[§1. Conventions independent of other branches of government.]
{89} THE question of the power of one of these departments to interfere with a convention largely depends upon a determination of the exact status of the convention. Regardless of whether or not the convention is revolutionary, there can be no doubt that, either with or without constitutional sanction, the convention has become established as a regular organ of American government. The separation of the departments of government is a fundamental principle of American constitutional law. Nearly all of our constitutions lay down the rule that:
The legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them.1
And not only may no department exercise the powers of any other, but each department is also forbidden to interfere with the functions of any other.
This is important in connection with Dodd's theory as to the relation which the convention bears to the three regular departments. He says:
The better view would seem to be that the convention is a regular organ of the state (although as a rule called only at long intervals) — neither sovereign nor subordinate to the legislature.2
The following quotations from various authorities sustain this view:
But a rather better view, less extreme than either of the preceding ones, regards the convention as a regular organ of the existing government coordinate with the other branches. In its {90}sphere of constitution making it should be supreme, subject only to limitation by the people.3
The convention is an independent and sovereign body whose sole power and duty are to prepare and submit to the people a revision of the constitution, or a new constitution to take the place of an old one.4
Nothing could conduce more to simplicity of view, than to consider this institution as a branch of that system by which the state, considered as a political society, works out its will in relation both to itself and to the citizens of which it is composed. And this ... I am satisfied is the correct view to take of the question.5
A Constitutional Convention is a legislative body of the highest order. It proceeds by legislative methods. Its acts are legislative acts. Its function is not to execute or interpret laws, but to make them. That the consent of the general body of electors may be necessary to give effect to the ordinances of the Convention, no more changes their legislative character, than the requirement of the Governor's consent changes the nature of the action of the Senate and Assembly.6
It is the highest legislative body known to freemen in a representative government.7
It is of the greatest importance that a body chosen by the people of this state to revise the organic law of the state, should be as free from interference from the several departments of government, as the legislative, executive and judiciary are, from interference by each other.8
The only authority contra appears to be the Supreme Court of Pennsylvania, which has said:
The convention is not a co-ordinate branch of the government. It exercises no governmental power, but is a body raised by law in aid of the popular desire to discuss and propose amendments.9
{91} Thus the weight of authority is to the effect that the convention, when in session, is a fourth branch of the government, with the same immunity from interference as that possessed by the other three. The executive and judiciary have no more right to interfere with the fourth branch than they do with the other legislative branch, namely, the legislature. The legislature has no right to interfere with a legislative body of higher standing.
[§2. Ways in which executive department might intervene.]
Let us now consider intervention by the executive department, either of the state or nation. The converse question, i. e. the power of the convention to interfere in the affairs of the executive department, will be considered in a later chapter.10
First, with respect to the State executive. By this is meant the chief executive, i. e. the Governor, or the Governor acting with the consent and assistance of some advisory body.
The executive branch, like the other two branches, derives its delegated authority entirely from the constitution, and has no powers except those expressly or impliedly granted therein, and no powers even when granted, if they are such as to be beyond the power of the constitution to grant. This must be borne in mind throughout this chapter.
The first manner in which a governor might interfere with a convention would be to prevent the holding of a convention by vetoing the convention act.
Under the initiative and referendum, in all the States in which it is in force,11 a convention initiated by the people would not be subject to executive veto, as the constitutions of those States do not authorize such a veto.
With respect to conventions expressly called by the constitution, or conventions the call for which is submitted to the people by the constitution without legislative action, it is likewise clear that there is no way in which the Governor could veto the project.
With respect to constitutions which authorize the passage of conventions acts, the results differ in different States. In Alabama and Delaware the convention act need not be submitted to the Governor for his approval, and is expressly {92} declared to be valid without his approval.12 No other constitutions make express provision in this connection, but it would appear that an act of the legislature calling for a popular vote would not be subject to veto, no veto power being mentioned in this connection; although a legislative act providing for the details of holding the convention, if regarded as ordinary legislation, would be subject to the regular veto power of the Governor.13
The usual practice in such States has been to submit to the people the question of holding a convention; without asking for the Governor's approval. This would naturally follow from the fact that a convention act is not a bit of ordinary legislation.
It does not require the approval of the governor to make it valid.14
Yet in Nebraska, which is a State of this sort, and where therefore the submission of this question to a popular vote would seem to be clearly within the power of the legislature, independent of the Governor, a joint resolution in 1903 upon this subject was vetoed by the Governor, and no further action was taken.15
In New York, the Governor by quarreling with the legislature, postponed for eight years the holding of the convention authorized by a popular vote in 1886.16
But although the executive veto of an act to take the sense of the people has been successfully employed on these occasions, yet executive approval is usually dispensed with. What authority there is sustains this custom, which thus has the support of the weight of both judicial and actual precedent.
[§3. Convention "act" may be joint resolution not requiring executive approval.]
In the absence of constitutional provisions authorizing the holding of a convention, we have seen that the people require the assistance of the legislature in order to express their will on the subject, yet the act rendering this assistance is not strictly legislative in its nature. Thus, although it is customary to refer such an act to the Governor for his approval, this has been held to be unnecessary:
{93} That it did not take the form of an ordinary law is too clear for controversy. The joint resolution has no title. Its enacting clause is not couched in the language prescribed by the constitution to be employed in the enactment of ordinary laws; nor was it ever submitted to the governor for approval. Whenever it is necessary that the expression of sovereign will should take the form of ordinary legislation, these requirements must be strictly observed. But, in declaring its purpose that a specific proposition should be submitted to the people for their approval or disapproval, the legislature is not discharging the ordinary function of enacting laws.17
If the people, by voting to have a convention, thereby impliedly authorize the legislature to enact details,18 such authorization may well be on the same plane with an authorization contained in the constitution and hence justify the submission of such acts to the Governor. This is the general practice.
Thus it is seen that the Governor can prevent the holding of a convention by vetoing the legislative act providing for the details of a convention. The Governor, however, has no power to prevent the holding of a convention called under the popular initiative, or provided for by the constitution in a manner which does not allow legislative interference.
All of the foregoing sorts of interference by the Governor are seen to be really a part of his legislative power, rather than of his executive power.
Whenever a legislature would have power to interfere by inaction with the holding of a constitutional convention,19 the Governor probably possesses a coextensive power to interfere by vetoing legislative action.
[§4. Executive may have role if convention legitimacy disputed.]
The Governor, in his executive capacity, however, can assume a very important role, in case the legitimacy of the convention or of any of its actions comes into dispute. In the case of two conflicting sets of claimants to office in any department, one set claiming under the old constitution and the other set claiming under the new, the Governor and the other executive officers who have control of the State finances may be in a position, by the giving or withholding of salaries, to determine effectually which set of officers is legal.
{94} So, too, in jurisdictions where the courts consider the legality of the acts of a popular convention to be a political rather than a judicial question,20 the recognition or nonrecognition of the new constitution by the Governor may be the deciding point in determining its validity or invalidity.
Braxton says that any act of the existing government in recognition of an irregular constitutional change should be regarded as acquiescence and ratification on the part of the people.21
Thus the Military Governor of Tennessee, acting on the authority of the President, ratified the constitution which had been submitted by the purely spontaneous convention of 1865.22
The Federal executive can very often determine whether a convention is valid or merely factional. The clauses of the Federal constitution guaranteeing to each State a republican form of government and permitting the President to maintain order in any State if requested by the State legislature or by the State executive if the legislature is not in session,23 give the President the power to interfere with a constitutional convention.
The power of deciding whether the exigency has arisen upon which the government of the United States is bound to interfere, is given to the President. He is to act upon the application of the legislature or of the executive, and consequently he must determine what body of men constitute the legislature, and who is the governor, before he can act. The fact that both parties claim the right to the government cannot alter the case, for both cannot be entitled to it. If there is an armed conflict, like the one of which we are speaking, it is a case of domestic violence, and one of the parties must be in insurrection against the lawful government. And the President must, of necessity, decide which is the government and which party is unlawfully arrayed against it, before he can perform the duty imposed upon him by the act of Congress.24
On two occasions the President of the United States has interfered to decide whether the government of a State was valid or factional. In the case of Rhode Island, as pointed {95} out in the foregoing quotation, the President acting on the application of one of the two claimants of the governorship, who incidentally was a member of his own political party, recognized him as the executive of the State and took measures to call out the militia to support his authority. Thus President Tyler upset the People's Constitution of 1841 in Rhode Island.25
On the other hand, President Lincoln gave validity to the extremely factional loyal government of Virginia by recognizing it as the lawful government of that State. This recognition is all that gives validity to the dismemberment of that State and the creation of West Virginia.
The repeated acts of the United States in all its departments, recognizing the loyal government of Virginia of which the legislature in question was a part, as an existing State government, stamped that government and legislature as legal and valid. For over four years after the establishment of the loyal government of Virginia, the President of the United States was engaged, in concert with that government, in expelling from her borders the rebel invaders.26
These two instances demonstrate not only the power of the Federal executive, but also the power of the state executive. In one case it was the Governor under the old regime, and in the other the Governor under the new regime that took the steps to secure intervention by the President of the United States.
It should be noted, however, that the President has no power, under the constitution, to intervene in the internal affairs of a State except upon the request of some one claiming to be the State government.
[§5. When the Federal government may intervene in a State.]
The two objects for which the Federal government may intervene are to protect the State against internal violence, and to guarantee to the State a republican form of government.
If the intervention is for the purpose of protecting the State from internal violence, the express terms of the constitution provide that such protection shall be furnished only "on application of the Legislature, or of the executive (when the Legislature cannot be convened)."27
In the case of intervention for the purpose of guaranteeing {96} a republican form of government, this requirement of a request is not so clear, not being expressly mentioned. Thus Braxton suggests:
If any State of the American Union should attempt to lay aside its republican form of government, and substitute in its stead that of an irresponsible, omnipotent Convention, combining in itself all the powers of Government, (Legislature, Judicial and Executive,) even for a single day, it would clearly be ground for the forcible intervention of the Federal authority, to put down and stamp out a government so foreign to all ideas of a free republic.28
But it is arguable that this clause, too, is for the protection of the States, and cannot be invoked unless a State itself requests it.
Thus we see that in some instances executives can prevent the holding of a convention and in some instances ratify or nullify its action, but there has been no way suggested in which an executive may, pending a conventional change, interfere with the details of the convention procedure.
1. Mass. Decl. of Rts., Art. XXX.
2. Dodd, p. 80.
3. XXIX "Harv. Law Rev.," 520.
4. Carton v. Secy. of State (1908), 151 Mich. 337, 340.
5. Jameson, p. 315. Compare the quotation from Jameson, pp. 319-320, on [Ch. XV §2] p. 187, infra. And compare Jameson, pp. 23-24.
6. Report of Judiciary Committee, headed by Elihu Root, and unanimously adopted by the Convention. Rev. Record, N. Y. Conv. 1894, Vol. I, p. 245.
7. Sproule v. Fredericks (1898), 69 Miss. 898, 904.
8. Report of Judiciary Committee, headed by Elihu Root, and unanimously adopted by the Convention. Rev. Record, N. Y. Conv. 1894, Vol. I, p. 250. Quoted with approval in Deb. Mich. Conv. 1907-1908, p. 1275.
9. Wells v. Bain (1872), 75 Pa. 39, 57.
10. Chapter XI, infra.
11. Namely Arizona, Arkansas, California, Colorado, Michigan, Missouri, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon, Idaho, Maine, Montana, South Dakota, Utah, and Washington. "Columbia Digest," p. 771.
12. Ala. Const., XVIII, 286; Del. Const., XVI, 2, 4.
13. Dodd, p. 56, n. 55.
14. Carton v. Secy. of State (1908), 151 Mich. 337, 341.
15. Dodd, p. 57, n. 55.
16. Dodd, p. 55.
17. State v. Dahl (1896), 6 N. D. 81, 82.
18. See [Ch. V §9] p. 72, supra.
19. See [Ch. IX §6] pp. 116-117, infra.
20. See [Ch. XII §7] pp. 162-163, infra.
21. VII "Va. Law Reg.," 79, 97.
22. Ridley v. Sherbrook (1866), 43 Tenn. 569, 577.
23. U. S. Const., Art. IV, § 4.
24. Luther v. Borden (1849), 7 How. 1, 43.
25. See [Ch. II §6] pp. 21-22, supra, on "Dorr's Rebellion."
26. Jameson, p. 172.
27. U. S. Const., Art. IV, § 4.
28. VII "Va. Law Reg.," 79, 91.
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