[1. Necessity of submission of convention result to ratification by the people.]

{193} OF the original constitutions of the thirteen colonies, only those of New Hampshire and Massachusetts were formally submitted to a vote of the people, although in several other instances an informal canvass was made. The Vermont constitution of 1786 and the Georgia constitution of 1789 were ratified by different bodies from those that framed them, these second bodies being chosen by a direct vote of the people for that purpose. The New Hampshire constitution of 1792, the Connecticut constitution of 1818, and the Maine constitution of 1819 were submitted to a popular vote. New York followed in 1821. The popular submission of constitutions first developed in New England, largely, it would seem, because there alone the people had in their town meetings workable instruments for the expression of popular sentiment upon such a question.1 This policy soon became general, although it received a setback in the South during the Civil War, doubtless because of fear of the negro vote. Most of the reconstruction constitutions were voted on by the people, although secessionists were excluded from voting. Since 1890 fourteen State constitutions have been adopted. Seven of these were submitted to a vote of the people; six were adopted without submission; and one, that of Kentucky in 1891, was altered by the convention after it had received the popular approval.2

Dodd says:

In view of the facts discussed above, I think that it is impossible to assert, as Judge Jameson did, that the submission of a constitution to a vote of the people is imperatively required by some customary constitutional law of this country, or even to say that {194} a legislature in calling a convention may effectively bind such a body to submit its work for the approval of the people. We are, then, forced to the conclusion, that at present the only rules positively binding a convention to submit its constitution to the people are those contained in the constitution which the convention may have been called to revise. Of the thirty-four state constitutions which contain provisions regarding constitutional conventions, seventeen require that constitutions framed by such conventions be submitted to the people. As has been suggested, however, all of the states, with the exceptions just referred to, have followed the same rule since 1840. Of only two states — Delaware and Mississippi — may it be said that the practice is opposed to a convention's submitting the results of its labors to a vote of the people.3

[2. Instances of convention refusing to submit its changes to the people.]

There are no recorded instances of a convention refusing to submit the fruit of its labors to the people when required by express constitutional provision. There have been instances, however, in which conventions have disobeyed similar express requirements of the convention act. But, if a convention act voted on by the people acquires from this vote a supraconstitutional force,4 it would seem that its provisions ought to be even more binding than those of the constitution.

In Virginia, in 1901, the question of holding a convention was voted upon by the people as required by the constitution of 1870; and the subsequent legislative act authorizing the convention provided that the constitution framed by it should be submitted to a vote of the people. However, the convention did not submit its constitution, largely, it would seem, for fear of its being defeated by the elements to be disfranchised, in combination with interests adversely affected by the new constitution.5 The general sentiment of the bar of the State was that the second act, not having been voted on by the people, was not binding upon the convention.6

The Illinois convention of 1847 declared one article of the constitution to be in force without submission to the people, although the convention act (purely legislative in its character) required the submission of all amendments.7

{195} These really are the only instances of conventions disregarding the convention act in this respect, although Dodd also cites that of the Kentucky convention of 1890-1891.8 This case however, falls under the implied power of a convention to codify and perfect its constitution after ratification by the people,9 for the Kentucky convention did obey the requirement that it should submit its constitution to the people. But even if we consider this case as an instance of disregard of the convention act, it may be differentiated because of the fact that the Kentucky act was the creature of the legislature alone and hence might properly be disregarded by the convention. Both the Kentucky and Virginia courts recognized these constitutions as valid; basing their recognition, however, on popular acquiescence rather than on the validity of the proceeding itself.10

[3. Popular submission if convention extraconstitutional or convention act by people requires it.]

The provision for popular submission contained in a convention act which has not been voted on by the people has, nevertheless, been declared by the Pennsylvania Supreme Court to be binding, on the ground that the people elected their delegates under the act, relying on its terms. The court said:

When the people voted under this law, did they not vote for delegates upon the express terms that they should submit their work to the people for approval? Did not every man who went to the polls do so with the belief in his heart that, by the express condition on which his vote was given, the delegates could not bind him without his subsequent assent to what the delegates had done? On what principle of interpretation of human action can the servant now set himself up against the condition of his master and say the condition is void? Who made it void? Not the electors; they voted upon it.11

We have already seen that it is the general custom to submit constitutional changes to the people, even when not required by the express terms of the convention act. In fact, there have been expressions of opinion to the effect that the action of an extraconstitutional convention has no validity until ratified by a popular vote. Thus Ruling Case Law says:

{196} The new constitution prepared by a convention derives its force from the action of the people and not from that of the legislature which may have issued the call for the constitutional convention.12

Judge Morton of the Massachusetts Supreme Court said, in the Massachusetts convention of 1853:

If the people choose to adopt what we submit to them, it then becomes authoritative — not because it comes from a legally constituted body, but because the people choose to adopt it.13

But both of these proceeded upon the theory that it was the legislature alone which called the convention. If that be true, then certainly the work of the convention must be submitted to the people, in order to give the convention any standing at all.

[4. Time of submission of convention result to ratification by the people.]

Having discussed the question of necessity of submission, we next come to the question of time of submission. When the determination of the time for submission has been left to the convention, has the legislature the power to change it? The Lecompton controversy in Kansas arose on just this point. The convention, which was pro-slavery, arranged for the submission of two alternative forms of its constitution at an election to be held in December, 1857. Thereupon the free-state legislature, which convened four days before the date set for this election, voted to submit the constitutions in January. Only slavery men participated in the first election and only free-staters in the second, with the result that the most pro-slavery of the two constitutions was carried in December, and both were rejected in January. No decision was reached as to which was the valid action, for President Buchanan and the national Senate deadlocked with the national House on the question.14

For the legislature to change the time for submission, if the time was set by the people, would amount to an illegal attempt at amending the convention act;15 and regardless of the source {197} of the act, would amount to an illegal attempt to restrict the convention.16

A somewhat similar question, however, arose more recently in New Hampshire. The question involved was as to the time of taking effect of the amendments proposed by the convention of 1889. The Supreme Court held that although this question was a matter primarily for the legislature, yet as the convention had acted and issued an ordinance decreeing that the amendments should take effect when voted on, the amendments had so taken effect, and it was thereafter too late for the legislature to change the date. This opinion, although delivered in 1889, was not published in the New Hampshire reports until 1911.17 This same opinion points out that the practice in New Hampshire has been for the legislature to delegate to the convention the legislative power of determining when the amendments should take effect. If no time were fixed, the amendments would take effect upon their ratification.

A Constitution, or an amendment, takes effect on the day of its adoption by the people, unless otherwise provided in the existing Constitution, or by the Convention acting under legislative authority.18

When the time for submission is prescribed by the convention act, can the convention change the time? This must needs be within the inherent powers of a convention, even though the convention act be popular rather than legislative. Otherwise, the whole procedure might come to nought because of a technical restriction. Such restrictions are directory rather than mandatory, the main object being submission to the people at some time, rather than submission at any particular time or not at all. Thus the New York convention of 1867 sat beyond the time fixed by the convention act for its work to be submitted to the people, for the simple and compelling reason that its work had not then been completed.19

The Michigan convention of 1907-1908 was required by a purely legislative convention act to submit its constitution at the April election of 1908. The convention decided to submit at the November election of that year, and by mandamus {198} forced the Secretary of State to recognize that the convention and not the legislature was the master.20

[5. Convention may submit its constitutional changes together or separately.]

The next question to be considered is: Need the convention submit its constitutional changes en bloc? That this question should arise at all is probably due to the idea that there is something inherently different between a new constitution and an amended constitution. But as the Supreme Court of Rhode Island has well said:

Any new constitution, therefore, which a convention would form, would be a new constitution only in name; but would be in fact our present Constitution amended. It is impossible for us to imagine any alteration, consistent with a republican form of government, which cannot be effected by specific amendment as provided in the Constitution.21

But in spite of this, there have been a number of adverse expressions of opinion, which can all, however, be traced to a misconception of the famous opinion of the justices of the Massachusetts Supreme Court of 1833.22 Thus Dodd erroneously says:

The Massachusetts judges thought that there was no power to adopt specific amendments except in the manner provided by the constitution, but did not express any opinion upon the question whether a convention might be called for a general constitutional revision; their opinion cannot therefore be cited in support of the view that a convention may not be called for a general revision without constitutional authorization, and such a convention was in fact held in Massachusetts in 1853.23

Yet what the Massachusetts Supreme Court really said was this:

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 {199} 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, we are of opinion, ... that, 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 1820.24

Jameson construes the phrase "specific and particular amendment or amendments" as follows:

The force of these quotations may be better apprehended by considering what the Convention meant by a "specific amendment." Undoubtedly it meant an amendment which had been distinctly formulated in its terms in the public mind, and one of which the necessity had been generally acknowledged, in contradistinction from a change, indeterminate in its character and extent, which might be shown to be advisable upon a revision of the whole Constitution. A specific amendment, being a definite proposition, might safely be submitted to the people to pass upon, yes or no; for it required no modification to adjust it to possible changes in other parts of the same instrument. Not so with an indeterminate amendment, to be matured by discussion, and after multiplied adjustments, and which might turn out to be a single proposition, or a few simple propositions, or a completely new Constitution. For such a work only a Convention is adapted.

Recurring, then, to the question whether, where a Constitution contains no provision for amendments save in the legislative mode, a Convention can be called, the answer must be, both upon principle and upon precedent, that a Convention can be called, certainly when a revision of the whole Constitution is desired, to determine what amendments, if any, are needed, or, if deemed advisable, to frame a new Constitution. In general, whenever a Convention is called, the intention is to authorize a revision of {200} the entire Constitution, though upon its meeting, the result of its labors may be only to recommend specific amendments.25

[6. Distinguishing replacement from revision or amendment.]

The phrase "specific and particular amendment or amendments" is the exact phrase used in the amending clause of the present Massachusetts constitution. It is a technical phrase of Massachusetts constitutional law and means no more or less than the mere word "amendment." It has always been so recognized in that State, as is shown by the fact that every attempt to establish a new method of constitutional amendment has always used the whole phrase. Thus, according to Jameson's interpretation and to the practice in Massachusetts, any definite constitutional change, from the establishment of a complete new constitution down to the changing of a mere comma would be a specific and particular amendment.

The real distinction drawn by the Massachusetts Supreme Court was not between single amendments and a general revision of the constitution, but was between constitutional and extraconstitutional methods of revision. The Supreme Court very decidedly does not refer to the extraconstitutional method as consisting only in a general revision of the constitution, but on the contrary refers to it as "the amendment or alteration of their fundamental laws" and as "any change and alteration of their constitution." That this is the view held by constitutional lawyers in Massachusetts is seen by the following quotation from a very recent local law article:

It was assumed in the opinion, that the opinion requested applies to the existing constitutions and laws of the Commonwealth and the rights and powers derived from and under them, and did 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.26

It is also seen from the fact that the voters of Massachusetts, in calling the convention of 1917, voted on the question: "Shall there be a convention to revise, alter or amend the constitution of the Commonwealth?"27 The affirmative vote on {201} this question clearly authorized the convention to submit separate amendments. So also the convention act provides:

Any such revision, alterations or amendments, when made and adopted by the said convention, shall be submitted to the people for their ratification and adoption, in such manner as the convention shall direct.28

The use of the word "amendments" in the plural shows that the submission of separate amendments was within the contemplation of the act, and the convention is authorized to use its discretion in this matter by the words "in such manner as the convention shall direct."

The convention to be held in Indiana in 1918, although called for the purpose of framing an entire constitution, is expressly authorized by the convention act to submit any question separately.29

[7. Conventions too cumbersome and expensive for minor changes.]

The only real distinction between a general revision and revision by separate amendments is that the constitutional convention would be too expensive unless there were a lot of changes to be made. As Judson says:

The convention is a very proper form of organization for framing a complete constitution. It is, however, obviously too cumbersome and expensive a thing for mere amendment, unless, indeed, the amendment in question should be of extraordinary importance.30

Dodd takes the same view in the following language:

The discussion heretofore has been based upon the general view that constitutional conventions are employed for the complete revision of state constitutions or for the framing of new constitutions, and that, where a general revision is not desired, the regular legislative machinery is used to initiate specific amendments. This view is, in the main, correct. Yet of course a constitutional convention when assembled may not make a general revision but may simply propose specific amendments. In the state of New Hampshire specific amendments may only be proposed by a convention. However, where only a few changes are {202} desired the convention is an expensive and cumbersome instrument which will not often be employed except in case of necessity. On the other hand several constitutions make no provision for a convention, and in Rhode Island the absence of such provision has been held to prevent the holding of a convention so that here the legislative process is the only one available for constitutional alteration.

May not the legislative power of initiating amendments be used in such a manner as to propose a complete constitutional revision? This may be done where the legislature is not restricted as to the number or character of amendments which it may propose, but precedent is against the exercise of such power by a legislature, although in Rhode Island this is the only way of obtaining a complete constitutional revision. Two state legislatures have submitted to the people revised constitutions in the guise of amendments, but in both cases the legislative revisions were rejected. The Michigan legislature submitted a revised constitution in 1874, and the Rhode Island legislature submitted the same instrument twice, in two successive years, 1898 and 1899.

Judge Jameson has said as to the legislative method of proposing amendments. "It ought to be confined, it is believed, to changes which are few, simple, independent, and of comparatively small importance. For a general revision of a Constitution, or even for single propositions involving radical changes as to the policy of which the popular mind has not been informed by prior discussion, the employment of this mode is impracticable, or of doubtful expediency." Judge Jameson's point is purely one as to expediency, and it is legally proper, it would seem, in the absence of specific constitutional restrictions, to propose to the people by the legislative process any constitutional alteration short of a complete revision, or even a complete revision.31

The subsidiary question he touched on, namely the power of the legislature to submit a whole constitution in the regular legislative method for submitting amendments, should be distinguished from the question of the power of the legislature to submit a whole constitution, acting like a constitutional convention, which latter question was discussed in an earlier chapter.32

[8. Some arguments for and against separate submission.]

Reverting to the question of separate submission, we find that Jameson presents a strong argument in favor of separate submission:

{203} A Constitution may be wholly new, or it may be an old one revised by altering or adding to its material provisions. It may, also, in a hundred separate subdivisions, contain but a fourth of that number of distinct topics, or each subdivision may be substantive and independent. It is obvious that the submitting body, weighing accurately the public sense, may determine whether the whole Constitution must stand or fall as a unit, or whether some parts, being adopted and going into effect without the rest, the new system would be adequate to the exigencies of the state, and may submit it as a whole or in parts accordingly. But it is perfectly clear that every distinct proposition not vital to the scheme as a whole, or to some other material part, ought to be separately submitted. If it were not nearly impracticable, the best mode would be to submit every distinct proposition separately, so that each voter could vote yes or nay upon it, regardless of anything but its absolute propriety.33

Nevertheless it is true that

In far the larger proportion of the cases in which submission has been made, it has been of the instruments entire. This was naturally true, in general, of all such as were the first constitutions of their respective States.

The earliest departure from this mode was in Massachusetts, in 1780, in which the Frame of Government and Bill of Rights were both submitted in such a way as to enable the people to reject the whole or any part of either, ... a course followed by all the subsequent Conventions in that State, though the Act calling the Convention of 1820 left it to the discretion of that body to determine the mode in which the submission should be made. The example set by Massachusetts in 1780 was followed by New Hampshire in 1791, and in the subsequent revision in 1850. The Acts calling the New York Conventions of 1821 and 1846 required those bodies to submit their proposed amendments to the people, together or in distinct propositions, as to them should seem expedient. Accordingly, the Convention of 1821 provided that they should be submitted "together, and not in distinct parts;" and that of 1846, expressing the opinion that the amendments it proposed could not be prepared so as to be voted on separately, submitted them en masse excepting one, that relating to "equal suffrage to colored persons," which was submitted as a separate article. Under a similar discretion, the Pennsylvania Convention {204} of 1837 submitted its amendments en masse. The Illinois Convention of 1847 and 1862, and the Oregon Convention of 1857, pursued a course similar to that of the New York Convention of 1846, submitting the great body of their respective Constitutions entire, but a few articles relating to slavery, to the immigration of colored persons, the public debt, and other subjects considered of doubtful policy, separately.34

In 1820 a convention act was vetoed in New York, for the following reason, among others:

Because the bill contemplates an amended Constitution, to be submitted to the people to be adopted or rejected, in toto, without prescribing any mode by which a discrimination may be made between such provisions as shall be deemed salutary and such as shall be disapproved by the judgment of the people. If the people are competent to pass upon the entire amendments, of which there can be no doubt, they are equally competent to adopt such of them as they approve, and to reject such as they disapprove; and this undoubted right of the people is the more important if the Convention is to be called in the first instance without a previous consultation of the pure and original source of all legitimate authority.35

The more recent constitutional conventions which have been held have proceeded in the following manner:

The Michigan convention of 1907-1908 submitted a new constitution entire.36 The New Hampshire convention of 1912 submitted twelve separate amendments of the old constitution.37 The Ohio convention of 1912 submitted forty-two separate propositions.38 The New York convention of 1915 submitted a new constitution and two additional separate propositions.39

See the following quotations on methods of submission:

Conventions may submit separate amendments to be voted on by the people one by one or all together.40

{205} It lies in the discretion of a convention ordinarily as to whether its work shall be submitted: 1, in the form of separate amendments to an existing constitution; 2, as a complete new constitution; or 3, as a new constitution, but with separate provisions which may be voted upon independently.41

Thus we may conclude that a constitutional convention may submit its changes in whatever form it considers best adapted to ascertain and accomplish the will of the people.

[9. Power to change size and composition of electorate to whom changes referred.]

A related question is the power of the convention to enlarge or reduce the electorate to which it refers the amendments. Some constitutional provisions and convention acts are specific on this point. Thus the act for the holding of the Indiana convention of 1918 provides that the "new constitution shall be submitted to the legal voters of the state of Indiana to be by them ratified or rejected."42 Another act of the same session extended the vote in this connection to women.43

On the other hand, the act for the holding of the Massachusetts convention of 1917 merely provides that the amendments "shall be submitted to the people for their ratification and adoption, in such manner as the convention shall direct."44

In cases where the constitution has been held to apply to a convention, it has been held that neither the legislature nor the convention has a right to prescribe other qualifications than those set forth in the constitution.45

Where the constitution does not apply, however, Dodd has pointed out that

In most of the cases in which constitutional provisions regarding the suffrage have not been observed, there has actually been a widening of the suffrage ... with reference to the vote for delegates to a convention, and ... with reference to the popular vote upon a proposed constitution.46

In many of the cases cited by Dodd the change was made by the legislature rather than by the convention, but even these {206} serve to illustrate the inapplicability of the constitutional qualifications of voters.

The convention which framed the original constitution of Massachusetts extended the right of suffrage beyond that prescribed by the charter then in force. The charter said:

Provided alwayes that noe Freeholder or other Person shall have a Vote in the Eleccon of Members to serve in any Greate and Generall Court or Assembly to be held as aforesaid who at the time of such Eleccon[1] shall not have an estate of Freehold in Land within Our said Province or Territory to the value of Forty Shillings per Annu[2] at the least or other estate to the value of Forty pounds Sterl'.47

And the constitution framed by the convention increased these qualifications fifty per cent as follows:

And at such meetings every male inhabitant of twenty-one years of age and upwards, having a freehold estate within the commonwealth, of the annual income of three pounds, or any estate of the value of sixty pounds, shall have a right to give in his vote for the senators for the district of which he is an inhabitant.48

Nevertheless, the various towns, on the recommendation of the legislature, permitted all adult freemen to vote for delegates; and the convention, following the same recommendation, chose the adult freemen as the electorate to represent the people, in passing upon the proposed constitution.

[10. Instances in which electorate has been altered for purpose of voting on constitutional changes.]

It may be well to give a tabulation of some instances in which the electorate has been altered for the purpose of voting on constitutional changes:

In the following case the legislature plus the electorate extended the electorate: New York (1821).49

In the following, the legislature alone did the extending:

New Jersey (1844),50 Rhode Island (1841 and 1842).51

In one case the convention did so, acting with assent of both legislature and electorate: Massachusetts (1780).52

{207} In two cases the convention did so, with the assent of the legislature: Virginia (1830),53 Illinois (1869).54

In the following, the convention on its own initiative extended the electorate: Louisiana (1845 and 1852),55 Michigan (1835),56 Texas (1845),57 Virginia (1851),58 West Virginia (1863),59 Tennessee (1834),60 Kansas (1859),61 Arkansas (1868).62

Two of these conventions reduced the electorate in some particulars as well as extending it in others: Tennessee (1834),63 and Arkansas (1868).64

Electorates have also been reduced by oaths of allegiance required by reconstruction acts, and by the following conventions:

Maryland (1864), Missouri (1865), New York (1867).65 Such oaths have been held to be ex post facto laws, when required as a condition precedent to holding office or pursuing certain lines of business.66 But, as voting is not a property right, it is to be doubted if the principle of these cases would be extended to prohibit the application of the same restriction to voters.

[11. Alteration of electorate by convention.]

The Supreme Court of Missouri has, in the following language, sustained the validity of the ordinance of the convention of 1865, which reduced the electorate to those who could take the test oath:

As the representatives of the people, clothed with an authority so ample as that, certainly its power to prescribe the means by which it was thought best to ascertain the sense of the qualified voters of the State upon that instrument cannot be seriously questioned. The ordinance had in itself every element necessary to give it legal force and effect, and was therefore binding upon the voter.67

The Justices of the Supreme Court of Massachusetts have, however, recently given an opinion which apparently holds that the electorate prescribed by the constitution for voting for certain mentioned offices and on amendments submitted by the {208} legislative method is the only electorate which can vote under the convention method. They first say:

The validity and powers of this convention are not necessarily involved in these questions. Without discussing that subject, we are of opinion that ... if the convention to revise and alter the Constitution is held under the Constitution, etc.

This is their premise, assumed by them merely for the purposes of argument; doubtless because they rightly felt that, if the convention is authorized by some extraconstitutional power, they, the justices of the court, being constitutional officers, would have no right to pass upon any questions involved. Acting on the foregoing premise, namely, that the convention is held under the constitution, which however they refuse to decide, the justices say:

The Constitution of Massachusetts in its original form defined the qualifications of the electorate. Chapter 1, Section II, Article II; Chapter 1, Section III, Article IV. These qualifications have been modified by Articles III, XVII, XX, XXVIII, XXXI and XXXII of the Amendments. The words of the Constitution as it now stands are "Every male citizen of twenty-one years of age and upwards, excepting paupers and persons under guardianship, who shall have resided within the Commonwealth one year, and within the town or district in which he may claim a right to vote six months next preceding any election ... shall have a right to vote" for governor and other officers. Although these provisions in express terms relate only to the qualifications of voters for the elective officers therein named, it is a necessary and imperative implication that these electors and these only can be treated as qualified to vote to change the Constitution. The words "qualified voters" as used in Article IX of the Amendments, wherein are the provisions for amendments to the Constitution, mean the voters qualified according to the requirements of the Constitution. It is an essential and inevitable limitation upon the power vested in the legislative body of a state established by a written Constitution that it cannot provide for the revision or change of the frame of government except in a lawful and orderly method and by the body of electors determined according to the terms of that frame of government. The "people" who have a right to vote upon any essential aspect of that revision and change, either for members of the convention or the acceptance {209} or rejection of its work, are the people who have a right to vote for state officers and upon state questions, namely, the voters as described by the Constitution itself. It is elementary that the existing Constitution continues in full force and effect until changed or destroyed by act of the sovereign people. It seems indisputable that there is no power under the Constitution, except the sovereign people acting in accordance with their self-imposed, limiting methods of procedure, to enlarge the electorate so as to include as voters persons not eligible to vote upon amendments to the existing Constitution. ... The Legislature can proceed only under the Constitution. It would be contrary to its duty to that Constitution to provide for its revision or alteration by a body of electors, whose qualifications were different from those ascertained by the terms of that Constitution. The power of the Legislature to enact that women may be members of or vote for local or other subordinate boards of officers (See Opinions of Justices, 115 Mass. 602; 136 Mass. 578) is of a different character. The existence of that power touching officers created by the Legislature affords no basis for argument that like power exists to change the electorate established by the Constitution for state affairs.68

[12. Arguments against alteration of electorate by convention.]

In opposition to this opinion, it may be argued as follows:

First, the court is proceeding upon a premise which is rather questionable, and on the validity of which the court is therefore wise in refusing to pass, namely, that the constitution authorizes a popular convention.69

Secondly, the court assumes, as its second premise, that the constitution of Massachusetts establishes an "electorate for state affairs"; whereas it is arguable from an inspection of that instrument itself, that the electorate which it establishes relates merely to the election of certain specified State officers, and possibly to the ratification of amendments submitted by the legislature.70 The theory that the constitution, by prescribing an electorate for certain officers, thereby impliedly prescribes the same electorate for all State affairs, may well be a violation of the principle of construction of instruments, that the express mention of one thing amounts to {210} an implied exclusion of all else.71 This opinion of the Massachusetts court, if carried to its logical conclusion, would render invalid the partial suffrage laws, whereby in many States women may, by legislative act, vote for such State officers as are not expressly mentioned in the constitution,72 which laws have been held valid in actual litigation.73

Thirdly, the court ignores all of the instances in which, with uniform success, legislatures and conventions have enlarged or reduced the electorate.74 Is it not arguable that, if there had been any doubt of the legality of such changes, it would have been raised in the courts before this?

Fourthly, the court's opinion is sustainable upon another ground than that mentioned by them, namely, upon the ground that the legislature cannot amend what the people have enacted.75

For these reasons, we may well wait for a decision by the Massachusetts court in a litigated case,76 before concluding that this is their final view on the subject. The last above reason suggests a related ground on which the court might have based its opinion, and which if valid, would bar the convention from changing the electorate, although it would not have barred the inclusion of such a change in the original act. The ground is, that the voters, in adopting the act, used the term "people" in its commonly accepted sense of "voters," and that this use of the word is binding both on the legislature and the convention. But on the other hand, it is equally arguable that this word was used in the light of the many precedents in which conventions have picked what electorate should represent the people.

Jameson discusses, as follows, the alteration of the electorate by a convention:

{211} Of these, the largest proportion were cases in which submission was made to the electors plus certain designated classes of persons previously not entitled to vote at such elections, and the residue, of cases in which submission was made to the electors minus certain classes of persons thus entitled, according to existing laws.


In most of these cases the effect was, on the whole, doubtless to increase the existing electorate. In five of them the Convention Acts expressly authorized the Conventions to submit in the manner described, but in the residue no such authority was given or pretended.

It is evident that in these cases, a new principle was introduced, namely, that of submitting proposed changes in the fundamental law to persons other than the body entrusted with the electoral function under existing laws; in some cases, to citizens forming no part of the existing governmental system; in others, to a part only of the citizens comprised in that system. Such a submission, especially when made to persons not forming a part of the existing electorate, it is conceived, was not only a novelty but a capital innovation, upon which might hang, for the States concerned, the most weighty consequences; and, unless the principles which ought to govern in the enactment of fundamental laws are misconceived, it was unconstitutional and in the highest degree dangerous.77

But the uniform success of such electoral changes shows that, even if unconstitutional, they are nevertheless valid and effective. Besides, there is no reason to suppose that a matter not covered by the constitution, and which the constitution probably could not control if it tried,78 can be unconstitutional.

The Indiana constitution does not provide for the holding of conventions, but does provide that only males shall vote on proposed constitutional amendments. Nevertheless, the legislature has decreed that women may vote on the constitutional amendments which may be submitted by the coming convention,79 thus clearly showing that the opinion in that State is to the effect that general constitutional provisions relative to the qualifications of voters do not apply to amendments submitted by an extraconstitutional convention.

{212} An objection is sometimes made that if the convention has the power to enlarge the electorate in order to get a better expression of public opinion, they have an equal power to reduce the electorate; and this is urged in support of the theory that they have no power to tamper with the electorate at all; but this argument can be met by quoting the following passage from the Constitution of the United States:

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.80

[13. Determination of method of conducting ratification election.]

As to method of submission we have already seen that an extraconstitutional convention has the power, after the submission of changes to the people, to reconvene and codify the new constitution.81 The manner of conducting the election at which the amendments are submitted is usually entrusted by the convention act to the convention. And in this connection, the convention has the power to pass all necessary incidental legislation.82 But where the legislature attempts to prescribe the method, there is at least one decision to the effect that the legislative provisions are binding, particularly when ratified by the people.

The power claimed for the convention is, by ordinance, to raise a commission to direct the election upon the amended constitution, in the city of Philadelphia, and to confer power on this commission to make a registration of voters, and furnish the lists so made to the election officers of each precinct; to appoint a judge and two inspectors for each division, by whom the election therein shall be conducted. This ordinance further claims the power to regulate the qualifications of the officers thus appointed to hold the election and to control the general returns of the election. It is clear, therefore, that the ordinance assumes a present power to displace the election officers now in office under the election laws for the city, to substitute officers appointed under the authority of the convention, and to set aside these election laws so far as relates to the qualification of the officers and the manner in which the general returns shall be made, and in other respects not necessary to be noticed. The authority to do this is claimed under the fifth section {213} of the Act of 1872, giving the convention power to submit the amendments, at such time or times, and in such manner as the convention shall prescribe, subject, however, to the limitation as to the separate submission of amendments contained in this act. It is argued that the manner of submission confers a power to conduct the election upon the matter submitted. To state the proposition is to refute it, for the manner of submitting the amendments is a totally different thing from conducting the election upon the submitted amendments.83

But the question was really one of the power of popular, rather than of legislative, control. One final suggestion:

When the work of a convention is submitted, it would be desirable to have mailed to each voter the text of proposals, together with explanations. For a populous state this would be expensive, but the expense would justify itself.84

From all the foregoing, we may deduce as follows: In the absence of popular restrictions on the convention, or in the presence of authorization to determine the manner of submission, the general authority of the convention over the manner of submission will include the date of the election, the election officials, the time at which the amendments shall take effect and even the choice of the particular electorate who shall be employed by the convention to represent the will of the people. The right to determine when the changes shall take effect includes the right to decree that they shall take effect when codified and promulgated by the reconvened convention.

1. Dodd, pp. 62-64.

2. Dodd, pp. 64-67. Arizona and New Mexico submitted to the people in 1910. Louisiana in 1913 did not.

3. Dodd, pp. 68-70.

4. See [Ch. IV 7] pp. 55-56, supra.

5. Dodd, p. 68

6. VII "Va. Law Reg," 100.

7. Ill. Laws 1846-1847, Act of Feb. 24, 1847, Sec. 6; Ill. Const. 1847, Schedule, Art. 4.

8. Dodd, p. 68.

9. See [Ch. XIV 10] pp. 182-184, supra.

10. Taylor v. Commonwealth (1903), 101 Va. 829; Miller v. Johnson (1892), 92 Ky. 589.

11. Wells v. Bain (1872), 75 Pa. 39, 52.

12. 6 R. C. L., 17, p. 27.

13. Deb. Mass. Conv. 1853, Vol. I, p. 75.

14. For a fuller discussion, see [Ch. VIII 4, Ch. IX 6] pp. 103, 116, supra.

15. See [Ch. VIII 1-4] pp. 97-104, supra.

16. See [Ch. IX 2-6] pp. 105-116, supra.

17. Opinion of Justices (1889), 76 N. H. 612.

18. Jameson, p. 545, n. 1.

19. Dodd, p. 82.

20. Carton v. Secy. of State (1908), 151 Mich. 337, 338-339.

21. Opinion of Justices (1883), 14 R. I. 699, 654.

22. Opinion of Justices (1833), 6 Cush. 573.

23. Dodd, p. 45.

24. Opinion of Justices (1833), 6 Cush. 573, 574.

25. Jameson, pp. 614-615.

26. Arthur Lord in II "Mass. Law Quarterly," 1, 24.

27. Mass. Gen. St. 1916, c. 98, 1.

28. Mass. Gen. St. 1916, c. 98, 6.

29. Ind. 1917 Senate Bill 77, 1.

30. Judson, Essentials of a Written Const., p. 14.

31. Dodd, pp 258-261.

32. Chapter VI, supra.

33. Jameson, pp 531-532

34. Jameson, p. 533.

35. Jameson, p. 671.

36. Journal, Mich. Conv. 1907-1908, Vol. II, pp. 1502-1533.

37. Journal, N. H. Conv. 1912, pp. 562-564.

38. Journal, Ohio Conv. 1912, pp. 1050-1073.

39. Rev. Record, N. Y. Conv. 1915, Vol. IV, p. 4335. For a list of earlier instances see Dodd, p. 259, n. 243.

40. McClure, "State Const. Making," p. 351.

41. N. Y. Revision of Consts., p. 71; Dodd, p. 258, n. 243.

42. Ind. 1917 Convention Act, 1.

43. Ind. 1917 Senate Bill 77, 1.

44. Mass. Gen. St. 1916, c. 98, 6. The Supreme Court of Massachusetts has ruled (Senate Doc. 512 of 1917) that this means submission to those entitled to vote for certain State officers.

45. Green v. Shumway (1868), 39 N. Y. 418, 426.

46. Dodd, p. 58, n. 60.

[1] In the original a tilde ~ bridges over the double "c".

[2] In the original there is a tilde over the final "u".

47. Thorpe, Vol. III, pp. 1878-1879.

48. Mass. Const., Ch. I, II, Art. II. Similarly as to other officers.

49. Laws of N. Y., 1821, c. 90.

50. Laws of N. J. 1843-1844, p. 111; Bott v. Secy. of State (1898), 62 N. J. L. 107, 121, 123-124.

51. Mowry, The Dorr War, pp. 119-120, 283.

52. See above on this page.

53. Va. Acts, 1828-1829, c. 15; Thorpe, Vol. III p. 3825.

54. Ill. Act, Feb. 25, 1869; Thorpe, Vol. II, p. 1047.

55. Thorpe, Vol. III, p. 1410; Vol. III, p. 1428.

56. Thorpe, Vol. IV, p. 1942.

57. Thorpe, Vol. VI, p. 3566.

58. Thorpe, Vol. VII, p. 3850.

59. Thorpe, Vol. VII, p. 4011.

60. Thorpe, Vol. VI, p. 3441.

61. Thorpe, Vol. II, p. 1259.

62. Thorpe, Vol. II, p. 330.

63. Thorpe, Vol. VI, p. 3441.

64. Thorpe, Vol. II, p. 330.

65. Jameson, p. 522.

66. Cummings v. Missouri (1866), 4 Wall. 277, 318.

67. State v. Neal (1868), 42 Mo. 119, 123.

68. Mass. 1917 Senate Doc. 512.

69. See [Ch. IV 4, 6] pp. 45, 50, supra.

70. Mass. Const., Amendments III, XVI; XVII, and possibly IX. The Justices themselves say, in this very opinion: "these provisions in express terms relate only to the qualifications of voters for the elective officers therein named."

71. This legal maxim reads: "Expressio unius est exclusio alterius."; It is possible to construe the recent Massachusetts opinion as changing it to read: "Expressio unius est inclusio omnium aliorum."

72. Ill. Laws of 1913, p. 333; Ind. 1917 Senate Bill 77; Ohio Act of 1917; Michigan Act of 1917; Rhode Island Act of 1917; Nebraska Act of 1917; North Dakota Act of 1917.

73. "The Constitution refers only to elections provided for by that instrument." Scown v. Czarnecki (1914), 264 111. 305, 312; approved in People v. Militzer (1916), 272 111. 387, 392.

74. See the instances given immediately supra.

75. See [Ch. VIII 1-4] pp. 97-104, supra.

76. Woods v. Woburn (1915), 220 Mass. 416, 418; Young v. Duncan (1914), 218 Mass. 346, 351, and cases therein cited.

77. Jameson, pp. 516-517.

78. See [Ch. IV 5-6, Ch. XIII 2] pp. 50-52, 166-167, supra.

79. Ind. Const., II, 2; Ind. 1917 Senate Bill 77.

80. U. S. Const., Amendment XV, 1.

81. See [Ch. XIV 10] pp. 182-184, supra.

82. See [Ch. XI 11] pp. 146-147, supra.

83. Wells v. Bain (1872), 75 Pa. 39, 53-54.

84. N. Y. Revision of Consts., p. 72.

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