Etext of CONSTITUTIONAL CONVENTIONS THEIR NATURE, POWERS, AND LIMITATIONS BY ROGER SHERMAN HOAR, A.B., LL.B. FORMER STATE SENATOR AND ASSISTANT ATTORNEY GENERAL MEMBER OF THE COMMISSION TO COMPILE INFORMATION AND DATA FOR THE USE OF THE MASSACHUSETTS CONVENTION OF 1917 "A frequent recurrence to fundamental principles is absolutely necessary to preserve the blessings of liberty." BOSTON LITTLE, BROWN, AND COMPANY 1917 Copyright, 1917, By LITTLE, BROWN, AND COMPANY. All rights reserved. Published, June, 1917 Printers 8. J. PARKHILL & CO., BOSTON, U.S.A. TO ELVA STUART HOAR PREFACE THE impendency of constitutional conventions in Illinois, Indiana, Massachusetts, Nebraska and New Hampshire, has stirred up a vast amount of legal and lay discussion as to the nature and powers of such bodies. The Illinois, Nebraska and New Hampshire conventions are expressly authorized by the constitutions of those States. But the Indiana and Massachusetts conventions, not being so authorized, are generally regarded as being revolutionary, and are considered by many to be wholly unconstitutional and void. Where can one turn for authoritative information on these questions? The only treatise exclusively on Constitutional Conventions is the one by Judge Jameson, published in 1867, and to some extent revised in 1887. Even in its day, this book was rendered less valuable by the fact that it was written to support a preconceived theory, in the interests of which theory Judge Jameson freely distorted both law and facts.[1] To-day this book is obsolete (most of the judicial decisions on the subject being since 1887), and is out of print. The fact that there is no modern or even ancient accessible work on the nature and powers of constitutional conventions, has led me to attempt to fill the gap with the present book, which represents no preconceived theory, but rather merely an impartial collection of all the available law and precedent. The best modern treatment of the subject is contained in Dodd's "Revision and Amendment of State Constitutions" (1910), which however is written more from an historical than from a legal point of view, and which deals chiefly with methods of constitutional amendment, other than the convention method. I am greatly indebted to this work. Jameson's book also has been constantly before me, and much that is still valuable therein has been used. But, in the main, I have consulted original sources themselves, rather than any author's interpretation of them. For the texts of the various constitutions themselves, I have used Thorp's compilation which was published by Congress in 1909. My two colleagues on the Commission to Compile Material for the Massachusetts Convention of 1917, namely, Professor William B. Munro2 of Harvard University and Lawrence B. Evans, Esq.,3 of the Boston Bar, also Honorable Robert Luce4 and my wife, have very kindly read my manuscript and have aided me with many valuable suggestions. ROGER SHERMAN HOAR. MAY 1, 1917. 1. "Judge Jameson's work constructed a theory regarding constitutional conventions, which conformed more or less closely to the facts, but in which the facts were subordinated to the theory." Dodd, p. vi. But Jameson, speaking from the grave as it were, in reply to Dodd and the present author, says: "which, in substance, is an intimation that this work is what the Germans call a tendenz work, written to maintain a particular thesis, the subordination of the Constitutional Convention to the law of the land. ... what work upon history or constitutional law was ever written which was not a tendenz work in the same sense; that is, written from some special point of view to establish truths, of which the author is strongly convinced, and to refute errors deemed dangerous, and, if not combatted, likely to prevail?" Jameson, pp. 656-657. 2. Head of the department of government at Harvard; author of several well known works on Canadian and Municipal Government. 3. Author of "Leading Cases on American Constitutional Law," and other legal and historical works. 4. Creator of the Massachusetts direct primary system. Former Lieutenant Governor of Massachusetts. TABLE OF CONTENTS LIST OF CASES CITED REFERENCES CHAPTER I THE ORIGIN OF CONVENTIONS The four sources of the American theory of constitutions; the first American constitutions; the birth of the convention idea (Massachusetts, New Hampshire, and Federal); provisions for amendment in early constitutions; the development of the three methods now in use. CHAPTER II FUNDAMENTAL PRINCIPLES Popular sovereignty; representative government; delegated powers; the right to change government; three methods of exercising this right; the electorate as a representative body; factional conventions; ingenious theories as to who are the people; classes of constitutional cases; a "state of nature." CHAPTER III ANALYSIS OF QUESTIONS The meaning of "constitutional"; other definitions; the three classes of conventions; authorized conventions; popular conventions; spontaneous conventions; the nature of conventions; the relative powers of departments of government; a forecast of this book. CHAPTER IV POPULAR CONVENTIONS ARE LEGAL The status of conventions, when not mentioned in the Constitution; instances in which they have been held; the Rhode Island doctrine; Attwill's theory; the Massachusetts theory; conventions valid even though expressly prohibited; perhaps popular in nature even when expressly authorized; the extraconstitutional nature of conventions. CHAPTER V WHO CALLS THE CONVENTION? Who enacts the convention act; under the Initiative; when authorized by the constitution; when the legislature calls an unauthorized convention; when the legislature submits the question to the people; even when the people merely elect the delegates; legislative statute; the need of legislative assistance; the desirability of dispensing with it. CHAPTER VI LEGISLATURES AS CONVENTIONS In Indiana they cannot so act; in North Dakota they can; comparison of the two views. CHAPTER VII EXECUTIVE INTERVENTION The convention a fourth branch of the government; interference by State executive veto in constitutional cases; in extraconstitutional cases; by Federal executive; intervention to suppress; intervention to assist; executive recognition; interference with pending convention. CHAPTER VIII THE CONVENTION ACT NOT AMENDABLE Questions involved; the validity of the legislation; who enacted the convention act; if the legislature enacted, they can amend it; if the people enacted, the legislature cannot amend it; but legislatures have done so on occasions. CHAPTER IX LEGISLATIVE CONTROL Five methods of control; depends on who passed the act; cross-references on powers of the convention; probably no right to restrict; instances of successful restriction; instances of unsuccessful restriction; the doctrine of reasonable restrictions; abolition of the convention; indirect interference; recognition and non-recognition. CHAPTER X POPULAR CONTROL Depends on who passed the act; the people can control; the people can amend, if they passed the act; if the legislature passed the act; in cases of doubt; abolition of the convention; instructions to delegates. CHAPTER XI EXTRAORDINARY POWERS CLAIMED Convention sovereignty; certain conventions not precedents; interference with the executive; power to legislate; legislation under the guise of constitutional amendment; submission of legislation to the people; incidental legislative powers; powers granted by United States Constitution to legislatures; complete usurpation of powers. CHAPTER XII JUDICIAL INTERVENTION In proceedings under constitution; in extraconstitutional proceedings; when still pending; when completed; internal convention affairs; a political rather than judicial question; interference with usurped powers; judicial assistance; judicial advice. CHAPTER XIII DOES THE CONSTITUTION APPLY? Cannot prevent the convention; constitutional provisions directory; mandatory if adopted by the people; constitution not applicable even to constitutional proceedings; Federal. Constitution applicable. CHAPTER XIV INTERNAL PROCEDURE Judge of own elections; filling vacancies; expulsion of members; hall; officers; rules; committees; supplies; records; printing; maintenance of order; binding the State's credit; reconvening to codify the amended constitution. CHAPTER XV STATUS OF DELEGATES Are they public officers? precedents on oaths; anomaly of oath of members; of assisting officers; privileges and immunities of individual delegates. CHAPTER XVI SUBMISSION OF AMENDMENTS History; necessity when required by constitution; when required by act; when not required; can legislature change time? can convention change time? separate submission; enlarged or reduced electorate; methods of submission. CHAPTER XVII THE DOCTRINE OF ACQUIESCENCE Lapse of time; government acquiescence; popular acquiescence; in constitutional cases; in extraconstitutional cases; does not validate the means. CHAPTER XVIII CONCLUSIONS History; fundamentals; legality and source of conventions; amending the convention act; executive intervention; control of the convention; convention sovereignty; judicial intervention; the constitution; conduct of the convention; consent of the governed. INDEX LIST OF CASES CITED A. Armstrong v. Berkey, 23 Okla. 176 ...... 149 Atty. Gen. v. Tillinghast, 203 Mass. 539 ...... 187 B. Birmingham Ry., Ex parte, 145 Ala. 514 ...... 122, 129, 141, 145 Bott v. Secy. of State, 62 N. J. L. 107 ...... 206, 218 Bradford v. Shine, 13 Ha. 393 ...... 52, 131, 144 Bragg v. Tuffts, 49 Ark. 554 ...... 142 Brittle v. People, 2 Neb. 198 ...... 79, 158, 215 C. Carton v. Secy. of State, 151 Mich. 337 ...... 63, 90, 92, 107, 112, 134, 163, 198 Chicago v. Reeves, 220 Ill. 274 ...... 83 Collier v. Frierson, 24 Ala. 100 ...... 40, 150, 151 Commonwealth v. Griest, 196 Pa. 396 ...... 81 Commonwealth v. Kimball, 24 Pick. 359 ...... 25 Cranmer v. Thorson, 9 S. D. 149 ...... 153 Cummings v. Missouri, 4 Wall. 277 ...... 207 D. Denny, Re, 156 Ind. 104 ...... 150 Duncan, Re, 139 U. S. 449 ...... 25 Durfee v. Harper, 22 Mont. 354 ...... 149 E. Ellingham v. Dye, 178 Ind. 336 ...... 14, 42, 48, 64, 68, 74, 80-85, 87, 129 F. Foley v. Dem. Com., 70 So. 104 ...... 162, 218 Franz v. Autry, 18 Okla. 561 ...... 142, 152, 153 G. Gibbes v. Railroad, 13 S. C. 228 ...... 141, 145 Goodrich v. Moore, 2 Minn. 61 ...... 23, 179 Green v. Shumway, 39 N.Y. 418 ...... 205 Grigsby v. Peak, 57 Tex. 142 ...... 146 H. Hatch v. Stoneman, 66 Cal. 632 ...... 150 Holmberg v. Jones, 7 Ida. 752 ...... 149 K. Kamper v. Hawkins, 3 Va. 20 ...... 3, 27, 28, 39, 66 Knight v. Shelton, 134 Fed. 423 ...... 161 Koehler v. Hill, 60 Ia. 543 ...... 149, 157, 158, 215 L. La. Ry. v. Madere, 124 La. 635 ...... 122, 124, 190 Linde v. Robinson, 160 N.W. 512 ...... 215 Livermore v. Waite, 102 Cal. 113 ...... 83, 84, 150 Loomis v. Jackson, 6 W. Va. 613 ...... 69, 158, 215 Luther v. Borden, 7 How. 1 ...... 94, 101, 157, 158, 162, 215 M. McBee v. Brady, 15 Ida. 761 ...... 149 McConaughty v. Secy. of State, 106 Minn. 392 ...... 149 McCready v. Hunt, 2 Hill Law 1 ...... 12, 63, 72, 121, 124, 135, 136, 137, 160 McCulloch v. Maryland, 4 Wheat. 316 ...... 39 McMullen v. Hodge, 5 Tex. 34 ...... 133 Miller v. Johnson, 92 Ky. 589 ...... 112, 156, 183, 195, 215 N. Nesbit v. People, 19 Col. 441 ...... 214 O. Opinion of Mass. Justices, 1917 ...... 50, 66, 99, 164, 167 Opinion of N. Y. Justices, unreported. ...... 56, 99, 116, 164 Opinion of Justices, 3 Pick. 517 ...... 172 Opinion of Justices, 6 Cush. 573 ...... 44, 45, 46, 64, 123, 164, 198, 199, 217 Opinion of Justices, 115 Mags. 602 ...... 209 Opinion of Justices, 136 Mass. 578 ...... 209 Opinion of Justices, 160 Mass. 586 ...... 64 Opinion of Justices, 76 N. H. 586 ...... 33, 164 Opinion of Justices, 76 N. H. 612 ...... 138, 164, 197 Opinion of Justices, 14 R. I. 649 ...... 15, 33, 43, 46, 47, 49, 56, 57, 198 P. Pac. States Tel. Co. v. Oregon, 223 U. S. 118 ...... 119, 162, 169 Paving Co. v. Hilton, 69 Cal. 479 ...... 149 Paving Co. v. Tompkins, 72 Cal. 5 ...... 149 People v. Curry, 130 Cal. 82 ...... 149 People v. Loomis, 135 Mich. 556 ...... 149 People v. Militzer, 272 Ill. 387 ...... 210 People v. Strother, 67 Cal. 624 ...... 149 Plowman v. Thornton, 52 Ala. 559 ...... 141 Q. Quinlan v. Houston Ry. Co., 89 Tex. 356 ...... 144, 145, 146 R. Reliance v. Prison Com., 161 Ky. 135 ...... 12 Richards v. Whisman, 36 S.D. 260 ...... 100 Ridley v. Sherbrook, 43 Tenn. 569 ...... 94 S. Schertz v. Bank, 47 Ill. App. 124 ...... 143 Scown v. Czarnecki, 264 Ill. 305 ...... 210 Senate File, Re, 25 Neb. 864 ...... 149 Smith v. Good, 34 Fed. 204 ...... 161 Sproule v. Fredericks, 69 Miss. 898 ...... 90, 134 State v. Am. Sugar Co., 137 La. 407 ...... 40, 65, 68, 70, 123, 167 State v. Brookhart, 113 Ia. 250 ...... 149 State v. Brooks, 17 Wyo. 344 ...... 150 State v. Capdevielle, 104 La. 561 ...... 70, 122 State v. Cox, 3 Eng. 436 ...... 82 State v. Dahl, 6 N.D. 81 ...... 40, 48, 63, 67, 87, 93, 163 State v. Davis, 20 Nev. 220 ...... 149 State v. Favre, 61 La. Ann. 434 ...... 73, 167 State v. Neal, 42 Mo. 119 ...... 146, 207 State v. Powell, 77 Miss. 543 ...... 149 State v. Swift, 69 Ind. 505 ...... 149 State v. Tooker, 15 Mont. 8 ...... 149 State v. Tufly, 19 Nev. 391 ...... 149 T. Taylor v. Beckham, 178 U. S. 548 ...... 25 Taylor v. Commonwealth, 101 Va. 829 ...... 104, 112, 156, 199, 215 Thomasson v. Ruggles, 69 Cal. 465 ...... 149 W. Wells v. Bain, 75 Pa. 39 ...... 16, 17, 19, 24, 28, 32, 72, 74, 75, 76, 90, 109, 117, 136, 137, 152, 160, 165, 170, 195, 213 Weston v. Ryan, 70 Neb. 211 ...... 214 Williams v. Suffolk Ins. Co., 3 Sumner 220 ...... 157 Wood's Appeal, 75 Pa. 59 ...... 19, 73, 110, 111, 121, 124, 129, 136, 152, 155, 159, 162 Woods v. Wobum, 220 Mass. 416 ...... 210 Y. Young v. Duncan, 218 Mass. 346 ...... 210 REFERENCES "Columbia Dig."; "Index-Digest of State Constitutions." Prepared by Columbia University, and published by the New York Constitutional Convention Commission, 1915. Dodd: "The Revision and Amendment of State Constitutions." Walter Fairleigh Dodd. Johns Hopkins Press, Baltimore, 1910. Holcombe: "State Government in the United States." Arthur Norman Holcombe. Macmillan Co., 1916. Jameson: "Constitutional Conventions." John Alexander Jameson. Fourth edition. Callaghan & Co., Chicago, 1887. "N. Y. Revision of Consts."; "Revision of the State Constitution." Published by the New York Constitutional Convention Commission, 1915. Thorpe: "Federal and State Constitutions." Francis Newton Thorpe. 7 vols. Government Printing Office, Washington, 1909. "Trial of Dorr"; "Trial of Thomas Wilson Dorr for Treason." George Turner and W. S. Burges. B. F. Moore, Printer, Providence, 1844. CONSTITUTIONAL CONVENTIONS CHAPTER I THE ORIGIN OF CONVENTIONS [§1. Nature of constitutions.] {1} CONSTITUTIONAL conventions, as a means of amending written constitutions, are distinctly an American institution. In fact, written constitutions themselves originated in this country. The idea of a constitution is Anglo-Saxon. The word is used on both sides of the Atlantic to signify something superior to legislative enactments; in other words, a body of fundamental principles of government which are beyond the control of the Legislature. A constitution is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.[1] In other words, it is the Anglo-Saxon theory that government is in some way based upon a contract between the people and the State. The American colonies, however, were bound not only by the terms of the unwritten British constitution, but more directly by the charters or other written instruments whereby Great Britain directed their government. These charters, of course, became suspended the moment the colonies declared their independence, as did also the operation on the colonies of even the British constitution itself. As it has sometimes been expressed, the colonies reverted to a state of nature.[2] It was inevitable that in their attempts to emerge from this state of nature and organize a new social contract, each colony should make its contract embody the fundamental principles of the British constitution, and that they should promulgate these contracts in written form, like their former charters. Several {2} of the colonies, in fact, re-adopted their charters to serve them as constitutions.[3] The political experience and theories of the colonists thus supplied four principles: (1) The employment of definite written instruments, prescribing the nature and form of government; (2) the idea of a constitution superior to ordinary legislation; (3) the conception of certain natural rights asserted by such a constitution; and (4) the theory of the social contract. The written constitution, born in America, was the embodiment of these four principles.[4] [§2. Constitutional and representative conventions developed in America.] The constitutional convention, as we know it to-day, also developed in America. It is true that governments had in the past been changed:by conventions (i.e. comings-together), but these had always been unrepresentative and spontaneous. As Braxton says: The first and crudest conventions were in no sense representative bodies; but were mere voluntary, irregular, illegitimate assemblies of individuals, acting on their own motion and on their own behalf, who felt themselves sufficiently powerful to resort to the ultimate right of Revolution, and wrest, by violence, from their sovereigns, such governmental concessions as they desired. The existence of such bodies was neither provided for, nor recognized by, the laws or existing social system. They relied merely on the right of vis major to justify their actions and support their demands. Such was the Convention of the Barons at Runnymede in 1215, that framed, and, in a sense, enacted, Magna Charta, the first faint suggestion in England of a written constitution.[5] But in America the representative convention developed. It was a step as far beyond Runnymede as our constitutions were beyond Magna Charta. The first American constitutions originated in a variety of ways. In order to understand the foundation upon which each rested, it will be necessary to consider: first, the origin of the Revolutionary legislative body in each of the thirteen States; and secondly, the method in which each constitution was enacted. Only three States went through the form of continuing {3} the charter legislature, to wit: Delaware, Connecticut, and Rhode Island.[6] Massachusetts is usually incorrectly classified as being among this number, owing to a failure to appreciate that the Provincial Congress of 1774 was not a continuation of the General Court of the preceding June.[7] Similarly with Virginia. We learn from a decision of her own Supreme Court that the Revolutionary government was not a continuation of the House of Burgesses.[8] The rest of the States held unauthorized elections with little or no pretense at legality.[9] In nearly all of the States, certain more or less voluntary organizations, called committees of safety, shared the governing power.[10] The dissolution of the constitutional assemblies, by the governors appointed by the crown, obliged the people to resort to other methods of deliberating for the common good. Hence the first introduction of convention: bodies neither authorized by, or known to the then constitutional government; bodies, on the contrary, which the constitutional officers of the then existing governments considered as illegal, and treated as such. Nevertheless, they met, deliberated, and resolved for the common good. They were the people, assembled by their deputies; not a legal, or constitutional assembly, or part of the government as then organized. ... They were, in effect, the people themselves, assembled by their delegates, to whom the care of the commonwealth was especially, as well as unboundedly confided.[11] Regardless of the legality or illegality of the inception of these various governing bodies, they become, by virtue of military force and of popular acquiescence,[12] the de facto governments of their respective States. [§3. How conventions established constitutions.] Let us now consider the methods in which these de facto governments brought about the establishment of written constitutions.[13] {4} In eight instances the legislative body adopted and promulgated the constitution in the same manner in which it would have passed a mere statute, without either advance authority from, or ratification by, the people.[14] In five instances the action was taken by a legislative body expressly authorized thereto by popular vote; but the constitution was not submitted in any manner to the people.[15] In four instances the constitutions were enacted by the legislature under express authority from the people, and copies were distributed some time before enactment, in order to give the people an opportunity to object and suggest changes.[16] In one instance, the legislature submitted a constitution to the people without previous authority, but it was rejected.[17] The legislative bodies above referred to were in some cases legislatures attempting to frame constitutions, and in other cases conventions exercising legislative powers. The distinction is immaterial; they were the only regular legislative bodies of their respective States. In three instances, constitutions were framed by special conventions, separate from the regular legislative bodies, and were submitted to the people.[18] These three conventions, together with the conventions which framed and adopted the Federal Constitution, mark the birth of the constitutional convention movement in this country, and accordingly deserve more than passing notice. In New Hampshire and Massachusetts, during the Revolutionary War period, there was developed the convention as we know it to-day; that is, an independent body for the sole purpose of framing a constitution, and submitting it to a vote of the people. But it should be remembered that before this development took place, both of these States had established fairly stable governments, New Hampshire by its constitution {5} of 1776, and Massachusetts by an amended form of its colony charter. In neither was there urgent need of a new government; in neither was there an aggressive Tory element. Neither of these States was threatened by military operations at the time. In neither State was there any danger to be apprehended from the creation of an independent convention and the submission of its work to a vote of the people. The history of the development of the convention method in these two States was as follows. Massachusetts, unlike Rhode Island, which remained under its colony charter until 1842, was one of the earliest States to adopt an independent form of government. In the spring of 1774, Governor Gage forcibly prorogued the Massachusetts legislature. The people promptly prepared to elect a provincial congress of their own to take its place. To offset this move, Gage called for the election of a new legislature. The people elected practically the same delegates to both the provincial congress and the legislature, whereupon Gage cancelled his call. Nevertheless, the legislature met and adjourned over to merge with the congress. This congress and its successor, which sat for five months in 1775, reënacted the charter in a slightly amended form, which served Massachusetts as a constitution until 1780. Under it the Great and General Court (i.e. the legislature) and the Governor's Council were regularly elected as formerly, the latter exercising the executive powers. Soon after the Declaration of Independence, steps were taken in Massachusetts toward framing a new form of government. In accordance with a recommendation of the previous legislature, the two branches of the legislature of 1777-1778 met together as a convention and submitted a constitution, which, however, was indignantly rejected by the electorate, because they resented the legislature's assumption that it could call a convention without first obtaining an authorization from the people. In the following year the chastened legislature called upon the voters to state whether they wished a constitution and whether they would authorize the legislature to call a convention. The vote on both questions was affirmative, and the legislature accordingly called the convention which drafted {6} the present Massachusetts constitution. This constitution was adopted in 1780.[19] The experience of New Hampshire was very similar. In response to a recommendation by the Continental Congress, the provincial congress of New Hampshire adopted a temporary constitution on January 5, 1776, although in the face of strong protest from many parts of the State. The agitation in the western towns became so serious that it was necessary for the provincial congress to send a committee to assure that section that the form of government adopted was purely temporary. Delegates from certain of the towns met in Hanover in June, 1777, and passed resolutions that any permanent plan of government should be framed by a convention convened solely for that purpose. Subsequent constitutional procedure in New Hampshire followed those suggested lines. The legislature of 1777 asked that the various representatives be instructed by their towns as to the expediency of holding a convention. Many of the members of the next legislature were so instructed, and accordingly it was voted in February, 1778, that a convention be held in June of that year. The convention, called by virtue of this vote, drafted a constitution; but it was rejected by the people. This procedure was repeated in calling a second convention, which met in 1781 and submitted a constitution, which also was rejected. The same convention submitted a revised copy in 1782, and a second revision in 1783, which was finally adopted.[20] As already said, it was the idea of a separate convention which defeated the constitution framed by the Massachusetts legislature in 1777-1778. As a recent writer has said: The material factor which defeated the constitution was the widespread belief that the only convention which could stand for all the people and best define its rights and determine its form of government, was a convention consisting of delegates to whom the powers of the people were delegated for the sole purpose of {7} framing a constitution, and not a body of representatives entrusted at the same time with other duties.[21] Dodd gives to the towns of the New Hampshire grants, meeting in Hanover in June, 1777, the credit of originating the convention idea.[22] But to the town of Concord, Massachusetts, belongs the honor of antedating the towns of the New Hampshire grants. On October 21, 1776, the town voted on the question of authorizing the legislature to frame a constitution: That the Supreme Legislative, either in their proper capacity, or in Joint Committee, are by no means a body proper to form and establish a Constitution, or form of Government; for reasons following: first, because we conceive that a Constitution in its proper idea intends a system of principles established to secure the subject, in the possession and enjoyment of their rights and privileges, against any encroachments of the governing part, second, because the same body that forms a constitution have of consequence a power to alter it, third, because a constitution alterable by the Supreme Legislative is no security at all to the subject against any encroachment of the governing part on any, or on all of their rights and privileges. Accordingly they recommended the calling of a convention.[23] This procedure of constitution-framing by a convention chosen for that express purpose, which idea was originated in Concord, Massachusetts, and was copied by the New Hampshire towns, was also followed in Vermont in 1786, and with respect to the Federal Constitution. Jameson points out that the congress which framed the Articles of Confederation possessed not a single one of the elements necessary to give it legitimacy as a constitutional convention.[24] The body which framed the permanent Constitution of the United States was scarcely more legitimate. The Annapolis convention had met merely to settle the commercial disputes of the American States, but had recommended that the succeeding convention at Philadelphia should {8} consider "other objects than those of commerce." Accordingly, a convention met in May, 1787, at Philadelphia, "to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government adequate to the exigencies of the Union."[25] This convention was really a diplomatic treaty-making body, rather than a constitutional convention in the purest sense of the term. But the conventions of the eleven States which ratified the Constitution were all regularly-called constitutional conventions. The same may be said of the conventions of North Carolina, Rhode Island, and Vermont, which ratified the Constitution after it was declared established.[26] [§4. Convention to amend constitution.] So much for the origin of the idea of a written constitution, and for the employment of conventions to draft these instruments. Let us now consider the growth of the idea of the convention as a method of amending or altering constitutions already established. The absence of any provision for alteration in the early constitutions should not be taken as an indication that their framers thought the regular legislatures competent to alter them, but rather that they did not consider the matter at all.[27] Thus six of the early constitutions, and the rejected Massachusetts constitution of 1778, provided no method for their own amendment.[28] Of the eight constitutions which did provide for amendment, three provided for legislative action (in a manner different and more difficult, however, than the passage of a mere statute),[29] two provided for submission by a council of censors for ratification by a specially called convention,[30] one provided for a convention called by petition,[31] and one for a convention called by a popular vote at a certain fixed date.[32] {9} The New Hampshire constitution of 1784 contained a similar provision, but with the added qualification that the work of this convention should be submitted to the voters for their approval. [§5. Legislature as convention.] But soon it became apparent that it would be convenient for each State to have two methods of changing its constitutions; although only four constitutions had, up to 1835, adopted both the legislative and convention methods.[33] Up to 1917, one hundred and thirty-nine constitutions have been framed by that many conventions. Of these, nine have contained no method of amendment, twenty-nine have contained provisions for amendment by convention alone, thirty-six by the legislative method alone, and sixty-five by both modes.[34] In all of the States except New Hampshire, specific provision is now made for the amendment of State constitutions, by action by the legislature.[35] In twelve States, the constitution may now be amended by popular initiative without the interposition of either the legislature or a convention.[36] Only twelve of the State constitutions now in force omit to provide for the holding of constitutional conventions.[37] Yet conventions have been held in all of these States except Rhode Island, Indiana, and Vermont. The question of holding a convention has twice been submitted in Rhode Island, in spite of a Supreme Court opinion declaring the convention method unconstitutional, and there have been authoritative expressions of opinion in Vermont and Indiana that a convention could be held there.[38] It may therefore be said that New Hampshire is the only state in which amendments may not be proposed by the legislature, and that Rhode Island is perhaps the only exception to the rule that conventions may be held for the revision of State constitutions.[39] {10} The Federal Constitution provides for the holding of a Federal convention as an alternative to the usual method of submission of amendments by Congress.[40] Thus the convention method and the legislative method of amending constitutions have now become equally established throughout the length and breadth of the United States. ------ 1. Mass. Const., Preamble. 2. See [Ch. II §8] pp. 26-28, infra. 3. Massachusetts until 1780; Connecticut until 1818; Rhode Island until 1842. 4. Dodd, pp. 2-3. 5. A. Caperton Braxton, in VII "Va. Law Beg.," 79, 82. 6. Dodd, p. 14; Jameson, pp. 113 and 128-129. 7. George Tolman, "Preliminaries of the Concord Fight" (1902), p. 6. 8. Kamper v. Hawkins (1793), 3 Va. 20, 68-74. 9. Jameson, pp. 113, 114 n. 1, 119, 122.126, 130, 132-134. 10. Jameson, p. 113. 11. Kamper v. Hawkins (1793), 3 Va. 20, 68. 12. See Chapter XVII, infra. 13. The following classification is based upon Dodd, pp. 24-25, with some regrouping, however, based upon an analysis of the full accounts. 14. North Carolina (April, 1776), South Carolina (1776), Georgia (1776), Virginia (1776), New Jersey (1776), and the continuation of the charters in Massachusetts, Rhode Island, and Connecticut. 15. New Hampshire (1776), Delaware (1776), Georgia (1777), New York (1777), and Vermont (1777). Jameson (pp. 128-130) gives Delaware the credit of holding the first regular convention, but see Dodd, p. 15 16. Maryland (1776), Pennsylvania (1776), North Carolina (Dec. 1776), and South Carolina (1778). 17. Massachusetts (1778). 18. New Hampshire (1778 and 1781-1783) and Massachusetts (1780). 19. George Tolman, "Preliminaries of the Concord Fight" (1902); 1917 Manual of the General Court (Mass.), pp. 86-87; Dodd, pp. 8-10; Frothingham, Const. and Govt. of Mass.; II "Mass. Law Quarterly," 1. 20. Dodd, pp. 3-8. 21. Arthur Lord in II "Mass. Law Quarterly," 1, 5; cf. Journal, Mass. Conv., 1779-1780, p. 225. 22. Dodd, p. 6. 23. "Mass Archives," Vol. 156, No. 182. A facsimile is to be printed in the manual of the Mass. 1917 Convention. 24. Jameson, pp. 147-148. 25. Jameson, pp. 149-150. 26. Jameson, p. 153. 27. Dodd, p. 27. 28. South Carolina (1776), Virginia (1776), New Jersey (1776), New Hampshire (1776), New York (1777), and North Carolina (Dec. 1776). 29. Maryland (1776), Delaware (1776), and South Carolina (1778). 30. Pennsylvania (1776) and Vermont (1777). 31. Georgia (1776). 32. Massachusetts (1780). The vote was unfavorable, no convention was held, and thus this method lapsed by non-use. There was a similar provision in the Kentucky constitution of 1792, and under it was framed the constitution of 1799. 33. United States (1787), South Carolina (1790), and Delaware (1792 and 1831). 34. Jameson, pp. 550-551; Dodd, pp. 119-120. Arizona and New Mexico in 1910; Louisiana in 1913. 35. "Columbia Dig.," pp. 10-21. 36. "Columbia Dig.," p 771. These States are Arizona, Arkansas, California, Colorado, Michigan, Missouri, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, and Oregon. 37. "Columbia Dig.," p. 21. These States are Arkansas, Connecticut, Indiana, Louisiana, Massachusetts, Mississippi, New Jersey, North Dakota, Pennsylvania, Rhode Island, Texas, and Vermont. 38. See Chapter IV, infra. 39. Dodd, p. 120. 40. U. S. Constitution, Art. V. ------------ CHAPTER II FUNDAMENTAL PRINCIPLES [§1. The people are sovereign.] {11} IN order to understand the nature, powers, and limitations of constitutional conventions, it will be necessary first to discuss a few fundamental principles of government; for the convention, designed as it is to tinker with such a basic instrument as the constitution, must of necessity get closer to fundamentals than any other governmental agency. Government in America is based upon popular sovereignty. The Federal Constitution was ordained and established by "the people of the United States,"[1] and guarantees to each of the several States "a republican form of government."[2] This means, in other words, a representative form. It is founded upon the theory that the people are fit to rule, but that it would be cumbersome for them to govern themselves directly. Accordingly, for the facilitation of business, but for no other purpose, the people choose from their own number representatives to represent their point of view and to put into effect the collective will. As Jameson expresses it: Of the American system of government, the two leading principles are, first, that laws and Constitutions can be rightfully formed and established only by the people over whom they are to be put in force; and, secondly, that the people being a corporate unit, comprising all the citizens of the state, and, therefore, too unwieldy to do this important work directly, agents or representatives must be employed to do it, and that, in such numbers, so selected, and charged respectively with such functions, as to make it reasonably certain that the will of the people will be not only adequately but speedily executed.[3] {12} These principles were recognized by our forefathers in framing the various Bills of Rights, which declare in substance that, as all power resides originally in the people, and is derived from them, the several magistrates and officers of government are their substitutes and agents, and are at all times accountable to them.[4] The various agents of the people possess only such power as is expressly or impliedly delegated to them by the constitution or laws under which they hold office; and do not possess even this, if it happen to be beyond the power of such constitution or laws to grant. As the Supreme Court of South Carolina said in an early decision: Whatever authority this Court or any other constituted authority in this State possesses, it possesses by delegation from the people, and is exercised in their right. What they have failed to delegate, even if it operates injuriously and in bad faith towards their confederates, the Court cannot possess.[5] The Declaration of Independence, which is the first great declaration of American principles, says truly, "We hold these truths to be self-evident: That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness. That, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed." [§2. People have unalienable right to change government.] It follows, as a necessary conclusion from this statement in the great Declaration, that the people have an unalienable right to change their government whenever the common good requires. In fact, that very conclusion is drawn by the Declaration itself. Yet, because of the training of our ancestors, this idea was difficult of establishment. As Braxton points out: Both Church and State taught and enforced the dogma that governments were of divine origin, and existed by divine right; and to this proposition the corollary was obvious, that the people had no right to alter what God had established. Finally the idea took {13} root and began to develop, that while government, in its general sense, as distinguished from anarchy, may be said to be a divine institution, yet no particular form of government could lay just claim to any divine right of preference over any other form. In this one idea lay the germ of all modern political and civil liberty. Yet, simple and elementary as it seems to us, in this age of enlightenment, it was many years before this idea could be reconciled to the tender consciences of many pious person who had been taught from their childhood, as a part of their religion to hold in superstitious veneration this "Icon Basilike" and all that it stood for.[6] Practically every one of the original State constitutions of America contains an assertion of this fundamental right of the people to change their form of government. The following quotations from these constitutions may prove instructive on this point: Some mode should be established by common consent, and for the good of the people, the origin and end of all governments, for regulating the internal polity of this colony.[7] All political power is vested in and derived from the people only.[8] All government of right originates from the people, is founded in compact only, and instituted solely for the good of the whole.[9] When any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.[10] Whenever these great ends of government are not obtained, the people have a right, by common consent, to change it, and take such measures as to them may appear necessary to promote their safety and happiness. ... The community hath an indubitable, unalienable, and indefeasible right to reform, alter, or abolish government in such manner as shall be by that community judged most conducive to the public weal.[11] The people, from whom all power originates and for whose benefit all government is intended.[12] {14} Whenever these great objects are not obtained, the people have a right to alter the government, and to take measures necessary for their safety, prosperity, and happiness. ... The people alone have an incontestable, unalienable, and indefeasible right to institute government; and to reform, alter, or totally change the same, when their protection, safety, prosperity, and happiness require it.[13] All government of right originates from the people, is founded in consent, and instituted for the general good. Whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought, to reform the old, or establish a new government. The doctrine of non-resistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.[14] All just authority in the institutions of political society is derived from the people, and established with their consent, to advance their happiness; and they may, for this end, as circumstances require, from time to time, alter their constitution of government.[15] It is important to note that these "self-evident truths," these "fundamental rights" are admitted rather than guaranteed by the constitutions. See the following: Now no truth can be self-evident, which becomes evident only under particular conditions, as when it is deducible only from ... the provisions of some positive code. ... If the truth in question is a self-evident truth, it is one which would obtain equally whether asserted in the constitution ... or not.[16] It needed no reservation in the organic law to preserve to the people their inherent power to change their government.[17] The Supreme Court of Rhode Island stands alone in denying the principles laid down in the Bills of Rights. In 1883 it said: It has been contended that there is a great unwritten common law of the states, which existed before the Constitution, and which the Constitution was powerless to modify or abolish, under which the people have the right, whenever invited by the General Assembly, ... to alter and amend their constitutions, ... Our Constitution {15} is ... the Supreme law of the State! We know of no law, except the Constitution and laws of the United States, which is paramount to it.[18] And this in the teeth of the fact that the Bill of Rights then in force in Rhode Island proclaimed: The basis of our political systems is the right of the people to make and alter their constitutions of government.[19] And of the fact that the Rhode Island convention which ratified the Federal Constitution included in the ratification these words: That the powers of government may be re-assumed by the people, whensoever it shall become necessary to their happiness. Holcombe has an ingenious theory that the Federal Constitution destroyed this right referred to in the various State constitutions, but he is apparently alone in this.[20] [§3. How may people change government?] How may the people exercise this right to change their government? They may do it in any one of three ways: namely, (1) by some authorized procedure; (2) by a lawful act of the whole people in their sovereign capacity; or (3) by the spontaneous act of an unrepresentative part of the people. By the term "authorized procedure," I mean some method provided by the charter or constitution under which the State in question is governed, or by the express permission of some sovereign government, in case the people in question are a subject people. An example of the latter sort is when Congress passes an act permitting some subject territory of the United States to frame a form of government preparatory to its admission to statehood. The whole people in their sovereign capacity, acting through the forms of law at a regular election, may do what they will with their own frame of government, even though that frame of government does not expressly permit such action, and even though the frame of government attempts to prohibit such action. This method of change of government will be amplified and justified in Chapter IV. {16} When a part of the people or even a majority of them act outside the forms of law, they have no power except the power of force to bind those who do not join in the movement. Such a change or attempted change of government is nothing but factional, even though it may be conducted in a most orderly manner. Factional changes of government, or "spontaneous changes," as Jameson calls them, will be discussed more fully toward the end of this chapter.[21] The Pennsylvania Supreme Court has attempted to draw a distinction between these three methods of change of government. The court's language is as follows: The words "in such manner as they may think proper," in the declaration of rights, embrace but three known recognized modes by which the whole people, the state, can give their consent to an alteration of an existing lawful frame of government, viz.: 1. The mode provided in the existing constitution. 2. A law, as the instrumental process of raising the body for revision and conveying to it the powers of the people. 3. Revolution. The first two are peaceful means through which the consent of the people to alteration is obtained, and by which the existing government consents to be displaced without revolution. The government gives its consent, either by pursuing the mode provided in the constitution, or by passing a law to call a convention. If consent be not so given by the existing government the remedy of the people is in the third mode, -- revolution. If the legislature, possessing these powers of government, be unwilling to pass a law to take the sense of the people, or to delegate to a convention all the powers the people desire to confer upon their delegates, the remedy is still in their own hands; they can elect new representatives that will. If their representatives are still unfaithful, or the government becomes tyrannical, the right of revolution yet remains.[22] The author would suggest that the following changes be made in the parts which he has italicized: namely, that the first "revolution" be changed to "spontaneous action, ratified by acquiescence," and that the second and third "revolution" be changed to "spontaneous action." {17} Let us not however attempt to decide at just this point whether the Pennsylvania Court correctly used the term "revolution." This is really a question of terminology rather than of fundamentals. The definition of the word will be discussed in Chapter III,[23] and in Chapter IV there will be considered the question as to whether popular conventions may properly be designated as "revolutionary."[24] On the fundamental points expressed, the Pennsylvania Court was entirely correct. It laid down the principles that the electorate is really a representative body, a body representing "the people." [§4. Who the "people" are.] The people here meant are the whole -- those who constitute the entire state, male and female citizens, infants and adults. A mere majority of those persons who are qualified as electors are not the people, though when authorized to do so, they may represent the whole people. The electors who can pronounce the voice of the people are those alone who possess the qualifications sanctioned by the people in order to represent them, otherwise they speak for themselves only, and do not represent the people. ------------ A majority of the adult males having the qualifications of electors can bind the whole people only when they have authority to do so. ------------ The great error of the argument of those who claim to be the people, or the delegates of the people, is in the use of the word people. Who are the people? Not so many as choose to assemble in a county, or a city, or a district, of their own mere will, and to say -- we the people. Who gave them power to represent all others who stay away? Not even the press, that wide-spread and most powerful of all subordinate agencies, can speak for them by authority. The voice of the people can be heard only through an authorized form, for, as we have seen, without this authority a part cannot speak for the whole, and this brings us back to a law as the only authority by which the will of the whole people, the body politic called the state, can be collected under an existing lawful government.[25] {18} And Braxton says, in the same connection: The "people" to whom our Bills of Rights refer, the only "people" whom civilization recognizes as having any sovereign or political rights, are the people, not in a state of nature, but as organized into social government. When, therefore, we are discussing any problem or doctrine of government, or of political or civil rights, let us lay aside all consideration of the people in a "state of nature"; let us omit all reference to that idle dream of the early theorists, about the people meeting together in a "vast plain" -- a thing they, of course, never did and never possibly could have done; and instead, let us ever consider the people, not as a capricious, erratic, lawless monster, but as an all-powerful, but orderly, force moving only in lawful form, in accordance with the great rules and principles, and in pursuance of the methods, which are essential to its organized existence.[26] The people do not vote at a popular election any more than they vote at a session of the legislature. They speak only through representatives in either instance. The people include men, women, and children. In some governmental functions, these people speak through the electors, in other instances through the legislature, but always through representatives. [§5. Electors as the "people".] Some writers have even gone to the extent of stating that the electors are the people. Witness the following: Under our system of government it is apparently well settled that the ultimate sovereignty is in the people, in the restricted sense of those who are enfranchised. The power to change the fundamental -- the written constitution -- is in them alone. It is this principle which causes the courts to recognize generally the right of the legislature, as the organ of the people, to submit a call for a convention of the people, and to regard such a convention as a valid method of constitution making, although the existing constitution contains no provision to that effect.[27] The Massachusetts Supreme Court has recently held that "people" as mentioned in the Bill of Rights are all the people, whereas "people" in provisions relative to elections are merely the qualified voters.[28] This would seem to be a very sensible distinction. But be that as it may. A majority of the electors can represent {19} the people only at a duly held election. The action of a majority of the electors in any other manner is just as ineffective as would be the action of a majority of the legislators taken during a legislative recess. The Pennsylvania Court expresses these thoughts in the following language: The people, that entire body called the state, can be bound as a whole only by an act of authority proceeding from themselves. In a state of peaceful government they have conferred this authority upon a part to speak for the whole only at an election authorized by law. It is only when an election is authorized by law, that the electors, who represent the state or whole people, are bound to attend, and if they do not, can be bound by the expression of the will of those who do attend.[29] Law is the highest form of a people's will in a state of peaceful government, when a people act through a law the act is theirs.[30] [§6. Spontaneous convention does not represent the "people".] Judged by these standards, it will be seen that a spontaneous convention is not really a movement of the whole people, no matter how large a percentage of the voters it actually represents. This may answer the suggestion which is often made by loose thinkers on this subject; namely, if some rich man or some body of men were to pay the expenses of holding a state-wide election, and were to invite all the voters to attend, would not an amendment adopted at such an election become a valid part of the constitution through thus receiving the popular sanction? But the Pennsylvania Court replies as follows: Let us suppose a voluntary election unauthorized by law, and delegates elected. It is plain a convention composed of such delegates would possess no power to displace the existing government, and impose a new constitution on the whole people. Those voting at the unauthorized election had no power to represent or to bind those who did not choose to vote. Suppose a constitution formed by a volunteer convention, assuming to represent the people, and an attempt to set it up and displace the existing lawful government. It is clear that neither the {20} people as a whole nor the government having given their assent in any binding form, the executive. Judiciary and all officers sworn to support the existing constitution would be bound, in maintenance of the lawfully-existing institutions of the people, to resist the usurpation, even to the whole extent of the force of the state. If overpowered, the new government would be established, not by peaceful means, but by actual revolution.[31] The leading example of factional convention in the United States is the "People's Convention" in 1841 in Rhode Island, which culminated in what is generally known as "Dorr's Rebellion," to be discussed a little later. In Maryland, in 1837, there were conditions like those in Rhode Island in 1841, and the supporters of reform elected a convention without any authorization from the regular government, but the convention took no action, for the legislature hastened to adopt the most important proposed reforms.[32] Somewhat similar to the Maryland case was that of the convention at Topeka in the territory of Kansas in 1855. This convention was assembled upon the recommendation of meetings and associations of private individuals. The constitution which it framed was submitted to a popular vote and received a majority of the votes cast upon the question of its adoption, although only its friends voted upon this question. This constitution was never recognized by Congress, though it would seem that the irregularity of its formation and adoption might have been cured by congressional ratification, had Congress cared to take such action.[33] The territory of Michigan in 1835 adopted a constitution and applied for admission into the Union. Congress passed an act that Michigan should be admitted if she would agree to a restricted boundary. The new State rejected the condition. Thereupon a popular movement was begun, and delegates were elected to a convention, which assembled without either congressional or State authorization, and assented to the condition imposed by Congress. Congress accepted this action as satisfactory and by its acceptance ratified the action of the irregular convention.[34] {21} Thus what is originally merely a factional convention may in some cases become an authorized convention by subsequent ratification; in such cases, by Congress. But apart from some curing ratification, we have seen that, although the people are supreme, they have no method of expression except through their representatives, the voters; and they in turn can only speak by means of elections regularly called and held. It was this little technical point alone which justified the prosecution of Thomas W. Dorr for supporting the "People's Constitution" of 1841 in Rhode Island. Under his leadership the people of that State attempted to overthrow the tyrannous rule of the landholding classes who were still entrenched behind the King's charter. Caucuses of the adult male citizens throughout the State sent delegates to a convention which submitted a fair and democratic constitution to a special election called by it. At this election a clear majority of all the adult males voted for the new frame of government. Not only this, but among those voting in favor was a clear majority of those duly registered as voters under the charter. Dorr was subsequently elected Governor. He attempted to assume office, but John Tyler, Whig President of the United States, interfered at the request of the Whig charter government, and forced Dorr and many of his followers into exile, by threatening to send Federal troops into the State. This partisan action, by the way, is chiefly what drove the Whigs from power in the succeeding national election. Equally partisan was the Democratic congressional report on Tyler's action, which report will be cited elsewhere in this volume. On Dorr's return, a few years later, he was tried and convicted of high treason. In the meantime, the Charterists themselves had submitted a constitution, which had received the votes of less than one third of the adult males, less than half of the registered vote. Yet technically this became the constitution of the State, and the People's Constitution did not. Neither method of procedure was authorized by the charter. The valid one received seven thousand votes; the invalid one nearly fourteen thousand. Yet the difference in validity lay in this: the seven thousand voted at a duly called election, and hence had authority {22} to speak for the whole people; whereas the fourteen thousand voted at an irregular election, and hence spoke only for themselves.[35] The following quotations from the unreported opinion of the Rhode Island Supreme Court rendered at Dorr's trial may prove instructive. This court can recognize no other [i. e. constitution] than that under which it holds its existence. ... Any irregular action, without legal authority, is no action at all, that can be taken notice of by a court of law. ... It matters not therefore whether a majority, or what majority, voted for a pretended constitution, as is alleged by the prisoner, and as he now asks to be permitted to prove. The numbers are nothing; we must look to the legality of the proceeding, which, being without form of legal authority, is void and of no effect.[36] See also the following quotations from the argument of Daniel Webster in the famous case of Luther v. Borden in which the United States Supreme Court went very fully into the validity of Dorr's Rebellion, although deciding the case on other grounds: When it is necessary to ascertain the will of the people, the legislature must provide the means of ascertaining it. ------------ There must be an authentic mode of ascertaining the public will somehow and somewhere. If not, it is a government of the strongest and most numerous.[37] [§7. Factional conventions.] One of the five instances in which new States have been formed within the boundaries of other States, presents an example of a factional convention. Vermont is not such an instance, as she had maintained her independence against the State of New York and the United States for fourteen years;[38] and hence, however irregular had been her original organization, her government had become regular through lapse of time and acquiescence of her people.[39] But in the case of West Virginia, the legality of its admission {23} into the Union depends to a large extent on the legality of the absolutely revolutionary pro-union government, which was set up in the State of Virginia shortly after the outbreak of the Civil War. This government appears to have been ordained by a convention extremely factional, representing but a fraction of the people of a fraction of the State; and yet the assent of this government to the dismemberment of Virginia was rendered effective by force of Federal arms, just as the factional government in Rhode Island was rendered ineffective by the same force.[40] The possibility of spontaneous changes being legal has been suggested in the following dictum: It may well be questioned whether, had the Legislature refused to make provision for calling a convention, the people in their sovereign capacity would not have had the right to have taken such measures for framing and adopting a constitution as to them seemed meet.[41] The Committee of Congress, chosen for partisan purposes to prepare a report on Dorr's Rebellion, discreditable to President Tyler, framed an ingenious theory along the lines of the above dictum, to the effect that a majority of the adult males constitute the people. This theory they expressed in the following language: That the (political) people include all free white male persons, of the age of twenty-one years, who are citizens of the State, are of sound mind, and have not forfeited their right by some crime against the society of which they are members.[42] It is true that the original Virginia Bill of Rights says that "a majority of the community hath an indubitable, unalienable and indefeasible right, etc."[43] And Walker says that the right of revolution exists "whenever a majority desire it."[44] But in the light of the foregoing discussion, it is probable that what Walker and the framers of the Virginia constitution really {24} meant was the right of the people, speaking through a majority of their electors. At any rate, particularly in these days when women are clamoring that they too are people, it is easier to follow the Pennsylvania view that all male, female, and minor citizens are people, but that the people can speak only through duly qualified voters.[45] Of course, it is true that many factional movements have succeeded in overturning the government. But they have been ratified by subsequent events, which made up for the illegality of their beginnings. The spontaneous governments of the American colonies succeeded when force triumphed over England. The "People's" government of Rhode Island failed, and the Union government of West Virginia succeeded, because of force, applied by the Federal authorities. Revolutionary conventions ... are not peculiar to any country, but have existed wherever, and will continue occasionally to exist as long as, the ultimate and eternal right of revolution remains -- a right which, it is said, depends solely upon the power to successfully invoke it.[46] If overpowered, the new government would be established, not by peaceful means, but by actual revolution.[47] Thus authorized movements depend upon either constitutional or congressional authority; popular movements depend upon the power of the people; spontaneous movements depend upon force, or at least upon acquiescence. No exact line can be drawn between the three different classes of change of government; each merges into the next, and many instances are on the line. Daniel Webster has summed up, in the following words, the ground which we have just covered, and this summary has twice received the approval of the United States Supreme Court: Mr. Webster's argument in that case took a wider sweep, and contained a masterly statement of the American system of government, as recognizing that the people are the source of all political power, but that as the exercise of governmental powers immediately by the people themselves is impracticable, they must be exercised {25} by representatives of the people; that the basis of representation is suffrage; that the right of suffrage must be protected and its exercise prescribed by previous law, and the results ascertained by some certain rule; that through its regulated exercise each man's power tells in the constitution of the government and in the enactment of laws; that the people limit themselves in regard to the qualifications of electors and the qualifications of the elected, and to certain forms for the conduct of elections; that our liberty is the liberty secured by the regular action of popular power, taking place and ascertained in accordance with legal and authentic modes; and that the Constitution and laws do not proceed on the ground of revolution or any right of revolution, but on the idea of results achieved by orderly action under the authority of existing governments, proceedings outside of which are not contemplated by our institutions.[48] [§8. Meaning of constitutionality.] One more fundamental point, not directly related to the foregoing, must however be discussed: namely, the meaning of constitutionality and unconstitutionality, and the relation between the constitution and governmental affairs in general.[49] This is a subject under which there exists a good deal of misapprehension, with the result that lawyers, writers, and even judges have been found laying down the principle that anything which is not authorized by the constitution must, therefore, be considered as prohibited by the constitution. And yet the great distinction drawn by Chief Justice Lemuel Shaw between Federal and State constitutions rests upon a denial of this assumption.[50] The purport of his decision was that there exists midway between the class of actions prohibited by the constitution and the class of action authorized by the constitution, a twilight zone consisting of those actions which are neither authorized nor prohibited. As the Federal government has no powers other than those expressly or impliedly given to it by the Constitution, all Federal activities within the twilight zone are just as illegal as those which fall into the expressly prohibited class. As the people reserve to themselves all powers not expressly or {26} impliedly granted to the three branches of the government, it follows that with respect to the State constitutions, any action falling within the twilight zone is lawful through not being prohibited. Thus it is seen that there are three classes of cases in constitutional law, namely: (1) things authorized; (2) things neither authorized nor prohibited; and (3) things prohibited. To this may perhaps be added a fourth class, namely, things which the constitution has no power either to authorize or to prohibit. Thus with respect to the control of State constitutions over the question of amending the constitution, any given method may be either (1) expressly authorized; (2) permitted because not prohibited; (3) prohibited; or (4) beyond the jurisdiction of the constitution. This fourth class is perhaps a subdivision of the second. Any amendatory method which is beyond the control of the constitution falls into class 4, regardless of whether the constitution attempts to authorize or prohibit it, or merely remains silent on the subject. A word more relative to this fourth class. Some persons will deny that there can exist a class of actions, which are neither constitutional nor unconstitutional, being beyond the control of the constitution. To such a person, the following question should be put: "Under the State constitution, is it constitutional or unconstitutional for the President of the United States to call out the State militia?" The answer is: "The State constitution has nothing to do with the matter." This is merely one example to show the possibility of the existence of extra- or even supra-constitutional matters. Now to another point: the suggestion was made in Chapter I that when the colonies declared their independence, they reverted to a state of nature.[51] This suggestion deserves a little analytical attention. Dodd quotes with approval the following from a resolution passed at a meeting of New Hampshire towns in 1776: It is our humble opinion, that, when the Declaration of Independency took place, the Colonies were absolutely in a state of {27} nature, and the powers of Government reverted to the people at large.[52] And the Supreme Court of Virginia has said: The instant that the declaration of independence took effect, had the convention proceeded no farther, the government, as formerly exercised by the crown of Great Britain, being thereby totally dissolved, there would never have been an ordinary legislature, nor any other organized body, or authority in Virginia. Every man would have been utterly absolved from every social tie, and remitted to a perfect state of nature.[53] But Braxton says: What, then, is this "right of the people" (or of a majority of them) to "alter their government," which the advocates of conventional omnipotence invoke to support their views? Is it the right to resolve themselves into a "state of nature," to "scatter the elements of government around them," and to " stand upon the foundations of society" -- "to conjure up chaos?" Surely not. To the religious man, government, in its broadest sense, is still regarded as ordained by God, and therefore the people have no right to abolish it; to the non-religious, it is still an absolute essential for the existence of society. What right, then, have the people to abolish government? The "people," as we have seen -- the only "people" whom political society can recognize are the people organized into a government of some sort. If, then, they should abolish all government, they would manifestly destroy their own existence. When we speak of the right of the people to govern themselves we do not mean what the words literally imply, but merely their right to alter or amend their government, or to replace it with a new one, at their pleasure. The existence of government is absolutely essential to the existence of the "people" in any political sense; and the only way in which the people have a right to abolish the government is by substituting a new one in its stead. There can be no hiatus between them. The idea of the people resuming -- taking back into their own hands -- all the powers of government is a delusion. The people can never take the powers of government into their own hands; {28} the utmost they can do is to enlarge or curtail, amend or alter, those powers in the hands of their government, or to transfer them from one government to another; but they can never "resume" them in toto. Not only have they no right, but they have no power to do so. They can abolish government, and thereby destroy their own political existence, but they can never directly exercise the powers of government -- only a government of some sort can possibly do this.[54] In other words, the people are all-powerful like Samson; but when they pull down the temple of the state, they thereby destroy themselves. Of course, Braxton is right; but is he not setting up a man of straw so as to knock it down again? He is attacking the oratorical flights of fancy of those who assert convention sovereignty,[55] rather than attacking the real foundations of their arguments. Most other writers assume that which Braxton sets out so elaborately to prove. Thus Jameson says that the people are a corporate unit, comprising all the citizens of the state.[56] The Pennsylvania Supreme Court has defined the people as "the body politic called the state."[57] And the Supreme Court of Virginia reaches the same conclusion, although basing the result upon the inconvenience rather than the impossibility of a state of nature.[58] From all the foregoing discussion, we can deduce the following fundamental principles to guide us in considering the status, powers, and limitations of constitutional conventions. Ours is a representative government, founded on popular sovereignty. "The people" are the people as organized into a state of social government; they cannot abolish government without thereby terminating their own existence as the people. Governments derive their powers from the consent of the governed; therefore the governed have a right to withdraw that consent and to change their government at will. They can exercise this right either by an authorized procedure, by a {29} lawful though unauthorized act of the whole people, or by a spontaneous act, provided that in the case of such spontaneous act, it be later ratified by some higher power, i. e. either Congress in the case of a Territory, or the people themselves in the case of the State. The people can speak only through their representatives, the voters, and the voters can speak only at a regular election. It is not necessary that a given action be either authorized or prohibited by the constitution; it may be permitted by not being mentioned at all, or it may be valid because outside the power of the constitution. ------ 1. U. S. Const., Preamble. 2. U. S. Const., Art. IV, § IV 3. Jameson, p. 1; "Works of Daniel Webster," VI, pp. 221-224. 4. Mass. Decl. of Rts., Art. V. 5. McCready v. Hunt (1834), 2 Hill Law (S. C.) 1, 270. Cf. Reliance v. Prison Com. (1914), 161 Ky. 135, 142. 6. VII "Va. Law Reg.," 79, 84. 7. S. C. Const. (1776), Preamble. 8. N. C. Const. (1776), Decl. of Rts., Art. I. 9. Md. Const. (1776), Art. I. 10. Va. Const. (1776), Bill of Rts., § 3. 11. Pa. Const. (1776), Preamble and Decl. of Rts. Art. V. 12. Ga. Const. (1777), Preamble. 13. Mass. Const., Preamble and Bill of Rts., Art. VII. 14. N. H. Const. (1784), Preamble and Bill of Rts., Art. X. 15. Del. Const. (1792), Preamble. 16. Jameson, pp. 235-236. 17. Ellingham v. Dye (1912), 178 Ind. 336, 344. 18. Opinion of Justices (1883), 14 R. I. 649, 654. 19. R. I. Const., Art. I, § 1. 20. Holcombe, "State Government," p 33. See [Ch. XIII §3] p. 168, infra. 21. See [§7] pp. 19-23, infra. Cf. Jameson, p. 104. 22. Wells v. Bain (1872), 75 Pa. 39, at 47-48. 23. See [Ch. II §7] pp. 31-33, infra. 24. See [Ch. IV §7] p. 54, infra. 25. Wells v. Bain (1872), 75 Pa. 39, at 46, 47, 49, and 53. 26. VII "Va. Law Keg.," 79, 87. 27. XXIX "Harv. Law Rev.," 529. 28. 1917 Mass. Senate Doc. 512. See pp. 208-209, infra. 29. Wells v. Bain (1872), 75 Pa. 39, 47. See also in this connection the quotation on [§7] page 22, infra. 30. Wood's Appeal (1874). 75 Pa. 59, 71-72. 31. Wells v. Bain (1872), 75 Pa. 39, 48-49. 32. Jameson, p. 216; Dodd, p. 61. 33. Jameson, pp. 202-204; Dodd, p. 61. 34. Jameson, pp. 188-189; Dodd, pp. 61-62. 35. For full accounts of "Dorr's Rebellion" see Committee Rept., 546, 1st Sess., 28th Cong.; Mowry, "The Dorr War" (1901); Luther v. Borden (1849), 7 How. 1. 36. "Trial of Dorr," p. 38. 37. 7 How. 1, 31-32. 38. Jameson, p. 139. 39. See Chapter XVII, infra. 40. Jameson makes a half-hearted claim that all this was perfectly constitutional. Jameson, pp. 168-172. 41. Goodrich v. Moore (1858), 2 Minn. 61, 66. 42. Committee Rept., 546, 1st Sess., 28th Cong., p. 50. 43. Va. Bill of Rights, § 3. 44. Walker, "American Law" (11 ed.), p. 231. 45. See quotation from Wells v. Bain, p. 17, supra. 46. Braxton, VII "Va. Law Beg.," 79, 82. 47. Wells v. Bain (1872), 75 Pa. 39, 49. 48. Re Duncan (1891), 139 U. S. 449, 461; Taylor v. Beckham (1899), 178 U. S. 548, 579. 49. For a definition of "constitutional," see [Ch. III §1] p. 30, infra. 50. Commonwealth v. Kimball (1837), 24 Pick. 359. 51. P. 1, supra. 52. N. H. State Papers, Vol. VIII, p. 425; Dodd, p. 2. 53. Kamper v. Hawkins (1793), 3 Va. 20, 72. 54. VII "Va. Law Reg.," 79, 88-89. 55. Convention sovereignty will be considered on its merits in Chapter XI. 56. Jameson, p. 1. 57. Wells v. Bain (1872), 75 Pa. 39, 53. 58. Kamper v. Hawkins (1793), 3 Va. 20, 72. ------------ CHAPTER III ANALYSIS OF QUESTIONS [§1. Definitions.] {30} IN the light of the historical development of constitutional conventions and of the fundamental principles already discussed, we are now prepared to analyze the various questions, for the object of answering which this book is written. First, let us observe the French proverb, "Definissons nos termes!" The term "constitutional convention" is not felicitous, for the word "constitutional" may mean to some people "authorized by the constitution," and to others merely "relating to the constitution." Hence the apparent anomaly of the phrase "an unconstitutional constitutional convention." Therefore, a "constitutional convention," as used in this book, may be defined as "a convention employed as a step toward framing or revising a constitution." To avoid ambiguity, such conventions will nearly always be referred to merely as "conventions," omitting the word "constitutional." To the same end, the word "constitutional" will never be used immediately preceding the word "convention" to indicate the constitutionality of the convention; but rather some circumlocution will be employed. Even when used to refer to the constitutionality of the convention, the terms "constitutional" and "unconstitutional" present an ambiguity. "Constitutional," as we have seen in the preceding chapter, may refer either to something authorized by the constitution, or to something valid through not being prohibited by the constitution, or even to something which is legal because beyond the control of the constitution. "Unconstitutional" may mean the reverse of any of those three things. As used in this book, the term "constitutional" will be used only to apply to matters over which the constitution has control, and which in the exercise of that control it either authorizes or omits to prohibit. {31} A circumlocution will be used, whenever possible, in place of the word "submission"; for this word might equally well mean "acquiescence in" or "reference to." [§2. Are popular conventions revolutionary?] "Revolution," as applied to conventions, is a word upon which there can be no possibility of agreement. Jameson, Dodd, Braxton, and others insist that popular conventions are not revolutionary, and reserve the term "revolution" for spontaneous conventions alone. Dodd says: The convention ... is in no sense a revolutionary ... body.[1] Braxton says: A constitutional convention is a normal and legal institution, ... it involves neither revolution nor a dissolution of the ordinary government, even in theory. In the earlier days existing social systems did not contemplate the legal possibility of, and therefore made no provision for, any fundamental change in their constitutions: hence, the only means of effecting such change was, by revolution, to overthrow the existing government, and, by force, either to engraft upon it the desired changes, or else to substitute an entirely new system in its place. But, as the science of government became better understood, and the great doctrine of the right (not merely the power) of the people to change their government, was promulgated, it was found that it was not necessary to resort to revolution in order to change or modify government, but that such changes or modifications might be made as peacefully, as orderly and as legally as any ordinary function of government could be exercised. From the idea involved in this doctrine grew the modern Constitutional Convention, an institution so far unconnected and inconsistent with revolution, either peaceful or violent, that its whole purpose and raison d'etre is to prevent, and do away with, the necessity of excuse for revolution -- in fact, it might properly be called the "Anti-Revolutionary Convention."[2] But it is to be remembered that Dodd and Braxton wrote in States (Illinois and Virginia respectively) where conventions are held under the authority of constitutions. Accordingly their views as to all conventions are colored by the fact that the {32} conventions with which they have had to deal have been of the authorized variety. Similarly the present author's point of view may be colored by the fact that conventions in Massachusetts are generally recognized as being revolutionary. The Supreme Court of Pennsylvania says: It is not pretended that the late convention sat as a revolutionary body.[3] If they are correct in their theory that conventions, sanctioned by the inalienable right of the people and assisted by the existing legislature, are not revolutionary, then, by their test, the secession conventions of the Southern States were not revolutionary, nor is even the coming constitutional convention in Russia. By "revolution" they probably mean "revolution by violence." But violence or lack of violence ought not to be the test in determining the fundamental nature of a governmental overturn. In the words of Reverend William B. Greene: It is not necessary, in order that there be a revolution, that there should be blood shed, powder burned, and other attendants of war displayed. A revolution may take place peaceably, and if the right is once recognized in a country, it should take place peaceably, because in the recognition of that right, is also the recognition of the duty of obedience upon the part of the Government.[4] Walker uses the word "revolution" in the same sense when he says: But it is needless to enlarge upon the general right of revolution. It must of necessity exist, whenever a majority desire it, even though the existing government should be in terms made perpetual, as some of the provisions in our constitutions are declared to be.[5] Gen. Benjamin F. Butler, leader of the majority in the Massachusetts convention of 1853, expressed the sentiments of his party when he said in that body: {33} Are we not now engaged in a revolution -- a peaceful revolution by the ballot-box, and not by the sword and the bayonet? Sir, these are revolutionary times, so far as the Government is concerned. We are assembled to revolutionize, so far as it may be judged expedient, the organic structure of our present Constitution. I look upon this whole proceeding of calling a convention as a mode of revolution by which we may peaceably accomplish that which in other countries is attained by the sword, and by force. Here, through the medium of the ballot-box, the people take to themselves the supreme control of the whole machinery of the government.[6] However, as already said, it will be impossible to agree on this term. Dispute would be profitless. Accordingly, let us agree that, for the purposes of this book, the author will use the word "revolution" to mean any overturn unauthorized by the constitution. The New York Supreme Court nearly reaches this definition, when it says: A change in the fundamental law, when not made in the form which that law has prescribed, must always be a work of the utmost delicacy. Under any other form of government than our own, it could amount to nothing less than a revolution.[7] They might have added, "And under ours it is revolutionary, even though not a revolution." And the Rhode Island Supreme Court, although denying the lawfulness of conventions, says that if there is any such law, it is a law of revolutionary rather than of constitutional change.[8] Ruling Case Law says: An attempt by the majority to change the fundamental law in violation of the self-imposed restrictions is unconstitutional and revolutionary.[9] [§3. Sorts of constitution conventions.] Having disposed of the foregoing definitions, we ought next to proceed to classify the various sorts of constitution conventions. Now, the convention is only one of the many means for altering the form of government. {34} We have seen, during the discussion of fundamental principles in the last chapter, that changes of government may be either authorized, popular, or spontaneous.[10] Among the authorized methods are: amendment by legislative action, amendment by popular vote after submission by the legislature, amendment by the initiative, and amendment by convention. With respect to a popular uprising, the convention is apparently the only method whereby the form of government can be legally changed in disregard of constituted authority; although if the question of amendment could get on to the ballot at a regular election in some other unauthorized way, the action of the electors in ratifying it would probably be just as binding. Spontaneous methods of change of government all, in the last analysis, depend upon force for their success; therefore it is immaterial in which of the many possible spontaneous ways a constitution is promulgated, if it be later established by force. The force is all that is material. Success succeeds, and failure fails; no other difference is apparent between successful and unsuccessful spontaneous conventions. Thus each of the three classes of changes in constitutions -- to wit, authorized, popular, and spontaneous -- may take the form of a convention; and accordingly we have as the three sorts of conventions to be considered in this book, the authorized convention, the popular convention, and the spontaneous convention. The spontaneous convention we may disregard, as it is bound by no law and derives whatever force it may have from subsequent events, rather than from the way in which it is either constituted or conducted. Spontaneous conventions are without the form of law and, therefore, cannot possibly provide us with useful precedents. This book aims to discuss the nature, powers, and limitations of both authorized and popular conventions. The nature of authorized conventions depends largely upon the source of the authority. But popular conventions all probably derive their authority from the people, although this is disputed by Jameson, who asserts that they derive their authority from the legislature. A whole chapter will be devoted to discussing this point of {35} disagreement.[11] The question of whether the legislature calls the convention leads us to the question of whether the legislature can call itself a convention, to which question a chapter will be devoted.[12] The question naturally arises in connection with popular conventions as to whether, inasmuch as they are not authorized by the constitution, they are not thereby rendered unconstitutional and void. A chapter will be devoted to this point also.[13] [§4. Relation of conventions to other departments of government.] Aside from the question of the source of authority of the two sorts of conventions, there are the questions of their relation to the other departments of government, the relative powers of the various departments, and the extent to which any of the departments can interfere with the convention or the convention interfere with any of the departments. Accordingly, inter alia, we shall consider whether the State executive has power to interfere with both sorts of convention under various provisions or lack of provisions in the State constitutions, and also whether the Federal executive has power to intervene in determining the legality of convention action in one of the States. One chapter will be devoted to these considerations.[14] Next as to the legislative department. Judge Jameson's entire work on constitutional conventions was written with the view to proving the supremacy of the legislative branch over the convention.[15] For the purposes of his discussion, he assumed that all conventions, whether called at the one extreme under the provisions of the State constitution, or at the other by a direct vote of the people, were in either event the creatures of the legislature and hence subject to its control. Also, he treated the question of the power of the legislature to amend the statute calling a convention, as being merely a question of the right of the legislature to control the convention; whereas in reality it involves three questions: i. e. the power of the legislature, the source of the statute, and whether the legislature can amend an act passed by the people. The question, here involved, of the power of the legislature, is the same question that is involved in considering whether the {36} legislature can restrict a convention by the terms of the original convention act. The question of who enacts the convention act is the same question as that already referred to, relating to the source of authority of popular conventions. The question as to whether the legislature can amend a statute passed by the people in their sovereign capacity is self-explanatory. These three questions last referred to are each treated in a separate chapter.[16] The restricting of the convention by the original convention act, if it be submitted to the people, instead of being, as we have just supposed, enacted by the legislature alone, involves the question of the power of the people to restrict the convention. This same question is involved when we discuss whether constituents have a right to give binding instructions to a convention delegate. Popular control of conventions is the subject of one of the chapters.[17] [§5. Convention becomes sovereign.] In contradistinction to the idea of legislative or even popular control, is the theory that the convention, once launched, becomes the sovereign, and remains supreme so long as it is in existence. Conventions, claiming this degree of sovereignty, have exercised extraordinary powers, including the enactment of legislation and the removal of executive officers. They have even tried to amend the convention act by which they themselves were created. Extraordinary powers claimed by conventions, including interference with the legislative and executive branches, form the contents of one chapter.[18] Two questions closely related to each other are: whether the constitution applies to conventions, and whether the courts will interfere with conventions. Some people might assume that these are the same question; but it is clear that the constitution may perhaps apply, and yet that the courts may in some cases refuse to interfere with the convention, on the ground that it is a coordinate government body, and is therefore the judge of its own constitutional limitations; in other words, that the questions involved are political rather than legal. On the other hand, the courts may interfere with a convention, on grounds {37} not furnished by the constitution. Then, too, a court might also render assistance to a convention in enforcing its rights and powers. Accordingly, the author has tried to divide those somewhat interrelated questions into two chapters, one dealing with judicial intervention,[19] and the other dealing with the question as to whether the constitution applies to conventions.[20] It is obvious that as all bodies have some incidental powers beyond the strict duties of such bodies, so also the convention must have some incidental powers which do not strictly relate to the framing of a constitution. These are discussed in a separate chapter, which deals with the internal control of the convention by itself; and to this chapter the author has added some words on the privileges of the individual members.[21] Not only is the legal status of the convention important, but also the legal status of the individual delegates. Are they public officers, and should they take an oath to support the constitution which they are engaged in overturning? Ought they to take any oath of office? These questions form the subject matter of another chapter, on the status of delegates.[22] The questions of the need and method of submission of amendments by the convention to the electorate, are incidentally touched upon under almost every phase of the subject of constitutional conventions. There is involved the applicability of constitutional provisions, the binding force of the convention act, the power of the legislature to amend that act, and the right of judicial, executive, or popular interference. Yet the questions of the need and method of submission of the amendments are so important in themselves that the authorities and precedents have been collected in one chapter.[23] A final matter for consideration is the doctrine that the validity and effect of all constitutional changes depends, in the last analysis, upon "getting away with it"; in other words, on the people and the existing government accepting and acquiescing in the change. One chapter is devoted to this doctrine of acquiescence.[24] The concluding chapter of the book is a summary of the answers to the questions presented and analyzed in this chapter.[25] ------ 1. Dodd, p. 72. 2. VII "Va. Law Beg.," 79, 96, 81. 3. Wells v. Bain (1872), 75 Pa. No. 39, 48. 4. Deb. Mass. Conv. of 1853, I, 129. 5. Walker. "American Law" (11 ed.), p. 231. 6. Deb. Mass. Conv. of 1853, I, 78-79. 7. Journal, 69th N. Y. Assembly, p. 920. 8. Opinion of Justices (1883), 14 B. I. 649, 654. 9. 6 R. C. L., § 16. 10. See [Ch. 2 § 3] p. 15, supra. 11. Chapter V, infra. 12. Chapter VI, infra. 13. Chapter IV, infra. 14. Chapter VII, infra. 15. Dodd, p. 73. 16. See Chapter IX on the power of the legislature; Chapter V on the source of the statute; and Chapter VIII on the power to amend. 17. Chapter X, infra. 18. Chapter XI, infra. 19. Chapter XII, infra. 20. Chapter XIII, infra. 21. Chapter XIV, infra. 22. Chapter XV, infra. 23. Chapter XVI, infra. 24. Chapter XVII, infra. 25. Chapter XVIII, infra. ------------ CHAPTER IV POPULAR CONVENTIONS ARE LEGAL [§1. Legal status of popular conventions.] {38} THE exact legal status of popular conventions (i. e. those conventions which are held in such an orderly manner as clearly to represent the popular will, and yet which are not expressly authorized by the existing constitution) is a very important matter to consider. As we saw in Chapter II, any given method of amending the constitution of a State may be either (1) authorized by the constitution, or (2) permitted because not prohibited or because the constitution is powerless to prohibit, or (3) effectually prohibited.[1] In which class does the popular convention fall? There are authorities for placing this sort of convention in each of the three classes. It might seem at first glance that the convention method of amending the constitution could not possibly be legal except in the cases in which the State constitution expressly authorizes this method; and yet if this were so, the legality of at least one of the many such conventions which have been held throughout the United States, would certainly have been questioned before this. We have already discussed historically a number of these instances.[2] Practically all the original constitutions of the thirteen colonies and Vermont were framed by popular conventions held by revolutionary governments without any further legal sanction than the will of the people as expressed through their electorate. Thus the Supreme Court of Virginia has said: The convention of Virginia had not the shadow of a legal, or constitutional form about it. It derived its existence and authority from a higher source; a power which can supersede all law, and {39} annul the constitution itself -- namely, the people, in their sovereign, unlimited, and unlimitable authority and capacity.[3] Some of these constitutions, now recognized as valid, did not even have this sanction, and may therefore be regarded as merely factional. [§2. Conventions ratifying U.S. Constitution violated Articles of Confederation.] The Constitution of the United States was superimposed upon the various State constitutions without any authority derived from any of them, and in direct violation of the provision of the Articles of Confederation.[4] Not only this, but it might legally have been adopted by the people of the various States, against the will of the various State governments, for the United States Supreme Court has said: The assent of the States, in their sovereign capacity, is implied in calling a Convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it; and their act was final. It required not the affirmance, and could not be negatived, by the State governments. The constitution, when thus adopted, was of complete obligation, and bound the State sovereignties. It has been said that the people had already surrendered all their powers to the State sovereignties, and had nothing more to give. But, surely, the question whether they may resume and modify the powers granted to government does not remain to be settled in this country.[5] Most of the secession conventions were popular, or even spontaneous. Many new States have been admitted to the Union under constitutions framed by the people without the authority of Congress, but Congress has ratified the illegal action in admitting them. But the most important precedents for the purposes of the present discussion are States, which, although at peace under a duly established constitution which did not provide for the holding of a constitutional convention, nevertheless held conventions, the legality of which has not been questioned. Jameson mentions twenty-seven such conventions held prior to 1887.[6] {40} Dodd reports three more prior to 1908, to wit: Missouri in 1890, Louisiana in 1898, and Connecticut in 1902.[7] Since 1908, no popular conventions have been held: but Massachusetts is holding one in 1917, and Indiana is to hold one in 1918. Jameson has the following to say on the legality of such conventions: The question of the legitimacy of Conventions thus called, I shall have occasion to consider in other parts of this work, when treating of the relations of legislatures to Conventions, and of the powers of the former resulting from those relations. I shall, therefore, here only observe, -- 1. That, whenever a Constitution needs a general revision, a Convention is indispensably necessary; and if there is contained in the Constitution no provision for such a body, the calling of one is, in my judgment, directly within the scope of the ordinary legislative power; and, 2. That, were it not a proper exercise of legislative power, the usurpation has been so often committed with the general acquiescence, that it is now too late to question it as such. It must be laid down as among the established prerogatives of our General Assemblies, that, the Constitution being silent, whenever they deem it expedient, they may call Conventions to revise the fundamental law.[8] Cooley and the Supreme Courts of Alabama, Louisiana, and North Dakota have also said that, in the absence of any prohibition in the State constitution, a convention may be lawfully held.[9] Dodd says, following Jameson's line of thought: It has now become the established rule that where the constitution contains no provision for the calling of a convention, but has no provision expressly confining amendment to a particular method, the legislature may provide by law for the calling of a convention -- that is, the enactment of such a law is within the power {41} of the legislature unless expressly forbidden, and is considered a regular exercise of legislative power.[10] [§3. States without constitutional provisions for conventions.] There are now twelve States which have no express constitutional provisions for the calling of conventions,[11] yet in eight of these, to wit, Arkansas, Connecticut, Louisiana, Mississippi, New Jersey, Pennsylvania, Texas, and Massachusetts, conventions have been held without any serious question being made as to their legality. In Rhode Island the question of holding a convention was in 1853 twice submitted to the people, but further submission of the question has been effectively discouraged by an adverse opinion of the Supreme Court of that State.[12] In Vermont, the special commission appointed in 1908 to present to the next legislature proposals of amendment to the constitution, although it proposed some changes in the amendment clause, nevertheless omitted to propose the convention method and yet suggested the possibility of holding a convention, thus showing that in its opinion express constitutional authorization would be unnecessary.[13] The North Dakota Supreme Court has decided that the unauthorized convention would be lawful in that State.[14] This opinion has recently been reiterated by the Attorney-General of that State.[15] Some doubt has been expressed as to whether the Indiana convention of 1850 furnishes a precedent for holding a convention under the present constitution there. Although the constitution then in force authorized the holding of conventions, it cannot be considered as authorizing the convention of 1850, for the conventions authorized by the constitution were to be held in 1828, 1840, 1852, etc. It would seem, however, that it is even a stronger disregard of the constitution to hold a convention whenever you please, under a constitution which says you may hold it in 1828, 1840, or 1852, than to hold a convention whenever you please, under a constitution which makes no mention of conventions; just as it would be more disobedient {42} for a child to go down-town at 2:00, after obtaining permission to go at 3:00, than it would if his parents had never in all his life mentioned the subject of going down-town. The Supreme Court of Indiana has asserted the legality of this convention.[16] The present constitution of Indiana contains no provision for the holding of conventions, yet one is about to be held there in 1918. But it is possible that this State, by striking out the convention provision from her constitution, manifested an intention never again to have a convention.[17] Thus we see that in all of the twelve States whose constitutions are silent on the subject, except Rhode Island, and possibly Indiana, conventions can now be held. [§4. Legal authorities for conventions being legitimate.] Let us now consider the legal authorities which hold that this ought not to be so. In several of the conventions of this class, the objection has been raised that they were illegitimate bodies because called without special authority in the respective constitutions.[18] But as Jameson points out: The objection has commonly been urged by a minority, whose party or other interests inclined them to look with disfavor upon any change in the existing Constitution.[19] In spite of the ulterior nature of their motives, however, their views have found the way into some textbooks and encyclopedias. The following is an example: The people must act by majorities, and in adopting the constitution the majority which does so has in effect prescribed the method by which the majority of the people may alter or amend it. An attempt by the majority to change the fundamental law in violation of the self-imposed restrictions is unconstitutional and revolutionary.[20] And, as Jameson says, these objections gain some plausibility because of the existence of other methods of amending the respective constitutions. There having been provided, it has been said, a mode in which constitutional changes might be effected, it was a violation of legal {43} analogy to infer a power to do substantially the same thing in another way, not authorized specifically by the Constitution, according to the well established rule, expressio unius est exclusio alterius.[21] This was exactly the line of reasoning pursued by the only real legal authority against the validity of popular conventions, namely, the Supreme Court of Rhode Island. In an opinion rendered to the legislature in 1883, this court said: The ordinary rule is that where power is given to do a thing in a particular way, there the affirmative words, marking out the particular way, prohibit all other ways by implication, so that the particular way is the only way in which the power can be legally executed. The mode provided in the Constitution for the amendment thereof is the only mode in which it can be constitutionally amended. ... Expressio unius est exclusio alterius. . . . One of the greatest of modern jurists, Chief Justice Shaw, was of the same way of thinking, and, conjointly with his associates, declared it to be his opinion that the Constitution of Massachusetts is constitutionally amendable only as therein provided. ... Any law inconsistent with it is void, and, therefore, if the provision which it contains for its own amendment is exclusive, implying a prohibition of amendments in any other manner, then, of course, any act of the Assembly providing for a convention to amend the Constitution is unconstitutional and void.[22] It will be noticed that this opinion apparently cites the Supreme Court of Massachusetts as being of like mind; yet a careful analysis of the language used by each court will show that the Providence Court does not so cite the Massachusetts Court, and that the Massachusetts Court did not so hold. Before discussing the Massachusetts opinion itself, however, let us first take up another interpretation of it. Attorney-General Attwill of Massachusetts, in a legal opinion rendered to the legislature of 1917, squarely cites the Massachusetts Supreme Court as denying the validity of constitutional conventions in that State; but having unnecessarily cited the court as taking this extreme position, he then proceeds to overrule the court by himself taking the opposite extreme position of holding that the convention is not only legal, but is expressly {44} authorized by the Massachusetts constitution. The material parts of his opinion are as follows: If the convention called to revise, alter or amend the Constitution pursuant to the vote of the people at the last annual election, under Gen. St. 1916, c. 98, is authorized by the provisions of our present Constitution, the position of a delegate to the convention is a "place under the authority of the Commonwealth." It has been asserted by many, and seems to have been the opinion of the justices of the Supreme Judicial Court in an opinion to the Legislature (reported in 6 Cush. 573) that article IX of the Amendments to the Constitution, providing a method for the adoption of specific and particular amendments to our Constitution, excluded by implication any authorization to the people to revise or change it by the convention method, and this view is not unsupported by other authority.[23] He then quotes the various provisions of the Massachusetts constitution which recognize the right of the people to alter their form of government, and continues: This incontestable, unalienable and indefeasible right, which indeed is the essence of a republican form of government, cannot, in my judgment, be taken away except by plain and unmistakable language. That the people of one generation can deprive the people of a succeeding generation of their unalienable right to reform, alter or totally change their form of government, except in a restricted manner, when their protection, safety, prosperity and happiness require it, is repugnant to our theory of government, that the right to govern depends upon the consent of the governed. It seems to me a much more reasonable, if not a necessary, construction of the Constitution to hold that article IX of the Amendments provides only a manner of amending the constitution in addition to other methods that may be adopted by the people of changing their form of government, under the fundamental right guaranteed by the Bill of Rights, whenever "their protection, safety, prosperity, and happiness" require it. ... Accordingly, I am of the opinion that the Convention will be held under the authority of the Commonwealth.[24] Thus Attorney-General Attwill, the latest authority on the subject, goes to the opposite extreme from the Rhode Island {45} Court, and goes further in sustaining the validity of popular conventions than any one before him. It would seem that he goes unnecessarily far. Mr. Attwill's opinion would just as strongly support his conclusions (without, however, being as at present a rather forced construction of the constitution), if he had changed the italicized words (the italics are mine), by substituting for the word "authorized" the words "not effectually prohibited,"[25] and for the word "guaranteed" the word "admitted."[26] Read over his language with these two words changed. Thus we find the Rhode Island Court apparently citing the Massachusetts Court as deciding that popular conventions are unconstitutional and void; and we find Mr. Attwill clearly so citing the court, but attempting to overrule it. Let us now take up the Massachusetts case itself, and see what it really decided. The opinion reads as follows: 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. Considering that previous to 1820 no mode was provided by the Constitution for its own amendment, that no other power for that purpose, than in the mode alluded to, is anywhere given in the Constitution, by implication or otherwise, and that the mode thereby provided appears manifestly to have been carefully considered, and the power of altering the Constitution thereby conferred to have been cautiously restrained and guarded, we think a strong implication arises against the existence of any other power, under the Constitution, for the same purposes.[27] It will be noticed that all that this court decided was that "under and pursuant to the existing constitution" there is no authority for any other method of amendment than the one {46} therein provided; in other words, that there exists no other method "under the constitution." The Rhode Island Court may have recognized this, for it cites the Massachusetts Court as holding that "the constitution of Massachusetts is constitutionally amendable only as therein provided."[28] The restrictions placed on their opinion by the Massachusetts Justices will be better understood, if we glance at the opening words of that opinion, which are not usually quoted in this connection. The legislature had attempted to ascertain from the court whether amendments to the constitution could be made in any other manner than that prescribed in the constitution itself. The court avoided making a square answer to this question, although it was obvious that what the legislature wanted to know was whether they could legally call a convention to revise the constitution. The court opened its opinion with these significant words: 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 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, etc., etc.[29] Modern interpretations of this early Massachusetts opinion are as follows: It was assumed in the opinion, that the opinion requested applies to the existing constitution and laws of the Commonwealth and the rights and powers derived from and under them, and did {47} 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.[30] It was contended that there was precedent for this opinion [i. e. the Rhode Island one] in an earlier opinion of the supreme court of Massachusetts. A careful study of the opinion of the Massachusetts court, however, shows that its opinion related to another matter.[31] Thus the Massachusetts Court recognizes the existence of the fundamental principles considered in the second chapter of this book, and the existence of a higher authority than that of the constitution itself. And although the court speaks of this higher right as existing "in cases of great emergency, or upon the obvious failure of their existing constitution,"[32] yet the right has not been limited to such cases in actual practice in Massachusetts. There the legislature in 1851 and again in 1852, without the existence of any emergency, submitted to the voters the question of holding a constitutional convention. On its second submission, the question carried, and a convention was held. Judge Morton of the Massachusetts Supreme Court, after joining with his colleagues in expressing the already cited opinion that the convention method was unauthorized by the constitution, ran for the convention of 1853 and took a seat in that body. In the course of one of the debates, he said of the statute which had called the convention into being that it was law because it had been sanctioned by the votes of the people.[33] The Massachusetts and the Rhode Island courts were perhaps right in saying that the existence of one express method for amending the constitution, impliedly prohibits the use of any other method of amendment; but the Rhode Island Court stands alone in drawing from this the conclusion that popular conventions are, therefore, invalid. The trouble with the Rhode {48} Island Court was that it could not conceive of anything not constitutional being valid.[34] [§5. Conventions valid even if prohibited.] If the express authorization of the legislative method of amendment impliedly prohibits the convention method, a fortiori would the express authorization of the convention method impliedly prohibit the holding of a convention in ways not provided for. Yet conventions have been successfully held in Georgia in 1788, in Indiana in 1850, in Delaware in 1852, in Florida in 1865, and in Pennsylvania in 1789, in direct violation of such provisions.[35] The Supreme Court of Indiana has recently asserted the legality of such conventions: It may be answered, that the General Assembly, in the action taken in those years, made no attempt to assume the power, under the general grant of authority to legislate, to formulate a new Constitution, or to revise the existing one. It merely asked the people to express their will in relation to calling a convention to revise or amend the Constitution, to be expressed through the ballot, and when it was expressed it was a warrant and a command which the legislative agency carried out as given. Under such circumstances, the calling of a convention, as Jameson in his work shows, is in accordance with sound political principles, and a well-recognized and established practice. The rule thus established in American constitutional law by the evolution of the constitutional convention from the two revolutionary conventions of England in 1666 [sic] and 1689, he shows is applicable to states like ours, having a limited provision for amendment, through the initiative of the legislature, but no provision for a convention for a general revision.[36] Compare: The decided weight of authority and the more numerous precedents are arrayed on the side of the doctrine which supports the existence of this inherent legislative power to call a constitutional convention, notwithstanding the fact that the instrument itself points out how it may be amended.[37] Not only have conventions been successfully held without question in States whose constitutions either are entirely silent {49) as to methods of amendment, or impliedly prohibit this method by naming another; but they have been even held in States whose constitutions expressly prohibit them. In Delaware, where the constitution of 1776 provided that the constitution should not be "altered, changed or diminished, without the consent of five parts in seven of the assembly, and seven members of the legislative council," the legislature of that State in 1791 called a constitutional convention in spite of the provision that the constitution should be altered in only one way.[38] So also the Maryland legislature called the convention of 1850, although the constitution of 1776 specifically provided that the constitution should be altered only by a bill passed by two successive general assemblies of that State.[39] The Georgia constitution of 1798 contained a provision with respect to amendment similar to that in the Maryland constitution of 1776, but in this State also conventions were nevertheless held, namely, in the years 1833 and 1839.[40] To these four examples of the legal holding of a constitutional convention, although expressly prohibited by the constitution, may be added the convention which framed the Constitution of the United States, as this convention was expressly prohibited by the following language in the Articles of Confederation: The articles of this Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the Legislature of every State.[41] The Rhode Island Supreme Court said in the already-cited opinion that "an implied is as effectual as an express prohibition.[42] The court might well have said: "An express prohibition is as ineffectual as an implied." These five examples apparently completely dispose of Mr. Attwill's theory that popular conventions derive their validity through being expressly authorized by the constitution. Would not a better view be that the various Bills of Rights admit the existence of a higher power than the constitution, to wit, the {50} will of the people; rather than that they graciously grant to succeeding generations a privilege which it would be in their power to withhold. The Supreme Court of Massachusetts has recently refused to pass on the question of whether popular conventions are legal, and if so, whether they are held under the constitution; saying merely that if they are held under the constitution, such and such is the law. They say: The validity and the powers of this convention are not necessarily involved in these questions. ... If the convention to revise and alter the Constitution is held under the Constitution, it is because the people of the Commonwealth have under the Constitution the right to alter their frame of government according to orderly methods as provided by law, and through the medium of an act of the Legislature.[43] But even if these provisions in Bills of Rights may be considered as expressly granting such a power to the people, they may be regarded as in much the same position as the man who was trying to show his authority over his dog by ordering him to sit up and beg. The dog refused to obey. Finally the man, still determined to show his authority, cried out: "Well, then, lie down! I will be obeyed!" If the constitution really does authorize the convention, this authorization is immaterial; for the constitution, as we have seen, would have no power to prohibit it. This view may be carried still further to apply to even those constitutions which expressly authorize the holding of a convention. If these constitutions, too, would have no power to prohibit the convention, their authorization of it is at the most the mere providing of a means for the expression of a superior popular right.[44] Most of the constitutions concede the right of the people to be at least consulted before a convention is held. [§6. Popular nature of conventions however called.] Thus the popular nature of even expressly authorized conventions is now generally recognized in practice, if not in theory. That the constitution is merely helping out a superior right, rather than granting a privilege to the people, is shown by the {51} fact that the people may accept so much of the constitutional assistance as they wish, and may disregard the constitutional limitations. Delaware furnishes us an example of this. The Delaware constitution of 1831 provided that no constitutional convention should be called except by authority of the people, and that the only way to obtain this authority would be to take a vote on the third Tuesday of May of any year and obtain the affirmative vote "of a majority of all the citizens of the state having a right to vote for representatives." Acting under this provision of the constitution, the general assembly in 1851 passed an act to take the vote of the people. At the election held under this act a majority of the votes cast were in favor of a convention, but the number was not sufficient to constitute a majority of all citizens who had a right to vote for representatives. Nevertheless the legislature declared that the question had carried and passed another act calling a convention.[45] If the constitution of Delaware could effectively limit the right of the people to call a convention, then this convention was illegal and void. If, on the other hand, the people can lawfully disregard the constitution even in cases where the constitution provides for a convention, then this convention was valid. The question arose in the convention itself, and the majority opinion of the delegates was that the clause of the constitution was merely recommendatory, not peremptory.[46] Similarly with respect to the Indiana convention of 1850. The Indiana constitution in 1816, then in force, authorized the calling of a convention every twelfth year, but a convention was held within one of the twelve-year periods, and was never questioned.[47] The Pennsylvania convention of 1789 also belongs in this class. The constitution then in force in that State provided that it should be amended only in a manner therein directed, namely, by a convention called by the council of censors. An attempt was twice made to obtain a majority of the censors in favor of calling a convention, but both attempts failed. Finally, just prior to the sitting of the next council, the general assembly took the matter into its own hands by obtaining {52} a popular expression of opinion on the expediency of holding a convention. This was done by an informal canvass during a recess of the legislature. The result satisfied the members that the people wished a convention, and one was accordingly called, which framed and established the constitution of 1790.[48] Similarly with respect to