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.


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