[§1. Types of convention.]

{58} WHETHER the legislature has the power to amend the act by which a convention is called is an important question to be treated later in this book. It depends in part upon a consideration of whether it is the legislature or the people who originally enacted that act. In fact, the whole matter of the status of the convention and of its members depends to some extent upon a solution of this problem, to which this chapter will accordingly be devoted.

First let us eliminate certain types of convention to which this discussion does not properly relate. Since the introduction of the initiative and referendum in the West and Middle West, not only may constitutional amendments be made in twelve States by an initiative petition without the interposition of either the legislature or a convention;1 but also in six additional States, the people can initiate and adopt a measure providing for the holding of a convention; and may, by referendum, veto any statutes by which the legislature attempts to interfere with a convention.2 In all of these States except Arkansas, Maine, and North Dakota, the constitutions provide that legislative acts for the calling of a convention must be referred to the people;3 and in these three under the referendum, the people can compel the reference of this question to them. Thus in these States the convention is entirely, absolutely, and unquestionably within the control of the people, and hence owes nothing of its authority to the legislature.

So, too, if we adopt the theory that conventions which are {59} expressly authorized by the constitution derive their authority from that document rather than from the people, we may disregard such cases for the purposes of this discussion.

[§2. Must legislatuve get popular approval for convention?]

Most of the constitutions which contain provisions for the calling of conventions now provide that they be called after the legislature has submitted the question of a convention to the people and has obtained their approval, such a popular vote to be taken whenever the legislatures themselves may think proper. The first provisions of this character were those contained in the Delaware constitution of 1792,4 the Tennessee constitution of 1796,5 the Kentucky constitution of 1799,6 and the Ohio constitution of 1802.7 The Kentucky provision of 1799, which was substantially repeated in the constitution of 1850, threw great obstacles in the way of calling a convention, by requiring two successive popular votes; but this plan was not followed by other States except in the one case of the Louisiana constitution of 1812.8 The Kentucky constitution of 1891 discarded the requirement, but does require the vote of two successive general assemblies to propose the question to the people.9 The plan of permitting the legislature at its discretion to submit to the people the question of calling a constitutional convention, has for many years been the most popular one, and is now in force by the constitutions of twenty-five States.10

Some States do not even leave it to the discretion of the legislature as to when the people shall vote on the question of calling a convention, but specifically provide by their constitutions that popular votes shall be taken at definite intervals. There are now six States which require the periodical submission of this question.11 The constitutions of four of these permit the legislature to submit the question to the people at other than the regular periodical times.12

{60} The Oklahoma constitution requires the legislature to submit the question at least once in every twenty years, leaving the particular time to the legislature's discretion.13

Thus the practice of obtaining the popular approval for the calling of a convention may be said to have become almost the settled rule. Thirty-two State constitutions require such a popular expression of approval, and even where it has not been expressly required, such a popular vote has been taken in a majority of cases in recent years.14

Maine and Georgia are the only States whose constitutions now provide for the holding of a constitutional convention, without also containing a provision for first obtaining the approval of the people.15

In the case of these States it may be argued that the convention derives its authority from the legislature alone; although in the case of Maine it may well be argued that the convention derives its authority from popular acquiescence, as manifested in the failure of the people to circulate a referendum petition; and in both cases it might possibly be argued (on the analogy of the Pennsylvania decision to be discussed a little later in this chapter) that the people ratify the legislative statute by participating in the election of delegates under it.

In the case of the thirty-two State constitutions which require a popular vote in advance of calling the convention, it may be contended that the people call the convention under a permission graciously conferred on them by the constitution, but the Delaware, Indiana, Pennsylvania, Georgia, and Florida cases discussed in the last chapter,16 in which cases valid conventions were held in open disregard of constitutional provisions relative to the manner of holding conventions, lend weight to the theory that a convention authorized by the constitution stands upon no different footing with respect to the source of its authority, than a convention which is not so authorized, or than one which is even prohibited.

As we saw, when discussing fundamental principles in Chapter II, if conventions are beyond the jurisdiction of the constitution, it matters not whether the constitution attempts to {61} prohibit or to authorize them, or is silent on the subject; all such conventions are supraconstitutional.17

Nevertheless, the New Hampshire Supreme Court has said that where a convention is authorized by the constitution, it becomes an ordinary legislative matter to call the convention and arrange the details.18 The question of who calls the convention was not, however, before the court.

[§3. Conventions under fundamental law.]

This brings us to that class of conventions, the discussion of which is the chief object of this book, namely, conventions held under the authority of supraconstitutional fundamental law.

When the legislators, acting as the representatives of the people, call such a convention without first submitting the question to their constituents, it is clear that in the absence of any other controlling circumstance, the convention owes its existence to the legislature. But there is some doubt as to whether the legislature can legally call a convention without obtaining the popular permission.19

When the legislature submits to the people the question of holding a convention, there is much disputed authority and precedent as to whether the convention act is enacted in whole, in part, or at all, by the people. There are two classes of cases for us to consider: (1) those in which the convention act is passed prior to the submission of the question to the people, and (2) those in which the people first express their opinion and then the legislature calls the convention. Let us first consider the former class of cases.

This question is to some extent wrapped up in the question of the power of the legislature to amend the convention act, to be discussed in a later chapter,20 and the two questions have been more or less confused by the courts and textbook writers. The author will endeavor, however, to disentangle them.

[§4. Legislature has power to call conventions.]

We saw, in the preceding chapter, that Jameson justified the legality of popular conventions on the ground that "the calling of one is, in my judgment, directly within the scope of the ordinary legislative power."21

{62} And Dodd follows him with, "The enactment of such a law ... is considered a regular exercise of legislative power."22 Dodd has somewhat modified his views since he wrote the last quotation, as is shown by the fact that in a more recent article of his he omits to make any such statement.23 Jameson's idea raises at once the question as to whether the calling of a convention is within the powers of a legislature at all; for if not, that settles the question of the authorship of the convention act. This is exactly the line of reasoning pursued by the New York Supreme Court, which said:

The legislature is not supreme. It is only one of the instruments of that absolute sovereignty which resides in the whole body of the people. Like other departments of the government, it acts under a delegation of powers; and cannot rightfully go beyond the limits which have been assigned to it. This delegation of powers has been made by a fundamental law, which no one department of the government, nor all the departments united, have authority to change. That can only be done by the people themselves. A power has been given to the legislature to propose amendments to the Constitution, which, when approved and ratified by the people, become a part of the fundamental law. But no power has been delegated to the legislature to call a convention to revise the Constitution. That is a measure which must come from, and be the act of the people themselves.24

Compare Thompson, speaking in the Virginia convention of 1829:

No one ever supposed that the Acts to take the sense of the people, and to organize a Convention, were Acts of ordinary legislation; or, properly speaking, Acts of legislation at all, as little so as an election by that body of any officer. ... The truth is, the action of the ordinary legislature on this subject ... is not of the character of ordinary legislation. It is in the nature of a resolve or ordinance adopted by the agents of the people, not in their legislative character, for the purpose of collecting and ascertaining the public will, both as to the call and organization of a Convention and upon the ratification or rejection of the work of a Convention.

{63} It being a matter of interest to know what the acts were, if not acts of legislation, the speaker thus explained his views on that subject:

The Acts spoken of were called for by their constituents, resulted from the necessity of the case, and were justified by that supreme and paramount law, the salus populi. In short, they supplied the only mode by which the original right of the people to meet in full and free Convention to reform, alter, or abolish their form of government, could be exercised without jeopardizing the peace, tranquillity, and harmony of the State.25

And compare the following from the Supreme Courts of South Carolina, Michigan, North Dakota, Massachusetts, and Indiana respectively:

The legislature in passing the act for calling together the convention, were not acting in their legislative capacity. The act has no relation to the general powers of legislation.26

Nowhere in article 4, entitled "Legislative Department," is any reference made expressly or impliedly to amendments or revisions of the Constitution. Only by section 2, article 20, has the legislature any power to act upon a revision of the Constitution. The power there conferred is ministerial rather than legislative. But the name is immaterial. It does not require the approval of the governor to make it valid. It is made the sole agency by which the people may determine (1) whether they desire a revision, and (2) if they decide that they do, to provide for the election of delegates.27

That it did not take the form of an ordinary law is too clear for controversy. The joint resolution has no title. Its enacting clause is not couched in the language prescribed by the constitution to be employed in the enactment of ordinary laws; nor was it ever submitted to the governor for approval. Whenever it is necessary that the expression of sovereign will should take the form of ordinary legislation, these requirements must be strictly observed. But, in declaring its purpose that a specific proposition should be submitted to the people for their approval or disapproval, the legislature is not discharging the ordinary function of enacting laws.28

{64} 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.29

In assuming to legislate in relation to structural changes in the government, the legislature is not acting within the power it takes under the general grant of authority to enact, alter and repeal laws under and pursuant to the Constitution.30

Compare Dodd: "The process of amendment is a process of superior legislation."31

[§5. Is convention act fundamental law?]

Now, if a convention act is not ordinary legislation, does it not therefore verge on being a "fundamental law"? Jameson has himself pointed out that:

Of the power of the people to enact fundamental laws there is not only no doubt, but it is clear that no other body has power to enact them, except by express warrant for the particular occasion.32

And compare Braxton:

The People alone have the power of enacting or changing the Fundamental Law; ... from them alone does the Convention derive its powers in that regard.33

These quotations ought to be sufficient to differentiate the passage of ordinary laws from the passage of laws which verge on the fundamental.

Another point which bears strongly on this is that although the legislature of Massachusetts, prior to the adoption of the XLII Amendment, could not lawfully refer to a popular vote any question within the legislature's own legislative powers,34 yet the legislature could lawfully refer to a popular vote, a statute calling a constitutional convention, thus showing that such a statute is not within the legislative powers of the legislature, but is within the legislative powers of the electorate.35

{65} A still further consideration is as follows: If it be the legislature which enacts the convention act and thus calls the convention into being, then the legislature can confer on another body (i.e. the convention) a power (i.e. to propose a constitution) which the legislature itself does not possess;36 which is absurd.37

The most recent court decision on the subject might appear, from the following language, to agree with Jameson's original idea that a convention act is ordinary legislation:

In the absence of any provision in the Constitution on the subject it seems that the legislature alone can give validity to a convention. See 6 R. C. L., § 17, p. 27.38

But when we look up the court's reference to R. C. L., a different face is put on the matter, for R. C. L. says:

In the absence of any provision in the constitution on the subject, it seems that the legislature alone can give legality to a convention. Where a change in the constitution is made under proceedings initiated by the legislature it is not because the legislature possesses any inherent power to change the existing constitution through a convention, but because it is the only means through which an authorized consent of the whole people, the entire state, can be lawfully obtained.39

And later, in the court decision itself, it is held that the particular convention referred to was the creature of the people.40

Thus, regardless of whether the legislature may all by itself legally call a convention, it is clear that the weight of authority is against the view that the calling of a convention is among the regular legislative powers.

[§6. Legislature calling convention is convenient.]

Judge Cooley does not ascribe to the regular legislative powers the right to institute convention proceedings, but rather ascribes this right to the fact that some department must start the ball rolling and that the legislature is the best fitted for this, being nearest the people.41

{66} The Massachusetts Supreme Court in its recent opinion says that if the convention is held under the constitution (which we have seen it is not), the people have a right to proceed through the medium of an act of the legislature. But they do not state whether or not this act becomes the act of the people.42

It is undoubted that conventions have in the past been called by legislatures without advance permission from the voters, but the growing tendency has been to first take a popular vote.43

Thus Jameson, although he is the chief exponent of the doctrine of absolute legislative supremacy, says:

The intervention of the legislature is necessary to give a legal starting-point to a Convention, and to hedge it about by such restraints as shall ensure obedience to the law; but as a Convention ought to be called only when demanded by the public necessities, and then to be as nearly as possible the act of the sovereign body itself, it would seem proper to leave the matter to the decision of the electoral body, which stands nearest to the sovereign, and best represents its opinion. Such seems to be the prevailing sentiment in most of the States.44

And in New York in 1820 a convention act was vetoed for the following reasons:

It is worthy, therefore, of great consideration, and may well be doubted, whether it belongs to the ordinary legislature, chosen only to make laws in pursuance of the provisions of the existing Constitution, to call a Convention in the first instance, to revise, alter, and perhaps remodel the whole fabric of the government, and {67} before they have received a legitimate and full expression of the will of the people that such changes should be made.45

Compare the following:

That in the opinion of this Convention, without intending to call in question the motives of the members of the Legislature, by the call of this Convention, the Legislature, at its late extraordinary session, was unauthorized by the people; and that said act, in peremptorily ordering a Convention of the people of the State, without first submitting to them the question whether there should be a Convention or no Convention, was an unwarranted assumption of power by the Legislature; at war with the spirit of republican institutions, an encroachment upon the rights of the people, and can never be rightfully invoked as a precedent.46

. . . the agents of the people, who have not been selected on that particular issue, should not take upon themselves the responsibility of burdening the people with the expense of such a movement, without first submitting to them the question of whether they desire such a convention to be called. The argument against the taking of the initiative by the legislature in such cases, without first ascertaining public sentiment on the question, is so strong, and lies so plainly on the surface, that in many states the constitution, in terms, requires the submission of the proposition to popular vote, and a majority vote in its favor, before the legislature can legally summon the people to meet in convention to revise their organic law.47

[§7. Convention acts without popular consent.]

The coming Indiana convention of 1918 sharply diverges from this tendency, for the legislature passed the convention act, not only without popular permission, but actually in the teeth of a popular refusal.48 The legislature of 1913 submitted to the electorate the question of calling a convention, and the electorate overwhelmingly voted in the negative. Nevertheless, the legislature went right ahead, just as though they had obtained the authority from a favorable vote,49 and passed the convention act of 1917. But the courts of Indiana are prone {68} to upset any legislative encroachments upon the process of altering the fundamental law;50 and so, until we see whether or not the courts interfere with this convention, it would be best not to regard it as a precedent.

But see a 1915 court opinion, which cites Cooley:

None of the Constitutions of the state of Louisiana contains provisions relative to conventions of the people, except the Constitution of 1812.

This silence of the organic law on the subject-matter leaves the question of calling such convention to the representatives of the people in legislative session convened.51

Later passages, however, in this same opinion show that the court, like Judge Cooley, regarded the legislature as the mere initiator of the proceedings, and regarded the electorate as the real source of the convention's powers.52

Compare Ruling Case Law:

Call of Constitutional Conventions. — The customary manner of calling constitutional conventions in the United States is by resolution of the legislature followed by a submission of the question to the electorate.53

And compare a 1916 writer:

The weight of opinion to-day seems to be that the legislature may properly submit to the people the question of holding a convention to revise the constitution, and if the voters elect to hold such a convention the amendments proposed by that convention, if ratified by the people, become a part of the fundamental constitution, in the absence of any provisions of the constitution prohibiting such a method of amendment.54

[§8. Is popular permission required to call convention?]

Thus convention-calling is not a regular function of the legislature, and there is a growing tendency toward the view that the legislature has no power to call a convention without first obtaining permission from the people. In case that permission is obtained, who is it that calls the convention?

The Supreme Court of Massachusetts said in 1833:

{69} If ... the people, by the terms of their vote, decide to call a convention of delegates ... we are of opinion that such delegates would derive their whole authority and commission from such vote.55

Marcus Morton, one of the judges to join in rendering this opinion, amplified it as follows in the Massachusetts convention of 1853, in which he sat as a delegate:

This Act derives its force directly from the people. The legislature only proposed the Act, and the people of the Commonwealth having sanctioned it by their votes, it became law. ... The legislature had the right of proposing the Act calling a Convention, and of submitting it to the people; but its whole force is derived from acceptance of the Act by the people of the Commonwealth themselves.56

The New York Supreme Court in 1846 had likewise said:

A convention is not a government measure, but a movement of the people, having for its object a change, either in whole or in part, of the existing form of government.

As the people have not only omitted to confer any power on the Legislature to call a Convention, but have also prescribed another mode of amending the organic law, we are unable to see that the Act of 1845 had any obligatory force at the time of its enactment. It could only operate by way of advice or recommendation, and not as a law. It amounted to nothing more than a proposition or suggestion to the people, to decide whether they would or would not have a convention. The question the people have settled in the affirmative, and the law derives its obligation from that act, and not from the power of the Legislature to pass it.

The people have not only decided in favor of a Convention, but they have determined that it shall be held in accordance with the provisions of the Act of 1845. No other proposition was before them, and of course their votes could have had reference to nothing else.57

See also the following quotations to the same effect:

A constitutional convention lawfully convened, does not derive its powers from the legislature, but from the people.58

{70} It is the People, and the People alone, who enacted the call for this Convention, by adopting the proposition submitted to them by the Legislature in 1900.59

When the call for the Convention was adopted by the People, in 1900, it became the act of the People, and not of the Legislature, which merely framed and proposed it.60

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."61

The Constitutional Convention ... derives its authority directly from the people.62

We cannot suppose that the voters meant that it was their will that a Convention should be called, without any regard to the time, place, or manner, of calling the Convention; for that was all prescribed in the Act of 1852, under which they voted. ... The voters must have well understood the whole matter when they were called upon to signify their will. When, therefore, they voted that it was expedient to call a Convention to revise the Constitution, that vote must have carried with it a desire that the Convention should be called with regard to the time, place, and manner, indicated in the Act; and that the vote carried with it everything contained in the Act in relation to the manner of voting, the holding of meetings, where they should be called, and where the elections should be held. They expected and intended all these to conform to the Act when they gave that Act their sanction.63

When the people, acting under a proper resolution of the Legislature, vote in favor of calling a convention, they are presumed to ratify the terms of the call, which thereby becomes the basis of the authority delegated to the convention.64

[§9. Convention authority derived from legislature?]

Opposed to this idea of popular origin is Jameson's theory that "so far as those Acts were ever to have force as laws, they were to derive it from the legislature."65

Hon. Joel Parker maintained the correctness of this position in the Massachusetts convention of 1853, as follows:

{71} The contingency attached to it [convention act of 1852] gave it no different character from that of any other act upon the statute book. It was passed under the constitution and by the legislature as a legislative act. The act provided for putting the question to the people and the question was put. The people answered in such a way that the rest of the act took effect as an act of the legislature and not as an act of the people distinct from the legislature; it gave to the act no other character than that which it had possessed before as a legislative act.66

Rufus Choate has expressed a more moderate point of view than Jameson and Parker, in the following words:

What did the people, in point of fact, do in regard to this point of the law of 1852? Was it not exactly this? The legislature caused to be presented to them, according to the forms of law, the question for substance, whether they deemed it expedient that a Convention should be called to consider of revising the Constitution. They answered yes; and there they rested. ...

Under that repose, under that inaction of the people, after that manifestation of their will in that general form, it became a matter for mere law in its ordinary course, to devise and enact details.67

But we should not forget that the act discussed by the New York Supreme Court and by them held to have been enacted in its entirety by the electorate, was exactly similar to the one discussed by Rufus Choate.

Thus it will be seen that there are two theories with respect to who enacts the convention act, under which the people vote to hold a convention. The theory with the greatest weight of authority behind it is based upon the fact that there would be no convention unless the people voted affirmatively, that an affirmative vote would result in holding exactly the soft of convention in every detail provided in the act, and that the people are presumed to know the terms of the act under which they vote. The conclusion drawn from this is that the convention act in its every detail is enacted by the people voting under it.

The opposing theory, as laid down by Choate, is based upon the fact that the only question expressly submitted to the people is "Shall there be a convention?"; that if the legislature had merely submitted this question without providing the {72} details in advance, it would have been competent for the legislature to have provided the details after an affirmative vote by the electorate. From this they conclude that the providing of details before the vote of the electorate is equally as much the action of the legislature.

In view of the almost evenly divided opinion on this subject, both points of view are fully expressed here without discrimination, although the author personally strongly inclines to the former.

[§10. Without popular ratification, convention act is act of people?]

Several court dicta go to extremes in asserting the popular origin of conventions. Thus the Pennsylvania Supreme Court has held that the mere voting for delegates, under a convention act which the legislature has not submitted to the people, makes that statute the act of the people. Their exact language is as follows:

When, therefore, the people elected delegates under the second Act, they adopted the terms it contained by acting under it.68

Dodd comments adversely on this decision as follows:

In the Pennsylvania decision cited above: the question of holding a convention was submitted to the people and decided in the affirmative; the subsequent legislative act calling the convention (this act was not submitted to the people) sought to impose certain restrictions upon the convention, and the court then said that these restrictions were imposed by the people; the facts found by the court did not conform to the real facts of the case.69

It is clear, of course, that the people in voting for delegates to a convention have no way of expressing either approval or disapproval of the terms of the act under which the convention is called; here clearly there is no popular adoption of restrictions sought to be imposed upon a convention by legislative act.70

Yet the Pennsylvania idea has been accepted in other decisions, as the following quotations show:

The people elected delegates in reference to this call; it was not contemplated that they should do any act which was not necessary to give effect to the object and purpose of the people.71

{73} The convention was called upon the lines which were suggested by the Legislature, and in exact conformity with the will of the sovereign, as expressed at an election duly held in keeping therewith, and the delegates duly chosen thereto were regularly convened.72

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.73

Under the Pennsylvania theory, all convention acts, under which the electorate chooses the delegates, become thereby the product of a popular vote.

[§11. Without popular consent, convention act is abdication.]

The only alternative theory would appear to be the ingenious one suggested by Holcombe in the following language:

Where the call for the convention is not submitted to the people for an expression of their consent, such power as the convention may possess is apparently delegated to it by the legislature on its own authority. It is an accepted principle of the unwritten constitution, however, that legislative power may not be delegated by the body on which the people have conferred it. The calling of a convention, therefore, without a vote of the people must be regarded as an abdication of power by the regular legislature in favor of an extra-constitutional body. Such a body is a revolutionary rather than a constitutional convention, and the extent of its powers would apparently be determined by itself, subject only to the limits which the people in their capacity of ultimate sovereign may be able to impose.74

So much for cases in which the legislature frames the convention act before the popular vote. Even when the act is framed after the popular vote, the legislature is not proceeding under its general powers, but rather under a special grant of power contained in the favorable vote. Thus the people choose the legislature as their agents to frame the convention act.

Dodd says:

There are dicta to this effect based upon the theory that the people in voting for a convention confer upon the legislature authority to limit the powers of such conventions.75

{74} And the Supreme Court of Indiana has said:

The General Assembly ... merely asked the people to express their will in relation to calling a convention ... and when it was expressed it was a warrant and a command which the legislative authority carried out as given.76

Of course, in case the entire act is expressly submitted to the people for ratification (as is required by the constitutions of Oregon and Oklahoma, and as is regularly practiced in many other States),77 there would seem to be no doubt that it derives its force and validity from the popular approval.

Dodd, however, points out that it is necessary in such a case for the people to pass on two questions in one, namely, whether they want a convention, and whether they want one under the terms proposed by the legislature; and he infers from this that there is some doubt as to whether even such a statute is the act of the people.78 This seems like far-fetched reasoning, however.

The only situation in which one could be absolutely certain that the convention act was the product of the legislature alone, would be if the legislature called the convention and itself chose the delegates.79 Yet there is argumentative authority even against this, for in the case of the Pennsylvania convention of 1872, the convention act was not submitted to the people, and the legislature chose part of the delegates; yet the entire proceeding was held by the courts to be popular in its nature.80

[§12. Disparity of legislative and popular powers.]

But, as we saw early in this chapter, the whole question of whether the legislature or the people enacts the convention act may be cleared up by a consideration of the relative powers of the legislature and the people. We have already seen that the people have a supraconstitutional right to take steps to change their government, and that this right is conceded by most constitutions.81 Where does the legislature derive any right to take steps to change the form of government except in cases {75} in which that right is expressly conferred upon the legislature by either the constitution or the people? Legislatures have no inherent rights. Their powers are derived from the constitution and hence in States whose constitutions do not provide for the holding of a constitutional convention, it would seem that the legislature cannot call a convention,82 and hence that a convention in order to be valid must be the act of the people.

Yet, although the legislature cannot lawfully call a convention unless it possesses authority derived either from the constitution or directly from the people, on the other hand the people cannot call a constitutional convention without some means being first provided for the expression of popular opinion.83 It is also necessary, either before or after the people have expressed their wish for a convention, for some law to provide for the election of the delegates.

At one time in the early history of the country the view was entertained that the people could legally assemble in convention and revise their constitution without the sanction of the legislature, but this doctrine is no longer recognized.84

The Pennsylvania Supreme Court has said in this connection:

When a law becomes the instrumental process of amendment, it is not because the legislature possesses any inherent power to change the existing constitution through a convention, but because it is the only means through which an authorized consent of the whole people, the entire state, can be lawfully obtained in a state of peace. ... If the legislature, possessing these powers of government, be unwilling to pass a law to take the sense of the people, ... the remedy is still in their own hands; they can elect new representatives that will. ... The people required the law, as the act of the existing government, to which they had appealed under the Bill of Rights, to furnish them legal process to raise a convention for revision of their fundamental compact, and without which legal process the act of no one man could bind another.85

Judge Jameson comments on this decision in the following words, the conciseness of which leaves nothing further to be said on the subject.

{76} Admitting the competency of the people to call conventions, it would be impracticable, except through legislative interposition.86

A supraconstitutional right requiring the assistance of constitutional authority is certainly an anomaly, and yet that is what exists in the case of conventions. It has already been pointed out in Chapter II that the reason for the failure of Dorr's Rebellion in Rhode Island was this one technical point — he did not have the assistance of duly constituted authority, and hence there was no means of ascertaining whether he represented the people or merely a faction of the people.87

And yet as Dodd points out,88 the legislature may stand in the way of the fulfillment of the popular will, just as the legislatures have in some cases nullified constitutional provisions by refusing to pass an enabling act thereon. The remedy of electing new representatives, as suggested by the Pennsylvania Supreme Court,89 is not sufficient.

[§13. Difficulty of implementing popular authorization.]

In one case at least, difficulty has been encountered in obtaining the passage of a law for the assembling of a convention authorized by the people. In 1886 a popular vote taken in New York (under the constitution of 1846, which provided for such a vote once every twenty years) was overwhelmingly in favor of the calling of a convention. But, owing to a disagreement between the legislature and the Governor, who belonged to different political parties, it was impossible for some time to obtain the passage of a law authorizing the convention, and the convention did not actually meet until eight years after the popular vote. In the constitution adopted by this convention, it was sought to avoid such a difficulty for the future by making the constitutional provisions regarding a convention self-executing.90

Not merely is the popular vote on the question of holding a convention to be taken at twenty-year intervals, but the last vestige of intervention by the legislature in the matter is swept finally away. In case the people vote in the affirmative, the constitution itself provides, minutely, for the apportionment, election, organization, and procedure of the convention. Thus there is now imbedded in the constitution of New York a complete system {77} for total revision of the constitution of that state beyond the control of the legislature. The people initiate, the convention drafts, the people enact.91

The popular will was similarly thwarted in New Hampshire in 1860 and 1864.92

The Michigan constitution of 1908 accomplishes the same result by provisions similar to those of the New York constitution of 1894. The Missouri constitution of 1875 also makes the assembling of a convention independent of legislative action, after the people have voted that a convention shall be held; the constitution itself containing full provisions regarding the apportionment and election of delegates. Writs for an election are required to be issued by the Governor after a favorable vote of the people.93

But, in all of the States except those mentioned above, the assembling of conventions is to a large extent dependent upon legislative action, even after the people have voted that a convention shall be held.94

[§14. Who enacts convention act.]

From all the foregoing, we can make the following deductions as to who it is that calls a convention; in other words, who it is that enacts the convention act.

If the act originates by an initiative petition, it is clear that the people pass the act, although there may be some dispute as to whether they proceed under the authority of the constitution, or under a supraconstitutional authority, with the mere assistance of the constitution.

In case the constitution provides for the holding of a convention without either legislative or popular action, such a convention will probably derive its whole force and validity from the constitution. If the constitution provides for the holding of a convention after action by the legislature alone, it is probable that such a convention derives its validity from the constitution and is called into being by the legislature. But in the last two cases it may well be that the people, by acting under the convention act or constitutional provision, ratify it and make it theirs.

{78} If the constitution authorizes a convention after popular vote, it may be that the convention is the creature of the people with the permission of the constitution; but owing to the fact that the constitution could not withhold this permission, and in the light of the four cases in which the constitutional methods were disregarded, it is possible that even such a convention derives its whole authority from the popular vote, and that the constitution merely provides the means, the same as a statute would have done.

When the legislature passes a convention act without submitting it to the people, if there is a previous vote of the people authorizing a convention in general terms, it may be that this vote delegates to the legislature the power to enact details.

When the legislature submits the question to the people, either with or without the sanction of the constitution, the weight of authority is that the convention derives its whole sanction from the popular vote, and that such details as are enacted by the legislature prior to the popular vote derive their binding force from the people and not from the legislature; a fortiori, if the legislature submits the entire act for popular ratification.

Yet we have seen that there is need of a means through which the people may express their will. This may be provided either by a statute or by a constitutional provision; preferably the latter, as that frees the convention from the danger of legislative usurpation.

1. These States are Arizona, Arkansas, California, Colorado, Michigan, Missouri, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, and Oregon. "Columbia Digest," p. 771.

2. These States are Idaho, Maine, Montana, South Dakota, Utah and Washington. "Columbia Digest," p. 771.

3. "Columbia Digest," p. 21.

4. Thorpe, Vol. 1, p. 580.

5. Thorpe, Vol. 6, p. 3421.

6. Thorpe, Vol. 3, p. 1288.

7. Thorpe, Vol. 5, p. 2908.

8. Thorpe, Vol. 5, p. 1390.

9. Thorpe, Vol. 5, p. 1355.

10. These States are Alabama, California, Colorado, Delaware, Florida, Idaho, Illinois, Kansas, Kentucky, Minnesota, Missouri, Montana, Nebraska, Nevada, North Carolina, Oregon, South Carolina, South Dakota, Tennessee, Utah, Virginia, Washington, West Virginia, Wisconsin, and Wyoming. "Columbia Digest," pp. 22-23.

11. These States are: Maryland, New Hampshire, Iowa, Michigan, New York, and Ohio. "Columbia Digest," p. 22.

12. Iowa, Michigan, New York, and Ohio. "Columbia Digest," p. 22.

13. "Columbia Digest," p. 22.

14. See infra, [§ 6] p. 66.

15. "Columbia Digest," p. 21.

16. Supra, [Ch. IV § 6] pp. 51-52.

17. Supra, [Ch. II § 8] p. 26.

18. Opinion of Justices (1911), 76 N. H. 586, 587.

19. See [§ 7] pp. 66-68, infra.

20. See Chapter VIII, infra.

21. Supra, [Ch. IV §2] p. 40. Jameson, p. 211.

22. Dodd, p. 44.

23. I "Cyc. American Government," 427.

24. Journal, 69th N. Y. Assembly, p. 919. This opinion was approved in full by a committee headed by Elihu Root, in a report to the New York Convention of 1894. Rev. Record, Vol. I, pp. 258-260, 270.

25. Jameson, pp. 579-580.

26. McCready v. Hunt (1834), 2 Hill Law (S. C.) 1, 271.

27. Carton v. Secy. of State (1908), 151 Mich. 337, 341.

28. State v. Dahl (1896), 6 N. D. 81, 82.

29. Opinion of Justices (1833), 6 Cush. 573, 574-575.

30. Ellingham v. Dye (1912), 178 Ind. 336, 357.

31. Dodd, p. 232.

32. Jameson, p. 395, n. 1.

33. Braxton, VII "Va. Law Reg.," 100, 101.

34. Opinion of Justices (1894), 160 Mass. 586, 589. See also Jameson, pp. 420-421, and n. 1.

35. This was successfully done in 1819 and 1852.

36. See [Ch. VI §7] p. 85, infra.

37. Senator Niles, in Jameson, p. 196.

38. State v. American Sugar Co. (1915), 137 La. 407, 413.

39. 6 R. C. L., § 17, p. 27.

40. State v. American Sugar Co. (1915), 137 La. 407, 415.

41. Cooley, Const. Lims. (7 ed.), pp. 56, 59-60.

42. 1917 Mass. Senate Doc. 512.

43. Dodd, pp. 46-47, and n. 36; Jameson, p. 210, and n. 1. Jameson's note does not differentiate between conventions called with, and those called without, popular permission. Dodd's note is inaccurate. Of the conventions cited by them, the author has only been able to find that the following were called by the legislature acting alone New York, 1801; Connecticut, 1818; Rhode Island, 1824, 1834, 1841 and 1842; New Jersey, 1844; North Carolina, 1876; Louisiana, 1879; Mississippi, 1890, and a majority of the secession and reconstruction conventions. The New York convention came so shortly after the Revolution as to be almost a War convention. Those of Connecticut and Rhode Island were called by charter legislatures with unlimited powers. The New Jersey constitution of 1776 was amendable by the legislature. The rest of the conventions were Southern, doubtless based on Civil War precedents.

44. Jameson, p. 111.

45. Jameson, p. 670.

46. Journal, Miss. Conv. 1851, pp. 48 and 50.

47. State v. Dahl (1896), 6 N. D. 81, 86.

48. The only precedent for such action is the Rhode Island convention of 1824. But the people repudiated the work of this convention, two to one. Mowry, "The Dorr War," pp 30-33.

49. See [§ 11] pp. 73-74, infra.

50. Ellingham v. Dye (1912), 178 Ind. 336.

51. State v. Am. Sugar Co. (1915), 137 La. 407, 413.

52. State v. Am. Sugar Co. (1915), 137 La. 407, 415.

53. 6 R. C. L., § 17, p. 27.

54. II "Mass. Law Quarterly," 1, 26.

55. Opinion of Justices (1833), 6 Cush. 573, 575.

56. Deb. Mass. Conv. 1853, Vol. I, p. 76.

57. Journal, 69th N. Y. Assembly, p. 919.

58. Loomis v. Jackson (1873), 6 W. Va. 613, 708.

59. Braxton, VII "Va. Law Reg.," 100, 103.

60. Braxton, VII "Va. Law Reg.," 100, 104.

61. State v. Capdevielle (1901), 104 La. 561, 569.

62. Braxton, VII "Va. Law Reg.," 79, 97.

63. Speech of Mr. Hyde, Deb. Mass. Conv. 1853, Vol. I, p. 124.

64. R. C. L., § 18, p. 27; State v. Am. Sugar Co. (1915), 137 La. 407, 415.

65. Jameson, p. 398.

66. Deb. Mass. Conv. 1853, Vol. I, pp. 154-155.

67. Deb. Mass. Conv. 1853, Vol. I, pp. 117-119.

68. Wells v. Bain (1872), 75 Pa. 39, 55.

69. Dodd, pp. 76-77.

70. Dodd, p. 75.

71. McCready v. Hunt (1834), 2 Hill Law (S. C.) 1, 222-223.

72. State v. Favre (1899), 51 La. Ann. 434, 436.

73. Wood's Appeal (1874), 75 Pa. 59, 72.

74. Holcombe, State Government, p. 126.

75. Dodd, p. 87, n. 26. But he disagrees with this, saying: "There would be a strong presumption that in voting tor a convention they meant to vote for one with full power." Dodd, p. 76. Compare pp. 103-104, infra.

76. Ellingham v. Dye (1912), 178 Ind. 336, 377-378.

77. Dodd, p. 75.

78. Dodd, p. 75.

79. As in the case of the Georgia convention of 1788. Jameson, p. 135.

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

81. Supra, [Ch. II § 2] pp. 13-14.

82. Supra, [§ 4] pp. 62-65

83. Supra, [Ch. II § 3] pp. 16-19.

84. 6 R. C. L., § 17, p. 27.

85. Wells v. Bain (1872), 75 Pa. 39, 47-48.

86. Jameson, p 539.

87. See [Ch. II § 6] pp. 21-22, supra.

88. Dodd, pp. 55-56, and n. 53.

89. Wells v. Bain (1872), 75 Pa 39, 47.

90. Dodd, p. 55.

91. Judson, Essentials of a Written Const. (U. of Chi. 1903), p. 21.

92. Dodd, p. 55, n. 53.

93. Dodd, pp. 55-56.

94. Compare the discussion of this same point, [Ch. IX § 6] pp. 116-117, infra.

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