[§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.

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