. Each are representatives, but only in a
     different sphere. It is simply evasive to affirm that the
     legislature cannot limit the right {124} of the people to
     alter or reform their government. Certainly it cannot. The
     question is not upon the power of the legislature to restrain
     the people, but upon the right of the people, by the
     instrumentality of the law, to limit their delegates. ... 

     Law is the highest form of a people's will in a state of
     peaceful government. When a people act through a law
     the act is theirs, and the fact that they used the legislature
     as their instrument to confer their powers makes them the
     superiors and not the legislature.[14]

And the South Carolina Court agrees, in the following language:

     It is true, the legislature can not limit the convention; but if
     the people elect them for the purpose of doing a specific
     act or duty pointed out by the act of the legislature, the act
     would define their powers. For the people elect in
     reference to that and nothing else.[15]

Yet this court points out the valuelessness of this power.

If, by their agents, (two thirds of the members of both branches of the 
Legislature) the people are not allowed to impose restrictions on their 
convention, they cannot do so at all. It will, most evidently, be 
practically impossible for them to do so by their votes at elections.[16] 

[4. The electorate can, and the legislature cannot, restrict a convention 
subsequently.]

Nevertheless, for the purpose of preventing subsequent legislative tampering 
with a convention act adopted by the voters, or under which they have acted, 
it is well worth while to bear in mind the distinction that the people can, 
and the legislature cannot, restrict a convention.

Actual instances of successful restriction of the convention by the people 
are as follows. We have already seen that most of the instances of apparent 
legislative restriction, cited in the preceding chapter, are really cases of 
popular restriction. Such, for example, were the restrictions placed on the 
Louisiana convention of 1898 and the North Carolina convention of 1835, and 
recognized as binding by those conventions. The Louisiana Supreme Court in 
recognizing the binding force of these restrictions, expressly laid it to 
the popular vote.[17]

{125} As already suggested, instances in which conventions have overridden 
popular restrictions may be explained on the theory that the convention 
supposed them to be merely legislative restrictions; for the doctrine of 
convention sovereignty, to be discussed in the next chapter, never went so 
far as to deny the supremacy of the people over their agents, the 
convention. Although conventions have assumed that the people have delegated 
to them enormous and extraordinary implied powers, no convention has ever 
presumed to assert squarely that the people might not have expressly 
withheld any of these powers. 

May the people amend the convention act? If the legislature submits the 
amendment to the people, the legislature becomes a party to the amendment 
and hence assents to the popular action. Thus, if the original act was the 
product of the legislature alone, the legislature assents to delegating to 
the people the right to amend it, even if we were to assume that the people 
would not have this right inherently, apart from the legislative assent.

If the legislature withholds this assent, the people may amend the act by 
popular initiative in such States as possess that method of legislation; for 
even if the convention act is the creature of the legislature alone, it is 
subject to amendment by the initiative in the same manner as any other 
legislative act.

If the original act was the act of the people, they certainly have the right 
to change or recall their original action. All that ever stands in the way 
of change or recall of legislative action by the body which enacted it is 
the accrual of vested rights under the original enactment, and it is 
impossible to conceive that anyone, except the people as a whole, could 
acquire a vested right in a movement to initiate a change of government.

The power to amend, of course, carries with it the power to repeal; hence 
the people may at any time abolish a constitutional convention which they 
have called into being. Of course, a simpler way to nullify the whole action 
of the convention, would be by refusing to ratify the constitution when the 
convention submits it. This is practically a universal right, for 
constitutions are now practically universally submitted for popular 
approval.

[5. The electorate can instruct their delegates.]

There is one more way in which the electorate can control the {126) 
convention, and that is by the means of instructions to the delegates. The 
existence of this right depends on what fundamental theory of government we 
assume. There are two contending theories. One, which has already been 
stated in the chapter on fundamental principles,[18] and which has the 
support of express authority in many of our Bills of Rights, is to the 
effect that the people are supreme and would directly govern themselves if 
it were convenient and expedient. Direct government not being convenient and 
expedient, the people send to their various legislative bodies 
representatives, whose duty it is to represent and give effect to the point 
of view of their constituents. 

The opposing, un-American theory is that the people are unfit to rule; that, 
at most, they are just barely able to elect a few supermen to govern them; 
and that these supermen, to whom are delegated the powers of government, owe 
no duty to consult the wishes of their incompetent constituents.

In other words, either we live under a representative form of government, or 
we live under an elective aristocracy.

It is strange that Jameson, after laying down in an early part of his book 
the principle that representatives must be so selected as to make it 
reasonably certain that the will of the people will be executed,[19] should 
in a later part of his book scornfully deny the right of the people to 
instruct their delegates.[20]

The binding force of instructions is a question of morals rather than of 
law. On many occasions members of conventions have had such a high moral 
sense that, when they found their instructions conflicting with their 
consciences, they have resigned from the convention rather than violate 
either. Such was the case of Mr. Vance in the Ohio convention of 1850, as 
related by Jameson,[21] and of Messrs. Worthington, Carroll, and Chase in 
the Maryland convention of 1776, as related by Dodd.[22]

Instructions may be either formal or informal. Of course, formal 
instructions are preferable, for they give the delegate an official 
expression of the opinion of his constituents. But as we have already seen, 
the people cannot speak officially save through their electors at a 
regularly constituted election, and such an election requires legislative 
assistance; so in States {127} which do not already have some machinery for 
obtaining a popular expression of opinion,[23] the legislature can by mere 
inaction effectively prevent the official instruction of delegates, if the 
legislature fears that the expressed sentiments of the people will turn out 
to be contrary to the sentiments which the legislature would desire the 
convention to hold. 

Informal instruction may be had by means of mass meetings, petitions, etc.; 
but, as we have already seen, the question of instructions to delegates is 
largely a moral one. A delegate who desires to represent his constituents 
can find many ways of sounding them on their views; perhaps the simplest way 
being to declare his own platform in advance of his election, and let the 
people elect or reject him on that basis, "to the end that it may be a 
government of laws and not of men."[24]

------

1. Dodd, p 76, n 7.

2. VII "Va Law Reg," 79, 96-97.

3. VII "Va Law Reg," 100, 101-102.

4. Wood's Appeal (1874), 75 Pa 59, 71-72.

5. McCready v Hunt (1834), 2 Hill Law (S C) 1, 222-223.

6. Holcombe, State Government, p 127.

7. Braxton, VII "Va. Law Reg.," 100, 102.

8. Ex parte Birmingham Ry. (1905), 145 Ala. 514, 529.

9. La. Ry. v. Madere (1909), 124 La. 635, 641.

10. State v. Capdevielle (1901), 104 La. 561, 569.

11. Opinion of Justices (1833), 6 Cush. 573, 574-575.

12. State v. Am. Sugar Co. (1915), 137 La. 407, 415.

13. XXIX "Harv. Law Rev.," 530, n.

14. Wood's Appeal (1874), 75 Pa 59, 71-72.

15. McCready v. Hunt (1834), 2 Hill Law (S. C.) 1, 222.

16. McCready v. Bunt (1834), 2 Hill Law (S. C.) 1, 273.

17. La. Ry. v. Madere (1909), 124 La. 635, 641.

18. See [Ch. II 1] pp. 11-12, supra. 

19. Jameson, p. 1.

20. Jameson, pp. 353-354. 

21. Jameson, p. 353.

22. Dodd, p. 12.

23. For example, Mass. St. 1913, c. 819.

24. Mass. Decl. of Rts., Art. XXX.

------------

                     CHAPTER XI

       EXTRAORDINARY POWERS CLAIMED

[1. Conventions may have absolute sovereignty in times of war or 
revolution.]

{128} MANY conventions have claimed the right to exercise powers far beyond 
the mere framing of constitutions or constitutional amendments. It was to 
combat these claims of convention sovereignty that Jameson wrote his book in 
1867 and that Braxton published his Virginia Law Register article in 
1901.[1] 

Jameson met the claim of convention sovereignty with the equally untenable 
claim of legislative sovereignty. Braxton met it with the much more tenable 
theory that the convention, like any other governmental body, possessed only 
such powers as were expressly or impliedly delegated to it; but even he was 
guided by a zeal much like Jameson's[2] and admits that he has proceeded on 
theory rather than on law and precedent.[3]

The conventions of the Revolutionary War were governed by no law but the law 
of extreme necessity. In order to maintain order and carry the war to a 
successful completion, it was necessary that they should exercise 
governmental power as well as merely frame constitutions. A conflict between 
legislature and convention would have been most unfortunate and disastrous. 
Thus in some States the legislatures framed the constitutions, and in others 
the conventions did the legislating, so that it is hard to classify these 
bodies as either conventions or legislatures.[4] We have seen that the 
independent constitutional convention originated only in those States and at 
such times as were free from military invasion and danger from an aggressive 
Tory element.

The Pennsylvania Supreme Court says, with respect to the doctrine of 
convention sovereignty, 

     Such a doctrine, however suited to revolutionary times,
     when new governments must be formed, as best the
     people can, is wholly {129} unfitted when applied to a
     state of peace and to an existing government, instituted by
     the people themselves and guarded by a well matured bill
     of rights.[5]

See also the following:

     The authorities generally except ordinances, and even
     Constitutions, enacted in time of war, or upon the heels
     thereof, from the more rigid rule as applicable to those
     adopted in time of peace and tranquility.[6]

No argument for the implied power of absolute sovereignty in a convention 
can be drawn from revolutionary times, when necessity begets a new 
government. Governments thus accepted and ratified by silent submission 
afford no precedents for the power of a convention in a time of profound 
tranquility, and for a people living under self-established, safe 
institutions.[7]

When the first American conventions were held, the authority of England had 
been thrown off and no definite form of government established in its place. 
Under such circumstances, those Conventions were doubtless justified in 
assuming and exercising the most absolute sovereignty, not only in providing 
a new Constitution and political system, but in exercising, themselves, 
dictatorial powers, until they were ready to launch their new governments. 
But how can a convention, elected and assembled according to law, with all 
the functions of existing government in full operation, excuse the attempt 
to assume the unlimited powers of a Revolutionary convention?[8] 

[2. Secession, reconstruction and territorial conventions are poor 
precedents.]

Neither are the secession and reconstruction conventions of the Civil War 
period very valuable as precedents, owing to the extreme emergency of the 
situation. Dodd says:

     It is doubtful whether the Missouri and secession
     conventions may properly be called constitutional
     conventions in the sense in which that term is used here;
     they were called to consider the relations of their states to
     the federal government, and their actions in changing
     constitutions were but incidental to their primary object,
     which was not the framing or revision of constitutions.[9]

The conventions held in the southern states in 1865-66, under proclamation 
of President Johnson, and those held in 1867-68, {130} under congressional 
reconstruction acts, were vested with powers greater than ordinary 
constitutional conventions in states with organized governments, inasmuch as 
they were authorized not only to frame constitutions but also to take steps 
necessary for the erection of state governments.[10]

Attention should also be called to the fact that conventions called in 
territories under congressional enabling acts ordinarily possess wider 
powers than conventions called in organized states, inasmuch as they have 
not only to frame a constitution but also to provide for the organization of 
state governments.[11]

The Cyclopedia of American Government sums this up as follows:

     Actually, conventions assembled during the early
     revolutionary period, and in Missouri and the southern
     states during the Civil War, exercised wider powers than
     those just referred to as proper powers of constitutional
     conventions. But it has already been suggested that the
     conventions of the early revolutionary period were
     primarily provisional governments and only incidentally
     constitutional conventions. In Missouri, from 1861 to
     1863, and in the southern states during the same period
     conditions were exceptional and to a certain extent
     justified conventions in acting outside of what was their
     more proper field. The reconstruction conventions in the
     southern states, in 1865-66, and 1867-68, although called
     not only to frame constitutions but also to reestablish state
     governments, did, actually, in a number of cases, go
     outside of their proper sphere and act as if they were
     bodies possessing all the capacities of the regular
     legislatures.[12]

Yet even reconstruction conventions have been held to be subject to the same 
inherent restrictions as ordinary conventions. This is true of the attitude 
of the Florida Supreme Court toward the convention of 1865 in that State. 
The court held invalid a clause in the constitution adopted by that 
convention because it thought the clause not within the convention's powers. 
The convention had been called "for the purpose of altering or amending the 
constitution ... and with authority to exercise within the limits of said 
state all the powers necessary and proper to enable such loyal people of the 
state of Florida {131} to restore said state to its constitutional relations 
to the federal government."[13] The court said:

     The functions of the convention were confined to the
     objects for which it was elected, the presentation of an
     amended constitution, having reference to the declaration
     of certain general principles and rules of government, and
     providing for the organization thereof by the election of the
     necessary officers.[14]

Thus, if one of these conventions is to be cited as a precedent in 
opposition to convention sovereignty, the rest of them might just as well be 
cited in support of this doctrine; the objection being merely to the weight, 
rather than to the admissibility of the evidence.

[3. Convention sovereignty according to members.]

The doctrine of convention sovereignty has been often propounded, 
particularly by members of conventions. The following statements of this 
doctrine may prove instructive:

In the New York convention of 1821 a Mr. Livingstone (it does not appear 
whether Peter R. or Alexander) said:

     We have been told by the honorable gentleman from
     Albany (Mr. Van Vechten) that we were not sent here to
     deprive any portion of the community of their vested
     rights. Sir, the people are here themselves. They are
     present by their delegates. No restriction limits our
     proceedings. What are these vested rights? Sir, we are
     standing upon the foundations of society. The elements of
     government are scattered around us. All rights are buried;
     and from the shoots that spring from their grave we are to
     weave a bower that shall overshadow and protect our
     liberties.[15]

The Hon. George M. Dallas, in a letter published in "The Pennsylvanian" of 
September 5, 1836, said:

     A Convention is the provided machinery of peaceful
     revolution. It is the civilized substitute for intestine war. ...
     When ours shall assemble, it will possess, within the
     territory of Pennsylvania, every attribute of absolute
     sovereignty, except such as may have been yielded and
     are embodied in the Constitution of the United States.
     What may it not do? It may reorganize our entire system
     of social existence, terminating and proscribing what is
     deemed injurious, and establishing what is preferred. It
     might restore the institution of slavery among us; it might
     make our penal code as {132} bloody as that of Draco; it
     might withdraw the charters of the cities; it might
     supersede a standing judiciary by a scheme of occasional
     arbitration and umpirage; it might prohibit particular
     professions or trades; it might permanently suspend the
     privilege of the writ of habeas corpus, and take from us ...
     the trial by jury. These are fearful matters, of which
     intelligent and virtuous freemen can never be guilty, and I
     mention them merely as illustrations of the inherent and
     almost boundless power of a Convention.[16]

So, in the Illinois convention of 1847, Onslow Peters said:

     He had and would continue to vote against any and every
     proposition which would recognize any restriction of the
     powers of this Convention. We are... the sovereignty of
     the State. We are what the people of the State would be,
     if they were congregated here in one mass meeting. We
     are what Louis XIV said he was, 'We are the State.' We
     can trample the Constitution under our feet as waste
     paper, and no one can call us to account save the
     people.[17] 

The Committee on Printing of the Illinois convention of 1862 said, in one of 
their reports:

     When the people, therefore, have elected delegates, ...
     and they have assembled and organized, then a peaceable
     revolution of the State government, so far as the same may
     be effected by amendments of the Constitution, has been
     entered upon, limited only by the Federal Constitution. All
     power incident to the great object of the Convention
     belongs to it. It is a virtual assemblage of the people of the
     State, sovereign within its boundaries, as to all matters
     connected with the happiness, prosperity and freedom of
     the citizens, and supreme in the exercise of all power
     necessary to the establishment of a free constitutional
     government, except as restrained by the Constitution of
     the United States.[18]

In a speech in the same body, General Singleton said:

     Sir, that this Convention of the people is sovereign,
     possessed of sovereign power, is as true as any
     proposition can be. If the State is sovereign the
     Convention is sovereign. If this Convention here does not
     represent the power of the people, where can you find its
     representative? If sovereign power does not reside in this
     body, there is no such thing as sovereignty.[19]

The Pennsylvania convention of 1873 replied to the decision of the Supreme 
Court in Wells v. Bain, which appeared to the {133} convention to be an 
assertion of legislative supremacy, by passing a resolution in which they 
declared that the convention, subject to the Constitution of the United 
States, is answerable only to the people from whom it derives its power.[20]

It may be because of this resolution that the Supreme Court of Pennsylvania 
in the later case of Wood's Appeal shifted its ground from an assertion of 
legislative supremacy to an assertion of popular supremacy.[21] 

Benjamin F. Butler asserted in the Massachusetts convention of 1853:

     We are told that we assume the power, and that we are
     merely the agents and attorneys, of the people. Sir, we are
     the delegates of the people, chosen to act in their stead.
     We have the same power and the same right, within the
     scope of the business assigned to us, that they would have,
     were they all convened in this hall.[22]

Dodd points out that the doctrine of convention sovereignty has attained the 
dignity of being embodied in dicta by the highest courts of several 
States.[23] Thus the Supreme Court of Texas has said:

     So in case of a peaceful change of government by the
     people assembled in convention for the purpose of forming
     a constitution. ... It would be in the power of such
     convention to take away or destroy individual rights, but
     such an intention would never be presumed.[24]

So also the Supreme Court of Mississippi:

     We have spoken of the constitutional convention as a
     sovereign body, and that characterization perfectly
     defines the correct view, in our opinion, of the real nature
     of that august assembly. It is the highest legislative body
     known to freemen in a representative government. It is
     supreme in its sphere. It wields the powers of sovereignty,
     specially delegated to it for the purpose and occasion by
     the whole electoral body, for the good of the whole
     commonwealth. The sole limitation upon its power is, that
     no change in the form of government shall be done or
     attempted. The spirit of {134} republicanism must breathe
     through every part of the frame-work, but the particular
     fashioning of the parts of this frame-work is confined to
     the wisdom, the faithfulness and the patriotism of the great
     convocation representing the people in their sovereignty.[25]

And the Supreme Court of Michigan:

     The convention is an independent and sovereign body.[26]

Jameson sums up the history of this doctrine as follows:

     The records of our conventions reveal no trace of it earlier
     than the New York convention of 1821, from which an
     extract has been given. In 1829 it again made its
     appearance in the Virginia convention but obscurely and
     hesitatingly. ... The next appearance was in the letter of
     Mr. Dallas, from which an extract has been given above,
     and in the convention held in Pennsylvania in the following
     year, -- the latter the fruit of the seed sown by that
     gentleman. ... Ten years afterwards, this theory was
     enunciated, in the terms we have seen above, by Mr.
     Peters, in the Illinois Convention of 1847. In 1849, it
     made its appearance in the Kentucky Convention, and
     four years later, in that of Massachusetts, under the
     patronage of Messrs. Hallett and Butler. In 1860-1861, it
     produced its legitimate fruits in the so-called secession of
     the eleven slaveholding States from the Union, a
     movement matured and consummated by its aid; and
     finally, in 1862, its echo was heard in the free State of
     Illinois, some members of whose Convention unwisely
     seized upon a time of national peril to endorse a
     disorganizing dogma, in the general adoption of which at
     the South that peril had originated.[27] 

Jameson also lays the spontaneous conventions of Maryland in 1837, and Rhode 
Island in 1841 to this dogma, as he calls it.[28] It is probable, however, 
that he is unduly exercised. Dodd says in this connection: 

     Judge Jameson's work may be said to have been written
     to disprove the theory that a convention has sovereign
     power, and under these conditions the theory assumed in
     his mind a much more important position than it ever
     attained in fact. The theory of conventional sovereignty
     was advanced by speakers before several conventions,
     beginning with that of New York in 1821, but no {135}
     convention seems ever to have attempted to act upon the
     theory or even to have endorsed it. The report made to
     the Illinois convention of 1862 and the resolutions adopted
     by the Pennsylvania convention of 1873 went little if any
     further than to assert the convention's independence of the
     legislative and other organs of the existing state
     government.[29]

The full quotation from Gen. Butler, even as given by Jameson shows that 
Butler was not advocating convention sovereignty, for Butler said, " In my 
judgment, we have every incidental power necessary to do the business of the 
people."[30] Incidental and emergency powers, and independence of the 
legislature are all that has ever been seriously claimed in the line of 
convention sovereignty; but Braxton and Jameson construct men of straw out 
of the oratorical utterances of convention members, and then proceed 
valiantly to knock these straw-men down.

[4. Arguments against convention sovereignty.]

Nevertheless, lest some one might seriously raise the claim of convention 
sovereignty, beyond mere incidental powers and freedom from legislative 
control, it may be well to select the following line of argument in 
opposition: 

     We are told they were elected by the people. This,
     however, is not enough. For what purpose were they
     elected by the people? To represent their sovereignty. But
     was it to represent their sovereignty to every purpose, or
     was it for some specific purpose? To this no other answer
     can be given than the act of the legislature under which the
     convention was assembled. Certainly, the people may, if
     they will, elect delegates for a particular purpose, without
     conferring on them all their authority. To deny this, would
     be to detract from the power of the people, and to impose
     on them a most inconvenient and dangerous disability.[31]

     No doubt there might be a convention unlimited in its
     powers, and representing all the authority of the people.
     But when they are about to confer this high authority,
     certainly they ought to be aware that they are doing so.[32] 

     If, by a mere determination of the people to call a
     convention, whether it be by a vote or otherwise, the
     entire sovereignty of the people passes ipso facto into a
     body of deputies or attorneys, so {136} that these
     deputies can without ratification, alter a government and
     abolish its bill of rights at pleasure, and impose at will a
     new government upon the people without restraint upon
     the governing power, no true liberty remains. Then the
     servants sit above their masters by the merest imputation,
     and a people's welfare must always rest upon the transient
     circumstances of the hour, which produce the convention
     and the accidental character of the majority which controls
     it.[33] 

     The present inquiry is not how much power may be
     conferred by law, but what power was conferred on this
     convention?[34]

     In the appointment of delegates to that convention, the
     people acted upon the faith that they were to be charged
     with those duties and no others, and the assumption of any
     other powers than those necessary to the attainment of the
     objects in view, would have been a violation of the trust
     reposed in them, and an usurpation of the rights of the
     people.[35]

     It will not do to assert that the whole original power of the
     people was conferred by the election. ... The law was the
     warrant of their election, and expressed the very terms
     chosen and adopted by the people, under which they
     delegated their power to these agents. The delegates
     possess no inherent power, and when convened by the
     law at the time and place fixed in it, sit and act under it, as
     their letter of attorney from the people themselves, and can
     know and discover the will of the people only so far as
     they can discern it through this the only warrant they have
     ever received to act for the people. If they claim through
     any other source, they must be able to point to it.[36]

     Can it be supposed that the good people of this State
     thought that in the appointment of delegates to that
     convention, they were conferring on them the authority to
     transfer their allegiance to the grand Turk, or the Emperor
     of Russia, or to indulge in any other caprice they might
     think proper?[37]

     Did the people by this act, without an expressed intent,
     and by mere inference, intend to abdicate all their own
     power, their rights, their interests, and their duty to each
     other in favor of a body of mere agents, and to confer
     upon them, by a blank warrant, the absolute power to
     dictate their institutions, and to determine {137} finally
     upon all their most cherished interests? If the argument be
     admitted for an instant that because nothing was said in
     this law on the subject of delegation, therefore, greater
     powers were conferred than were granted in the
     subsequent Act of 1872, then all power belonging to the
     people passed, and they did grant by it the enormous
     power stated. Then, by a covert intent, hidden in the folds
     of this act, the people delegated power to repeal all laws,
     abolish all institutions, and drive from place the legislature,
     the governor, the judges, and every officer of the
     Commonwealth, without submitting the work of the
     delegates to the ratification of the people.[38]

     In considering this question of delegated power some are
     apt to forget that the people are already under a
     constitution and an existing frame of government instituted
     by themselves, which stand as barriers to the exercise of
     the original powers of the people, unless in an authorized
     form.[39]

[5. Existing government continues until new constitution adopted.]

The regular Government continues in full force, de jure as well as de facto, 
uninterrupted and unaffected, even in theory, by the existing Constitutional 
Convention, until a new Constitution is actually and legally adopted.

     A Constitutional Convention is not the People, with
     sovereign and unlimited powers, but a mere Committee of
     the People, with only such limited powers as the People
     may expressly bestow upon them, the granting of which
     powers will be strictly construed against the Convention.[40]

     Three and a half or four millions of people cannot
     assemble themselves together in their primary capacity --
     they can act only through constituted agencies. No one is
     entitled to represent them unless he can show their warrant
     -- how and when he was constituted their agent.[41]

     Upon the common-place principle that the authority of the
     agent is limited by the powers conferred on him by the
     principal, the powers of the delegates were limited to the
     objects designated by the act under which the convention
     was called.[42]

     Beyond a general purpose of revising the constitution, the
     authority of the delegates is not set forth. They are not
     endowed with {138} the entire sovereignty of the state.
     Their agency, like every branch of the public service, is
     marked on all sides by fixed bounds.[43]

     Let us examine in detail the few instances in which
     conventions have assumed to interfere with the other
     branches of the government. This interference is, of
     course, illegal if we hold to the theory that the convention
     is a fourth branch of the government, and that the four
     branches of government are shut up in separate
     compartments.[44]

[6. Interference by conventions with the executive department.] 

First let us consider attempts by conventions to interfere with the 
executive department. Jameson says:

     That body cannot remove from office, or instruct those
     holding office, by any direct proceeding, as by resolution
     or vote applying to particular cases. It is its business to
     frame a written Constitution; at most, to enact one. It has
     no power, under such a commission, to discharge the
     public servants, except so far as their discharge might
     result from the performance of its acknowledged duty.[45]

Jameson divides convention interference with the executive into three 
questions as follows:

     1. Can a Convention appoint officers to fill vacancies in
     the various governmental departments?

     2. Can it eject from office persons holding positions in the
     government by regular election or appointment?

     3. Can it direct such officers in the discharge of their
     duties?[46]

The Missouri convention of 1865, called by the legislature, but elected by 
the people, prepared various amendments which were submitted to the people 
and adopted; and in addition it adopted and put into operation, without 
submission to the people, an ordinance abolishing slavery in the State, and 
an ordinance vacating certain judicial and executive offices and authorizing 
the Governor to fill the vacancies. The convention had only been authorized 
to amend the constitution.[47] It is clear that the convention itself did 
not regard these acts as an amendment of the constitution, for it submitted 
all the true amendments to the people.

The convention of 1861 in the same State had removed {139} various executive 
and legislative officers and had repealed certain acts of the legislature. 
It also had passed considerable legislation for the government of the 
State.[48] Jameson comments as follows:

     All these acts were clearly usurpations of authority
     properly belonging to other departments of the State
     government. That that government was in treasonable
     hands might justify the Convention, on moral grounds, in
     seizing, by revolutionary force, powers not its own, but
     could not alter the legal character of its acts. In 1865, the
     same necessity perhaps existed, and, if so, mighty justify
     acts clearly of the same general character, legally
     considered, as those of its predecessor of 1861. But, as I
     have said, upon this question I pass no opinion. If the acts
     characterized as revolutionary were strictly necessary, it
     was not the first time in history that a party, having morally
     and politically the better case, had legally the worst of the
     argument.[49]

These Missouri cases are the only examples of attempted usurpation of 
executive powers cited by Jameson, up to 1887. No further examples are cited 
by Braxton up to 1901, or by Dodd up to 1910, and the author knows of none 
since then. Like the conventions of the Revolutionary War, these conventions 
possessed the justification of extreme necessity and hence are really not 
precedents.

The conflicts with the judiciary, except as aforesaid, have all been cases 
of interference by, rather than interference with, the courts. 

[7. Interference by conventions with the legislative department.]

Jameson introduces the subject of interference with the legislature by the 
following summing up of what has gone before.

     With the Executive and Judiciary of a State, a Convention
     has, in the ordinary and normal operation of its
     government, no direct relations. Neither of these
     departments has any thing to do with calling it together,
     except in perhaps rare cases, in which some specific and
     extraordinary duty has been prescribed to it by the
     legislature; and neither of them, while a Convention is in
     session, has any occasion to come in contact with it. The
     only cases in which either of those departments could be
     brought into direct relations with that body, would be
     where the latter should attempt to direct it in the discharge
     of its constitutional duties, -- a case which has already
     been considered, -- or in which one of the {140} former
     should attempt to revolve outside its proper orbit, and thus
     bring about collisions with the latter. Inasmuch, however,
     as neither of the three could with any show of right do any
     act which should result in such a collision, except when
     acting in assumed conformity to some law, giving to
     usurpation an apparent legality, no questions could arise
     between them as to their respective powers, which would
     not resolve themselves into questions as to the relative
     powers of Conventions and legislatures, the only
     law-making bodies, save the electors, which have been
     already considered, known to our Constitutions. I shall
     therefore spend no time in considering the relations of
     those two departments to Conventions, but pass to those
     which the latter bear to legislatures, and the powers
     resulting therefrom, which belong to each of those
     bodies.[50]

Dodd's collection of examples of legislation by conventions[51] is rather 
misleading, as he frequently refers to ordinances which are clearly within 
the constitutional powers of the convention, as being ordinances of a 
legislative character. It is necessary to analyze each of the bits of 
alleged legislation passed by conventions, in order to determine whether it 
be of a strict legislative nature, or merely incidental to the proper duties 
of the convention.

[8. Instances of pure legislation.]

Instances of pure legislation have been as follows. The South Carolina 
convention of 1895 established a new county, paid interest on the public 
debt, put the counties on a cash basis, and passed three statutes validating 
the subscriptions for stock in several railroads.[52] In fact, this 
convention got so carried away with the idea of legislating, that one of the 
members moved "that there shall be no session of the legislature this year, 
but the convention shall do its work in its place."[53]

The Mississippi convention of 1890 enacted a general election law, 
established a commission to collect information for the next legislature on 
a certain subject, created the office of land commissioner, validated the 
titles to certain land which had been homesteaded, issued bonds to construct 
levees, and exempted factories from taxation.[54]

{141} The Louisiana convention of 1898 authorized the mobilization of state 
troops.[55]

We have already referred to the action of the Missouri convention of 1865 in 
removing certain of the State officers and providing for the filling of 
vacancies. This convention also adopted and put into operation, without 
submission to the people, an ordinance abolishing slavery in Missouri.[56]

The Supreme Court of Alabama sustained the power of the convention of 1865 
to act as a provisional legislature.[57] This Supreme Court at first took 
the same view with reference to the convention of 1867-1868, but later held 
that this convention did not have legislative power.[58]

The South Carolina convention of 1868 annulled certain earlier legislative 
acts under which contract rights had been acquired.[59] The Supreme Court of 
South Carolina declared this ordinance void as imparing the obligation of 
contracts, but delivered the following dictum:

     It is not easy to define the powers which a convention of
     people may rightfully exercise. It has been doubted
     whether any act of mere legislation in a state having a
     constitution can be passed by a convention called for a
     particular and different purpose. The body is not
     constituted with two houses, and in other respects lacks
     the organization necessary for ordinary legislation. The
     convention of 1868 was not called for a purpose fairly
     embracing the subject of this ordinance, which was never
     submitted to the people.[60]

The Alabama, convention of 1901 provided by ordinance that a term of court 
should be held at Pell City.[61] The Supreme Court held this ordinance void 
because not submitted to the people.[62]

The territorial convention of Oklahoma provided in its constitution for 
dividing Woods County into three counties. It also passed an ordinance to 
carry this provision into effect and tried to enforce the ordinance before 
the adoption of the {142} constitution by the people.[63] The Supreme Court 
of the territory held:

     The convention has no power to enact laws; it possesses
     no legislative powers except such as may be necessary to
     exercise in prescribing by ordinance the methods and
     procedure for obtaining the expression of the electors
     upon the ratification of the proposed constitution, and for
     the election of the officers provided for in the
     constitution.[64] 

But the court found that this particular ordinance was within the implied 
powers of the convention. Compare:

     The passage of an ordinance, then, to raise revenue was
     an assumption of power by the convention, that was never
     ratified by the people of the state.[65]

[9. Including or referring to legislation in the constitution.] 

Some conventions seek to validate their purely legislative ordinances by 
including in the constitution which they prepare, a provision to the effect 
that all ordinances passed by the convention shall have the same force as 
though included in the constitution. This was the case in the South Carolina 
convention of 1895, which passed a large number of purely legislative 
ordinances, as well as several ordinances relating to the duties of the 
convention.[66]

The Mississippi constitution of 1890 declared void all laws repugnant to the 
ordinances of the convention, thus giving these ordinances validity.[67]

The Louisiana constitution of 1898 expressly ratified the ordinances 
providing tor loans for the mobilization of troops and for the expenses of 
the convention.[68]

Of course, a simple procedure for a convention which wishes to legislate 
would be actually to include the legislation in the constitution. That has 
frequently been done with unquestioned success; in fact many of our State 
constitutions to-day consist for the most part of legislative details which 
ought to have been left to the ordinary legislature.

{143} For example:

     The constitution of Oklahoma contains eleven pages of
     legislation relating to the subject of corporations alone,
     besides much more ordinary legislative matter relating to
     homesteads and exemptions, banks and banking,
     insurance, the employment of children, and education. It
     forbids plural marriages, fixes the maximum rate of
     interest, abolishes the so-called fellow-servant doctrine
     and regulates the use of the contributory-negligence and
     assumption-of-risk doctrines as defenses in certain suits
     for damages, establishes the eight-hour day on public
     works and in coal mines, and determines the test for the
     purity of kerosene oil. The convention also provided for
     the separate submission to the electorate of a proposal to
     prohibit the sale of intoxicating liquors. The acts of the
     Oklahoma convention of 1907 are merely the most
     striking evidence of the growing tendency throughout the
     states, especially in the South and West, to transform the
     constitutional convention into an ordinary legislative
     body.[69]

Such provisions are so numerous that they need no mention. Dodd says:

     The constitutional convention is a legislative body, although
     with limited functions, and it is within the sole
     determination of the convention as to what provisions shall
     be inserted into a new constitution. A constitutional
     convention may not properly enact a law or ordinance
     abolishing the fellow-servant rule, but it may insert into the
     new constitution a provision accomplishing the same
     purpose. By the insertion into new constitutions of matters
     really not fundamental in character constitutional
     conventions have come to exercise great powers of
     legislation.[70]

The Supreme Court of Texas said with regard to an ordinance of the 
territorial convention of 1868:

     It is true that the question of the propriety of incorporating
     any specific provision into the fundamental law was for the
     sole determination of the convention. But we are of
     opinion that when a convention is called to frame a
     constitution which is to be submitted to a popular vote for
     adoption, it cannot pass ordinances and give them validity
     without submitting them to the people for ratification as a
     part of the constitution. ... The ordinance of the convention
     in question, which divided the state {144} into
     congressional districts, and that which provided for a
     submission of the proposed constitution to a vote of the
     people, are appended to the constitution as framed and
     the whole are signed by the president and members as one
     instrument.[71]

But this subterfuge of including legislation in the constitution has not 
always gone unchallenged. Thus the Supreme Court of Florida struck out of 
the constitution of 1865 a purely legislative provision, repealing the 
statute of limitations.[72] That constitution, however; had been promulgated 
without being submitted to the people for ratification.[73]

[10. Conventions may submit legislation to approval by the people.]

Conventions which wish to legislate, however, do not always find it 
necessary to include or refer to their legislation in their constitution. 
Dodd says:

     Not only may a convention legislate by inserting provisions
     into a new constitution, but it may also do so by the
     submission to the people of separate clauses or ordinances
     to be voted upon either as a part of the constitution or
     separately from it -- that is, it may exercise ordinance
     power if the ordinances are submitted to the people with
     or at the same time as the proposed constitution.[74]

Most of the court decisions which have declared the convention ordinances to 
be invalid have proceeded, not on the ground that the convention had no 
power to frame these ordinances, but rather on the ground that they ought to 
have been submitted to the people for approval. See the following 
quotations:

     The ordinance now under consideration was not submitted
     to a vote, though two others, which were added,
     incorporated into and signed as a part of the constitution,
     were so submitted. Since the convention could not finally
     legislate, and since a vote of the people was necessary
     to make its action effective, we conclude that the
     ordinance in question was invalid, and not effective for any
     purpose.[75]

     It is not easy to define the powers which a convention of
     the people may rightfully exercise. It has been doubted
     whether any act of mere legislation in a state having a
     constitution can be {145} passed by a convention called
     for a particular and different purpose. The body is not
     constituted with two houses, and in other respects lacks
     the organization necessary for ordinary legislation. The
     convention of 1868 was not called for a purpose fairly
     embracing the subject of this ordinance, which was never
     submitted to the people.[76]

     The ordinance in question pertains in no way to an
     amendment or revision of the constitution, and it was
     beyond the power of the convention to pass this
     ordinance, or it could not become binding or of legal force
     without having been submitted to and ratified by the
     people.[77]

     It is contended that, if the adoption of the ordinance was
     beyond the authority of the convention, it is nevertheless
     valid and binding, because the constitution was submitted
     to and was ratified by the people. The authorities are
     almost uniform that the ratification of an unauthorized act
     by the people (and the people are the principal in this
     instance) renders the act valid and binding.[78]

The Supreme Court of Texas, however, has doubted the validity of ordinances 
submitted to the people separately from the constitution,[79] but this case 
would seem to have gone on the question of separate submission of 
constitutional provisions, rather than on the question of the legislative 
power of the convention.

[11. When popular approval of legislation not required.]

But what is the status of such separate legislation in cases where the 
submission of the constitution to the people is not required, either by the 
existing constitution or by a convention act ratified and adopted by the 
people. In such cases it is quite probable that the convention may 
successfully promulgate ordinances of a purely legislative character. The 
Supreme Court of Texas has said:

     The convention which passed the ordinance which was
     held valid in Grigsby v. Peak was called by virtue of the
     proclamation of President Johnson. This proclamation did
     not require any part of the work of the convention to be
     submitted to the vote of {146} the people, and in our
     opinion therefore had the power to pass ordinances
     without submitting them for adoption to a popular vote.[80]

Dodd says:

     In states where conventions may promulgate their work
     without popular approval, although their invasion of the
     purely legislative field may be deprecated, there seems to
     be nothing to prevent such action except the self-restraint
     and common sense of the convention itself. The same
     forces which practically compel conventions to submit
     their work to the people, in most of the states where they
     are not required by constitutional provisions to do this, will
     also keep them pretty definitely within their proper sphere,
     even where the courts may decline to interfere.[81]

But, as has already been pointed out, most of the ordinances of so-called 
legislative character turn out on inspection to be properly incidental to 
the work of the convention. Among instances of incidental legislation have 
been the following.

The Missouri convention of 1865 passed an ordinance providing for the method 
of submitting the new constitution to the voters. The Supreme Court of that 
State, in a prosecution for violating the oath required of each voter under 
that ordinance, held that the enactment of the ordinance was within the 
necessary incidental powers of a convention, and a fortiori since this 
convention was not required to submit its work to the people. The court 
said: 

     The convention might (if it had deemed proper to do so)
     have declared the constitution framed by it in full force and
     effect without making provision for its submission to the
     voters of the State.

     As the representatives of the people, clothed with an
     authority as ample as that, certainly its power to prescribe
     the means by which it was thought best to ascertain the
     sense of the qualified voters of the State upon that
     instrument cannot be seriously questioned.[82]

Whenever the convention act or the constitution omit to prescribe the 
detailed manner of submission or of the internal government of the 
convention, the conventions themselves have {147} always covered the matter 
by ordinances or rules, and such ordinances or rules have rarely been 
questioned. Conventions also frequently pass acts to put the new 
constitution into effect. Most of the ordinances of the South Carolina 
convention of 1895, the Mississippi convention of 1890, the Louisiana 
convention of 1898, and the Missouri convention of 1865, cited by Dodd as 
"ordinances of a purely legislative character"[83] turn out upon examination 
to be really incidental to the powers of the convention.

Thus we see that conventions, unless expressly called for some further 
purpose, are bound to the framing of a constitution and the passage of 
necessary rules and ordinances incidental thereto. They have no power to 
legislate or to interfere with members of the other two branches of 
government. 

The powers of legislation permitted to a convention are apparently limited 
to preliminary, temporary, and provisional measures.[84]

[12. Performance by conventions of functions assigned to legislature.]

A related question to the legislative powers of a convention is the question 
of its power to perform the functions assigned to the State legislature. 
Whatever may be said in theory in opposition to this assumption of 
power,[85] the fact remains that it has been actually exercised.

The Illinois convention of 1862 divided the State into congressional 
districts, under United States Constitution, Article I, Section IV, which 
assigns that duty to the State legislatures.[86] This has also been 
uniformly done by conventions in territories seeking admission to the Union, 
and has been done by some reconstruction conventions.[87] Such 
redistrictings, including the Illinois case, have uniformly been accepted by 
Congress.

The same Illinois convention of 1862 ratified the pro-slavery amendment to 
the Federal Constitution, under United States Constitution, Article V, which 
assigns that duty to the State legislatures.[88] The validity of this 
action, however, was never determined, as not enough other States ever 
ratified this amendment.

Can conventions increase their own powers? This question is sometimes stated 
in the form: has a convention the power to amend the convention act which 
calls it into being? This is {148}really the converse of the question of the 
powers of the legislature and the people to restrict the convention. Any 
violation of valid restrictions may of course be ratified by the acceptance 
of the constitution or a ratifying ordinance by the people.

[13. Complete interference with other branches more likely to succeed than 
partial.]

Complete interference with the various branches of the government may 
perhaps be more successful than partial interference. If the old government 
is completely overthrown, there will be left no one in authority who can 
question the rights of the convention. Allusion has been made several times 
in this book to the statement by the Supreme Court of the United States that 
a court has no power to hold invalid the constitution under which it 
sits.[89] 

The Rhode Island Supreme Court, to whom the Federal Court was referring in 
that quotation, went further and intimated that if the question had been 
before a court established by the rival government, that court would have 
had to decide exactly the opposite from this court.[90]

And as has already been intimated, the executive officers having charge of 
money matters under the new government (or under the old government, if they 
were in sympathy with the new) could effectually put the new government into 
power by means of this control.[91]

Thus it appears that if a convention decides to exceed its proper functions 
and attempt to exercise convention sovereignty, it had better be as 
sovereign as possible. Extremes of moderation and immoderation are thus seen 
to meet, in success.

------

1. VII "Va. Law Reg.," 79.

2. Dodd, p. vi.

3. VII "Va. Law Reg.," 79, 97, n. 2.

4. See [Ch. I 2] p. 3, supra.

5. Wood's Appeal (1874), 75 Pa. 59, 70.

6. Ex parte Birmingham Ry. (1905), 145 Ala. 514, 532.

7. Ellingham v. Dye (1912), 178 Ind. 336, 379.

8. Braxton, VII "Va. Law Reg.," 79, 83.

9. Dodd, p. 105, n. 55. 

10. Dodd, pp. 106-107. 

11. Dodd, p. 107.

12. I "Cyc. American Government," 430-431. 

13. Dodd, p. 107, n. 59. 

14. Bradford v. Shine (1871), 13 Fla. 393, 412-413.

15. Jameson, p. 303.

16. Jameson, pp. 303-304. 

17. Jameson, p. 304.

18. Jameson, p. 304.

19. Jameson, p. 304.

20. Jameson, p. 410.

21. See [Ch. IX 3] pp. 109-110, supra. 

22. Deb Mass. Conv. 1853, Vol. I, p. 78. And cf. Deb. Ky. Conv. 1849, p. 
863; Deb. Ala. Conv. 1861, p. 114; Deb. Va. Conv. 1901, Vol. I, pp. 63, 77, 
83; Vol. II, p. 3132; Amasa M. Eaton in XIII "Harv. Law Rev.," 284.

23. Dodd, p. 78, n. 10. 

24. McMullen v. Hodge (1849), 5 Tex. 34, 73.

25. Sproule v. Fredericks (1892), 69 Miss. 898, 904.

26. Carton v. Secy. of State (1908), 151 Mich. 337, 340-341. 

27. Jameson, pp. 307-308. 

28. Jameson, p. 309.

29. Dodd, pp. 77-78, n. 10.

30. Deb. Mass. Conv. 1853, Vol. I, p. 78; Jameson, p. 334.

31. McCready v. Hunt (1834), 2 Hill Law (S. C.) 1, 270-271. 

32. McCready v. Hunt (1834), 2 Hill Law (S. C.) 1, 271-272. 

33. Wood's Appeal (1874), 75 Pa. 59, 70.

34. Wells v. Bain (1872), 75 Pa. 39, 50. 

35. McCready v. Hunt (1834), 2 Hill Law (S. C.) 1, 242.

36. Wells v. Bain (1872), 75 Pa. 39, 48. 

37. McCready v. Hunt (1834), 2 Hill Law (S. C.) 1, 242.

38. Wells v. Bain (1872), 75 Pa. 39, 50-51.

39. Wells v. Bain (1872), 75 Pa. 39, 53. 

40. Braxton, VII "Va. Law Reg.," 79, 96.

41. Wells v. Bain (1872), 75 Pa. 39, 53. 

42. McCready v. Hunt (1834), 2 Hill Law (S. C.) 1, 242.

43. Opinion of Justices (1889), 76 N. H. 612, 617.

44. See [Ch. VII 1] pp. 89-91, supra. 

45. Jameson, p. 321.

46. Jameson, p. 320.

47. Jameson, pp. 322-324. 

48. Jameson, p. 325.

49. Jameson, p. 325.

50. Jameson, pp. 355-356. 

51. Dodd, p. 108.

52. Thorpe, Vol. VI, pp. 3345-3354.

53. Amasa M. Eaton in XXXI "Am. Law Rev.," 198, 210.

54. IV Thorpe, 2129-2137. 

55. Thorpe, Vol. III, p. 1596.

56. Jameson, p. 322.

57. Cases cited in Dodd, p. 110, n. 66.

58. Plowman v. Thornton (1875), 52 Ala. 559, 569.

59. Dodd, p. 112.

60. Gibbes v. Railroad (1879), 13 S. C. 228, 242.

61. Dodd, pp. 113-114. 

62. Ex parte Birmingham Ry. (1905), 145 Ala. 514, 519.

63. Dodd, pp. 114-115. 

64. Franz v. Autry (1907), 18 Okla. 561, 631.

65. Bragg v. Tufts (1887), 49 Ark. 554, 561.

66. Art. XVII,  11.

67.  275.

68. Art. 326.

69. Holcombe, State Government, p. 126.

70. Dodd, p. 116. Cf. Schertz v. Bank (1892), 47 Ill. App 124, 133.

71. Quinlan v. Houston Ry. Co. (1896), 89 Tex. 356, 376.

72. Bradford v. Shine (1871), 13 Fla. 393, 411-415.

73. Thorpe, Vol. II, p. 685, n. a.

74. Dodd, p. 116.

75. Quinlan v. Houston Ry. Co. (1896), 89 Tex. 356, 377.

76. Gibbes v. Railroad (1879), 13 S. C. 228, 242.

77. Ex parte Birmingham Ry. (1905), 145 Ala. 514, 516.

78. Ex parte Birmingham Ry. (1905), 145 Ala. 514, 528; and cf. same case, p. 
530.

79. Quinlan v. Houston Ry. Co. (1896), 89 Tex. 356, 376; quoted pp. 143-144, 
supra.

80. Quinlan v. Houston Ry. Co. (1896), 89 Tex. 376, 377; Grigsby v. Peak 
(1882), 57 Tex. 142.

81. Dodd, p. 117.

82. State v. Neal (1868), 42 Mo. 119, 123.

83. Dodd, p. 108.

84. 6 R. C. L.,  18, pp. 27-28.

85. Jameson, pp. 448-452. 

86. Jameson, pp. 446-447. 

87. Jameson, p. 449.

88. Jameson, p. 450.

89. See [Ch. VIII 4] pp. 101 and 102, supra; and [Ch. XII 4] 158, infra.

90. "Trial of Dorr," p. 38. Quoted on [Ch. XII 4] p. 157, infra.

91. See [Ch. VII 3] p. 93, supra.

------------

                    CHAPTER XII

             JUDICIAL INTERVENTION

[1. Grounds on which courts may upset amendments by
convention.]

{149} To what extent can the judicial branch of the government interfere 
with the procedure of constitutional amendment by the convention method?

We can best understand the discussion of this question if we first consider 
the matter of judicial interference with amendments adopted under 
constitutional methods. Such a study will show us how ready the courts are 
to seize on the slightest flaw as a ground for declaring a supposed 
amendment to be void. Taking up first the case of amendments submitted by 
the legislature to a popular vote, we find the courts upsetting amendments, 
even after popular ratification, on the following grounds: Because not 
enough legislators voted thereon;[1] because the amendment had been entered 
in the House Journal by title instead of in full;[2] because the amendment 
was proposed by a special instead of regular session;[3] because of slight 
discrepancies in the journal entries of two sessions, although it was clear 
that both sessions acted on the identical amendment;[4] because the proposed 
amendment was not advertised in the newspapers at just the right time;[5] 
because the amendment treated two separable subjects;[6] and for other 
similar reasons.[7]

{150} Of course, there are some decisions in which the courts have been more 
liberal, but these are mostly in earlier cases, before the control of the 
courts over the constitution had been fully developed, and are in the 
minority. Dodd points out that since 1890 the courts have frequently 
exercised supervision over all steps in the amending process,[8] and he goes 
on to say,

     It may be said then that the courts exercise supervision
     over all steps of the amending process which are
     specified by the constitution.[9]

The italics in the last quotation are the present author's. They point out 
an important distinction. Following that distinction, it is probable that 
the courts would exercise the same supervision over a convention, so far as 
that convention was authorized by the constitution,[10] as they would over 
the legislative method of amending.

As Dodd says:

     Although, then, a convention, in framing a complete
     constitution or a revised instrument, would seem, in theory,
     to be bound by existing constitutional restrictions upon the
     exercise of its power, as strictly as is the legislature in
     proposing constitutional amendments, yet there are
     difficulties in the way of enforcing this rule. If a constitution
     has been proposed for the approval of the people, a court
     would hardly enjoin its submission, although this might be
     done; if this were not done the only other opportunity for
     the court to act would be after a constitution had been
     approved and before it had gone into operation, for after it
     had become effective a court would hardly dare overturn
     the government organized under it when there were no
     opposing bodies claiming to be the lawful government --
     the question as to the validity of the constitution would
     have become a political question with which the court
     should properly refuse to meddle. On the whole it would
     seem that because of practical considerations courts must
     pursue a more liberal policy in passing upon the acts of a
     convention, especially after they have been approved by
     the people, than it has [sic] pursued in {151} interpreting
     the constitutional restrictions placed upon the legislative
     power to propose amendments.[11] 

Or, as the Supreme Court of Alabama has said:

     We entertain no doubt that, to change the Constitution in
     any other mode than by a Convention, every requisition
     which is demanded by the instrument itself must be
     fulfilled, and the omission of any one is fatal to the
     amendment.[12]

The real reason for this is probably the fact, as we have already seen, that 
as conventions may be held in the absence of constitutional provisions, or 
in the face of provisions prohibiting them, or even in a different manner 
from provisions permitting them, the constitution has really little to do 
with conventions, and hence constitutional provisions authorizing such 
conventions have no higher standing than bits of ordinary legislation to the 
same effect. This may explain the reason why courts are more hesitant to 
interfere with this amending process. We will therefore consider the 
judicial interference with the convention method, as if it were altogether 
an extraconstitutional proceeding.

[2. Interference by state courts with pending convention proceedings.]

Can the courts interfere with such proceedings while they are pending? There 
is a good deal of authority that courts will not interfere with even the 
legislative method of amendment while it is pending, but will wait to pass 
on the validity of the finally adopted constitutional provisions.[13] A 
fortiori, courts ought not to interfere with the convention method while it 
is pending. Yet courts have so interfered. The Pennsylvania Supreme Court 
issued an injunction prohibiting the convention of 1872 from submitting 
their constitutional changes to the people in a way different from that 
prescribed by the convention act.

The court said:

     The first remark to be made is, that all the departments of
     government are yet in full life and vigor, not being
     displaced by any authorized act of the people. As a court
     we are still bound to administer justice as heretofore. If the
     acts complained of in these bills are invasions of rights
     without authority, we must exercise our lawful jurisdiction
     to restrain them. One of our equity {152} powers is the
     prevention or restraint of the commission or continuance of
     acts contrary to law, and prejudicial to the interests of the
     community or the rights of individuals. ... In this case we
     are called upon not to strike down, but to protect a lawful
     system, and to prevent intrusion by unlawful authority. If
     this ordinance is invalid, as we have seen it is as to the city
     elections, the taxes of the citizens will be diverted to
     unlawful uses, the electors will be endangered in the
     exercise of their lawful franchise, and an officer necessary
     to the lawful execution of the election law ousted by
     unlawful usurpation of his functions.[14]

Yet this court refused to interfere in matters of internal management, even 
though they were in violation of the provisions of the convention act, 
saying: 

     If they do this wrong, no appeal is given to the judiciary,
     and the error can be corrected only by the people
     themselves, by rejecting the work of the convention.[15]

The Supreme Court of Oklahoma refused to interfere with a convention of that 
State, saying:

     The courts will not interfere by injunction or otherwise with
     the exercise of legislative or political conventions.[16]

Dodd comments on this decision as follows:

     This is simply a statement that the court would not interfere
     with the process of constitution-making, but would hold
     itself free to declare an act of the convention invalid, after
     it had been approved by the people, if it were in excess of
     the convention's power.[17]

The process of amendment is a process of superior legislation, and the 
courts ordinarily decline to interfere with the processes of legislation, 
although they may always pass upon the validity of the completed product of 
such process.[18]

In one instance, in New York, the court, after taking jurisdiction of a 
proceeding to interfere with the internal government of the convention, 
dismissed the proceeding because of a sharp rebuke administered by the 
convention.[19] The convention said, in the course of this rebuke:

     {153} It is far more important that a Constitutional
     Convention should possess these safeguards of its
     independence than it is for an ordinary Legislature;
     because the Convention's acts are of a more momentous
     and lasting consequence and because it has to pass upon
     the power, emoluments and the very existence of the
     judicial and legislative officers who might otherwise
     interfere with it.[20]

[3. Interference by state courts with constitutional changes ratified by 
the people.]

So much for the interference of the courts with pending convention 
proceedings. How about their interference with the constitutional changes, 
when these are finally adopted by the people? Some of the cases, which hold 
that the courts cannot interfere with pending proceedings, intimate that the 
time for interference is after the proceedings have been completed. Thus the 
Supreme Court of Oklahoma says:

     The moment the constitution is ratified by the people, and
     approved by the President of the United States, then every
     section, clause, and provision therein becomes subject to
     judicial cognizance.[21] 

And compare:

     It [i.e. the court] has the power, and it is its duty,
     whenever the question arises in the usual course of
     litigation, wherein the substantial rights of any actual litigant
     are involved, to decide whether any statute has been
     legally enacted, or whether any change in the constitution
     has been legally effected, but it will hardly be contended
     that it can interpose in any case to restrain the enactment
     of an unconstitutional law. ... If they (the courts) cannot
     prevent the legislature from enacting unconstitutional laws,
     they cannot prevent it and the electors from making
     ineffectual efforts to amend the constitution.[22]

But as Dodd points out:

     But after a constitution has been submitted to and adopted
     by the people, additional difficulties present themselves in
     the way of declaring it or even particular portions of it
     invalid.[23]

The Harvard Law Review has recently set forth, in an editorial note, the 
following exhaustive views on this subject:

     Consider first the power of the courts to deal with a
     constitution {154} which has been enacted by the
     convention without submission to popular vote, but has
     been accepted as in force by the other branches of the
     government. If the court assumes to declare the whole
     constitution invalid, maintaining that it is organized under
     the old, such a proceeding should be entirely futile. There
     is no organized government under the old constitution and
     by its hypothesis, the court has disclaimed its authority to
     bind any government claiming to be organized under the
     new. Where, as in the principal case, the court apparently
     admits the validity of the new constitution, but declares
     part of it invalid, its course seems even less justifiable. In
     recognizing part of the new constitution it must recognize
     its complete validity. Since a court cannot attack the
     fundamental law, it can declare the new constitution invalid
     only by action under the old. But this can no longer exist,
     for its existence is hopelessly inconsistent with the validity
     of the new. For whether it be called a lawful revision or a
     peaceful revolution, by an enactment of the new
     constitution the old government has been displaced and a
     new one substituted. The court is further beset in these
     cases by the difficulty that this acquiescence by the
     legislature may amount to a ratification by the people
     through the organized government as their agent. If the
     court recognizes the power of the legislature to bind the
     convention, it is inconsistent to deny the legislature the
     power to unloose that bond. If it believe in conventional
     sovereignty it will, of course, never declare the constitution
     invalid. If in addition the constitution has been submitted
     and adopted by popular vote, it would seem that any court
     which admits that the ultimate sovereignty is in the people
     must recognize its validity.

     But where the convention has merely amended the existing
     constitution a different question is presented. Here
     assuming the validity of the restrictions imposed on the
     convention, a court should have no difficulty in enjoining
     the submission of an amendment which involves a violation
     of those restrictions. But if the amendment is submitted for
     popular approval and is ratified, it seems that that
     expression of popular will should override any irregularity
     in violating any restriction not imposed by the constitution
     itself. If the amendment is merely enacted without
     submission to popular vote, then unless the acquiescence
     of the legislature can be construed to be an adoption, its
     validity may certainly be attacked.[24]

The Supreme Court of Pennsylvania, after interfering with the pending 
procedure (i.e. the convention ordinance establishing {155} a new election 
system for the submission of the constitution) in the case of Wells v. Bain, 
refused to interfere with the completed constitution in the case of Wood's 
Appeal. The court said:

     The change made by the people in their political
     institutions, by the adoption of the proposed Constitution
     ... forbids any inquiry into the merits of the case. The
     question is no longer judicial.[25]

Judge Jameson took the same view of the matter and said of this case:

     The constitution framed by the convention had been
     submitted to and adopted by the people, including the
     change recommended to be made in the Bill of Rights; and
     thus, however irregular, or even revolutionary, its inception
     had been, it had become the fundamental law of the State,
     and the Supreme Court must accept it as such.[26]

Dodd, however, feels that the court might have acted in the second case as 
it did in the first, and says:

     Inasmuch as the Pennsylvania court regarded the statutory
     restriction as having a binding force equal to that of a
     constitutional restriction, it would seem that it might, in a
     case properly brought before it, logically have declared
     invalid the amendments to the bill of rights, in the same
     manner as courts declare invalid amendments not
     proposed in accordance with constitutional forms, even
     after their approval by the people. The provisions tainted
     by irregularity were here clearly separable from the
     remainder of the constitution.[27]

But he goes on to say:

     The courts would unquestionably be cautious about
     singling out and declaring invalid particular clauses in
     constitutions which had been approved by the people, but
     with reference to which constitutional requirements had not
     been strictly observed. No cases have squarely arisen
     upon this point, and cases would hardly arise where
     certain clearly separable parts of constitutions would be so
     tainted with irregularity as to warrant judicial annulment;
     should such cases arise, however, it is difficult to see why
     the judicial {156} attitude should be any more liberal than
     with respect to constitutional amendments. The better view
     is that courts should not inquire too technically into
     irregularities in the submission of a constitution or of an
     amendment which has been ratified by the people.[28]

The Supreme Courts of Kentucky and Virginia concur with the Supreme Court of 
Pennsylvania in holding that the adoption of a constitutional amendment 
changes the question from a judicial one to a political one. Both cases 
involved the validity of constitutions which the convention had promulgated 
without submitting to the people, although required by the convention act to 
do so.

The Kentucky Court elected to treat the question as one affecting the 
validity of the constitution as a whole and said:

     It is a matter of current history that both the executive and
     legislative branches of the government have recognized its
     validity as a constitution, and are now daily doing so. Is
     this question, therefore, one of a judicial character? Does
     its determination fall within the organic power of the court?

     The court further said that the people had acted under the
     constitution, the political power of the government has in
     many ways recognized it, and under such circumstances it
     is our duty to treat and regard it as a valid constitution and
     now the organic law of our Commonwealth.[29] 

The Virginia Court said of the constitution of 1902:

     The Constitution having been thus acknowledged and
     accepted by the officers administering the government and
     by the people of the State, and being, as a matter of fact,
     in force throughout the State, and there being no
     government in existence under the constitution of 1869
     opposing or denying its validity, we have no difficulty in
     holding that the Constitution in question . . . is the only
     rightful, valid, and existing Constitution of this State, and
     that to it all the citizens of Virginia owe their obedience
     and loyal allegiance.[30]

{157} But

     The distinction between such a case and one involving
     merely an amendment, not in any manner pertaining to the
     judicial authority, must at once be apparent to the legal
     mind. The authorities recognize the distinction.[31]

[4. Courts bound to constitution under which they hold office.] 

The value of a judicial determination of the validity of a constitution is 
minimized by the principle which requires the members of a court to decide 
in favor of the constitution under which they themselves hold office. Thus 
the Rhode Island Supreme Court said at the trial of Dorr:

     If a government had been set up under what is called the
     People's Constitution, and they had appointed judges to
     give effect to their proceedings, and deriving authority
     from such a source, such a court might have been
     addressed on a question like this. But we are not that
     court. We know and can know but one government, one
     authority in the State. We can recognize the Constitution
     under which we hold our places, and no other. All other
     proceedings under any other are to us as nullities.[32]

Likewise the United States Supreme Court said, in a case growing out of the 
Dorr controversy:

     Where a claim exists by two governments over a country,
     the courts of each are bound to consider the claims of their
     own government as right, being settled for the time being
     by the proper political tribunal.[33]

And this principle was carried out by a court acting under the new 
government in a West Virginia case:

     The legality of the election for officers held on the 22nd
     day of August, 1872, after the ratification of the new
     constitution and schedule, is not to be called in question by
     any court created or continued by the provisions of that
     constitution. When it is proposed that this Court shall
     determine that the sovereign power of this state cannot
     lawfully commission a judge of its own creation, it is
     invited to commit judicial suicide. Courts sit to {158}
     expound the laws made by their government, and not to
     declare that government itself an usurpation.[34]

The idea of "judicial suicide" expressed by the West Virginia Court has also 
been phrased as follows:

     A court which under the circumstances named, should
     enter upon an inquiry as to the existence of the constitution
     under which it was acting, would be like a man trying to
     prove his personal existence, and would be obliged to
     assume the very point in dispute, before taking the first
     step in the argument.[35]

     The singular spectacle of a court sitting as a court to
     declare that we are not a court.[36]

     And if a state court should enter upon the inquiry
     proposed in this case, and should come to the conclusion
     that the government under which it acted had been put
     aside and displaced by an opposing government, it would
     cease to be a court, and be incapable of pronouncing a
     judicial decision upon the question it undertook to try. If it
     decides at all as a court, it necessarily affirms the existence
     and authority of the government under which it is
     exercising judicial power.[37]

Thus a judicial determination of the validity or invalidity of a new 
constitution merely means that the judges who render it are very much 
attached to their positions.

[5. Interference by state courts in matters outside proper functions of 
convention.]

All of the foregoing discussion has related to interference with the 
amending process. The power of the courts to interfere with the convention 
when it is exercising powers outside the main purpose of its creation, 
presents an entirely different question.

As Dodd says:

     It has already been suggested that a court would find it
     difficult to declare a complete constitution invalid because
     of irregularities in the proceedings or action of a
     convention. What is the attitude of the courts in enforcing
     these implied restrictions upon the powers of a convention,
     in preventing encroachments by a convention, upon
     powers reserved to other governmental organs of the
     state? In the first place it should be said that a convention's
     action in {159} these matters may be controlled by the
     courts much more easily than irregularities in the framing of
     a complete constitution. If a convention should attempt to
     remove an officer of the state government and to appoint
     another in his place, the court may properly restore the
     removed officer without in any way interfering with the
     convention's proper functions; if the convention passes an
     ordinance of a purely legislative character, the court in a
     case properly brought before it may declare the ordinance
     invalid and decline to enforce it. Improper acts committed
     by a convention in the framing of a constitution may be
     acts done in the exercise of a power within the
     competence of the convention, and are difficult to correct,
     because of the close interrelation of the irregular acts with
     those which may be regular and proper. When it
     encroaches upon the existing government, a convention
     acts in excess of power and its action may be controlled
     without interference with the functions which properly
     belong to it.[38]

[A]nd see also the following quotations from other sources:

     The claim for absolute sovereignty in the convention,
     apparently sustained in the opinion, is of such magnitude
     and overwhelming importance to the people themselves, it
     cannot be passed unnoticed. In defence of their just rights,
     we are bound to show that it is unsound and dangerous.
     Their liberties would be suspended by a thread more
     slender than the hair which held the tyrant's sword over the
     head of Damocles, if they could not, while yet their existing
     government remained unchanged, obtain from the courts
     protection against the usurpation of power by their
     servants in the convention. ...

     There is no subject more momentous or deeply interesting
     to the people of this state than an assumption of absolute
     power by their servants. The claim of a body of mere
     deputies to exercise all their sovereignty, absolutely,
     instantly, and without ratification, is so full of peril to a free
     people, living under their own instituted government, and a
     well matured bill of rights, the bulwark and security of their
     liberties, that they will pause before they allow the claim
     and inquire how they delegated this fearful power and how
     they are thus absolutely bound and can be controlled by
     persons appointed to a special service. Struck by the
     danger, and prompted by self-interest, they will at once
     distinguish between their own rights and the powers they
     commit to others. These rights it is, the judiciary is called in
     to maintain.[39]

     {160} While it [i.e. the convention] acts within the scope
     of its delegated powers, it is not amenable for its acts, but
     when it assumes to legislate, to repeal and displace existing
     institutions before they are displaced by the adoption of its
     propositions, it acts without authority, and the citizens
     injured thereby are entitled, under the declaration of rights,
     to an open court and to redress at our hands.[40]

     But the question was made whether the convention which
     passed the ordinance was not limited by the purpose for
     which it was assembled; and I am of opinion that it was so
     limited. And this detracts in no degree from the sovereign
     character of its act when within that purpose. We have no
     authority to judge of, revise or control any act of the
     people; but when any thing is presented to us as the act of
     the people, we must of necessity judge and determine
     whether it be indeed their act. The sole difficulty seems to
     me to have arisen from confounding together the authority
     attributed by the constitution to the people, with that of the
     convention. Certainly the convention was not the people
     for any other purpose than that for which the people
     elected and delegated them.[41]

We have already seen that the convention is really a fourth branch of the 
government.[42] The same rules with respect to judicial interference ought 
to apply as would apply to judicial interference with either the legislature 
or the executive. So long as the convention is acting within the scope of 
its duties as a framer of constitutions, the courts ought not to interfere, 
no matter how much the convention appears to exceed its powers. But the 
moment a convention strays into legislative, executive, or judicial fields, 
it is the duty of the court, acting under the existing constitution, to 
promptly put a stop to such usurpation.

[6. Interference by Federal courts in state constitutional convention.]

So much for the State courts. What should be the attitude of the Federal 
courts toward a State constitutional convention? It would seem that the 
Federal courts ought not to interfere, except in the case of a violation of 
the Federal Constitution. There are no Federal decisions on amendments 
adopted by the convention method, but the language of the decisions relating 
to legislative amendments is broad enough to cover the case of conventions. 
There are two decisions on this point in inferior Federal courts. The case 
of Smith v. Good was an action upon {161} a promissory note given for the 
purchase of liquor in violation of the Rhode Island prohibition amendment of 
1866. The plaintiff contended that the amendment had not been legally 
adopted. But the court said:

     When the political power of the state declares that an
     amendment to the constitution has been duly adopted, and
     the amendment is acquiesced in by the people, and has
     never been adjudged illegal by the state court, the
     jurisdiction of a federal court to question the validity of
     such a change in the fundamental law of a state should
     clearly appear. ... The very framework of the federal
     government presupposes that the states are to be the
     judges of their own laws; and it is not for the federal courts
     to interpose, unless some provision of the federal
     constitution has been violated. It is not pretended in this
     case that any federal question is raised.[43]

An opposite position was taken in the later case of Knight v. Shelton. This 
was a suit for damages brought against election officials because they 
refused to receive the plaintiff's vote for member of Congress. The 
defendant relied on the failure of the plaintiff to pay a poll tax as 
required by an Arkansas amendment in 1892. The court held that this 
amendment had not been legally adopted.[44] Dodd says:

     Knight v. Shelton and Smith v. Good are, of course, easily
     distinguishable on the ground that in the first case no
     federal question was involved, while in Knight v. Shelton a
     federal question was raised as to the right to vote for
     members of Congress. But whether the plaintiff had been
     improperly deprived of such right depended upon an
     amendment which had been acted upon by the state as
     valid for twelve years, and which had not been passed
     upon by the state court.[45]

In Knight v. Shelton the question was not raised as to the impropriety and 
possible inconvenience of a federal court's passing upon the validity of a 
state constitutional amendment as tested by the requirements of the state 
constitution. It happens that the Arkansas court has in a later case taken a 
view similar to that taken by the federal court, but suppose it had taken a 
contrary view, and should insist upon treating as valid an amendment which 
the federal court had declared invalid. We should then have the {162} absurd 
situation of an amendment valid in the state courts and at the same time 
invalid in the federal courts, unless the federal courts should follow the 
state decision after it is rendered.[46]

An attempt has recently been made in the Federal courts to set aside a State 
constitutional amendment, on the ground that it was contrary to the 
principles of republican government guaranteed by the Federal Constitution 
to the States. But the court refused to pass on this point, saying that it 
was a political question.[47] In view of this decision, it is unlikely that 
the Federal courts will ever again be called on to interfere with amendments 
to State constitutions, unless a Federal question is involved.

[7. Interference by courts in convention a political question.] 

On the whole, the question of judicial interference by either the State or 
the Federal judiciary with the exercise by the convention of its 
fourth-branch power is seen to be a political question, and hence outside 
the jurisdiction of the court. See the following quotations on this point:

     The change made by the people in their political
     institutions, by the adoption of the proposed Constitution
     since this decree, forbids an inquiry into the merits of this
     case. The question is no longer judicial.[48]

     In forming the constitutions of the different States, after the
     Declaration of Independence, and in the various changes
     and alterations which have since been made, the political
     department has always determined whether the proposed
     constitution or amendment was ratified or not by the
     people of the State, and the judicial power has followed its
     decision.[49]

     The question, whether the new matter contained in the
     Constitution adopted by the convention of 1913 is
     satisfactory to the people of this state and should be
     retained in force and effect, is, in my humble opinion, a
     political question, and not a legal question.[50]

     A closely related question is whether the validity of
     adoption is a political or judicial question; a difficulty which
     can only be pointed out without discussion here. The
     difficulty of treating {163} it as a judicial question is
     evidenced by a peculiar doctrine of our law. Courts which
     declare their power to overthrow an invalid amendment,
     will refuse to do so if such an amendment has been in
     force unquestioned for a considerable time. To reconcile
     these two ideas seems impossible; but the doctrine may
     indicate that this should more properly be treated as a
     political question, and that the courts should have no
     power to overthrow any amendment which the other
     branches of the government have recognized as valid.[51]

     Courts and Juries, gentlemen, do not count votes to
     determine whether a constitution has been adopted, ... It
     belongs to the Legislature to exercise this high duty ... we
     cannot revise and reverse their acts, in this particular,
     without usurping their power. ... if we did so, we should
     cease to be a mere judicial, and become a political
     tribunal, with the whole sovereignty in our hands. ...
     Sovereignty is above Courts or Juries, and the creature
     cannot sit in judgment on its creator.[52]

[8. Courts can assist the convention.]

If the courts cannot interfere with the fourth-branch functions of a 
convention, can they assist the convention? By analogy from the attitude of 
the courts toward the functions of the executive and legislative branches, 
it would seem that the courts ought to render this assistance.

An example of this is furnished by a recent Michigan case. The Secretary of 
State refused to submit the constitution prepared by the convention of 1908 
on the ballots of the November election, contending that action ought to be 
had in April. The president of the convention applied to the Supreme Court 
for a mandamus to compel the Secretary of State to obey the convention's 
orders. The Supreme Court granted this mandamus.[53]

In North Dakota, the legislature, without constitutional authorization, 
passed a joint resolution, submitting to the electorate the question of 
holding a convention, and secured a mandamus forcing the Secretary of State 
to place the question on the ballots.[54]

Thus the courts will assist, if necessary, in putting through the convention
procedure.

Another way in which the courts can assist the convention {164} method of 
amendment would be to render judicial advice if requested. Judicial advice 
has been rendered by the Supreme Courts in New York, Massachusetts, Rhode 
Island, and New Hampshire to the legislatures of those States on matters 
pertaining to the constitutional convention.[55]

Whether the court would render advice at the request of the convention 
itself would depend upon the general attitude of the court toward its 
advisory functions. Thus the Supreme Court of New York, which rendered its 
opinion to the legislature without any constitutional duty to do so, would 
undoubtedly take the same attitude if requested by the convention. The 
Supreme Court of Massachusetts, on the other hand, always strictly 
interprets the constitutional provision for rendering advice to the Governor 
and legislature and refuses to do so unless absolutely bound. This court, 
therefore, would probably refuse to advise the convention.

On the whole, it may be said that the courts have no power to interfere with 
convention proceedings relative to the framing of the constitution and will 
probably treat the finally adopted changes as a political question, although 
the courts will prevent the convention from usurping the powers of other 
departments. The courts will assist the convention to perform its legitimate 
functions and will prevent the encroachment of any other branches of 
government upon it. The courts will advise the other branches of the 
government relative to the convention and will advise the convention in 
States where the courts do not interpret their advisory duties too strictly.

------

1. Holmberg v. Jones (1901), 7 Ida. 752, 757-758.

2. Koehler v. Hill (1883), 60 Ia. 543; State v. Brookhart (1901), 113 Ia. 
250; People v. Strother (1885), 67 Cal. 624; Thomason v. Ruggles (1886), 69 
Cal. 465; Paving Co. v. Hilton (1886), 69 Cal. 479; Paving Co. v. Tompkins 
(1887), 72 Cal. 5; People v. Loomis (1904), 135 Mich. 556; Re Senate File, 
25 Neb. 864, 883-886; Durfee v. Harper (1899), 22 Mont. 354; State v. Tufley 
(1887), 19 Nev. 391.

3. People v. Curry (1900), 130 Cal. 82. This amendment, however, had not yet 
been acted on by the people.

4. Koehler v. Hill (1883), 60 Ia. 543. 

5. State v. Tooker (1894), 15 Mont. 8. 

6. State v. Powell (1900), 77 Miss. 543. The real reason for this decision, 
however, was that the amendment in question affected the tenure of the 
judges who rendered the decision. McBee v. Brady (1909), 15 Ida. 761; 
Armstrong v. Berkey (1909), 23 Ok. 176.

7. McConaughty v. Secy. of State (1909), 106 Minn. 392; State v. Swift 
(1880), 69 Ind. 505; Re Denny (1901), 156 Ind. 104; State v. Brooks (1909), 
17 Wyo. 344; Hatch v. Stoneman (1885), 66 Cal. 632, State v. Dams (1888), 20 
Nev. 220; Livermore v. Waite (1894), 102 Cal. 113; Collier v. Frierson 
(1854), 24 Ala. 100.

8. Dodd, p. 212, n. 157. 

9. Dodd, p. 215.

10. The author has been unable to find any instances of this, however.

11. Dodd, pp. 102-103. 

12. Collier v. Frierson (1854), 24 Ala. 100, 108.

13. Dodd, pp. 230-232. 

14. Wells v. Bain (1872), 75 Pa. 39, 56-57.

15. Wood's Appeal (1874), 75 Pa. 59.

16. Franz v. Autry (1907), 18 Okla. 561, 604.

17. Dodd, p. 95.

18. Dodd, p. 232.

19. See [Ch. XIV 2] pp. 170-171, infra.

20. Report of Judiciary Committee, Rev. Record, N. Y. Conv. 1894, Vol. I, p. 
245.

21. Franz v. Autry (1907), 18 Okla. 561, 605.

22. Cranmer v. Thorson (1896), 9 S. D. 149, 154-155.

23. Dodd, p. 96.

24. XXIX "Harv. Law Rev." 531-532.

25. Wood's Appeal (1874), 75 Pa. 59.

26. Jameson, p. 407.

27. Dodd, p. 97.

28. Dodd, p. 98.

29. Miller v. Johnson (1892), 92 Ky. 589. 

30. Taylor v. Commonwealth (1903), 101 Va. 829, 831.

31. Koehler v. Hill (1883), 60 Ia. 543, 614.

32. "Trial of Dorr," p. 38.

33. Luther v. Borden (1849), 7 How. 1, 57; citing Williams v. Suff. Ins. 
Co., 3 Sumner 270.

34. Loomis v Jackson (1873), 6 W Va 613, 708.

35. Koehler v. Hill (1883), 60 Ia 543, 608-609.

36. Brittle v. People (1873), 2 Neb 198, 214.

37. Luther v. Borden (1849), 7 How. 1, 40.

38. Dodd, pp. 108-109. 

39. Wood's Appeal (1874), 75 Pa. 59, 69.

40. Wells v. Bain (1872), 75 Pa. 39, 57.

41. McCready v. Hunt (1834), 2 Hill Law (S. C.) 1, 270.

42. See [Ch. VII 1] pp. 89-91, supra. 

43. Smith v. Good (1888), 34 Fed. 204, 205-206.

44. Knight v. Shelton (1905), 134 Fed. 423, 441.

45. Dodd, pp. 226-227, n. 190.

46. Dodd, p. 227.

47. Pac. States Tel. Co. v. Oregon (1912), 223 U. S. 118.

48. Wood's Appeal (1874), 75 Pa. 59, 68-69.

49. Luther v. Borden (1849), 7 How. 1, 39.

50. Foley v. Dem. Com. (1915), 70 So. 104, 105.

51. XXIX "Harv. Law Rev.," 532-535.

52. "Trial of Dorr," p. 85.

53. Carton v. Secy. of State (1908), 151 Mich. 337.

54. State v. Dahl (1896), 6 N. D. 81.

55. Journal, 69th N. Y. Assembly, p. 918; Opinion of Justices (1833), 6 
Cush. 573; 1917 Mass. Senate Doc., 512; Opinion of Justices (1883), 14 R. I. 
649; Opinion of Justices, 76 N. H. 586 and 612.

------------

                    CHAPTER XIII

        DOES THE CONSTITUTION APPLY?

[1. Existing constitution remains in force until superseded by the new.]

{165} AN interesting and important question is the extent to which the 
existing constitution applies to a convention called to revise it. Dodd 
says:

     It is clear that existing constitutional provisions are binding
     upon a convention. A convention does not in any way
     supersede the existing constitutional organization and is
     bound by all restrictions either expressly or impliedly
     placed upon its actions by the constitution in force at the
     time. A new constitution does not become effective until
     promulgated by the convention, if this is permitted by the
     existing constitution, or until ratified by the people, if such
     action is required. In replacing the existing constitutional
     organization a convention properly acts only by the
     instrument of government which it frames or adopts.[1]

But we must remember that Dodd is writing in a State[2] where the only 
conventions are those which the constitution of that State purports to 
authorize, which probably influenced his point of view. This chapter is 
designed to meet his argument and also that of the following quotations, 
which appear to hold that the existing constitution applies to 
extraconstitutional conventions:

     Some are apt to forget that the people are already under a
     constitution with an existing frame of government instituted
     by themselves, which stand as barriers to the exercise of
     the original powers of the people, unless in an authorized
     form.[3]

In the words of the Father of his Country, we declare, "that the basis of 
our political systems is the right of the people to make and alter their 
constitutions of government; but that the constitution which at any time 
exists, till changed by an explicit and authentic act of the whole people, 
is sacredly obligatory upon all."[4]

{166} But, when analyzed, these quotations are seen merely to hold that the 
existing constitution remains in force until superseded by the new.

[2. Proceedings of a convention called under express provisions of the 
constitution.]

It may well be that the constitution applies to the proceedings of a 
convention which is called under express provisions of the constitution 
authorizing such a convention; and it would seem in the main to be true 
that, at least when the people adopt the provisions of a constitution by 
voting under it to hold a convention, those constitutional provisions become 
absolutely binding upon the convention.

That the binding force of constitutional provisions on conventions held by 
authority of the constitution is due not to the constitution itself, but to 
the popular vote thereunder, is borne out by the case of the Delaware 
convention of 1852. In this case the popular vote on the question of holding 
the convention was less than that required by the constitution. 
Nevertheless, the convention was called and held.

Similarly in Indiana, in 1850, a convention was held under the provisions of 
the constitution at a year different from that prescribed by that 
document.[5]

Compare also the discussion of the force of general constitutional 
provisions on the qualifications of voters, which subject is discussed in 
the chapter on submission of amendments.[6]

[3. Constitution not binding on conventions clearly extra-constitutional.]

Regardless of whether the constitutional provisions are binding in the case 
of a convention held ostensibly under the constitution, they are not binding 
on conventions which are clearly extra-constitutional. We have already seen 
that the constitution has no power to prevent the holding of such 
conventions, either by implied or even by express prohibition.[7]

If the constitution cannot prevent the holding of such a convention, is it 
reasonable to suppose that the constitution can limit such a convention? The 
power to limit is the power to destroy. If the convention can defy the 
constitution in the matter of its complete existence, it can certainly defy 
the constitution in the matter of attempted limitations.

We shall see in another chapter that members of such conventions, although 
they hold office under the authority of the State, do not hold office under 
authority of the State constitution.[8] {167} Similarly we shall see that 
when a convention has general powers to submit the fruit of its labors to 
the people for ratification, it may choose for that purpose whatever 
electorate it considers will best represent the people.[9] And compare:

     Under the Constitution of 1879, the power of the
     Legislature to submit proposals to the people for the
     holding of a convention was not subject to the restrictions
     applicable to constitutional amendments.[10]

Thus the State constitution may apply to some extent to conventions held 
under its express authority, but clearly has absolutely no application to 
extraconstitutional conventions. Dodd intimates that the subject matter of 
new amendments may be limited by the already existing constitution, but he 
states that in the present State constitutions there are practically no 
restrictions upon the character of proposed amendments. Such restrictions 
were formerly held binding on the legislative amending process.[11] But he 
suggests:

     It may be that the constitutional difficulty might in certain
     cases have been evaded by first abrogating the restriction
     by an amendment, and then adopting the desired change.
     But, as has been suggested, the state constitutions now in
     force contain practically no such restrictions, and
     amendments are therefore subject to judicial control, as
     tested by the state constitutions, with respect to their
     method of enactment only and not with respect to their
     content and substance.[12]

Thus the question now has merely an academic interest. Nevertheless it would 
seem that the people in their sovereign capacity, as represented by the 
convention, might destroy any part of a constitution which they have the 
power to destroy in full. It seems absurd to think that the people could 
preclude {168} themselves as to subject-matter of amendments, any more than 
one generation could preclude another as to methods of amendment. Thus the 
legislature, people, and Supreme Court of Maine connived to strike out of 
the original Maine constitution some provisions which were expressly 
declared to be irrepealable without the consent of the legislature of 
Massachusetts.[13]

Thus we see that, in the case of authorized conventions, the provisions of 
the existing constitution probably apply, so far as applicable. This is 
certainly true to the extent that the people choose to avail themselves of 
the constitutional provisions.

But in the case of an extraconstitutional convention, the constitution has 
no more power to restrict the convention procedure than it has to prevent 
the convention's existence.

[4. Federal Constitution applies to State conventions.]

Does the Federal Constitution apply? The following quotation from
Ruling Case Law will serve to lead us from the inapplicability of State
constitutions to the applicability of the Federal Constitution.

     The character and extent of a constitution that may be
     framed by that body is generally considered as being freed
     from any limitations other than those contained in the
     constitution of the United States. If on its submission to the
     people it is adopted, it becomes the measure of authority
     for all the departments of government -- the organic law
     of the state, to which every citizen must yield an
     acquiescent obedience.[14]

Holcombe goes even further and contends that the union of the States in 1787 
forever destroyed the fundamental right of the people of each State to 
change their government at will.

He says:

     By the Federal Constitution of 1787, the right of revolution
     was definitely taken away from the people of the separate
     states and reserved exclusively to the people of the United
     States as a whole. Under the more perfect union the whole
     power of the United States stands ready to protect the
     established government of any state against domestic
     violence. There can be no state revolution, therefore,
     which is not at the same time a national revolution.[15]

The following are some more moderate expressions of opinion on the subject: 

     {169} The federal constitution is, of course, superior to a
     state constitution, and any amendment conflicting with the
     federal instrument is invalid.[16]

     As an organ of the state and as a legislative body a
     convention is, of course, subject to the provisions of the
     federal constitution as to contracts, ex post facto laws,
     and to all other restrictions imposed upon the states by
     that instrument.[17]

     It has, however, been recently held that the provisions of
     the Federal Constitution guaranteeing a republican form of
     government to each State, do not apply to restrict the
     subject matter of State constitutions.[18] These provisions
     were inserted in the Federal Constitution to protect, not to
     hamper the States.

[5. Federal Constitution applies only to results of State conventions that 
violate it.]

Of course the Federal Constitution contains no provisions which would 
interfere with the proceedings of the convention method except the guarantee 
in the XVth article of amendments, which provides that

     The right of citizens of the United States to vote shall not
     be denied or abridged by the United States, or by any
     State, on account of race, color, or previous condition of
     servitude.

Provisions in the Federal Constitution requiring certain things to be done 
by a State legislature might give the Federal government the right to 
disregard such acts if done by a convention under the assumption of 
legislative powers.[19]

Thus the Federal Constitution applies to the proceedings only with respect 
to the right to vote, and applies to the results only so far as they violate 
provisions of the Constitution, excepting however the provision guaranteeing 
to the States a republican form of government.

------

1. Dodd, pp. 92-93.

2. Illinois.

3. Wells v. Bain (1872), 75 Pa. 39, 53.

4. R. I. Bill of Rts.,  1. 

5. See these and other similar instances, [Ch. IV 5-6] pp. 50-52, supra.

6. See [Ch. XVI 9] pp. 205-212, infra.

7. See pp. [Ch. IV 2, 5]] 39-43, 48-49, supra.

8. See [Ch. XV 1] pp. 185-187, infra. 

9. See [Ch. XVI 9] pp. 205-212, infra. The recent opinion of the Supreme 
Court of Massachusetts (1917, Senate Doc., 512) may appear, at first glance, 
to rebut this proposition. But it is to be noted that the court expressly 
refused to pass upon the question of whether or not the convention is to be 
held under the constitution. See a discussion of this opinion, [Ch. XVI 9] 
pp. 208-210, infra.

10. State v. Am. Sugar Co. (1915), 137 La. 407, 414; State v. Favre (1899), 
61 La. Ann. 434, 436.

11. Dodd, p. 236, and cases cited.

12. Dodd, p. 236.

13. Thorpe, Vol. VII, p. 4178, Art. X,  5; p. 4186,  7. 

14. 6 R. C. L.,  17, p. 27.

15. Holcombe, State Government, p. 33.

16. Dodd, p. 235.

17. Dodd, p. 93, and cases cited.

18. Pac. States Tel. Co. v. Oregon (1912), 223 U. S. 118.

19. See [Ch. XI 12] p. 147, supra.

------------

                    CHAPTER XIV

              INTERNAL PROCEDURE

[1. Convention has sole power over its own proceedings.]

{170} WHATEVER control the other departments of the government have over a 
convention, it is obvious that the internal control of the convention by 
itself presents an entirely different question. As Dodd says:

     Even if we should assume that the legislature may limit a
     convention as to the submission of a constitution, or as to
     methods of submission, it would yet seem clear that the
     legislature cannot deprive a convention of powers
     necessary for its conduct as a deliberative assembly. The
     convention would seem in any case, in the absence of
     constitutional requirements in the matter, to have power to
     establish its own rules of order and of procedure, elect its
     officers, pass upon the qualifications and election of its
     members, and to issue orders for elections to fill vacancies
     in its membership.[1]

And compare:

     It is a deliberative body, having all the necessary authority
     to make rules for its own procedure, and to decide upon
     all questions falling within the scope of its authority.[2]

We have already seen in the discussion of the legislative powers of a 
convention that it has undoubted power to pass such rules and ordinances as 
are necessary for its own proceedings.[3]

[2. Convention is the sole judge of the elections of its own members.]

Primarily, a convention is the sole judge of the elections of its own 
members. This is illustrated by the case of the New York convention of 1894. 
The convention was proceeding to determine a contested election case, 
whereupon one of the contestants applied to the Supreme Court for an 
injunction to prohibit the convention from passing upon the question, 
claiming that whether or not he was entitled to the seat was {171} a 
question for the determination of the courts. The court assumed jurisdiction 
and was about to proceed with the case, but the Judiciary Committee of the 
convention adopted a strong report denying the power of the court, and the 
court promptly accepted the rebuke and discontinued the case.[4] The 
following quotation from the convention report, to which the court yielded, 
is instructive:

It is of the greatest importance that a body chosen by the people of this 
state to revise the organic law of the state, should be as free from 
interference from the several departments of government, as the legislative, 
executive and judiciary are, from interference by each other.[5]

This report also contains a valuable collection of precedents of contested 
elections in ninety-four American conventions, and concludes therefrom that: 

     Without any exception, the practice has been uniform from
     first to last in favor of the Convention exercising the
     prerogative of deciding who were elected members.[6]

[3. Convention may fill vacancies, subject to convention act.] 

The power to be the judge of their own elections may carry with it by 
implication the power to fill vacancies. This, however, is denied by Jameson 
at considerable length. Jameson denies that a convention can itself fill 
vacancies in its own ranks because, as he says, that would render the 
convention pro tanto self-appointing; and for the same reason he denies its 
right to authorize the colleagues of resigning or deceased members to name 
their successors.[7] No cases have arisen in which a convention has tried to 
do either of these things without being expressly authorized by the 
convention act.

A different question is presented, however, when we consider whether a 
convention can issue precepts to the constituencies of retiring or deceased 
delegates, directing new elections to fill the vacancies. The only case in 
which any dispute has arisen over this power was the Berlin controversy in 
the Massachusetts {172} convention of 1853, which is discussed at length by 
Jameson.[8] It must be remembered, however, that this contest was in reality 
the first struggle for supremacy between two opposing parties in that 
convention, and was based more on the question of the power of the 
legislature to amend the convention act by abolishing the secret ballot, 
than on the question of the power of the convention to authorize the filling 
of vacancies. But, whatever we may think of the arguments pro and con in 
that convention, we cannot evade the fact that the convention by an 
overwhelming majority decided in favor of its power to authorize the filling 
of vacancies. 

This precedent, coupled with the well-known power of all parliamentary bodies to provide for the filling of vacancies in as 
near as possible the same manner as the original seats were filled,[9] leads 
inevitably to the conclusion that conventions do have the power which was 
successfully asserted by the Massachusetts convention of 1853.

A book published by the recent Constitutional Convention Commission in New 
York says:

     Another question of importance is that as to the filling of
     vacancies which may occur after delegates have once
     been elected to a constitutional convention. In conventions
     there have been a number of elaborate and somewhat
     theoretical arguments regarding the power of a convention
     to provide for the filling of vacancies therein, in the
     absence of constitutional or statutory provision for this
     purpose. The more sensible view under such
     circumstances is that the convention may direct an election
     to fill a vacancy.[10]

The status and oaths of delegates are discussed in the next chapter.

[4. Convention has power and duty to obtain quarters and officers.]

Obviously the first duty of a convention is to obtain quarters. Jameson 
says:

     The general rule is undoubtedly this: -- as Conventions
     are commonly numerous assemblies, containing, in most
     cases, the same number of members as the State
     legislatures, they are {173} possessed of such powers as
     are requisite to secure their own comfort, to protect and
     preserve their dignity and efficiency, and to insure orderly
     procedure in their business. For the attainment of these
     ends, they are not without the authority possessed by
     agents in general, and, in my judgment, they are possessed
     of no other or greater. Thus, they must have a suitable hall,
     adequately warmed and lighted; and, though the Acts
     calling them were silent on the point, they would
     unquestionably have power to engage one, and to pledge
     the faith of the State for the rental thereof.[11]

The next requirement would be to obtain suitable officers.

There can be no doubt, a Convention would be authorized to appoint such 
officers and servants as the custom of public assemblies, in free 
communities, has sanctioned, or as may seem under the circumstances to be 
necessary.

In respect to a president and secretary or secretaries there can be no 
question. The convenience of members and the despatch of business would 
point also to messengers or pages as requisite. The same may be said perhaps 
of one or more door-keepers, since, if the hall where the session is held, 
were accessible to everybody, at all hours, the functions of the Convention 
might be seriously interrupted, and its dignity insulted. With respect to a 
sergeant-at-arms, some doubt exists. It is a universal practice in 
Conventions to appoint such an officer, and the right of doing so for 
certain purposes cannot be denied.[12]

The doubt with relation to the powers of this officer comes under the head 
of maintaining order to be discussed a little later in this chapter.[13]

[5. Convention has power and duty to adopt rules of procedure.]

Having engaged its hall and chosen its officers, the convention must next 
adopt some method of procedure, and to this end may establish all necessary 
rules. These are frequently modeled after the rules of the more numerous 
legislative body of the State.

A Convention having provided itself with the officers needed to do or to 
expedite its work, its attention would be next directed to the subject of 
maintaining order in the transaction of its business, and in the conduct of 
its members. For this purpose rules of order are necessary. There is 
sometimes inserted in the Act calling the Convention, a power to establish 
such rules as should be deemed {174} requisite; but, without such a clause, 
a Convention would clearly be authorized so to do. It is usual, before rules 
have been reported by the special committee for that purpose, to adopt 
temporarily those of the last Convention, or of the last State House of 
Representatives. In the absence of such a vote, it has been said that the 
lex parliamentaria, as laid down in the best writers, is in force.[14]

Legislative acts, under which conventions have been assembled, have usually 
not attempted to determine in any detail how conventions should proceed. A 
constitutional convention should have freedom to determine its own 
organization and procedure.[15]

If the purpose is merely that of proposing a few amendments to the 
constitution, as has several times been the case in New Hampshire, the 
procedure should naturally differ from that in a convention which proposes 
to submit a complete revision of the constitution, or at least to scrutinize 
carefully all provisions of an existing constitution.[16]

Jameson points out that the convention may enter upon its task of framing or 
amending the constitution either directly as a body or by resolving itself 
into a committee or committees. Two of the three common methods of procedure 
by committees are (a) the committee of the whole, or (b) to appoint a single 
selected committee of limited numbers to draft the amendments. Jameson 
refers to only ten conventions which have adopted the second plan, all but 
two of these occurring during the Revolutionary War period.[17] It is 
obvious that the reason for adopting this method at that time was that the 
main duties of those conventions was governmental rather than 
constitution-framing. 

[6. Convention has power to appoint committees.]

The third and most common method of procedure is for the convention
to apportion the work among several committees.

The Cyclopaedia of American Government says of these three alternative 
methods:

     In the framing of a constitution it, of course, may be
     possible for a convention to conduct all of its work directly
     in convention -- that is, acting, as a body, without going
     into committee of the whole or dividing the work among
     committees. But such a plan would be cumbersome and
     unsatisfactory and has not been employed. {175} The
     plan ordinarily employed is that of using committees. In the
     use of committees three methods have been employed: (1)
     The transaction of business mainly in committee of the
     whole, with perhaps some smaller committees appointed
     to handle particular matters. This method is one which
     would be apt to work unsatisfactorily unless the plans for a
     constitution had been pretty well matured before the
     meeting of the convention. The committee of the whole
     was used to a large extent by the federal convention of
     1787, and was adopted also by the Pennsylvania
     convention which met in 1789.

     (2) In a number of the earlier conventions the plan was
     adopted of appointing a small committee, with full power
     to prepare and report a draft of a constitution to the full
     convention. This plan was adopted by the revolutionary
     conventions of Maryland, Virginia, New Jersey and
     Pennsylvania in 1776, and by those of New York and
     Vermont in 1777, but the conventions in these cases were
     assembled not only for the framing of constitutions, but
     also for the conduct of warlike operations, and the
     appointment of a special committee left the other members
     of the convention free to attend to the general duties of
     these bodies, which were equally urgent. The
     Massachusetts general court in 1778 appointed a special
     committee to frame a constitution, as also did the
     Massachusetts convention of 1779-80, the Tennessee
     convention of 1796, and the California convention of
     1849.

     (3) But the more usual practice has been for a convention
     to appoint a number of committees, and to distribute
     among them the several parts of the constitution, to be
     considered and reported upon to the convention either in
     regular session or in committee of the whole. The number
     of committees appointed for such a purpose has varied
     considerably, running from four in one case to more than
     thirty in others. The members of such committees have
     been as a rule appointed by the president of the
     convention. One of the most important committees of a
     convention is the committee on style or on arrangement
     and phraseology, which is usually appointed for the
     purpose of harmonizing the various proposals adopted by
     the convention and putting a constitution into something
     like the final form in which it should be adopted.[18]

It is well not to model these committees directly on the committees of the 
legislature, for if this is done, some committees will be found overburdened 
by work and others without a single matter referred to them.

{176} See the following further quotations on the number and make-up of 
committees:

     The New York convention of 1894 had thirty-one
     committees; the Virginia convention of 1901-02, sixteen;
     the Michigan convention of 1907-08, twenty-nine; the
     Ohio convention of 1912, twenty-five. The Illinois
     convention of 1869-70 had thirty-nine committees, a
     number much larger than was needed; of these
     committees, six made no report whatever to the
     convention.[19]

     For a convention there may be said to be three types of
     committees: 1, those on the formal business of the
     convention, such as committees on rules, on printing, etc.;
     2, those whose functions are largely technical, such as a
     committee on arrangement and phraseology; 3, those
     whose function would be largely that of obtaining
     agreement upon broad questions of principle, such as
     might be to a large extent a committee dealing with the
     subject of municipal home rule. Of course, most
     committees will have duties of all three types, but some
     difference in size is justified. Committees of the first type
     should naturally be small; those of the second type may
     well be larger, but even for the third type committees
     having many more than nine members are not apt to work
     very effectively. The average size of committees in the
     Illinois convention of 1869-70 was nine. The average size
     of committees in the Ohio convention of 1912 was
     seventeen, and because of this the committee work was
     less effective than it might have been.[20]

     In the Michigan convention of 1907-08 the first committee
     appointed was one on permanent organization and order
     of business. This committee was afterward made
     permanent. It reported the plan of committee organization,
     and made other reports during the session of the
     convention. One of its recommendations, which was
     adopted, provided for a weekly meeting of chairmen of
     committees, to be presided over by the president of the
     convention, "at which meeting the chairmen of the several
     committees shall report progress and consider such other
     matters as may be of interest in advancing the work of the
     convention." Such a plan, if properly carried out should do
     much to unify the work of a Convention.[21]

     The committee on arrangement and phraseology should
     serve in large part as a central drafting organ to give unity
     to the work of the convention.[22]

{177} Separate committees will also be necessary to deal with questions 
which are at the time of great popular interest, because an effort will 
naturally be made to have these subjects dealt with in the constitution. For 
example if a convention were assembled in Illinois today it would be almost 
necessary to have separate committees upon the liquor traffic, taxation, the 
initiative and referendum, and apportionment and minority 
representation.[23] 

The following are the more important committees common to three of the most 
recent constitutional conventions: Arrangement and Phraseology, Banks, 
Corporations, Counties and Towns, Education, Suffrage, Judiciary, Bill of 
Rights, Legislature, Methods of Amendment, Miscellaneous, Municipal 
Government, Rules, Submission and Address, Taxation.[24]

Committees are of course organs of the convention, appointed for the purpose 
of maturing matters for consideration by that body. A committee should 
therefore at all times be subject to control by a majority of the 
convention, and should have no power (by failing to report upon any matter) 
to prevent its consideration by the convention.[25]

The committee must do the detailed work of the Convention, and each 
committee should have before it as soon as possible all of the proposals 
relating to the subject which it is to consider. In order to accomplish this 
purpose, some conventions have definitely agreed that after a certain day no 
proposals should be entertained, unless presented by one of the standing 
committees.[26]

Many convention rules have very properly prescribed the form in which the 
proposals should be introduced, requiring that all proposals be in writing, 
contain but one subject, and have titles.[27]

[7. Convention has power to pledge the faith of the State for expenses.]

A convention may undoubtedly incur expense for its legitimate needs. We have 
already seen that a convention can pledge the faith of the State for the 
expense of hiring a hall.[28] But it is a far cry from pledging the faith of 
the State to pledging the credit of the State. Thus, although the attempts 
{178} of the earlier conventions to appropriate money were successful,[29] 
they have been uniformly unsuccessful in later years,[30] and the attorneys 
general of three States have ruled against the legality of such a 
proceeding.[31] Nevertheless, the legislature, when called on, has never 
failed to make the necessary appropriations to meet the expenses incurred by 
the convention.[32]

Reverting now to the various proper objects of expenditure. A convention 
undoubtedly has power to supply its members with stationery, and probably 
with newspapers[33] Jameson has the following valuable suggestions to make, 
relative to the stenographic reports and printing for the convention: 

     The same principle applies to the case of phonographic
     reports and printing for the Convention. It would be a
     most niggardly policy which would refuse the expenditure
     necessary to the preservation of most full and accurate
     reports of its debates and proceedings. Upon this subject,
     however, there has been very great difference of views in
     different Conventions. In many of the States, volumes have
     been published, containing both the journals and the
     debates of all their Conventions. In others, the subject
     seems not to have been regarded as of any consequence
     whatsoever; and what little has been preserved has been
     owing to the private enterprise of the newspaper press.
     The result is, that the memorials of the most important
     public bodies ever assembled in those States, are often
     very meagre, and more often confused and inaccurate.
     Such a policy is "penny wise and pound foolish." In after
     years, when it has become impossible to replace what has
     been lost, more enlightened public opinion commonly finds
     cause to regret a paltry economy which deprives history of
     its most important data. It should be remembered, that our
     Conventions lay the foundations of States, many of which
     are to rival the greatness and glory of Rome, of England,
     and of France. In a hundred years from now, what
     treasures would they not expend, could they purchase
     therewith complete copies of their early constitutional
     records -- documents {179} standing to their several
     organizations in the same relation as would the discussions
     of those ancient sages who framed the Twelve Tables of
     the Roman law, to the Republic of Rome.[34]

[8. Convention has power over recording and reporting of its proceedings.]

The question of printing the proceedings of the Minnesota convention of 1857 
came before the courts because Goodrich, the State printer, claimed that he 
was entitled, by virtue of his business, to do the printing, and obtained an 
injunction from the lower court to prevent Moore, the convention printer, 
from doing it. The Supreme Court said, in dissolving this injunction:

     But even had the legislature intended and attempted to
     claim and exercise the act of providing a printer for the
     constitutional convention, it would have been an
     unauthorized and unwarrantable interference with the rights
     of that body. The admission of such a right in the
     legislature, would place the convention under its entire
     control, leaving it without authority even to appoint or elect
     its own officers, or adopt measures for the transaction of
     its legitimate business. It would have less power than a
     town meeting, and be incompetent to perform the objects
     for which it convened. It would be absurd to suppose a
     constitutional convention had only such limited authority. It
     is the highest legislative assembly recognized in law,
     invested with the right of enacting or framing the supreme
     law of the state. It must have plenary power for this, and
     over all of the incidents thereof. The fact that the
     convention assembled by authority of the legislature
     renders it in no respect inferior thereto, as it may well be
     questioned whether, had the legislature refused to make
     provision for calling a convention, the people in their
     sovereign capacity would not have had the right to have
     taken such measures for framing and adopting a
     constitution as to them seemed meet. At all events there
     can be no doubt but that, however called, the convention
     had full control of all its proceedings, and may provide in
     such manner as it sees fit to perpetuate its records either
     by printing or manuscript, or may refuse to do either.[35]

And Ruling Case Law says:

     A constitutional convention has full control of all its
     proceedings, and may provide in such manner as it sees fit
     to perpetuate its record, either by printing or by
     manuscript.[36]

{180} The convention has equal control over other printing necessarily 
incidental to its business. As Jameson says:

     In relation to the printing for the Convention, the case is
     very clear. If the Act calling the body provides for it, or
     requires it to be done in a particular manner or by a
     designated person, or limits it in amount or in cost,
     doubtless the Act should be obeyed. But, unless thus
     restricted, the power of the body to order its printing to be
     done, is as undoubted as to engage a hall or the requisite
     executive officers. The only alternative is, the employment
     of secretaries enough to furnish written copies of all papers
     and documents used in the course of its business. This
     would be possible, and such provision would, after a sort,
     answer the purpose. But it is certain, that the measures
     proposed would be neither so well understood nor so
     rapidly matured, if thus presented, as if they were printed.
     To this may be added, that the expense of printed would
     be much less than of written copies, and that the length of
     the session would probably be reduced by the use of
     them. The employment, then, of printed matter, being
     clearly within the power of the Convention, as incident to
     the speedy and convenient execution of its commission,
     the extent of it rests in the discretion of that body, and it
     can bind the government, within reasonable limits, by its
     contracts therefor.[37]

[9. Convention has power to expel, and, subject to the convention act, to 
punish members and outsiders.]

A further important consideration is the power of the convention to maintain 
order and punish for contempt. Jameson doubts the power of the 
Sergeant-at-Arms of the convention to be anything more than a mere 
doorkeeper.[38] But that really is a subsidiary question depending on what 
power the convention itself has to enforce order. Jameson says:

     The power of a Convention to discipline its own members
     for offences committed in its presence is undoubted, and
     of considerable extent. The order and dignity of public
     deliberative bodies may, in many ways, be so assailed as
     seriously to interfere with the progress of business, if not
     wholly to interrupt it, yet without the commission of any
     misdemeanor for which the offenders would be amenable
     to the laws. A Convention, having no power to make laws
     giving the magistrates jurisdiction of such offences, unless it
     could, by sanctions of its own, enforce its rules for the
     preservation of order, it would be at the mercy of such
     members as chose to do the work of violence, but to do it
     in such a manner as to elude the penalties for a breach of
     the peace. To prevent this is the principal {181} object of
     rules; and every public assembly, by its very nature, must
     have power to make and to enforce them in some modes
     appropriate to its own Constitution. To Conventions,
     however, it must be admitted, the range of sanctions is not
     very wide. For minor offences, it would be confined,
     probably, to reprimand, and for the more heinous, to
     expulsion from the body; or, in cases of actual violence to
     arrest and tradition to the public authorities. Power to this
     extent I conceive to be indispensable to the existence of
     any deliberative assembly; and, without assuming the
     character of a legislature, with power to create and to
     invest officers and tribunals with jurisdiction to punish
     offences, I can imagine it possessed of no greater. The
     power to arrest an offender, in the case supposed of
     actual violence, would involve that of safely keeping, and,
     if necessary, of confining him until he could be delivered to
     the officers of the law. So, the power to expel a member
     would carry with it that of suspending, which is less, or of
     suspending with forfeiture of pay, temporarily or
     altogether, according to the degree of the offence. But the
     power could not be claimed, in the former case, to
     imprison as a punishment, or for a longer time than should
     be necessary to secure the arrested member until he could
     be transferred to the magistrates, on complaint regularly
     made; or, in the latter, to pass from a forfeiture of pay (if
     that be regarded as allowable) to the imposition of
     pecuniary mulcts.[39]

Many convention acts expressly give to conventions the power to expel 
members and punish its members and officers by imprisonment or otherwise. 
The Georgia convention of 1867 expelled a member for insulting the president 
of that body.[40]

The report of the Judiciary Committee to the New York convention of 1894 
asserts that a convention has the power of expulsion.[41]

The power of a convention to discipline strangers is a different question. 
Jameson denies this power, because of his desire to belittle conventions in 
comparison with legislatures, for the purpose of the main thesis of his 
book, namely legislative supremacy over conventions. Thus Jameson says:

     As a Convention is not a legislature, though a body, by
     delegation, exercising some legislative functions, but of so
     limited and subordinate a character as to entitle it to rank
     only as a legislative {182} committee, it cannot do, even
     for its own defence, acts within the competence only of a
     legislature, or of a body with powers of definite
     legislation.[42]

But in view of the modern theory that a convention is a legislative body of 
superior standing to the ordinary legislature,[43] it would appear that a 
convention would have at least the same degree of powers in this particular 
as is inherent in inferior legislative bodies.[44] 

The Illinois convention of 1862 appointed a committee to investigate charges 
against certain of its members, with power to send for persons and papers 
and to swear witnesses.[45] The Louisiana convention of 1864 caused a 
newspaper editor to be arrested and brought before it for contempt for 
publishing certain criticisms of the president and other members of the 
convention. In this they had the assistance of the Federal Department 
Commander and the Federal Provost Marshal. General Banks released the 
editor, however, before the contempt proceedings were completed.[46]

Various convention acts have contained provisions expressly authorizing 
conventions to discipline strangers.[47] The author knows of no case in 
which this has been done, however, either with or without the express 
authority of the convention act.

In all the foregoing discussion the author has assumed the absence of 
anything in any popular statute, restricting or enlarging the powers and 
duties of the convention. The convention has certain express powers and 
certain powers implied from the inherent nature of the body, all of which 
are delegated to it by the people in their sovereign capacity. No 
constitution except that of the Federal government can restrict the people 
in delegating to a convention or in withholding from a convention any powers 
that they choose.[48] Therefore the language of any convention act, provided 
it be passed by the people, should be carefully consulted upon the question 
of determining the powers of any particular convention.

[10. Convention may have power to reconvene to codify constitution ratified 
by the people.]

One very important power of the convention has been {183} reserved for the 
last, and that is the power of the convention to reconvene after the 
election (to which it submits its proposed changes in the constitution), in 
order to make and promulgate a codification of the constitution. The 
convention act which created the Kentucky convention of 1890 provided that, 
before any changes in the constitution should become operative, they should 
be submitted to the voters of the State and ratified by a majority thereof. 
Proposed changes were ratified by a popular vote in April, 1891. The 
convention reconvened in September, 1891, to which date they had adjourned, 
and made numerous changes in the constitution, some of which were claimed to 
have been material, and promulgated the codified instrument. An effort was 
made to enjoin the printing and preservation of this constitution, but the 
Court of Appeals recognized as valid the constitution promulgated by the 
convention.[49] It is probable that the court was influenced by the extreme 
practical convenience of enabling a convention to make a codification of the 
instrument after the adoption of changes by the people.

The convention which framed the original constitution of Massachusetts 
assumed that it had a similar power, although no such power had been granted 
it by the convention act. The convention act provided that the constitution 
should not take effect unless ratified by a two thirds vote of the 
people.[50] The convention, however, desiring to secure an acceptable 
constitution, provided that the instrument which it drew should be voted on, 
article by article, by the people of the State, and that in any town where a 
majority voted against an article, the town meeting should suggest what 
changes would render that article acceptable.

In order that the said Convention, at the adjournment, may collect the 
general sense of their constituents on the several parts of the proposed 
Constitution: And if there doth not appear to be two thirds of their 
constituents in favour thereof, that the Convention may alter it in such a 
manner as that it may be agreeable to the sentiments of two thirds of the 
voters throughout the State.[51]

This power of altering was not exercised, for it appeared from the returns 
that two thirds of the voters were in favor of the instrument as drawn; and 
it was accordingly promulgated by {184} the convention without change.[52] 
But the assumption by the convention of its power to make changes after 
submission is an important precedent. A fortiori would a convention have the 
power to codify the constitution without making any changes.

An alternative method of procedure would be for the convention to submit on 
the ballot a proposition authorizing the convention, or a committee thereof 
or some other body, to codify the constitution as amended at that election, 
and to promulgate the codification.

The legislature of Maine, in submitting various amendments in 1875, 
submitted a proposition that the Chief Justice of the Supreme Court should 
have power to codify the constitution, by including amendments then adopted 
and all prior amendments, and by striking out all obsolete matter. This 
proposition was accepted by the voters and was accordingly followed by the 
Chief Justice, with the result that the constitution of Maine was brought up 
to date and put into a much more workable form than formerly.[53]

Similarly a convention might submit to the people an ordinance authorizing 
itself to make such a codification, although it would probably have power to 
do this without such authorization, particularly in States where the 
convention procedure is extraconstitutional rather than constitutional.

The importance of such a power of codification is not to be overlooked.

Thus we see that a convention ordinarily has full control over its internal 
affairs, including its own membership, the filling of vacancies, the 
obtaining of quarters, the election of officers and employees, the 
establishment of rules, the purchasing of supplies, the printing of records, 
etc., the maintenance of internal order, and even the disciplining of 
strangers; but these powers may be enlarged or curtailed by popular vote.

The convention's control over the process of submitting its work for popular 
ratification will be discussed in a later chapter.[54] Its power to pass 
necessary incidental legislation has already been discussed.[55]

------

1. Dodd, p. 88.

2. Wells v. Bain (1872), 75 Pa. 39, 55. 

3. See [Ch. XI 11] pp. 146-147, supra.

4. Lincoln, Const. Hist. of N. Y., Vol. III, p. 666. Elihu Root was chairman 
of this committee. Lincoln himself drew the report. It was unanimously 
accepted by the convention. Rev. Record, N. Y. Conv. 1894, Vol. I, p. 270.

5. Rev. Record, N. Y. Conv. 1894, Vol. I, p. 250.

6. Rev. Record, N. Y. Conv. 1894, Vol. I, p. 267-270. 

7. Jameson, p. 331.

8. Jameson, pp. 333-342. 

9. Opinion of Justices (1826), 3 Pick. 517, 520. 

10. N. Y. Rev. of Consts., p. 58. The full title is "Revision of the State 
Constitution," published by the New York Constitutional Convention 
Commission in 1915.

11. Jameson, pp. 455-456. 

12. Jameson, p. 456.

13. See [Ch. XIV 8] p. 180, infra.

14. Jameson, pp. 460-461. 

15. N. Y. Revision of Consts., p. 60.

16. N. Y. Revision of Consts., p. 62.

17. Jameson, pp. 287-289. 

18. I Cyc. American Govt., 428. 

19. N. Y. Revision of Consts., p. 63.

20. N. Y. Revision of Consts., p. 64.

21. N. Y. Revision of Consts., p. 69.

22. N. Y. Revision of Consts., p. 69.

23. N. Y. Revision of Consts., p. 63.

24. Journal, Mich. Conv. 1907-1908, Vol. I, p. 15; Journal, Ohio Conv. 1912, 
p. 41; Rev. Record, N. Y. Conv. 1915, Vol. I, pp. 49-52.

25. N. Y. Revision of Consts., p. 64.

26. N. Y. Revision of Consts., pp. 66-67.

27. N. Y. Revision of Consts., p. 67.

28. See [Ch. XIV 4] p. 173, supra.

29. Pennsylvania (1837); Louisiana (1844 and 1864). Jameson, pp. 436-437.

30. Illinois (1862); New York (1867); Georgia (1867 and 1877); Pennsylvania 
(1873). Jameson, pp. 437-438, 441-442, 444-446. But see p. 180, infra.

31. Massachusetts (1779-80); United States (1787); Illinois (1862); New York 
(1867); Georgia (1877); Pennsylvania (1873). Jameson, pp. 435-436, 438, 445, 
446.

32. Hon. J. H. Martindale of New York in 1867; Hon. R. N. Ely of Georgia in 
1877; and Hon. Samuel E. Dimmick of Pennsylvania in 1873. Jameson, pp. 442, 
445-446.

33. Jameson, pp. 457-458. 

34. Jameson, p. 458.

35. Goodrich v. Moore (1858), 2 Minn. 61, 66.

36. 6 R. C. L.,  17, p. 27.

37. Jameson, p. 460.

38. Jameson, pp 456-457. 

39. Jameson, pp. 463-464. 

40. Jameson, p. 466.

41. Rev. Record, N. Y. Conv. 1894, pp. 267-269.

42. Jameson, p. 461.

43. See [Ch. VII 1] p. 90, supra.

44. Jameson, pp. 466-467. See 36 Cyc. 851 on the contempt and other powers 
of legislatures.

45. Jameson, pp. 468-470. 

46. Jameson, pp. 470-472. 

47. Jameson, pp. 472-473. 

48. See [Ch. XIII 1] pp. 165-168, supra.

49. Miller v. Johnson (1892), 92 Ky. 589.

50. Journal, Mass. Conv. 1779-1780, p. 6.

51. Journal, Mass. Conv. 1779-1780, p. 169.

52. Journal, Mass. Conv. 1779-1780, pp. 186-187.

53. Thorpe, Vol. III, p. 1646, n. a.

54. See [Ch. XVI 3-13] pp. 196-213, infra.

55. See [Ch. XI 11] pp. 146-147, supra.

------------

                    CHAPTER XV

              STATUS OF DELEGATES

[1. Convention delegates are not officers under the existing constitution.]

{185} THE most important questions relative to the status of delegates to a 
convention are as follows: Are they public officers and should they take an 
oath to support the existing constitution?

First, as to whether the delegates are public officers. This question arose 
in the Illinois convention of 1862 under a provision of the then 
constitution of that State,[1] which provided that judges of certain courts 
should not be eligible to any other office, or public trust, of profit, 
during the term for which they were elected or for one year thereafter. One 
of the delegates had been a judge of one of these courts within one year 
prior to his election to the convention. His competitor contested his 
election on this ground. On the part of the judge, it was contended that the 
words of the constitution referred to the distribution of powers by the 
constitution to the three regular branches of government, to neither of 
which did the convention belong. Even the fact that the convention was 
authorized by the constitution was immaterial, for the constitution merely 
provided a means for the people to exercise their undoubted right to hold a 
convention and did not prescribe the qualifications of delegates, as it did 
those of judges, members of the legislature, and members of the executive 
department. If the constitution had regarded the members of the convention 
as State officers, it would certainly have contained provisions prescribing 
their qualifications, the time and mode of their election, and their powers 
and duties.

In behalf of the contestant, no great claim was made that a seat in the 
convention was a public office, but it was contended very strongly that it 
was certainly a position of public trust of the greatest magnitude. The 
convention, however, decided {186} to permit the judge to retain his 
seat.[2] Jameson differs with this conclusion in the following language:

     In my judgment, there can be but little doubt, that a
     member of a Convention is, in the enlarged and proper
     acceptation of the term, an "officer "of the State. ... A
     Convention is a part of the apparatus by which a sovereign
     society does its work as a political organism. It is the
     sovereign, as organized for the purpose of renewing or
     repairing the governmental machinery. That same
     sovereign, as organized for the purpose of making laws, is
     the legislature; as organized for the purpose of applying or
     carrying into effect the laws, it is the judiciary or the
     executive. These successive forms into which the
     sovereign resolves itself, are but systems of organization
     having relation more or less directly to the government of
     the society. Together, they constitute the government.[3]

The position of delegate to the Illinois convention was undoubtedly a 
position of public trust, and even a public office; but was not, if we 
regard such conventions as extraconstitutional, a position under the 
constitution. When a constitution refers to the incompatibility of offices, 
such provisions should be construed as relating solely to positions under 
the constitution itself and not to apply to any other positions unless 
clearly so stated.

Attorney-General Attwill in a recent opinion to the Massachusetts 
legislature, reaches the same results, but on different grounds:

     I have come to the conclusion, with some hesitation, that
     the position of delegate in the convention is not an office of
     the Commonwealth. 

     Whatever may be said in relation to a member of the
     Legislature, he at least takes part in the execution of one of
     the powers of government, whereas a delegate in the
     convention acts substantially as one of a committee of the
     people, whose power is restricted to making a report to
     the people.

     The whole purpose of the convention is to take under
     consideration the propriety of revising or altering the
     present Constitution, and to report back to the people
     such revision, alteration or amendment as it may propose.
     Its powers are similar to that of a committee, its work is
     entirely preliminary, and it has no power to do any act
     which of itself has any final effect.

     {187} It is my view that the word "office," as used in
     article VIII of the Amendments, refers to a position the
     incumbent of which exercises some power of government,
     and not to the position of a person selected to act in an
     advisory capacity in framing a scheme or change of
     government to be submitted to the people for adoption or
     rejection.[4]

It does not appear necessary to debase the convention in this way in order 
to reach his conclusion. It would be sufficient to hold that the word 
"officer" in the constitution means constitutional officer. Mr. Attwill had, 
however, debarred himself from using this ground by his theory (expressed 
earlier in the same opinion) that the convention is a constitutional 
proceeding.[5]

[2. Convention delegates need not take oath to uphold existing 
constitution.]

Let us next take up the question of oaths of members. Jameson says:

     The question whether the members of a Convention
     should be sworn before entering upon their duties, has
     been variously answered in different Conventions. Of the
     whole number whose proceedings have been accessible to
     me, about one half only have administered an oath. These
     were the following Conventions: those of Pennsylvania,
     1776; North Carolina, 1835; New Jersey, 1844;
     Missouri, 1845; Illinois, 1847 and 1862; California and
     Kentucky, 1849; Ohio and Indiana, 1850; Iowa and the
     two Minnesota Conventions, in 1857; and Maryland, in
     1864. On the other hand, an oath was not administered in
     the following Conventions: Maryland, 1776 and 1850;
     Tennessee, 1796 and 1834; Virginia, 1829 and 1850;
     Pennsylvania, 1789 and 1837; New York, 1821 and
     1846; Massachusetts, 1779, 1821, and 1853; Michigan,
     1850; Wisconsin, 1847; and Louisiana, 1812, 1844, and
     1852. In those Conventions in which an oath has been
     administered, the most common form has been
     substantially that used by the Illinois Convention of 1847,
     which was as follows: "You do solemnly swear, that you
     will support the Constitution of the United States, and that
     you will faithfully discharge your duty as delegates to this
     Convention, for the purpose of revising and amending the
     Constitution of the State of Illinois." That administered in
     Maryland, in 1864, beside the foregoing, contained an
     oath of allegiance to the government of the United States.
     A more restricted form was employed in the California
     Convention of 1849, {188} and in the Minnesota
     Republican Convention of 1857, namely: "You do
     solemnly swear that you will support the Constitution of
     the United States."

     In several of the Conventions in which an oath has been
     administered, opposition has been made either to taking
     any oath at all, or to taking one in the form proposed by
     the Convention, or prescribed by the Act under which it
     assembled.

     It has been urged that no oath was necessary or proper;
     that it the Convention was a mere committee, with powers
     only of proposing amendments, it was a useless ceremony
     to bind it by oaths to do or not to do acts which it could
     do only on the hypothesis that it possessed a power of
     self-direction inconsistent with its supposed character; that
     it was even dangerous so to do, as involving an admission
     that, without an oath or some positive prohibition, it would
     have power, and perhaps be at liberty, to act definitively.
     On the other hand, if the Convention was an embodiment
     of the sovereignty of the State or nation, empowered to
     pull down and reconstruct the edifice of government, as
     freely as the sovereign could itself do, were it possible for
     it to act in person and directly, then an oath would be
     doubly futile, since it could not fetter a power that was
     practically unlimited and uncontrollable.

     In reply to this, however, it has been forcibly urged that, if
     not necessary, it is proper that a body like a Convention,
     intrusted with important public duties, should deliberate
     under the obligation of an oath; that it could do no harm,
     and might operate to restrain members from doing, for
     selfish or partisan ends, that by which the interest of the
     people at large might be jeopardized. This would become
     more apparent, when it was considered that an oath
     derives its efficacy more from its tendency to remind the
     taker of his obligation to a higher power, than from any
     liability the taking of it may impose upon him to punishment
     for perjury.

     What form of oath should be used has, however, been
     more frequently the subject of dispute than whether any
     oath was proper. In Conventions to frame State
     Constitutions, assuming that an oath is to be administered
     at all, it is generally conceded to be proper that it should
     embrace an undertaking to be faithful and obedient to the
     Constitution of the United States. This could not well be
     contested, since the State Constitutions are, by the terms
     of the Federal charter, to be valid only when conformable
     to its provisions. It is also generally admitted to be proper,
     if an oath be taken at all, that the members should be
     sworn honestly and faithfully to perform their duties as
     members of the Convention. A question of more difficulty
     is, whether the oath should {189} contain a clause to
     support the Constitution of the State. This question has
     been raised in several Conventions, and has been
     uniformly decided in the negative. The reasonings of the
     opposite parties upon this question have been based on
     their respective conceptions of the nature and powers of a
     Convention. Those who have opposed taking the oath
     have done so on the ground, that to do so would be
     inconsistent with their duties as members of a Convention;
     that they were deputed by the sovereign society to pull to
     pieces, or, as some have expressed it, "to trample under
     their feet," the existing Constitution, and to build up instead
     of it a new one; that to take an oath to support the
     Constitution of the State, would be to swear that they
     would not perform the very duty for which they were
     appointed.[6]

Among the conventions which have raised the question and refused to take the 
oath are those of Louisiana in 1844, Ohio in 1850, Iowa in 1857, and 
Illinois in 1862[7] and 1869.

In the last two instances, the convention act required an oath to support 
the constitution of the State. The convention of 1862 struck out the words 
"of the State," and the convention of 1869 accomplished the same result by 
adding after them the words "so far as its provisions are compatible with 
and applicable to my position," thus recognizing the principle that the 
convention was extraconstitutional.[8]

Similar recognition was given by the Virginia convention of 1901-1902. The 
then existing constitution required all State officers to take an oath to 
support the State constitution. It was argued that delegates to the 
convention were not officers, and accordingly the oath was not taken.[9] 

The constitutions of Colorado, Illinois, and Montana expressly provided that 
delegates to conventions must take an oath to support both Federal and State 
constitutions.[10] There is no record of the applicability of this provision 
ever having been questioned.

In North Carolina the legislature in 1835 and 1875 placed restrictions upon 
what the conventions should do, and provided that no delegate should be 
permitted to take his seat until he should take an oath to observe such 
restrictions. In these cases the oaths were objected to, but were taken, and 
the {190} restrictions were observed.[11] A similar oath, required by 
legislative act, was taken by the delegates to the Georgia convention of 
1833.[12] The same plan was followed by the Louisiana legislature of 1896, 
and the restrictions were substantially observed by the convention which 
assembled in that State in 1898.[13] The Louisiana act of 1896 had been 
submitted to and approved by the people, as had also the act calling the 
North Carolina convention of 1835.[14] The Louisiana convention of 1898 
expressly recognized the popular statute as binding upon it, and the same 
view is found in a dictum of the Louisiana Supreme Court.[15] It would seem 
that such of these conventions as were called merely by the legislature[16] 
might, had they thought proper, have declined to take the oaths, and have 
organized and proceeded to act without doing so, just as was done by the 
Illinois convention of 1862.[17]

As we have seen, the question of taking an oath to support the State 
constitution has been decided in the negative wherever it has been raised, 
with the single exception of North Carolina, in which State it had been the 
people who had required the oath. This would seem to be a reasonable 
decision, based on the superiority of the convention to the constitution. It 
would be a strange anomaly to require a superior to take oath to obey an 
inferior.

Similarly there is a bit of an anomaly for the legislature and the Governor, 
after taking an oath to support the existing constitution, to then provide 
for the holding of a convention for the overturning of that instrument in a 
manner unauthorized, or even impliedly or expressly prohibited, by it. Yet 
this may be justified by arguing that as an oath to support the State 
constitution does not bind the taker to commit treason against the United 
States, neither does it bind him to forswear his primary allegiance to the 
people.

From all the foregoing we see that convention delegates are not officers 
under the existing constitution, even in the case of a convention apparently 
authorized by that instrument, and that it would be extremely anomalous for 
them to take an oath {191} to support the State constitution; although they 
ought to swear to support the constitution of the United States and 
faithfully and impartially to perform the duties of their position.

[3. Convention delegates entitled to usual privileges and immunities of 
legislators.]

It may be useful now to append a few remarks in relation to the question of 
privileges, as applicable to Conventions. Are the members of a Convention, 
or is the body itself, entitled to claim the immunities usually accorded to 
the legislature, and to its individual members, such as exemption from legal 
process, from service as jurors or witnesses, or from legal question tending 
to impair the freedom of their debates and proceedings? It is doubtless 
essential, in order to enable a legislature, or any other public assembly, 
to accomplish the work assigned to it, that its members should not be 
prevented or withdrawn from their attendance, by any causes of a less 
important character; but that, for a certain time at least, they should be 
excused from obeying any other call, not so immediately necessary for the 
welfare or safety of the State; they must also be always protected in the 
exercise of the rights of speech, debate and determination in reference to 
all subjects upon which they may be rightfully called to deliberate and act; 
it is absolutely necessary, finally, that the aggregate body should be 
exempted from such interferences or annoyances as would tend to impair its 
collective authority or usefulness. The immunities thus indispensable are, 
in the case of legislatures, commonly secured by rules and maxims or 
constitutional provisions, and are styled privileges, as being rights or 
exemptions appertaining to their office, to which citizens generally are not 
entitled.

Out of the catalogue of privileges above given, it is not easy to select one 
with which a Convention or its members could safely dispense. It ought never 
to be, as without them it would frequently be, in the power of the enemies 
of reform to prevent or postpone it by arresting, harassing or intimidating 
the delegates to the body by whom it is to be accomplished. But the real 
difficulty is, not to determine whether or not a Convention ought to enjoy 
those privileges, but to ascertain how and by whom they should be protected 
and enforced.

Upon this point, there is, in my judgment, but one position that can be 
maintained with safety, and that is, that Conventions must stand upon the 
same footing with jurors and witnesses; they must look to the law of the 
land and to its appointed administrators, and not to their own powers, for 
protection in their office. If a juror or a witness, going or returning, is 
harassed by arrest, he does not himself or with his professional associates 
cite the offending officer before him for punishment, but sues out a writ of 
Habeas {192} Corpus, and on pleading his privilege procures his discharge. 
Beside this, for personal indignity or injury, he may appeal to the laws for 
pecuniary compensation. The same course is doubtless open to any member of a 
Convention, and it furnishes for all ordinary cases a practical and 
sufficient remedy. Behind those bodies stands continually, armed in full 
panoply, the state, with all its administrative and remedial agencies, ready 
to protect and defend them.[18]

Various convention acts declare expressly the privileges and the immunities 
of the delegates.

Thus it appears that the delegates, although "officers," are not "officers" 
within the meaning of the constitution. They need not take an oath to 
support the State constitution unless required to do so by a popular 
statute. They have similar privileges and immunities to those enjoyed by 
members of the State legislature and jurors, but should look to the courts 
to enforce them.

------

1. Art. V,  10.

2. Jameson, pp. 317-318. 

3. Jameson, pp. 319-320. 

4. 1917 Mass. House Doc., 1711. Compare Atty. Gen. v. Tillinghast (1909), 
203 Mass. 539, 543.

5. See [Ch. IV 4] pp. 43-45, supra. 

6. Jameson, pp. 280-282. 

7. Jameson, p. 282, n. 1. 

8. Jameson, p. 284.

9. Dodd, p. 81, n. 16. 

10. "Columbia Digest," p. 28.

11. Dodd, p. 81.

12. Dodd, p. 81.

13. Dodd, p. 81.

14. Dodd, p. 81, n. 15. 

15. Dodd, p. 81, n. 15; La. Ry. Co. v. Madere (1909), 124 La. 635, 642.

16. North Carolina (1875); Georgia (1833).

17. Dodd, p. 81, n. 15. 

18. Jameson, pp. 473-474. 

------------

                    CHAPTER XVI

          SUBMISSION OF AMENDMENTS

[1. Necessity of submission of convention result to ratification by the 
people.]

{193} OF the original constitutions of the thirteen colonies, only those of 
New Hampshire and Massachusetts were formally submitted to a vote of the 
people, although in several other instances an informal canvass was made. 
The Vermont constitution of 1786 and the Georgia constitution of 1789 were 
ratified by different bodies from those that framed them, these second 
bodies being chosen by a direct vote of the people for that purpose. The New 
Hampshire constitution of 1792, the Connecticut constitution of 1818, and 
the Maine constitution of 1819 were submitted to a popular vote. New York 
followed in 1821. The popular submission of constitutions first developed in 
New England, largely, it would seem, because there alone the people had in 
their town meetings workable instruments for the expression of popular 
sentiment upon such a question.[1] This policy soon became general, although 
it received a setback in the South during the Civil War, doubtless because 
of fear of the negro vote. Most of the reconstruction constitutions were 
voted on by the people, although secessionists were excluded from voting. 
Since 1890 fourteen State constitutions have been adopted. Seven of these 
were submitted to a vote of the people; six were adopted without submission; 
and one, that of Kentucky in 1891, was altered by the convention after it 
had received the popular approval.[2]

Dodd says:

     In view of the facts discussed above, I think that it is
     impossible to assert, as Judge Jameson did, that the
     submission of a constitution to a vote of the people is
     imperatively required by some customary constitutional
     law of this country, or even to say that {194} a legislature
     in calling a convention may effectively bind such a body to
     submit its work for the approval of the people. We are,
     then, forced to the conclusion, that at present the only
     rules positively binding a convention to submit its
     constitution to the people are those contained in the
     constitution which the convention may have been called to
     revise. Of the thirty-four state constitutions which contain
     provisions regarding constitutional conventions, seventeen
     require that constitutions framed by such conventions be
     submitted to the people. As has been suggested, however,
     all of the states, with the exceptions just referred to, have
     followed the same rule since 1840. Of only two states --
     Delaware and Mississippi -- may it be said that the
     practice is opposed to a convention's submitting the results
     of its labors to a vote of the people.[3]

[2. Instances of convention refusing to submit its changes to the people.]

There are no recorded instances of a convention refusing to submit the fruit 
of its labors to the people when required by express constitutional 
provision. There have been instances, however, in which conventions have 
disobeyed similar express requirements of the convention act. But, if a 
convention act voted on by the people acquires from this vote a 
supraconstitutional force,[4] it would seem that its provisions ought to be 
even more binding than those of the constitution.

In Virginia, in 1901, the question of holding a convention was voted upon by 
the people as required by the constitution of 1870; and the subsequent 
legislative act authorizing the convention provided that the constitution 
framed by it should be submitted to a vote of the people. However, the 
convention did not submit its constitution, largely, it would seem, for fear 
of its being defeated by the elements to be disfranchised, in combination 
with interests adversely affected by the new constitution.[5] The general 
sentiment of the bar of the State was that the second act, not having been 
voted on by the people, was not binding upon the convention.[6]

The Illinois convention of 1847 declared one article of the constitution to 
be in force without submission to the people, although the convention act 
(purely legislative in its character) required the submission of all 
amendments.[7]

{195} These really are the only instances of conventions disregarding the 
convention act in this respect, although Dodd also cites that of the 
Kentucky convention of 1890-1891.[8] This case however, falls under the 
implied power of a convention to codify and perfect its constitution after 
ratification by the people,[9] for the Kentucky convention did obey the 
requirement that it should submit its constitution to the people. But even 
if we consider this case as an instance of disregard of the convention act, 
it may be differentiated because of the fact that the Kentucky act was the 
creature of the legislature alone and hence might properly be disregarded by 
the convention. Both the Kentucky and Virginia courts recognized these 
constitutions as valid; basing their recognition, however, on popular 
acquiescence rather than on the validity of the proceeding itself.[10]

[3. Popular submission if convention extraconstitutional or convention act 
by people requires it.]

The provision for popular submission contained in a convention act which has 
not been voted on by the people has, nevertheless, been declared by the 
Pennsylvania Supreme Court to be binding, on the ground that the people 
elected their delegates under the act, relying on its terms. The court said:

     When the people voted under this law, did they not vote
     for delegates upon the express terms that they should
     submit their work to the people for approval? Did not
     every man who went to the polls do so with the belief in
     his heart that, by the express condition on which his vote
     was given, the delegates could not bind him without his
     subsequent assent to what the delegates had done? On
     what principle of interpretation of human action can the
     servant now set himself up against the condition of his
     master and say the condition is void? Who made it void?
     Not the electors; they voted upon it.[11]

We have already seen that it is the general custom to submit constitutional 
changes to the people, even when not required by the express terms of the 
convention act. In fact, there have been expressions of opinion to the 
effect that the action of an extraconstitutional convention has no validity 
until ratified by a popular vote. Thus Ruling Case Law says:

     {196} The new constitution prepared by a convention
     derives its force from the action of the people and not
     from that of the legislature which may have issued the call
     for the constitutional convention.[12] 

Judge Morton of the Massachusetts Supreme Court said, in the Massachusetts 
convention of 1853:

     If the people choose to adopt what we submit to them, it
     then becomes authoritative -- not because it comes from
     a legally constituted body, but because the people choose
     to adopt it.[13]

But both of these proceeded upon the theory that it was the legislature 
alone which called the convention. If that be true, then certainly the work 
of the convention must be submitted to the people, in order to give the 
convention any standing at all.

[4. Time of submission of convention result to ratification by the people.]

Having discussed the question of necessity of submission, we next come to 
the question of time of submission. When the determination of the time for 
submission has been left to the convention, has the legislature the power to 
change it? The Lecompton controversy in Kansas arose on just this point. The 
convention, which was pro-slavery, arranged for the submission of two 
alternative forms of its constitution at an election to be held in December, 
1857. Thereupon the free-state legislature, which convened four days before 
the date set for this election, voted to submit the constitutions in 
January. Only slavery men participated in the first election and only 
free-staters in the second, with the result that the most pro-slavery of the 
two constitutions was carried in December, and both were rejected in 
January. No decision was reached as to which was the valid action, for 
President Buchanan and the national Senate deadlocked with the national 
House on the question.[14]

For the legislature to change the time for submission, if the time was set 
by the people, would amount to an illegal attempt at amending the convention 
act;[15] and regardless of the source {197} of the act, would amount to an 
illegal attempt to restrict the convention.[16] 

A somewhat similar question, however, arose more recently in New Hampshire. 
The question involved was as to the time of taking effect of the amendments 
proposed by the convention of 1889. The Supreme Court held that although 
this question was a matter primarily for the legislature, yet as the 
convention had acted and issued an ordinance decreeing that the amendments 
should take effect when voted on, the amendments had so taken effect, and it 
was thereafter too late for the legislature to change the date. This 
opinion, although delivered in 1889, was not published in the New Hampshire 
reports until 1911.[17] This same opinion points out that the practice in 
New Hampshire has been for the legislature to delegate to the convention the 
legislative power of determining when the amendments should take effect. If 
no time were fixed, the amendments would take effect upon their 
ratification.

A Constitution, or an amendment, takes effect on the day of its adoption by 
the people, unless otherwise provided in the existing Constitution, or by 
the Convention acting under legislative authority.[18]

When the time for submission is prescribed by the convention act, can the 
convention change the time? This must needs be within the inherent powers of 
a convention, even though the convention act be popular rather than 
legislative. Otherwise, the whole procedure might come to nought because of 
a technical restriction. Such restrictions are directory rather than 
mandatory, the main object being submission to the people at some time, 
rather than submission at any particular time or not at all. Thus the New 
York convention of 1867 sat beyond the time fixed by the convention act for 
its work to be submitted to the people, for the simple and compelling reason 
that its work had not then been completed.[19]

The Michigan convention of 1907-1908 was required by a purely legislative 
convention act to submit its constitution at the April election of 1908. The 
convention decided to submit at the November election of that year, and by 
mandamus {198} forced the Secretary of State to recognize that the 
convention and not the legislature was the master.[20]

[5. Convention may submit its constitutional changes together or 
separately.]

The next question to be considered is: Need the convention submit its 
constitutional changes en bloc? That this question should arise at all is 
probably due to the idea that there is something inherently different 
between a new constitution and an amended constitution. But as the Supreme 
Court of Rhode Island has well said:

     Any new constitution, therefore, which a convention would
     form, would be a new constitution only in name; but would
     be in fact our present Constitution amended. It is
     impossible for us to imagine any alteration, consistent with
     a republican form of government, which cannot be
     effected by specific amendment as provided in the
     Constitution.[21]

But in spite of this, there have been a number of adverse expressions of 
opinion, which can all, however, be traced to a misconception of the famous 
opinion of the justices of the Massachusetts Supreme Court of 1833.[22] Thus 
Dodd erroneously says:

     The Massachusetts judges thought that there was no
     power to adopt specific amendments except in the manner
     provided by the constitution, but did not express any
     opinion upon the question whether a convention might be
     called for a general constitutional revision; their opinion
     cannot therefore be cited in support of the view that a
     convention may not be called for a general revision without
     constitutional authorization, and such a convention was in
     fact held in Massachusetts in 1853.[23]

Yet what the Massachusetts Supreme Court really said was this:

     The court do not understand that it was the intention of the
     House of Representatives to request their opinion upon the
     natural right of the people in cases of great emergency, or
     upon the obvious failure of their existing constitution to
     accomplish the objects for which it was designed, to
     provide for the amendment or alteration of their
     fundamental laws; nor what would be the {199} effect of
     any change and alteration of their Constitution, made
     under such circumstances and sanctioned by the assent of
     the people. Such a view of the subject would involve the
     general question of natural rights, and the inherent and
     fundamental principles upon which civil society is founded,
     rather than any question upon the nature, construction, or
     operation of the existing constitution of the
     Commonwealth, and the laws made under it. We
     presume, therefore, that the opinion requested applies to
     the existing constitution and laws of the Commonwealth,
     and the rights and powers derived from and under them.
     Considering the questions in this light, we are of opinion,
     ... that, under and pursuant to the existing Constitution,
     there is no authority given by any reasonable construction
     or necessary implication, by which any specific and
     particular amendment or amendments of the Constitution
     can be made, in any other manner than that prescribed in
     the ninth article of the amendments adopted in 1820.[24]

Jameson construes the phrase "specific and particular amendment or 
amendments" as follows:

     The force of these quotations may be better apprehended
     by considering what the Convention meant by a "specific
     amendment." Undoubtedly it meant an amendment which
     had been distinctly formulated in its terms in the public
     mind, and one of which the necessity had been generally
     acknowledged, in contradistinction from a change,
     indeterminate in its character and extent, which might be
     shown to be advisable upon a revision of the whole
     Constitution. A specific amendment, being a definite
     proposition, might safely be submitted to the people to
     pass upon, yes or no; for it required no modification to
     adjust it to possible changes in other parts of the same
     instrument. Not so with an indeterminate amendment, to
     be matured by discussion, and after multiplied
     adjustments, and which might turn out to be a single
     proposition, or a few simple propositions, or a completely
     new Constitution. For such a work only a Convention is
     adapted.

     Recurring, then, to the question whether, where a
     Constitution contains no provision for amendments save in
     the legislative mode, a Convention can be called, the
     answer must be, both upon principle and upon precedent,
     that a Convention can be called, certainly when a revision
     of the whole Constitution is desired, to determine what
     amendments, if any, are needed, or, if deemed advisable,
     to frame a new Constitution. In general, whenever a
     Convention is called, the intention is to authorize a revision
     of {200} the entire Constitution, though upon its meeting,
     the result of its labors may be only to recommend specific
     amendments.[25]

[6. Distinguishing replacement from revision or amendment.]

The phrase "specific and particular amendment or amendments" is the exact 
phrase used in the amending clause of the present Massachusetts 
constitution. It is a technical phrase of Massachusetts constitutional law 
and means no more or less than the mere word "amendment." It has always been 
so recognized in that State, as is shown by the fact that every attempt to 
establish a new method of constitutional amendment has always used the whole 
phrase. Thus, according to Jameson's interpretation and to the practice in 
Massachusetts, any definite constitutional change, from the establishment of 
a complete new constitution down to the changing of a mere comma would be a 
specific and particular amendment.

The real distinction drawn by the Massachusetts Supreme Court was not 
between single amendments and a general revision of the constitution, but 
was between constitutional and extraconstitutional methods of revision. The 
Supreme Court very decidedly does not refer to the extraconstitutional 
method as consisting only in a general revision of the constitution, but on 
the contrary refers to it as "the amendment or alteration of their 
fundamental laws" and as "any change and alteration of their constitution." 
That this is the view held by constitutional lawyers in Massachusetts is 
seen by the following quotation from a very recent local law article:

     It was assumed in the opinion, that the opinion requested
     applies to the existing constitutions and laws of the
     Commonwealth and the rights and powers derived from
     and under them, and did not depend upon the natural right
     of the people in cases of great emergency, or upon the
     obvious failure of their existing constitution to accomplish
     the objects for which it was designed, to provide for the
     amendment and alteration of their fundamental laws.[26]

It is also seen from the fact that the voters of Massachusetts, in calling 
the convention of 1917, voted on the question: "Shall there be a convention 
to revise, alter or amend the constitution of the Commonwealth?"[27] The 
affirmative vote on {201} this question clearly authorized the convention to 
submit separate amendments. So also the convention act provides:

     Any such revision, alterations or amendments, when
     made and adopted by the said convention, shall be
     submitted to the people for their ratification and adoption,
     in such manner as the convention shall direct.[28]

The use of the word "amendments" in the plural shows that the submission of 
separate amendments was within the contemplation of the act, and the 
convention is authorized to use its discretion in this matter by the words 
"in such manner as the convention shall direct."

The convention to be held in Indiana in 1918, although called for the 
purpose of framing an entire constitution, is expressly authorized by the 
convention act to submit any question separately.[29]

[7. Conventions too cumbersome and expensive for minor changes.]

The only real distinction between a general revision and revision by 
separate amendments is that the constitutional convention would be too 
expensive unless there were a lot of changes to be made. As Judson says:

     The convention is a very proper form of organization for
     framing a complete constitution. It is, however, obviously
     too cumbersome and expensive a thing for mere
     amendment, unless, indeed, the amendment in question
     should be of extraordinary importance.[30]

Dodd takes the same view in the following language:

     The discussion heretofore has been based upon the
     general view that constitutional conventions are employed
     for the complete revision of state constitutions or for the
     framing of new constitutions, and that, where a general
     revision is not desired, the regular legislative machinery is
     used to initiate specific amendments. This view is, in the
     main, correct. Yet of course a constitutional convention
     when assembled may not make a general revision but may
     simply propose specific amendments. In the state of New
     Hampshire specific amendments may only be proposed by
     a convention. However, where only a few changes are
     {202} desired the convention is an expensive and
     cumbersome instrument which will not often be employed
     except in case of necessity. On the other hand several
     constitutions make no provision for a convention, and in
     Rhode Island the absence of such provision has been held
     to prevent the holding of a convention so that here the
     legislative process is the only one available for
     constitutional alteration.

     May not the legislative power of initiating amendments be
     used in such a manner as to propose a complete
     constitutional revision? This may be done where the
     legislature is not restricted as to the number or character of
     amendments which it may propose, but precedent is
     against the exercise of such power by a legislature,
     although in Rhode Island this is the only way of obtaining a
     complete constitutional revision. Two state legislatures
     have submitted to the people revised constitutions in the
     guise of amendments, but in both cases the legislative
     revisions were rejected. The Michigan legislature
     submitted a revised constitution in 1874, and the Rhode
     Island legislature submitted the same instrument twice, in
     two successive years, 1898 and 1899.

     Judge Jameson has said as to the legislative method of
     proposing amendments. "It ought to be confined, it is
     believed, to changes which are few, simple, independent,
     and of comparatively small importance. For a general
     revision of a Constitution, or even for single propositions
     involving radical changes as to the policy of which the
     popular mind has not been informed by prior discussion,
     the employment of this mode is impracticable, or of
     doubtful expediency." Judge Jameson's point is purely one
     as to expediency, and it is legally proper, it would seem, in
     the absence of specific constitutional restrictions, to
     propose to the people by the legislative process any
     constitutional alteration short of a complete revision, or
     even a complete revision.[31]

The subsidiary question he touched on, namely the power of the legislature 
to submit a whole constitution in the regular legislative method for 
submitting amendments, should be distinguished from the question of the 
power of the legislature to submit a whole constitution, acting like a 
constitutional convention, which latter question was discussed in an earlier 
chapter.[32]

[8. Some arguments for and against separate submission.]

Reverting to the question of separate submission, we find that Jameson 
presents a strong argument in favor of separate submission:

     {203} A Constitution may be wholly new, or it may be an
     old one revised by altering or adding to its material
     provisions. It may, also, in a hundred separate
     subdivisions, contain but a fourth of that number of distinct
     topics, or each subdivision may be substantive and
     independent. It is obvious that the submitting body,
     weighing accurately the public sense, may determine
     whether the whole Constitution must stand or fall as a unit,
     or whether some parts, being adopted and going into
     effect without the rest, the new system would be adequate
     to the exigencies of the state, and may submit it as a whole
     or in parts accordingly. But it is perfectly clear that every
     distinct proposition not vital to the scheme as a whole, or
     to some other material part, ought to be separately
     submitted. If it were not nearly impracticable, the best
     mode would be to submit every distinct proposition
     separately, so that each voter could vote yes or nay upon
     it, regardless of anything but its absolute propriety.[33]

Nevertheless it is true that

     In far the larger proportion of the cases in which
     submission has been made, it has been of the instruments
     entire. This was naturally true, in general, of all such as
     were the first constitutions of their respective States.

     The earliest departure from this mode was in
     Massachusetts, in 1780, in which the Frame of
     Government and Bill of Rights were both submitted in such
     a way as to enable the people to reject the whole or any
     part of either, ... a course followed by all the subsequent
     Conventions in that State, though the Act calling the
     Convention of 1820 left it to the discretion of that body to
     determine the mode in which the submission should be
     made. The example set by Massachusetts in 1780 was
     followed by New Hampshire in 1791, and in the
     subsequent revision in 1850. The Acts calling the New
     York Conventions of 1821 and 1846 required those
     bodies to submit their proposed amendments to the
     people, together or in distinct propositions, as to them
     should seem expedient. Accordingly, the Convention of
     1821 provided that they should be submitted "together,
     and not in distinct parts;" and that of 1846, expressing the
     opinion that the amendments it proposed could not be
     prepared so as to be voted on separately, submitted them
     en masse excepting one, that relating to "equal suffrage to
     colored persons," which was submitted as a separate
     article. Under a similar discretion, the Pennsylvania
     Convention {204} of 1837 submitted its amendments en
     masse. The Illinois Convention of 1847 and 1862, and the
     Oregon Convention of 1857, pursued a course similar to
     that of the New York Convention of 1846, submitting the
     great body of their respective Constitutions entire, but a
     few articles relating to slavery, to the immigration of
     colored persons, the public debt, and other subjects
     considered of doubtful policy, separately.[34]

In 1820 a convention act was vetoed in New York, for the following reason, 
among others:

     Because the bill contemplates an amended Constitution, to
     be submitted to the people to be adopted or rejected, in
     toto, without prescribing any mode by which a
     discrimination may be made between such provisions as
     shall be deemed salutary and such as shall be disapproved
     by the judgment of the people. If the people are
     competent to pass upon the entire amendments, of which
     there can be no doubt, they are equally competent to
     adopt such of them as they approve, and to reject such as
     they disapprove; and this undoubted right of the people is
     the more important if the Convention is to be called in the
     first instance without a previous consultation of the pure
     and original source of all legitimate authority.[35]

The more recent constitutional conventions which have been held have 
proceeded in the following manner:

     The Michigan convention of 1907-1908 submitted a new
     constitution entire.[36] The New Hampshire convention of
     1912 submitted twelve separate amendments of the old
     constitution.[37] The Ohio convention of 1912 submitted
     forty-two separate propositions.[38] The New York
     convention of 1915 submitted a new constitution and two
     additional separate propositions.[39]

See the following quotations on methods of submission:

     Conventions may submit separate amendments to be
     voted on by the people one by one or all together.[40]

     {205} It lies in the discretion of a convention ordinarily as
     to whether its work shall be submitted: 1, in the form of
     separate amendments to an existing constitution; 2, as a
     complete new constitution; or 3, as a new constitution, but
     with separate provisions which may be voted upon
     independently.[41]

Thus we may conclude that a constitutional convention may submit its changes 
in whatever form it considers best adapted to ascertain and accomplish the 
will of the people.

[9. Power to change size and composition of electorate to whom changes 
referred.]

A related question is the power of the convention to enlarge or reduce the 
electorate to which it refers the amendments. Some constitutional provisions 
and convention acts are specific on this point. Thus the act for the holding 
of the Indiana convention of 1918 provides that the "new constitution shall 
be submitted to the legal voters of the state of Indiana to be by them 
ratified or rejected."[42] Another act of the same session extended the vote 
in this connection to women.[43]

On the other hand, the act for the holding of the Massachusetts convention 
of 1917 merely provides that the amendments "shall be submitted to the 
people for their ratification and adoption, in such manner as the convention 
shall direct."[44]

In cases where the constitution has been held to apply to a convention, it 
has been held that neither the legislature nor the convention has a right to 
prescribe other qualifications than those set forth in the constitution.[45]

Where the constitution does not apply, however, Dodd has pointed out that 

     In most of the cases in which constitutional provisions
     regarding the suffrage have not been observed, there has
     actually been a widening of the suffrage ... with reference
     to the vote for delegates to a convention, and ... with
     reference to the popular vote upon a proposed
     constitution.[46]

In many of the cases cited by Dodd the change was made by the legislature 
rather than by the convention, but even these {206} serve to illustrate the 
inapplicability of the constitutional qualifications of voters.

The convention which framed the original constitution of Massachusetts 
extended the right of suffrage beyond that prescribed by the charter then in 
force. The charter said:

     Provided alwayes that noe Freeholder or other Person
     shall have a Vote in the Eleccon of Members to serve in
     any Greate and Generall Court or Assembly to be held as
     aforesaid who at the time of such Eleccon[1] shall not have
     an estate of Freehold in Land within Our said Province or
     Territory to the value of Forty Shillings per Annu[2] at the
     least or other estate to the value of Forty pounds Sterl'.[47]

And the constitution framed by the convention increased these qualifications 
fifty per cent as follows:

     And at such meetings every male inhabitant of twenty-one
     years of age and upwards, having a freehold estate within
     the commonwealth, of the annual income of three pounds,
     or any estate of the value of sixty pounds, shall have a right
     to give in his vote for the senators for the district of which
     he is an inhabitant.[48]

Nevertheless, the various towns, on the recommendation of the legislature, 
permitted all adult freemen to vote for delegates; and the convention, 
following the same recommendation, chose the adult freemen as the electorate 
to represent the people, in passing upon the proposed constitution.

[10. Instances in which electorate has been altered for purpose of voting 
on constitutional changes.]

It may be well to give a tabulation of some instances in which the 
electorate has been altered for the purpose of voting on constitutional 
changes:

In the following case the legislature plus the electorate extended the 
electorate: New York (1821).[49]

In the following, the legislature alone did the extending:

     New Jersey (1844),[50] Rhode Island (1841 and 1842).[51]

     In one case the convention did so, acting with assent of
     both legislature and electorate: Massachusetts (1780).[52]

     {207} In two cases the convention did so, with the assent
     of the legislature: Virginia (1830),[53] Illinois (1869).[54]

     In the following, the convention on its own initiative
     extended the electorate: Louisiana (1845 and 1852),[55]
     Michigan (1835),[56] Texas (1845),[57] Virginia (1851),[58]
     West Virginia (1863),[59] Tennessee (1834),[60] Kansas
     (1859),[61] Arkansas (1868).[62]

     Two of these conventions reduced the electorate in some
     particulars as well as extending it in others: Tennessee
     (1834),[63] and Arkansas (1868).[64]

Electorates have also been reduced by oaths of allegiance required by 
reconstruction acts, and by the following conventions:

     Maryland (1864), Missouri (1865), New York (1867).[65]
     Such oaths have been held to be ex post facto laws,
     when required as a condition precedent to holding office
     or pursuing certain lines of business.[66] But, as voting is not
     a property right, it is to be doubted if the principle of these
     cases would be extended to prohibit the application of the
     same restriction to voters.

[11. Alteration of electorate by convention.]

The Supreme Court of Missouri has, in the following language, sustained the 
validity of the ordinance of the convention of 1865, which reduced the 
electorate to those who could take the test oath:

     As the representatives of the people, clothed with an
     authority so ample as that, certainly its power to prescribe
     the means by which it was thought best to ascertain the
     sense of the qualified voters of the State upon that
     instrument cannot be seriously questioned. The ordinance
     had in itself every element necessary to give it legal force
     and effect, and was therefore binding upon the voter.[67]

The Justices of the Supreme Court of Massachusetts have, however, recently 
given an opinion which apparently holds that the electorate prescribed by 
the constitution for voting for certain mentioned offices and on amendments 
submitted by the {208} legislative method is the only electorate which can 
vote under the convention method. They first say:

     The validity and powers of this convention are not
     necessarily involved in these questions. Without discussing
     that subject, we are of opinion that ... if the convention to
     revise and alter the Constitution is held under the
     Constitution, etc.

This is their premise, assumed by them merely for the purposes of argument; 
doubtless because they rightly felt that, if the convention is authorized by 
some extraconstitutional power, they, the justices of the court, being 
constitutional officers, would have no right to pass upon any questions 
involved. Acting on the foregoing premise, namely, that the convention is 
held under the constitution, which however they refuse to decide, the 
justices say:

     The Constitution of Massachusetts in its original form
     defined the qualifications of the electorate. Chapter 1,
     Section II, Article II; Chapter 1, Section III, Article IV.
     These qualifications have been modified by Articles III,
     XVII, XX, XXVIII, XXXI and XXXII of the
     Amendments. The words of the Constitution as it now
     stands are "Every male citizen of twenty-one years of age
     and upwards, excepting paupers and persons under
     guardianship, who shall have resided within the
     Commonwealth one year, and within the town or district in
     which he may claim a right to vote six months next
     preceding any election ... shall have a right to vote" for
     governor and other officers. Although these provisions in
     express terms relate only to the qualifications of voters for
     the elective officers therein named, it is a necessary and
     imperative implication that these electors and these only
     can be treated as qualified to vote to change the
     Constitution. The words "qualified voters" as used in
     Article IX of the Amendments, wherein are the provisions
     for amendments to the Constitution, mean the voters
     qualified according to the requirements of the Constitution.
     It is an essential and inevitable limitation upon the power
     vested in the legislative body of a state established by a
     written Constitution that it cannot provide for the revision
     or change of the frame of government except in a lawful
     and orderly method and by the body of electors
     determined according to the terms of that frame of
     government. The "people" who have a right to vote upon
     any essential aspect of that revision and change, either for
     members of the convention or the acceptance {209} or
     rejection of its work, are the people who have a right to
     vote for state officers and upon state questions, namely,
     the voters as described by the Constitution itself. It is
     elementary that the existing Constitution continues in full
     force and effect until changed or destroyed by act of the
     sovereign people. It seems indisputable that there is no
     power under the Constitution, except the sovereign people
     acting in accordance with their self-imposed, limiting
     methods of procedure, to enlarge the electorate so as to
     include as voters persons not eligible to vote upon
     amendments to the existing Constitution. ... The
     Legislature can proceed only under the Constitution. It
     would be contrary to its duty to that Constitution to
     provide for its revision or alteration by a body of electors,
     whose qualifications were different from those ascertained
     by the terms of that Constitution. The power of the
     Legislature to enact that women may be members of or
     vote for local or other subordinate boards of officers (See
     Opinions of Justices, 115 Mass. 602; 136 Mass. 578) is
     of a different character. The existence of that power
     touching officers created by the Legislature affords no
     basis for argument that like power exists to change the
     electorate established by the Constitution for state
     affairs.[68]

[12. Arguments against alteration of electorate by convention.] 

In opposition to this opinion, it may be argued as follows:

First, the court is proceeding upon a premise which is rather questionable, 
and on the validity of which the court is therefore wise in refusing to 
pass, namely, that the constitution authorizes a popular convention.[69]

Secondly, the court assumes, as its second premise, that the constitution of 
Massachusetts establishes an "electorate for state affairs"; whereas it is 
arguable from an inspection of that instrument itself, that the electorate 
which it establishes relates merely to the election of certain specified 
State officers, and possibly to the ratification of amendments submitted by 
the legislature.[70] The theory that the constitution, by prescribing an 
electorate for certain officers, thereby impliedly prescribes the same 
electorate for all State affairs, may well be a violation of the principle 
of construction of instruments, that the express mention of one thing 
amounts to {210} an implied exclusion of all else.[71] This opinion of the 
Massachusetts court, if carried to its logical conclusion, would render 
invalid the partial suffrage laws, whereby in many States women may, by 
legislative act, vote for such State officers as are not expressly mentioned 
in the constitution,[72] which laws have been held valid in actual 
litigation.[73]

Thirdly, the court ignores all of the instances in which, with uniform 
success, legislatures and conventions have enlarged or reduced the 
electorate.[74] Is it not arguable that, if there had been any doubt of the 
legality of such changes, it would have been raised in the courts before 
this? 

Fourthly, the court's opinion is sustainable upon another ground than that 
mentioned by them, namely, upon the ground that the legislature cannot amend 
what the people have enacted.[75]

For these reasons, we may well wait for a decision by the Massachusetts 
court in a litigated case,[76] before concluding that this is their final 
view on the subject. The last above reason suggests a related ground on 
which the court might have based its opinion, and which if valid, would bar 
the convention from changing the electorate, although it would not have 
barred the inclusion of such a change in the original act. The ground is, 
that the voters, in adopting the act, used the term "people" in its commonly 
accepted sense of "voters," and that this use of the word is binding both on 
the legislature and the convention. But on the other hand, it is equally 
arguable that this word was used in the light of the many precedents in 
which conventions have picked what electorate should represent the people. 

Jameson discusses, as follows, the alteration of the electorate by a 
convention:

     {211} Of these, the largest proportion were cases in
     which submission was made to the electors plus certain
     designated classes of persons previously not entitled to
     vote at such elections, and the residue, of cases in which
     submission was made to the electors minus certain classes
     of persons thus entitled, according to existing laws.

                       ------------

     In most of these cases the effect was, on the whole,
     doubtless to increase the existing electorate. In five of
     them the Convention Acts expressly authorized the
     Conventions to submit in the manner described, but in the
     residue no such authority was given or pretended.

     It is evident that in these cases, a new principle was
     introduced, namely, that of submitting proposed changes in
     the fundamental law to persons other than the body
     entrusted with the electoral function under existing laws; in
     some cases, to citizens forming no part of the existing
     governmental system; in others, to a part only of the
     citizens comprised in that system. Such a submission,
     especially when made to persons not forming a part of the
     existing electorate, it is conceived, was not only a novelty
     but a capital innovation, upon which might hang, for the
     States concerned, the most weighty consequences; and,
     unless the principles which ought to govern in the
     enactment of fundamental laws are misconceived, it was
     unconstitutional and in the highest degree dangerous.[77]

But the uniform success of such electoral changes shows that, even if 
unconstitutional, they are nevertheless valid and effective. Besides, there 
is no reason to suppose that a matter not covered by the constitution, and 
which the constitution probably could not control if it tried,[78] can be 
unconstitutional.

The Indiana constitution does not provide for the holding of conventions, 
but does provide that only males shall vote on proposed constitutional 
amendments. Nevertheless, the legislature has decreed that women may vote on 
the constitutional amendments which may be submitted by the coming 
convention,[79] thus clearly showing that the opinion in that State is to 
the effect that general constitutional provisions relative to the 
qualifications of voters do not apply to amendments submitted by an 
extraconstitutional convention.

{212} An objection is sometimes made that if the convention has the power to 
enlarge the electorate in order to get a better expression of public 
opinion, they have an equal power to reduce the electorate; and this is 
urged in support of the theory that they have no power to tamper with the 
electorate at all; but this argument can be met by quoting the following 
passage from the Constitution of the United States:

     The right of citizens of the United States to vote shall not
     be denied or abridged by the United States, or by any
     state, on account of race, color, or previous condition of
     servitude.[80]

[13. Determination of method of conducting ratification election.]

As to method of submission we have already seen that an extraconstitutional 
convention has the power, after the submission of changes to the people, to 
reconvene and codify the new constitution.[81] The manner of conducting the 
election at which the amendments are submitted is usually entrusted by the 
convention act to the convention. And in this connection, the convention has 
the power to pass all necessary incidental legislation.[82] But where the 
legislature attempts to prescribe the method, there is at least one decision 
to the effect that the legislative provisions are binding, particularly when 
ratified by the people. 

The power claimed for the convention is, by ordinance, to raise a commission 
to direct the election upon the amended constitution, in the city of 
Philadelphia, and to confer power on this commission to make a registration 
of voters, and furnish the lists so made to the election officers of each 
precinct; to appoint a judge and two inspectors for each division, by whom 
the election therein shall be conducted. This ordinance further claims the 
power to regulate the qualifications of the officers thus appointed to hold 
the election and to control the general returns of the election. It is 
clear, therefore, that the ordinance assumes a present power to displace the 
election officers now in office under the election laws for the city, to 
substitute officers appointed under the authority of the convention, and to 
set aside these election laws so far as relates to the qualification of the 
officers and the manner in which the general returns shall be made, and in 
other respects not necessary to be noticed. The authority to do this is 
claimed under the fifth section {213} of the Act of 1872, giving the 
convention power to submit the amendments, at such time or times, and in 
such manner as the convention shall prescribe, subject, however, to the 
limitation as to the separate submission of amendments contained in this 
act. It is argued that the manner of submission confers a power to conduct 
the election upon the matter submitted. To state the proposition is to 
refute it, for the manner of submitting the amendments is a totally 
different thing from conducting the election upon the submitted 
amendments.[83]

But the question was really one of the power of popular, rather than of 
legislative, control. One final suggestion:

     When the work of a convention is submitted, it would be
     desirable to have mailed to each voter the text of
     proposals, together with explanations. For a populous
     state this would be expensive, but the expense would
     justify itself.[84]

From all the foregoing, we may deduce as follows: In the absence of popular 
restrictions on the convention, or in the presence of authorization to 
determine the manner of submission, the general authority of the convention 
over the manner of submission will include the date of the election, the 
election officials, the time at which the amendments shall take effect and 
even the choice of the particular electorate who shall be employed by the 
convention to represent the will of the people. The right to determine when 
the changes shall take effect includes the right to decree that they shall 
take effect when codified and promulgated by the reconvened convention.

------

1. Dodd, pp. 62-64.

2. Dodd, pp. 64-67. Arizona and New Mexico submitted to the people in 1910. 
Louisiana in 1913 did not. 

3. Dodd, pp. 68-70.

4. See [Ch. IV 7] pp. 55-56, supra. 

5. Dodd, p. 68

6. VII "Va. Law Reg," 100.

7. Ill. Laws 1846-1847, Act of Feb. 24, 1847, Sec. 6; Ill. Const. 1847, 
Schedule, Art. 4.

8. Dodd, p. 68.

9. See [Ch. XIV 10] pp. 182-184, supra.

10. Taylor v. Commonwealth (1903), 101 Va. 829; Miller v. Johnson (1892), 92 
Ky. 589.

11. Wells v. Bain (1872), 75 Pa. 39, 52. 

12. 6 R. C. L.,  17, p. 27.

13. Deb. Mass. Conv. 1853, Vol. I, p. 75.

14. For a fuller discussion, see [Ch. VIII 4, Ch. IX 6] pp. 103, 116, 
supra.

15. See [Ch. VIII 1-4] pp. 97-104, supra.

16. See [Ch. IX 2-6] pp. 105-116, supra.

17. Opinion of Justices (1889), 76 N. H. 612. 

18. Jameson, p. 545, n. 1.

19. Dodd, p. 82.

20. Carton v. Secy. of State (1908), 151 Mich. 337, 338-339. 

21. Opinion of Justices (1883), 14 R. I. 699, 654.

22. Opinion of Justices (1833), 6 Cush. 573.

23. Dodd, p. 45.

24. Opinion of Justices (1833), 6 Cush. 573, 574.

25. Jameson, pp. 614-615. 

26. Arthur Lord in II "Mass. Law Quarterly," 1, 24.

27. Mass. Gen. St. 1916, c. 98,  1.

28. Mass. Gen. St. 1916, c. 98,  6.

29. Ind. 1917 Senate Bill 77,  1.

30. Judson, Essentials of a Written Const., p. 14.

31. Dodd, pp 258-261.

32. Chapter VI, supra.

33. Jameson, pp 531-532 

34. Jameson, p. 533.

35. Jameson, p. 671.

36. Journal, Mich. Conv. 1907-1908, Vol. II, pp. 1502-1533.

37. Journal, N. H. Conv. 1912, pp. 562-564.

38. Journal, Ohio Conv. 1912, pp. 1050-1073.

39. Rev. Record, N. Y. Conv. 1915, Vol. IV, p. 4335. For a list of earlier 
instances see Dodd, p. 259, n. 243.

40. McClure, "State Const. Making," p. 351.

41. N. Y. Revision of Consts., p. 71; Dodd, p. 258, n. 243.

42. Ind. 1917 Convention Act,  1.

43. Ind. 1917 Senate Bill 77,  1.

44. Mass. Gen. St. 1916, c. 98,  6. The Supreme Court of Massachusetts has 
ruled (Senate Doc. 512 of 1917) that this means submission to those entitled 
to vote for certain State officers.

45. Green v. Shumway (1868), 39 N. Y. 418, 426.

46. Dodd, p. 58, n. 60. 

[1] In the original a tilde ~ bridges over the double "c".

[2] In the original there is a tilde over the final "u".

47. Thorpe, Vol. III, pp. 1878-1879.

48. Mass. Const., Ch. I,  II, Art. II. Similarly as to other officers. 

49. Laws of N. Y., 1821, c. 90. 

50. Laws of N. J. 1843-1844, p. 111; Bott v. Secy. of State (1898), 62 N. J. 
L. 107, 121, 123-124.

51. Mowry, The Dorr War, pp. 119-120, 283.

52. See above on this page.

53. Va. Acts, 1828-1829, c. 15; Thorpe, Vol. III p. 3825.

54. Ill. Act, Feb. 25, 1869; Thorpe, Vol. II, p. 1047.

55. Thorpe, Vol. III, p. 1410; Vol. III, p. 1428.

56. Thorpe, Vol. IV, p. 1942.

57. Thorpe, Vol. VI, p. 3566.

58. Thorpe, Vol. VII, p. 3850.

59. Thorpe, Vol. VII, p. 4011.

60. Thorpe, Vol. VI, p. 3441.

61. Thorpe, Vol. II, p. 1259.

62. Thorpe, Vol. II, p. 330.

63. Thorpe, Vol. VI, p. 3441. 

64. Thorpe, Vol. II, p. 330.

65. Jameson, p. 522.

66. Cummings v. Missouri (1866), 4 Wall. 277, 318.

67. State v. Neal (1868), 42 Mo. 119, 123.

68. Mass. 1917 Senate Doc. 512. 

69. See [Ch. IV 4, 6] pp. 45, 50, supra.

70. Mass. Const., Amendments III, XVI; XVII, and possibly IX. The Justices 
themselves say, in this very opinion: "these provisions in express terms 
relate only to the qualifications of voters for the elective officers 
therein named."

71. This legal maxim reads: "Expressio unius est exclusio alterius."; It is 
possible to construe the recent Massachusetts opinion as changing it to 
read: "Expressio unius est inclusio omnium aliorum."

72. Ill. Laws of 1913, p. 333; Ind. 1917 Senate Bill 77; Ohio Act of 1917; 
Michigan Act of 1917; Rhode Island Act of 1917; Nebraska Act of 1917; North 
Dakota Act of 1917.

73. "The Constitution refers only to elections provided for by that 
instrument." Scown v. Czarnecki (1914), 264 111. 305, 312; approved in 
People v. Militzer (1916), 272 111. 387, 392.

74. See the instances given immediately supra.

75. See [Ch. VIII 1-4] pp. 97-104, supra.

76. Woods v. Woburn (1915), 220 Mass. 416, 418; Young v. Duncan (1914), 218 
Mass. 346, 351, and cases therein cited.

77. Jameson, pp. 516-517. 

78. See [Ch. IV 5-6, Ch. XIII 2] pp. 50-52, 166-167, supra.

79. Ind. Const., II, 2; Ind. 1917 Senate Bill 77.

80. U. S. Const., Amendment XV,  1. 

81. See [Ch. XIV 10] pp. 182-184, supra.

82. See [Ch. XI 11] pp. 146-147, supra.

83. Wells v. Bain (1872), 75 Pa. 39, 53-54.

84. N. Y. Revision of Consts., p. 72.

------------

                   CHAPTER XVII

        THE DOCTRINE OF ACQUIESCENCE

[1. Acquiescence will validate an illegal constitution.]

{214} ONE further matter deserves brief attention, namely, the question as 
to what gives validity to constitutional changes adopted by the convention 
method. A mere lapse of time has been held to validate amendments adopted in 
violation of provisions of the existing constitution. Thus in 1894 the 
Supreme Court of Colorado refused to inquire into the validity of an 
amendment which had been in operation for ten years.[1] In 1903 the Supreme 
Court of Nebraska refused to inquire into the validity of an amendment 
adopted sixteen years before.[2] Dodd, however, says:

     Several expressions in the cases discussed above would
     raise the inference that an amendment might be secure
     from judicial attack simply because it had been long
     acquiesced in and uncontested. This view can hardly be a
     proper one. In the cases above, acquiescence was
     coupled with the fact that the amendments made essential
     changes in governmental organization, and such changes
     having been accomplished, were regarded as making the
     question a political one. But an amendment which did not
     make an essential change in the governmental organization
     -- one the annulling of which would not disarrange the
     governmental machinery -- may, it would seem, be
     attacked as invalid at any time, just as a law acted upon
     perhaps for years as valid, may be then held
     unconstitutional by the court. Mere lapse of time raises no
     presumption in favor of the validity of either a law or
     amendment, but long acquiescence without contesting its
     validity may be considered as having weight in determining
     the question of constitutionality.[3]

Recently in North Dakota a mere custom of the Supreme Court, favorable to 
the tenure of the Judges themselves, was {215} held to have become ingrafted 
on to the constitution by mere lapse of time and acquiescence.[4] 

In the case in which the Virginia convention of 1901 promulgated a 
constitution without complying with the requirement that it submit this 
constitution to the people, the court held:

     The Constitution having been thus acknowledged and
     accepted by the officers administering the government and
     by the people of the State, and being, as a matter of fact,
     in force throughout the State, and there being no
     government in existence under the constitution of 1869
     opposing or denying its validity, we have no difficulty in
     holding that the Constitution in question ... is the only
     rightful, valid, and existing Constitution of this State, and
     that to it all the citizens of Virginia owe their obedience
     and loyal allegiance.[5]

Dodd says:

     Another reason why courts would hesitate to pronounce
     invalid a constitution which was already in operation is that
     a court acting under such constitution would, in rendering a
     decision of this character, necessarily pronounce against its
     own competence as a court. A court organized under a
     government, even though that government be revolutionary
     in character, has no greater validity than the government
     under which it acts, and would hardly destroy itself by
     holding that government to be invalid. This view was first
     presented by a dictum of Chief Justice Taney in Luther v.
     Borden, and may be said to be a sound one: "And if a
     state court could enter upon the inquiry proposed in this
     case, and should come to the conclusion that the
     government under which it acted had been put aside and
     displaced by an opposing government, it would cease to
     be a court, and be incapable of pronouncing a judicial
     determination upon the question it undertook to try."[6]

And he adds that

     Courts must pursue a more liberal policy in passing upon
     the acts of a convention, especially after they have been
     approved by {216} the people, than it has [sic] pursued in
     interpreting the constitutional restrictions placed upon the
     legislative power to propose amendments.[7]

[2. Acquiescence will validate extraconstitutional changes.] 

If lapse of time and acquiescence by the people and government will give 
validity to constitutional changes made under the authority of the 
constitution, then a fortiori, as Dodd suggests, with respect to changes 
made by extraconstitutional means.

If the reconvening of the Kentucky convention of 1890 was valid, although 
unauthorized by the convention act, and the constitution promulgated by it 
became the constitution of the State,[8] this rather upsets a pretty little 
theory which might otherwise be deduced and which has been deduced by some 
writers on the subject. It has been said that any irregularities on the part 
of either the legislature or the convention are cured when the people accept 
the changed constitution at a regular election. In other words, that the 
object of the whole procedure is to submit amendments to the people, and 
that it matters not how legally this is done, so long as it is done. Judge 
Morton may have had this theory in mind when he said in the Massachusetts 
convention of 1853:

     Whether we sit legally or illegally, whether we are here by
     right or by usurpation, if the people choose to adopt what
     we submit to them, it then becomes authority -- not
     because it comes from a legally constituted body, but
     because the people choose to adopt it.[9] 

But in the Kentucky case, there was no such curing submission to popular 
vote, because in that case the unauthorized act was done by the convention 
after, rather than before, the special election.

Thus we are forced to fall back on the theory that an amendment obtained by 
the convention method derives its validity not from the passage of the 
convention act by the legislature or its ratification by the voters, not 
from the election of the delegates to the convention, not from any action by 
the convention itself, and not even from the acceptance of the amendments by 
popular vote; but rather from the mere acquiescence in the {217} result on 
the part of the old government and of the people at large.

[3. Acquiescence is constructive ratification.]

Thus amendment by extraconstitutional convention rests not on the submission 
of the amendment to the people, but rather on the submission to the 
amendment by the people.

The Massachusetts Supreme Court in 1833 alluded to this "sanction by the 
assent of the people."[10]

And it is clear that if President Tyler had not come to the rescue of the 
landlords of Rhode Island in 1841, by suppressing the People's Constitution 
with Federal troops,[11] Thomas Wilson Dorr would have been seated as 
governor, and his constitution, unlawful though its inception, would have 
become the supreme law of Rhode Island through being sanctioned by the 
assent of the people. This was a purely spontaneous convention, but so also 
were the Union governments of Virginia and West Virginia and the many 
successful conventions of the Revolutionary War.

The following quotations support the doctrine of acquiescence, set forth in 
this chapter:

     Such irregularly enacted changes may, however, be
     ratified by the subsequent acquiescence of the People, as
     well as by their formal vote; and any act of the existing
     Government in recognition of such irregular constitutional
     changes should be regarded as such acquiescence and
     ratification by the people.[12]

     If that instrument was valid, as the supreme law, it was
     because the people had tacitly expressed their assent to it
     by electing officers under it, and by acquiescing in its
     provisions.[13]

     It will be inferred from the foregoing that the acquiescence
     which may give validity to an excessive exercise of power
     by a Convention must involve more than a mere affirmative
     vote of the qualified electors. These have no power to
     authorize or to condone a breach of constitutional duty;
     they can neither make nor repeal nor suspend the
     operation of a law. They are not "the people" in any case
     where they act without law or beyond the law. The
     acquiescence which ratifies or validates an act otherwise
     void is that of no single department or functionary, save as
     that department or functionary is supported by the
     consenting judgment of {218} the sovereign whose voice
     it speaks. It is the acquiescence of the sovereign
     community, clearly manifest and continuous, that is alone
     effectual. As to the particular acts which are to manifest
     that judgment, or the length of time over which they should
     extend, no precise rule can be given. The most that can be
     said is, that when the sovereign body has clearly moved,
     and that movement gives evidence of irresistible force and
     of continuance, the various systems of officials, constituting
     the existing government, must heed and bow to it, or go
     down before it. Acquiescence, though silent and scarcely
     visible, is such a movement.[14]

     The convention or congress which in its broadest sense
     made that constitution was assembled without sanction of
     law. It was composed of delegates elected at the instance
     of a committee of citizens ... this body proceeded to frame
     and adopt a constitution, which was not submitted to the
     people for ratification ... Nevertheless, from the time that
     instrument was promulgated until 1844, it was the
     fundamental instrument of government of this state,
     submitted to by the legislative, executive and judicial
     departments of the government, and also by the people of
     this state, as having the force of a constitution.[15]

[4. Refusal to call new convention is ratification of old constitution.]

It has even been asserted that a popular refusal to call a new convention is 
a ratification of the old constitution:

     By the Act. No. 33 of an Extraordinary Session of the
     General Assembly, of this year, a proposition to hold a
     constitutional convention and adopt a new Constitution
     was submitted to the people, and was rejected by the
     electors voting in the election called for that purpose last
     August. This, in my humble opinion, was an express
     ratification of the Constitution of 1913.[16]

In spite of all the foregoing, we must remember that acquiescence does not 
validate the means, but merely the result. Thus Jameson says:

     Before closing the discussion of the principles regulating
     the legitimate call of Constitutional Conventions, one
     remark is necessary to guard against misconstruction. A
     Constitution, or an amendment to a Constitution,
     originating in a Convention justly stigmatized as illegitimate,
     may, notwithstanding its origin, become valid as a
     fundamental law. This may happen {219} ... by the mere
     acquiescence of the sovereign society. Such a ratification
     of the supposed Constitution or amendment would not,
     however, legitimate the body from whom the Constitution
     or amendment proceeded. That no power human or divine
     could do, because, by the hypothesis, such body was in its
     origin illegitimate ... The ratification by the acquiescence of
     the sovereign, would be a direct exercise of sovereign
     power, illegal doubtless, but yet standing out prominently
     as a fact, as such finding in the original overwhelming
     power of the sovereign a practical justification, which it
     would be folly to gainsay.[17]

On the whole, we may conclude that acquiescence will validate an illegal 
constitution, and nonacquiescence will invalidate a legal constitution. Thus 
we revert in the end to fundamental principles, particularly the principle 
that all governments derive their just powers from the consent of the 
governed, rather than from any compliance with legal formalities.

------

1. Nesbit v. People (1894), 19 Col. 441, 455.

2. Weston v. Ryan (1903), 70 Neb. 211, 218.

3. Dodd, pp. 225-226.

4. Linde v. Robinson (1917), 160 N. W. 512.

5. Taylor v. Commonwealth (1903), 101 Va. 829, 831. And cf. Miller v. 
Johnson (1892), 92 Ky. 589.

6. Dodd. pp. 101-102. Cf. Brittle v. People (1873), 2 Neb. 198, 214; Loomis 
v. Jackson (1873), 6 W. Va. 613, 708; Koehler v. Hill (1883), 60 la. 543, 
608, 614; Luther v. Borden (1849), 7 How. 1, 40; "Trial of Dorr," p. 38. See 
pp. 167-158, supra.

7. Dodd, p. 103.

8. See p. 183, supra.

9. Deb. Mass. Conv. 1853, Vol. I, p. 74.

10. Opinion of Justices (1833), 6 Cush. 573.

11. See [Ch. XIV 10] pp. 21, 22, supra.

12. Braxton, VII "Va. Law Reg.," 79, 96-97.

13. Jameson, p. 519.

14. Jameson, pp 541-542. 

15. Bott v Secy. of State (1898), 62 N. J. L. 107, 118-119.

16. Foley v. Dem. Com. (1915), 70 So. 104, 105.

17. Jameson, p. 112.

------------

                   CHAPTER XVIII

                   CONCLUSIONS

{220} WHAT are the conclusions to be drawn from the discussion contained in 
this book?

It has seemed best to the author to collect all these conclusions in a 
final chapter. In every case in which there is not a. fair preponderance of 
precedent and authority in favor of any given conclusion, that fact will 
appear. So that the following represents a summary of the law of 
constitutional conventions. 

                           I

Written constitutions are an American institution, based upon the following 
four ideas: to wit, that charters of government should be in writing, that 
there exist certain inherent rights which should be asserted in these 
charters, that these charters should be superior to mere statutes, and that 
these charters are contracts between each citizen and the whole State.[1]

The convention, as a distinct body for the framing or alteration of 
constitutions, was originated in America during the Revolutionary War.[2]

Since then there have gradually developed two leading methods of amending 
constitutions: i. e., by the regular legislature (now possible in every 
State except New Hampshire), or by a convention (now possible in every State 
except Rhode Island); in either case, almost always requiring a submission 
of the proposed changes to the people.[3]

In twelve States, amendment is now possible by direct popular initiative, 
without the interposition of either the legislature or a convention.[4]

                           II

{221} Government in America is based upon the theory of popular sovereignty; 
the people governing through representatives.[5]

The term "the people" means the people as organized into the State, rather 
than as a collection of individuals.[6]

All persons, men and women, infants and adults, comprise "the people."[7]

The people can speak only through their authorized representatives, the 
legal voters. Therefore the term "the people" is often used to mean the 
mouthpieces of the people.[8]

These, in turn, can represent the people only at an election duly called and 
held. It is only at such an election that the minority can be bound by the 
action of the majority; and the non-voters be bound by the action of those 
who vote.[9]

When a part of the people, or even a majority of them, act outside the forms 
of law, they have no right to bind the rest.[10]

The people have the right to change their form of government at will, using 
whatever method suits them.[11]

This is a fundamental right, which constitutions are powerless to deny, 
restrict, or limit as to method.[12] The people may exercise this right in 
any one of three ways:

(1) by some authorized procedure; (2) by a lawful act representing the whole 
people; or (3) by acquiescing in a spontaneous act of a part of the 
people.[13]

An authorized procedure is one which has the sanction of Congress in the 
case of a territory, or of the constitution in the case of a State.[14]

An extraconstitutional movement for the alteration of the constitution, 
derives its validity from the inherent power of the people.[15] 

A spontaneous movement becomes effective only by subsequent popular 
acquiescence, produced usually by force.[16]

With respect to the constitutionality of any given method of amendment, it 
may be either (1) authorized; (2) permitted by {222} not being prohibited; 
(3) prohibited; or (4) beyond the constitution's control.[17]

Anything beyond the constitution's control enjoys exactly the same status, 
regardless of whether the constitution attempts to authorize, or to prohibit 
it, or merely remains silent on the subject.[18]

                          III

The word "constitutional," in the phrase "constitutional convention," does 
not refer to the constitutionality of the convention.[19]

Any dispute as to whether or not a convention is a "revolution" is merely a 
dispute over definitions, for the word "revolutionary" may equally well mean 
"unlawful and violent" or merely "unauthorized by the constitution." It is 
used in the latter sense in this book.[20]

Each of the three classes of changes in constitutions -- i. e. authorized, 
popular, and spontaneous -- may take the form of a convention; thus giving 
us three sorts of conventions.[21]

                          IV

Spontaneous conventions, not being bound by law, can furnish us with no 
useful precedents.[22]

Conventions unauthorized by the constitution have so often been held in the 
United States that it is now too late to question their validity.[23]

They are lawful in at least ten of the twelve States whose constitutions 
impliedly prohibit them by expressly authorizing another method of 
amendment.[24]

Implied prohibition is as effective as express prohibition.[25]

Popular conventions have been successfully held on five occasions, in spite 
of express prohibition.[26]

Such conventions are not held under the constitution, for under the 
constitution they would be unconstitutional.[27]

There is some basis for the theory that even when a constitution {223} 
purports to authorize a convention, the convention really derives its 
authority from a higher source; and that the provisions in the constitution, 
like those in a convention act passed by the legislature, merely serve to 
provide the means for the exercise of a superior right, inherent in the 
people.[28] 

Conventions called by the people, speaking through their electorate at a 
regular election, are of unquestionable validity; and are extra- or 
supra-constitutional, rather than constitutional.[29]

                           V

The people enact the convention act, where they invoke the initiative.[30]

Where the constitution requires that a convention act be referred to a 
popular vote, the voters call the convention.[31]

Where the constitution permits the legislature to call a convention, it is 
the act of the legislature alone, unless we hold that the people ratify the 
action by not invoking the referendum, or by voting under the act.[32]

It is arguable that a convention called by the people under authority 
granted by the constitution stands upon no different footing than if the 
constitution withheld this authority.[33]

In the absence of applicable constitutional provisions, legislatures have 
sometimes called conventions without taking a popular vote; but the validity 
of such conventions nowadays may be doubted.[34]

The passing of a convention act is not within the legislative powers of the 
legislature.[35]

Where the legislature submits the convention act to a popular vote, it is 
clear that the voters enact the act.[36]

The same is probably true when the people vote on the mere question of 
holding a convention, under an act which already purports to have been 
passed by the legislature.[37]

By analogy, a similar constitutional provision may become a popular 
enactment.[38]

{224} Thus it is possible that all provisions -- whether statutory or in 
constitutions -- for the holding of conventions are in reality given their 
entire validity by popular action thereunder.[39]

Nevertheless, the people have not the machinery to hold a convention, unless 
they are assisted either by the legislature or the constitution.[40]

It is preferable that this machinery be provided in detail by the 
constitution, as the people then will not be subject to the whim of the 
legislature, but may have a convention whenever they desire to exercise 
their unquestionable right to have one.[41]

The only action which could be characterized as distinctly that of the 
legislature alone, would be for the legislature both to call the convention 
and elect the delegates, without any popular participation at any stage of 
the proceedings.[42]

                          VI

A state constitution is a legislative act of the people.[43] 

There is a marked distinction between the legislative powers of the people 
and the legislative powers of the legislature.[44]

In exercising the legislative method of amendment, the legislature acts as a 
convention, being specially empowered thereto; but with this difference, 
that it is much more strictly bound to the terms of its warrant of authority 
than is an ordinary convention.[45]

The legislature owes its powers, in this connection, to an express 
grant.[46]

As to whether the legislature can act as an ordinary convention without a 
similar express grant, the authorities are divided.[47]

It is clear, however, that the legislature cannot claim this right under 
its general grant of legislative powers.[48]

The only possible difference between Indiana (where the legislature cannot 
turn itself into a convention) and North Dakota (where it can) lies in the 
theory that Indiana, by striking {225} the convention provision from her 
constitution, has manifested an intention never again to have a convention 
of any sort.[49]

                          VII

The convention, although called at irregular intervals, is really a fourth 
branch of the government, and hence should enjoy the same independence from 
each of the three regular branches as they do from each other.[50]

The Governor cannot veto an initiative statute, which either calls a 
convention or prescribes the details.[51]

The Governor cannot veto a legislative act which takes a popular vote on 
calling a convention, under provisions in the constitution, but can probably 
veto one which prescribes the details.[52]

If the constitution provides for both the popular vote and the details, the 
Governor cannot prevent the holding of the convention.[53]

The authorities disagree as to whether the Governor can veto a convention 
act which is unauthorized by the constitution.[54]

All the foregoing gubernatorial interference is exercised, however, under 
the Governor's legislative, rather than under his executive, powers.[55]

In his executive capacity, the Governor is often the authoritative official 
to decide whether or not a new constitution is legal.[56]

Similarly, the Federal executive has the power to settle the question, 
acting under either of two clauses in the Federal Constitution. One of these 
clauses guarantees a republican form of government to each State; the other 
authorizes the president to maintain order in any State which requests 
it.[57]

The Governor participates to some extent in this Federal interference, by 
requesting it.[58]

                          VIII

The question: "Can the legislature amend the convention act?" involves three 
questions: namely, (1) The general power {226} of the legislature to 
interfere with conventions; (2) Who enacted the act? and (3) Can the 
legislature amend that which the people have enacted?[59] 

Assuming the premises, i. e. that the subject matter of the amendment is 
within the delegated powers of the legislature, but that the people enacted 
the original act; then it is certain that the legislature cannot amend 
it.[60]

The legislature can amend a convention act passed solely by it, unless we 
adopt the theory that the people have assumed responsibility for the act by 
participating in an election held under it.[61]

                          IX

The question of the power of the legislature to control the convention 
depends largely upon who passes the convention act.[62]

If the legislature passes it, it probably is not binding upon the 
convention; if the people pass it, it probably is binding.[63] 

The confusion of precedents and authorities upon this point is largely due 
to a failure to analyze the source of the statute in question.[64]

It is clear that the legislature cannot bind a convention authorized by the 
constitution.[65]

The convention would lose a large part of its usefulness, if it were subject 
to legislative control.[66]

Where conventions have acceded to legislative restrictions, this merely 
proves that the restrictions seemed reasonable, not that they were 
binding.[67]

Perhaps, however, the legislature can impose restrictions upon a convention 
to the same extent that it can upon the judiciary; but this may be doubted 
on the ground that the convention is a body of the same sort as the 
legislature, but of a higher order.[68]

It is clear that the legislature has no power to abolish a pending 
convention, except perhaps in cases of great emergency.[69]

But the legislature may possibly be able indirectly to abolish a convention, 
by withholding funds.[70]

{227} In case the legality of a convention is in doubt, the legislature may 
be in a position to determine it, by recognition or non-recognition, or by 
soliciting Federal intervention.[71]

The legal standing of a convention may, in some instances, if a Federal 
question is involved, be determined by Congress.[72]

The legislature is in a position to direct the course of popular control of 
conventions, by framing the convention act.[73]

                           X

The electorate can amend a convention act, regardless of whether it was 
originally passed by the legislature alone, by the legislature and the 
electorate, or by the electorate alone.[74]

No one, except the people as a whole, can acquire a vested right in a 
convention movement.[75]

The electorate can abolish the convention at any time, or merely nullify its 
work by refusing to accept it.[76]

The people have a right to instruct their delegates, but the instructions 
will have a moral rather than a legal force.[77]

                          XI

The conventions of the Revolution exercised sovereign powers, by 
necessity.[78]

Similarly with respect to secession (not strictly constitutional 
conventions), reconstruction, and territorial conventions.[79] 

These furnish no precedent for State conventions in times of peace; but the 
objection is to the weight, rather than to the admissibility, of the 
evidence.[80]

The "doctrine of convention sovereignty" so-called, represents merely 
oratorical flights of fancy, and goes no further in actual practice than to 
assert the possession by the convention of incidental and emergency powers, 
and its independence from legislative control.[81]

A convention has no right to legislate.[82]

{228} But it can validate its legislation by inserting it in the 
constitution.[83]

Or by a blanket validating-clause in the constitution.[84] 

Or by submitting the legislation to the people.[85]

If the constitution or the convention act exempts the convention from the 
necessity of submitting its work to the people, it may legislate to its 
heart's content.[86]

A convention may pass such rules and ordinances as are necessarily incident 
to its business of constitution-framing, or as are necessary to putting its 
constitution into effect.[87]

The principle whereby territorial and reconstruction conventions have 
exercised powers entrusted by the Federal Constitution to the State 
legislatures, may possibly be extended to State conventions.[88]

A complete overturn of the existing government is apt to be more successful 
than partial interference would be.[89]

                          XII

The courts require a strict compliance with the constitutional provisions 
relative to amendment by the legislative method.[90]

But are not so strict with respect to constitutional provisions relative to 
the convention method.[91]

It is an open question whether courts will interfere with the convention 
method in matters not covered by the constitution, although probably they 
ought not to.[92]

It is clear that they cannot and will not interfere in the internal affairs 
of a convention.[93]

The weight of authority is that the courts will not interfere after the 
adoption of a change by the people.[94]

The question then becomes political rather than legal.[95] 

But this doctrine may not apply to amendments which do not go to the root of 
the whole structure of the government.[96]

The value of a judicial determination of the validity of a {229} government 
is minimized by the fact that a court is bound to decide in favor of the 
constitution under which it holds office.[97]

A different question is presented by the case of judicial interference with 
the convention, in matters outside the convention's proper functions.[98]

It is clear that a court will stop an ultra vires act by a convention, as 
readily as it would stop an ultra vires act by any other department.[99]

The Federal courts have no power to interfere with a convention, except in 
case of the violation of the United States Constitution, or where some other 
Federal question is involved, such as the election of Congressmen.[100]

The courts will assist a convention to secure its rights; much the same as 
they would assist any other branch of the government.[101]

In States where the courts do not interpret their advisory duties too 
strictly, they will probably assist the convention by judicial advice, much 
the same as they would assist any other branch of the government.[102]

                          XIII

Constitutional provisions for the holding of a convention are probably 
merely directory.[103]

But, like a convention act, they may be made mandatory by popular action 
thereunder.[104]

The constitution cannot prevent the holding of a convention.[105]

By the same token, it should not be able to restrict a convention.[106]

The constitution has absolutely no application to extraconstitutional 
conventions.[107]

Unamendable portions of a constitution may be amended by a convention, 
although not by the legislative method.[108]

Conventions, like other branches of the State government, are, however, 
bound by the Federal Constitution.[109]

                          XIV

{230} A convention is the sole judge of its own membership.[110] 

This right carries with it the power to provide for the filling of 
vacancies and to expel members.[111]

It can hire a hall, choose officers and employees, adopt rules, purchase 
supplies, perpetuate its records, and arrange for all necessary 
printing.[112]

It need not employ the regular State printer.[113]

It may maintain order and punish both members and outsiders for direct 
contempt.[114]

It can pledge the State's faith, and perhaps its credit, for its legitimate 
expenses.[115]

In general, it has all powers necessarily incident to the business delegated 
to it.[116]

It may probably reconvene after the popular adoption of its proposals, to 
codify and promulgate the amended constitution; at least for the latter 
purpose.[117]

                          XV

The term "officer" in a constitution means a person holding office under 
that constitution.[118]

Thus, although delegates to an unauthorized convention are "officers," they 
are not "officers" within the meaning of the constitution.[119]

It would be anomalous for the delegates to take an oath to support that 
which they have assembled to overturn, i. e. the State constitution.[120]

But, as the Federal Constitution is binding upon them, they should swear to 
support it; and should also swear to perform faithfully the duties of 
delegate.[121]

Delegates are entitled to the same privileges and immunities as members of 
the legislature.[122]

                          XVI

{231} Submission of amendments to the people is necessary when required by 
the constitution or by a convention act which the people have enacted.[123]

And there is some authority to the effect that the work of an 
extraconstitutional convention is not valid until it has been ratified by a 
popular vote.[124]

This is probably true, at least in cases in which the convention was called 
by the legislature acting alone.[125]

The legislature cannot change the time for submission; for that would amount 
to amending the convention act, which is impossible if the people originally 
enacted it; and would amount to legislative interference, which also is 
illegal.[126]

The convention can change the time for submission, even if the convention 
act is popular in its nature.[127]

There is no inherent difference between a new constitution and an amended 
constitution.[128]

The phrase "specific and particular amendment" means merely "amendment"; or, 
at the most, a single definite proposition, as distinguished from a vague 
general need for change.[129]

A convention called to make a general revision may submit a number of 
separate amendments, or a new constitution, or a new constitution plus a few 
separable propositions.[130]

Every distinct proposition, not vital to the scheme as a whole, ought to be 
submitted separately.[131]

The convention probably can lawfully enlarge or reduce the electorate to 
which it submits its work, subject only to the provisions of the Federal 
Constitution.[132]

In the absence of popular directions, the convention may lawfully prescribe 
all the details for submission and promulgation of the constitutional 
changes recommended by it.[133]

                         XVII

The validity of all constitutional changes rests, in the last analysis, 
upon "the assent of the people."[134]

{232} Lapse of time, and popular and governmental acquiescence, will cure 
almost any informality.[135]

But this cure affects merely the results, and does not relate back and 
validate the means.[136]

The validity of a convention-born amendment rests not on the submission of 
the amendment to the people, but rather on the submission to the amendment 
by the people.[137]

All governments derive their just powers from the consent of the 
governed.[138]

------

1. See [Ch. I 1] pp. 1-2, supra.

2. See [Ch. I 2-3] pp. 2-8, supra. 

3. See [Ch. I 4-5] pp. 8-10, supra. 

4. See [Ch. I 5] p. 9, supra. 

5. See [Ch. II 1] pp. 11-12, supra. 

6. See [Ch. II 4,7-8] pp. 18, 20-28, supra. 

7. See [Ch. II 4] p. 17, supra.

8. See [Ch. II 4] p. 17, supra.

9. See [Ch. II 3-7] pp. 16-22, supra. 

10. See [Ch. II 3-7] pp. 16-22, supra. 

11. See [Ch. II 2] p. 12, supra.

12. See [Ch. II 3] pp. 14, 15, supra. 

13. See [Ch. II 3, 7] pp. 15, 24, supra.

14. See [Ch. II 3] p. 15, supra.

15. See [Ch. II 3] p. 15, supra.

16. See [Ch. II 7] pp. 22-24, supra. 

17. See [Ch. II 8] pp. 25-26, supra. 

18. See [Ch. II 8] p. 26, supra.

19. See [Ch. III 1] p. 30, supra.

20. See [Ch. III 2] pp. 31-33, supra. 

21. See [Ch. III 3] p. 34, supra.

22. See [Ch. IV 1] p. 38 [34 in original, but this is error], supra.

23. See [Ch. IV 1-2] pp. 38-41, supra. 

24. See [Ch. IV 3] pp. 41-42, supra. 

25. See [Ch. IV 4,5] pp. 43, 48, supra.

26. See [Ch. IV 5] p. 49, supra.

27. See [Ch. IV 4] pp. 45-46, supra. 

28. See [Ch. IV 5-6] pp. 50-52, supra. 

29. See [Ch. IV 7] pp. 48, 54-55, supra.

30. See [Ch. V 1] p. 58, supra.

31. See [Ch. V 2] pp. 59-60, supra. 

32. See [Ch. V 2] p. 60, supra.

33. See [Ch. V 2] pp. 60-61, supra. 

34. See [Ch. V 2, 6] pp. 61, 66-68, supra. 

35. See [Ch. V 3-4] pp. 61-65, supra. 

36. See [Ch. V 10] p. 78, supra.

37. See [Ch. V 8-9] pp. 68-72, supra. 

38. See [Ch. V 14] p. 77, supra.

39. See [Ch. V 11] p. 74, supra.

40. See [Ch. V 12-13] pp. 75-77, supra.

41. See [Ch. V 13] pp 76-77, supra. 

42. See [Ch. V 11] p. 74, supra.

43. See [Ch. VI 2] p. 80, supra.

44. See [Ch. VI 3] pp. 80-82, supra. 

45. See [Ch. VI 4] pp. 82-83, supra. 

46. See [Ch. VI 5] p. 83, supra.

47. See [Ch. VI 5, 8-9] pp. 83-84. 85-88, supra.

48. See [Ch. VI 7] pp. 84-85, supra. 

49. See [Ch. VI 9] p. 87, supra.

50. See [Ch. VII 1] pp. 89-91, supra. 

51. See [Ch. VII 2] p. 91, supra.

52. See [Ch. VII 2] pp. 91-92, supra. 

53. See [Ch. VII 2] p. 91, supra.

54. See [Ch. VII 3] pp. 92-93, supra. 

55. See [Ch. VII 3] p. 93, supra.

56. See [Ch. VII 4] pp. 93-94, supra. 

57. See [Ch. VII 4-5] pp. 94-96. supra.

58. See [Ch. VII 4] p. 95, supra.

59. See [Ch. VIII 1] p. 97, supra.

60. See [Ch. VIII 2-4] pp. 98-104, supra.

61. See [Ch. VIII 2] p. 98, supra.

62. See [Ch. X 1] pp. 120-121, supra. 

63. See [Ch. IX 3-4, Ch. X 2-3] pp. 108-114, 121-125, supra.

64. See [Ch. X 1] p. 121, supra.

65. See [Ch. IX 2] pp. 106-108, supra. 

66. See [Ch. IX 2] p. [107] [in original was 108], supra.

67. See [Ch. IX 3] pp. 108-111, supra. 

68. See [Ch. IX 5] pp. 114-115, supra. 

69. See [Ch. IX 6] pp. 115-116, supra. 

70. See [Ch. IX 7] pp. 117-118, supra. 

71. See [Ch. IX 8] p. 118, supra.

72. See [Ch. IX 8] p. 119, supra.

73. See [Ch. X 3] pp. 123-124, supra. 

74. See [Ch. X 4] p. 125, supra.

75. See [Ch. X 4] p. 125, supra.

76. See [Ch. X 4] p. 125, supra.

77. See [Ch. X 5] pp. 125-127, supra. 

78. See [Ch. XI 1] pp. 128-129, supra. 

79. See [Ch. XI 2] pp. 129-130, supra. 

80. See [Ch. XI 2] p. 130, supra.

81. See [Ch. XI 3] pp. 131-135, supra. 

82. See [Ch. XI 7] pp. 139-142, supra. 

83. See [Ch. XI 9] pp. 142-144, supra. 

84. See [Ch. XI 9] p. 142, supra.

85. See [Ch. XI 10] pp. 144-146, supra.

86. See [Ch. XI 11] p. 146, supra.

87. See [Ch. XI 11] pp. 146-147, supra.

88. See [Ch. XI 12] p. 147, supra.

89. See [Ch. XI 13] p. 148, supra.

90. See [Ch. XII 1] pp. 149-151, supra.

91. See [Ch. XII 1] pp. 150-151, supra.

92. See [Ch. XII 2] pp. 151-153, supra.

93. See [Ch. XII 2] pp. 152-153, supra.

94. See [Ch. XII 3] pp. 153-157, supra.

95. See [Ch. XII 4, 7] pp. 155-158, 162-163, supra.

96. See [Ch. XII 3] pp. 155-156, supra.

97. See [Ch. XII 4] pp. 157-158, supra.

98. See [Ch. XII 5] pp. 158-160, supra.

99. See [Ch. XII 5] p. 160, supra.

100. See [Ch. XII 6] pp. 160-162, supra.

101. See [Ch. XII 8] p. 163, supra.

102. See [Ch. XII 8] pp. 163-164, supra.

103. See [Ch. XIII 2] p. 166, supra. 

104. See [Ch. XIII 2-3] pp. 166, 168, supra.

105. See [Ch. XIII 3] p. 166, supra. 

106. See [Ch. XIII 2-3] pp. 166-168, supra.

107. See [Ch. XIII 3] p. 168, supra. 

108. See [Ch. XIII 3] pp. 167-168. supra.

109. See [Ch. XIII 4] pp. 168-169. supra.

110. See [Ch. XIV 2] pp. 170-171, supra.

111. See [Ch. XIV 2-3, 9] pp. 171-172, 181, supra.

112. See [Ch. XIV 4-7] pp. 172-180, supra.

113. See [Ch. XIV 8] p. 179, supra.

114. See [Ch. XIV 9] pp. 180-182, supra.

115. See [Ch. XIV 7, 9] pp. 177-178, 180, supra.

116. See [Ch. XIV 10] p. 184, supra. 

117. See [Ch. XIV 10] pp. 182-184, supra.

118. See [Ch. XV 1] pp. 185-187, supra. 

119. See [Ch. XV 1] p. 186, supra.

120. See [Ch. XV 2] pp. 187-190, supra. 

121. See [Ch. XV 2] pp. 190-191, supra. 

122. See [Ch. XV 3] pp. 191-192, supra. 

123. See [Ch. XVI 1-2] pp. 193-195, supra.

124. See [Ch. XVI 3] pp. 195-196, supra.

125. See [Ch. XVI 3] p. 196, supra.

126. See [Ch. XVI 4] pp. 196-197, supra.

127. See [Ch. XVI 4] pp. 197-198, supra.

128. See [Ch. XVI 5] p. 198, supra.

129. See [Ch. XVI 5] pp. 198-200, supra.

130. See [Ch. XVI 6-8] pp. 200-205, supra.

131. See [Ch. XVI 7-8] pp. 202-203, supra.

132. See [Ch. XVI 9] pp. 205-212, supra.

133. See [Ch. XVI 13] pp. 212-213, supra.

134. See [Ch. XVII 3] pp. 217-218, supra.

135. See [Ch. XVII 1] pp. 214-216, supra.

136. See [Ch. XVII 4] p. 218, supra. 

137. See [Ch. XVII 3] p. 217, supra. 

138. See [Ch. XVII 4] p. 219, supra. 

------------

                        INDEX

ACQUIESCENCE, doctrine of, 214-219; does not validate means, 218-219.

Alabama, constitution of 1901, 113; convention of 1865, 141; convention of 
1867-68, 141; convention of 1901, 111, 112-113; conventions freed from 
legislature, 107; conventions held lawful in, 40.

Amendment, legislative method of, 82-85, 107, 149-150; of constitutions, 
8-10; of convention acts by electorate, 125; of convention acts by 
legislature, 97-104; of initiated acts by legislature, 99-100; set aside by 
judiciary, 149-150, 153-158, 160-162; specific and particular, 198-200; 
time of, taking effect, 197; validity of, a political question, 162-163; 
validity of, determined by Congress, 119; validity of, determined by 
Governor, 93-94; validity of, determined by legislature, 118; validity of, 
determined by President, 94-96.

Analysis of questions, 33-37.

Anglo-Saxon origin of constitutions, 1.

Annapolis convention, 7.

Appropriation of money by convention, 177, 178.

Arizona, constitution of 1910, 193.

Arkansas, constitution silent on conventions, 9, 41; convention of 1868, 
207; convention of 1874, 39; conventions in, 41; poll tax amendment of 1892, 
161.

Arrest, delegates free from, 191-192.

Articles of Confederation, United States Constitution violates, 39, 49.

Attwill, Atty. Gen., opinion of, on constitutionality, 43-45; opinion of, on 
status of delegates, 186-187.

Authorized conventions, constitution may be disregarded by, 48, 51-52, 60; 
made independent of legislature, 76-77, 106-108; perhaps popular in nature, 
50; provisions for calling, 58-60; veto cannot block, 91-92.

"Authorized procedure" defined, 15.

BANKS, NATHANIEL P., Louisiana convention of 1864, 182.

Berlin controversy, 102-103, 171-172.

Bills of Rights, do not "authorize" popular conventions, 45, 53; quotations 
from, 13-15.

Braxton, object of his article, 128.

Buchanan, President, Lecompton controversy, 103, 116, 196.

Butler, Benjamin F., views on convention sovereignty, 133; views on 
revolution, 32-33.

CALIFORNIA, convention of 1849, 175, 187.

Calling of convention, by initiative, 58; by legislature, 60, 66-68; by 
people, 58-60, 69-74.

Choate, Rufus, views on convention act, 71.

Classes of, constitutional cases, 26; conventions, 33-35, 54.

Codification of constitution, 182-184.

Colonies, early constitutions of the, 3-8; early legislatures of the, 2-3. 

Committees of convention, 174-177.

Concord, Mass., invented the convention, 7.

Congress, on validity of State convention, 118-119; on validity of 
territorial convention, 119; ratification of territorial convention by, 
20-21, 79; restraint of territorial convention by, 111.

Connecticut, charter legislature continued in, 3; charter until 1818 in, 2, 
4; constitution of 1818, 193; constitution silent on conventions, 9, 41; 
convention of 1818, 39; convention of 1902, 40; conventions in, 41.

Constitution, British, 1.

Constitution, United States, binding on conventions, 132, 168-169; destroys 
right of revolution? 15, 168; distinction between State and, 25-26; duties 
assigned to legislatures, 147, 169; origin of, 7-8; ratification of, 7, 8; 
republican government guaranteed by, 11, 95-96; two methods of amending, 9, 
10; unauthorized by the State Constitutions, 39; violation of Articles of 
Confederation, 39, 49.

Constitutional, cases neither, nor unconstitutional, 26; definition of, 
25-26, 30; four classes of, cases, 26.

Constitutional convention, appropriation of money by, 177, 178; calling of, 
by legislature, 60, 66-68; calling of, by people, 58-60, 69-74; classes of, 
33-35, 54; codification of constitution by, 182-184; committees of, 174-177; 
congressional interference with, 118-119; constitution cannot prohibit, 
39-43, 48-49; contempt powers of, 180-182; contested elections in, 170-171; 
delegates are not "officers," 185-187; development of, in Delaware, 4; 
development of, in Massachusetts, 4-5, 6, 7; development of, in New 
Hampshire, 6-7; dissolution of, by legislature, 115-116; election of members 
of, 170-171; executive interference with, 91-96; extraordinary powers claimed 
by, 128-141, 158-160; Federal Constitution binding on, 168-169; filling 
vacancies in, 171-173; fourth branch of government, 89-91, 160; idea of a 
separate, 4, 6, 7; incidental legislative powers of 146-147; interference 
with, in general, 89-91; internal procedure of, 170-182, 187-190; judicial 
advice to, 163-164; judicial aid to, 163; judicial interference with, 
150-153, 158-160; legislation by, 139-147; legislative control of, 105-116, 
120-122, 123; legislative duties of, under U. S. Constitution, 147, 169; 
legislative interference with, 116-118; legislative nature of, 81, 90; 
legislature as a, 4, 79-88; no constitutional provisions for, in twelve 
States, 41; oaths of members of, 108-109, 187-191; officers of, 173; order 
maintained by, 180-182; origin of, 1-8; popular control of, 120-127; 
provisions for, in early constitutions, 8-9; provisions for, in later 
constitutions, 9-10; printing for, 179-180; privileges of members of, 
191-192; records of, 178-179; resignation of delegates, 126; rules of, 
173-174; sergeant-at-arms of, 173, 180; supplies for, 178; term not 
felicitous, 30; usurpation of powers by, 148-149; vacancies in, 171-173; 
vacating of offices by, 138-139; validity of, a political question, 162-163; 
validity of, determined by Congress, 119; validity of, determined by 
Governor, 93-94; validity of, determined by legislature, 118; validity of, 
determined by President, 94-96. (See also AUTHORIZED, POPULAR, and 
SPONTANEOUS CONVENTIONS.)

Constitutions, Anglo-Saxon origin of, 1; cannot prohibit convention 
expressly, 48-49; cannot prohibit convention impliedly, 39-43; codification 
of, 182-184; Colonial, 3-8; conventions not mentioned in, of twelve States, 
41; delegates not officers under, 185-187; four elements of, 2; framed by 
legislature, 3, 79-88, 202; legislative acts of the people, 80; not 
applicable to conventions, 50-52, 165-168; setting aside of, by judiciary, 
149, 153-158; validity of, a political question, 162-163.

Contempt powers of conventions, 180-182.

Contested elections, 170-171.

Convention acts, amendable by people, 125; derive force from legislature, 
70-72; derive force from people, 69-70, 71; if legislative, not binding, 
106-116; if popular, binding, 120-125; Indiana, 1917, not submitted, 67-68; 
legislature cannot amend, 97-104; not ordinary legislation, 62-65, 80-83; 
passed by legislature alone, 66-68; people employ legislature to pass, 
73-74, 100; reasonable restrictions in, 114; repeal by legislature, 115-116; 
should be submitted to people, 66-68; veto of, by Governor, 91-93.

Conventions (see AUTHORIZED, CONSTITUTIONAL, POPULAR, and SPONTANEOUS 
CONVENTIONS).

Convention sovereignty, asserted, 131-134; denied, 135-138; development of 
theory of, 134-135; instances of, 138-141; judicial interference, 158-160; 
mere oratory, 135; not suited to peaceful times, 128-129; secession caused 
by? 134. 

DALLAS, GEORGE M., views on sovereignty, 131-132.

Declaration of Independence, 12, 26-27.

Delaware, charter legislature continued in, 3; constitution of 1776, 48; 
constitution of 1796, 9, 12, 59; convention of 1791, 40, 49; convention of 
1852, 40, 47, 51, 166; first regular convention? 4.

Delegates, abler men than legislators, 113; contested elections, 170-171; 
filling vacancies, 171-173; freedom from arrest, 191-192; instructions to, 
126-127; newspapers for, 178; not "officers," 185-187; oaths of, 108, 109, 
187-191; pay of, increased by convention, 111; privileges of, 191-192; 
punishment of, for contempt, 180-181; resignation of, 126; stationery for, 
178; status of, 185-192.

Dissolution of convention, by legislature, 115-116.

Divine right, 120.

Dog, Story of disobedient, 50.

Dorr's Rebellion, 21-22, 95, 134, 217; Federal court does not interfere, 
162; influence of, on R. I. court, 57; report on, 23; reason for failure of, 
76.

ELECTION, conduct of, by convention, 212-213; voluntary, ineffective, 19-20; 
of delegates, 170-171; electors can speak only at authorized, 18-20.

Electorate, call of convention by, 58-60, 69-74; can speak only at 
authorized election, 18-20; constitutional qualifications not binding, 
205-212; opinion of Massachusetts court, 208-210; representative nature of, 
16-18; submission to enlarged or reduced, 205-212; U. S. Constitution 
provisions, 169, 212.

Ex necessitate, 47, 100.

Ex post facto, 169.

Executive intervention, 91-96. (See also under GOVERNOR, PRESIDENT.) 

Expressio unius est exclusio alterius, 43, 49, 210.

Extra-constitutional conventions, 55-56.

Extra-legislative power to submit act, 62-65, 80-83; does not exist under 
the initiative, 100.

Extraordinary powers claimed by convention, 128-141, 158-160.

FACTIONAL convention (see SPONTANEOUS CONVENTION).

Federal Constitution (see CONSTITUTION, U. S.).

Federal judiciary, Dorr's Rebellion, 162; interference with State 
amendments, 161-162.

Florida, constitution of 1865, 144; convention of 1865, 48, 52, 130-131.

Four branches of government, 89-91, 160.

Fundamental principles, 11-29.

GEORGIA, constitution of 1776, 4, 8; constitution of 1777, 4, 13; 
constitution of 1789, 193; convention of 1788, 48, 52, 111; convention of 
1789, 111; convention of 1833, 39, 49, 108, 189; convention of 1839, 39, 49; 
convention of 1867, 181; conventions without popular vote, 60.

Governor, legislative powers of, 93; recognition of political change by, 
93-94; requests Federal intervention, 95; vetoes the convention act, 91-93.

Greene, William B., views on revolution, 32.

ILLINOIS, convention of 1847, 132, 187, 204; convention of 1862, 108, 111, 
132, 147, 182, 187, 188, 189, 204; convention of 1869, 108, 111, 176, 188, 
207; partial suffrage in, 210.

Indiana, constitution silent on conventions, 9, 41; convention of 1850, 39, 
41, 51, 166, 187; convention of 1918, 40, 42, 67-68, 201, 205, 211; 
conventions held lawful in, 42; disregard of people in, 67-68; legislative 
constitution in, 80; partial suffrage in, 210, 211.

Initiative and referendum, amendment by legislature, 99-100; call of 
conventions by, 58; constitution amendment by, 107; destroys legislatures' 
power to submit convention act, 100; States having, 9; veto not possible 
under, 91.

Instructions to delegates, 126-127.

Interference with convention, by Governor, 91-96; by judiciary, 150-153, 
158-160; by legislature, 116-118; in general, 89-91.

Iowa, convention of 1857, 187, 188.

JAMESON, object of his book, 35, 97, 105, 128.

Johnson, Andrew, reconstruction conventions, 129-130.

Judicial, advice to convention, 163-164; assistance to convention, 163; 
control of convention, 150-153, 158-160; extension of own tenure, 214-215; 
fondness of own jobs, 157-158; setting aside convention's work, 153-158; 
suicide, 157-158.

KANSAS, convention of 1859, 207; Lecompton convention in, 103, 116, 196; 
Topeka convention in, 20.

Kentucky, constitution of 1792, 8; constitution of 1799, 59; constitution of 
1850, 59; constitution of 1891, 59, 193; convention of 1849, 134, 187; 
convention of 1890, 112, 183, 195, 216.

LECOMPTON convention, 103, 116, 196.

Legislation, by convention, 139-147; convention act is not, 62-65, 80-83; 
incidental, by convention, 146-147; inserted in constitution, 142-144; valid 
though not submitted, 145-146; validation of, by people, 144-145.

Legislative interference, by inaction, 76-77, 116-117; with convention, 
116-118.

Legislative method of amendment, growth of, 8-10; extra-legislative nature 
of, 82-85; judicial control of, 149-150; legislative control of, 107.

Legislative nature of convention, 81, 90.

Legislature, abdicates by calling convention? 73; agent for people, 73-74, 
100; amendment of popular statutes by, 99-100; as a convention, 4, 79-88; 
assistance of, essential, 75, 117; control of conventions by, 105-116, 
120-122, 123; constitutions framed by, 3, 79-88, 202; convention act cannot 
be enacted by, alone, 66-68; convention act not amendable by, 62-65, 80-83; 
delegation to, by popular vote, 73-74; delegates chosen by, 74; direction of 
popular control by, 123; dissolution of convention by, 115-116; has no 
inherent rights, 75; has power to assist people, 85; initiative deprives, of 
power, 100; powers ex necessitate, 47, 100; recognition of political change 
by, 118.

Lincoln, Abraham, dismembers Virginia, 95.

Livingstone, remarks on convention sovereignty, 131.

Louisiana, constitution of 1812, 59; constitution of 1913, 193, 218; 
constitution silent on conventions, 9, 41; convention of 1812, 187; 
convention of 1844, 187, 188, 207; convention of 1852, 39, 187, 207; 
convention of 1864, 182; convention of 1879, 40; convention of 1898, 40, 
108, 141, 142, 147, 189; convention held lawful in, 40; conventions in, 41.

MAINE, codification of 1875, 168, 184; constitution of 1819, 193; 
conventions called without popular vote, 60.

Maryland, constitution of 1776, 4, 8, 12, 126; convention of 1776, 175, 187; 
convention of 1837, 20, 134; convention of 1850, 40, 49, 187; convention of 
1864, 187, 207.

Massachusetts, charter of, 206; charter until 1780 in, 2, 4; constitution 
silent on conventions, 9, 41; constitution of 1780, 4, 6, 8, 12, 193, 203; 
convention of 1778, 4, 5, 175; convention of 1780, 175, 187, 206; convention 
of 1820, 40, 187, 203; convention of 1853, 40, 47, 102-103, 171-172, 187, 
198, 210; convention of 1917, 40, 205; conventions in, 41; provincial 
congress of, 3, 5; qualifications of voters in, 206, 207-210; referendum in, 
64.

Michigan, admission to statehood, 20; constitution of 1908, 77; convention 
of 1835, 207; convention of 1850, 187; convention of 1908, 111-112, 163, 
176, 197, 204; conventions freed from legislature, 77, 106-107; legislative 
commission of 1873, 79; legislative submission in 1874, 202; partial 
suffrage in, 210.

Minnesota, convention of 1857, 179, 187, 188.

Mississippi, constitution silent on conventions, 9, 41; convention of 1890, 
140, 142, 147; conventions in, 41.

Missouri, Civil War in, 129-130; constitution of 1875, 77; convention of 
1845, 40, 187; convention of 1861, 40, 138-139; convention of 1865, 40, 138, 
141, 146, 147, 207; convention of 1890, 40; conventions freed from 
legislature, 77, 106-107.

Morton, Marcus, views of, 47, 69, 196, 210.

"NATICK COBBLER," 102.

Nebraska, admission to statehood, 79; Governor of, blocks convention in 
1903, 92; partial suffrage in, 210.

New Hampshire, constitution of 1776, 4, 6, 8; constitution of 1778, 193; 
constitution of 1784, 9, 12; constitution of 1792, 193; convention of 1778, 
4, 6; convention of 1781-83, 4, 6; convention of 1791, 203; convention of 
1850, 203; convention of 1889, 197; convention of 1912, 204; legislature 
thwarts people, 77; no legislative method in, 9.

New Hampshire Grants, resolutions of, 6, 7; origin of convention idea? 7. 

New Jersey, constitution of 1776, 4, 8; constitution silent on conventions, 
9, 41; convention of 1777, 175; convention of 1844, 40, 187, 206; 
conventions in, 41.

New Mexico, constitution of 1910, 193.

New York, constitution of 1777, 4, 8; constitution of 1846, 76; constitution 
of 1894, 76-77; convention act vetoed, 1820, 204; convention of 1801, 40; 
convention of 1821, 40, 131, 187, 193, 203, 206; convention of 1846, 40, 
101-102, 203, 204; convention of 1867, 111, 197, 207; convention of 1894, 
76, 117, 152-153, 170-171, 176; convention of 1915, 204; conventions freed 
from legislature, 76-77, 106-107; popular vote of 1886 thwarted, 76, 92, 
117.

North Carolina, constitution of April, 1776, 4; constitution of Dec., 1776, 
4, 8, 12; convention of 1835, 40, 108, 187, 189; convention of 1875, 108, 
189. 

North Dakota, constitution silent on conventions, 9, 41; conventions held 
lawful in, 40, 41; judges extend own tenure in, 214, 215; legislative 
constitution in, 85-88; opinion of attorney general of, 86-88; partial 
suffrage in, 210.

OATHS, by delegates, 108-109, 187-191; by State officers, 190; required by 
three constitutions, 189.

Officers, delegates are not, 185-187; of convention, 173.

Ohio, constitution of 1802, 59; convention of 1850, 126, 187, 188; 
convention of 1912, 176, 204; partial suffrage in, 210.

Oklahoma, constitution of, 143; territorial convention (1907), 141-142, 143, 
152.

Order, maintenance of, 180-182; rules of, 173-174.

Oregon, convention of 1857, 204.

Origin, of constitutions, 1; of conventions, 1-8.

PARKER, JOEL, views on convention act, 70, 115.

Pennsylvania, constitution of 1776, 4, 8, 12; constitution of 1838, 109; 
constitution of, silent on conventions, 9, 41; convention of 1776, 175, 187; 
convention of 1789, 48, 51, 175, 187; convention of 1837, 40, 187, 203-204; 
convention of 1872, 40, 109, 111, 132, 151; conventions in, 41; theory of 
popular origin, 72-73.

People, amendment of convention act by, 125; can only speak through 
electors, 16-19; informing the, relative to changes, 213; instruction of 
delegates by, 126; right of, to change government, 12-16; submission of 
constitution to, 193-212; submission of convention act to, 59, 66-68, 74; 
who are the, 17-20, 23.

"People's Constitution," 21-22, 95.

Peters, Onslow, views on sovereignty, 132.

Philadelphia convention, 7-8.

Political question, determined by Governor, 94; determined by judiciary, 
162-163; determined by President, 94-96.

Popular control of convention, 120-127; legislature can direct the, 123; 
valueless, 123.

Popular conventions, called by people, 61-71, 72-75; definition of, 38; ex 
necessitate, 47; extra-constitutional, 55-56; illegal, 43; legal though 
prohibited, 49, 55; legality of, 38-57; legislative assistance essential, 
75; legislative control of, 108-116; legislative control of, not authorized, 
45; not within legislative powers, 62-65; objections raised to, in, 42; 
revolutionary? 31-33.

Popular sovereignty, 11-15.

Popular vote, makes legislature agent, 73-79; for convention ratifies act, 
61-72; for delegates ratifies act, 72-73.

President, interference with convention, 94-96. Printing for convention, 
179-180. Privileges of delegates, 191-192.

RECONSTRUCTION CONVENTIONS, call of, not submitted to people, 67; no 
precedent for present ones, 129-130; submitted constitutions, 163. Records 
of convention, 178-179. Representative government, 11, 126. Republican form 
of government, 11, 95-96, 169. Resignation of delegates, 126. Restriction of 
convention, by legislature, 106-116; by people, 120-125; reasonable, 114. 
Revolution, definition of, 17, 31-33; right of, 15-16, 53, 168. Rhode 
Island, charter legislature continued in, 3; charter until 1842, 2, 4; 
constitution silent on conventions, 9; convention of 1824, 40; convention of 
1832, 40; convention of 1841, 40, 206; convention of 1842, 40, 206; 
conventions illegal in, 9, 41; Dorr's Rebellion in, 21-22, 95, 134, 217; 
legislative constitutions rejected, 79, 202; partial suffrage in, 210; 
"People's Constitution" in, 21-22, 95; prohibition amendment of 1866, 161; 
submission of constitutions in 1898 and 1899, 79; submission of question in 
1853, 41.

Right to change government, 12-15; destroyed by U. S. Constitution? 15; 
three methods of exercise, 15-16. Rules of convention, 173-174.

SECESSION CONVENTIONS, Call of, not submitted to people, 67; did not submit 
constitutions, 163; no precedent for modern ones, 129-130. Sergeant-at-arms, 
173, 180.

Shaw, Lemuel, distinction between State and U. S. constitutions, 25.

Singleton, General, views on convention sovereignty, 132.

South Carolina, constitution of 1776, 4, 8, 12; constitution of 1778, 4; 
convention of 1790, 9, 40; convention of 1866, 145; convention of 1895, 140, 
142, 147.

Specific and particular amendment, 198-200.

Spontaneous convention, depends on force, 23; examples of, 20-23; not 
valuable precedents, 34.

State of nature, suggested, 1; impossible, 26-28.

Submission, definition of, 31; by the people, 217; of amendments, 
electorate, 205-212; of amendments, form, 198-205; of amendments, method, 
212-213; of amendments, necessity, 193-196; of amendments, time, 196-198; of 
call for convention, 59, 66-68, 74; separate, of amendments, 198-205.

Suffrage (see ELECTORS).

Supplies, purchase by convention, 178.

TENNESSEE, constitution of 1796, 59; constitution of 1865, 94; convention of 
1796, 175, 187; convention of 1834, 187, 207; convention of 1870, 40.

Territory, admission to statehood, 15; ratification by Congress, 20-21, 79; 
restraint by Congress, 111; validity of convention determined, 119.

Texas, constitution silent on conventions, 9, 41; convention of 1845, 207; 
convention of 1868, 143; convention of 1876, 40; conventions in, 41.

Tyler, John, interferes in Rhode Island, 21, 95, 217.

UNCONSTITUTIONAL (see CONSTITUTIONAL).

United States, Annapolis convention, 7; Constitution (see CONSTITUTION, U. 
8.); convention of 1787, 7-8, 175.

Usurpation by convention, 148-149.

VACANCIES, filling of, 171-173.

Validity of convention, a political question, 162-163; determined by 
Congress, 119; determined by Governor, 93-94; determined by legislature, 
118; determined by President, 94-96; popular convention valid, 38-57.

Vermont, constitution of 1777, 8; constitution silent on conventions, 9, 41; 
convention of 1777, 175; convention of 1786, 7, 193; convention suggested in 
1908, 41.

Veto, initiative and referendum not subject to, 91; of authorized convention 
act, 91-92; of popular convention act, 92-93.

Virginia, constitution of 1902, 156; convention of 1829, 40, 187, 207; 
convention of 1850, 40, 187, 207; convention of 1901, 103-104, 112, 189, 
194; dismemberment of, 23, 95, 217; first legislature of, 3.

Voters (see ELECTORS).

WEBSTER, DANIEL, summary of fundamentals by, 24-25.

West Virginia, admission to Union, 22-23, 95, 217; convention of 1863, 207. 

Wilson, Henry, in Massachusetts Convention, 1853, 102.

Wisconsin, convention of 1847, 187.

