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 aconstitutionto 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 whicconstitutiontion 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 mconstitutionits 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 constitutionclared 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 constitution