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CHAPTER XIII

DOES THE CONSTITUTION APPLY?

[§1. Existing constitution remains in force until superseded by the new.]

{165} AN interesting and important question is the extent to which the existing constitution applies to a convention called to revise it. Dodd says:

It is clear that existing constitutional provisions are binding upon a convention. A convention does not in any way supersede the existing constitutional organization and is bound by all restrictions either expressly or impliedly placed upon its actions by the constitution in force at the time. A new constitution does not become effective until promulgated by the convention, if this is permitted by the existing constitution, or until ratified by the people, if such action is required. In replacing the existing constitutional organization a convention properly acts only by the instrument of government which it frames or adopts.1

But we must remember that Dodd is writing in a State2 where the only conventions are those which the constitution of that State purports to authorize, which probably influenced his point of view. This chapter is designed to meet his argument and also that of the following quotations, which appear to hold that the existing constitution applies to extraconstitutional conventions:

Some are apt to forget that the people are already under a constitution with an existing frame of government instituted by themselves, which stand as barriers to the exercise of the original powers of the people, unless in an authorized form.3

In the words of the Father of his Country, we declare, "that the basis of our political systems is the right of the people to make and alter their constitutions of government; but that the constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all."4

{166} But, when analyzed, these quotations are seen merely to hold that the existing constitution remains in force until superseded by the new.

[§2. Proceedings of a convention called under express provisions of the constitution.]

It may well be that the constitution applies to the proceedings of a convention which is called under express provisions of the constitution authorizing such a convention; and it would seem in the main to be true that, at least when the people adopt the provisions of a constitution by voting under it to hold a convention, those constitutional provisions become absolutely binding upon the convention.

That the binding force of constitutional provisions on conventions held by authority of the constitution is due not to the constitution itself, but to the popular vote thereunder, is borne out by the case of the Delaware convention of 1852. In this case the popular vote on the question of holding the convention was less than that required by the constitution. Nevertheless, the convention was called and held.

Similarly in Indiana, in 1850, a convention was held under the provisions of the constitution at a year different from that prescribed by that document.5

Compare also the discussion of the force of general constitutional provisions on the qualifications of voters, which subject is discussed in the chapter on submission of amendments.6

[§3. Constitution not binding on conventions clearly extra-constitutional.]

Regardless of whether the constitutional provisions are binding in the case of a convention held ostensibly under the constitution, they are not binding on conventions which are clearly extra-constitutional. We have already seen that the constitution has no power to prevent the holding of such conventions, either by implied or even by express prohibition.7

If the constitution cannot prevent the holding of such a convention, is it reasonable to suppose that the constitution can limit such a convention? The power to limit is the power to destroy. If the convention can defy the constitution in the matter of its complete existence, it can certainly defy the constitution in the matter of attempted limitations.

We shall see in another chapter that members of such conventions, although they hold office under the authority of the State, do not hold office under authority of the State constitution.8 {167} Similarly we shall see that when a convention has general powers to submit the fruit of its labors to the people for ratification, it may choose for that purpose whatever electorate it considers will best represent the people.9 And compare:

Under the Constitution of 1879, the power of the Legislature to submit proposals to the people for the holding of a convention was not subject to the restrictions applicable to constitutional amendments.10

Thus the State constitution may apply to some extent to conventions held under its express authority, but clearly has absolutely no application to extraconstitutional conventions. Dodd intimates that the subject matter of new amendments may be limited by the already existing constitution, but he states that in the present State constitutions there are practically no restrictions upon the character of proposed amendments. Such restrictions were formerly held binding on the legislative amending process.11 But he suggests:

It may be that the constitutional difficulty might in certain cases have been evaded by first abrogating the restriction by an amendment, and then adopting the desired change. But, as has been suggested, the state constitutions now in force contain practically no such restrictions, and amendments are therefore subject to judicial control, as tested by the state constitutions, with respect to their method of enactment only and not with respect to their content and substance.12

Thus the question now has merely an academic interest. Nevertheless it would seem that the people in their sovereign capacity, as represented by the convention, might destroy any part of a constitution which they have the power to destroy in full. It seems absurd to think that the people could preclude {168} themselves as to subject-matter of amendments, any more than one generation could preclude another as to methods of amendment. Thus the legislature, people, and Supreme Court of Maine connived to strike out of the original Maine constitution some provisions which were expressly declared to be irrepealable without the consent of the legislature of Massachusetts.13

Thus we see that, in the case of authorized conventions, the provisions of the existing constitution probably apply, so far as applicable. This is certainly true to the extent that the people choose to avail themselves of the constitutional provisions.

But in the case of an extraconstitutional convention, the constitution has no more power to restrict the convention procedure than it has to prevent the convention's existence.

[§4. Federal Constitution applies to State conventions.]

Does the Federal Constitution apply? The following quotation from Ruling Case Law will serve to lead us from the inapplicability of State constitutions to the applicability of the Federal Constitution.

The character and extent of a constitution that may be framed by that body is generally considered as being freed from any limitations other than those contained in the constitution of the United States. If on its submission to the people it is adopted, it becomes the measure of authority for all the departments of government — the organic law of the state, to which every citizen must yield an acquiescent obedience.14

Holcombe goes even further and contends that the union of the States in 1787 forever destroyed the fundamental right of the people of each State to change their government at will.

He says:

By the Federal Constitution of 1787, the right of revolution was definitely taken away from the people of the separate states and reserved exclusively to the people of the United States as a whole. Under the more perfect union the whole power of the United States stands ready to protect the established government of any state against domestic violence. There can be no state revolution, therefore, which is not at the same time a national revolution.15

The following are some more moderate expressions of opinion on the subject:

{169} The federal constitution is, of course, superior to a state constitution, and any amendment conflicting with the federal instrument is invalid.16

As an organ of the state and as a legislative body a convention is, of course, subject to the provisions of the federal constitution as to contracts, ex post facto laws, and to all other restrictions imposed upon the states by that instrument.17

It has, however, been recently held that the provisions of the Federal Constitution guaranteeing a republican form of government to each State, do not apply to restrict the subject matter of State constitutions.18 These provisions were inserted in the Federal Constitution to protect, not to hamper the States.

[§5. Federal Constitution applies only to results of State conventions that violate it.]

Of course the Federal Constitution contains no provisions which would interfere with the proceedings of the convention method except the guarantee in the XVth article of amendments, which provides that

The right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude.

Provisions in the Federal Constitution requiring certain things to be done by a State legislature might give the Federal government the right to disregard such acts if done by a convention under the assumption of legislative powers.19

Thus the Federal Constitution applies to the proceedings only with respect to the right to vote, and applies to the results only so far as they violate provisions of the Constitution, excepting however the provision guaranteeing to the States a republican form of government.


1. Dodd, pp. 92-93.

2. Illinois.

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

4. R. I. Bill of Rts., § 1.

5. See these and other similar instances, [Ch. IV §5-6] pp. 50-52, supra.

6. See [Ch. XVI §9] pp. 205-212, infra.

7. See pp. [Ch. IV §2, §5]] 39-43, 48-49, supra.

8. See [Ch. XV §1] pp. 185-187, infra.

9. See [Ch. XVI §9] pp. 205-212, infra. The recent opinion of the Supreme Court of Massachusetts (1917, Senate Doc., 512) may appear, at first glance, to rebut this proposition. But it is to be noted that the court expressly refused to pass upon the question of whether or not the convention is to be held under the constitution. See a discussion of this opinion, [Ch. XVI §9] pp. 208-210, infra.

10. State v. Am. Sugar Co. (1915), 137 La. 407, 414; State v. Favre (1899), 61 La. Ann. 434, 436.

11. Dodd, p. 236, and cases cited.

12. Dodd, p. 236.

13. Thorpe, Vol. VII, p. 4178, Art. X, § 5; p. 4186, § 7.

14. 6 R. C. L., § 17, p. 27.

15. Holcombe, State Government, p. 33.

16. Dodd, p. 235.

17. Dodd, p. 93, and cases cited.

18. Pac. States Tel. Co. v. Oregon (1912), 223 U. S. 118.

19. See [Ch. XI §12] p. 147, supra.


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