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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.


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