{220} WHAT are the conclusions to be drawn from the discussion contained in this book?
It has seemed best to the author to collect all these conclusions in a final chapter. In every case in which there is not a. fair preponderance of precedent and authority in favor of any given conclusion, that fact will appear. So that the following represents a summary of the law of constitutional conventions.
Written constitutions are an American institution, based upon the following four ideas: to wit, that charters of government should be in writing, that there exist certain inherent rights which should be asserted in these charters, that these charters should be superior to mere statutes, and that these charters are contracts between each citizen and the whole State.1
The convention, as a distinct body for the framing or alteration of constitutions, was originated in America during the Revolutionary War.2
Since then there have gradually developed two leading methods of amending constitutions: i. e., by the regular legislature (now possible in every State except New Hampshire), or by a convention (now possible in every State except Rhode Island); in either case, almost always requiring a submission of the proposed changes to the people.3
In twelve States, amendment is now possible by direct popular initiative, without the interposition of either the legislature or a convention.4
{221} Government in America is based upon the theory of popular sovereignty; the people governing through representatives.5
The term "the people" means the people as organized into the State, rather than as a collection of individuals.6
All persons, men and women, infants and adults, comprise "the people."7
The people can speak only through their authorized representatives, the legal voters. Therefore the term "the people" is often used to mean the mouthpieces of the people.8
These, in turn, can represent the people only at an election duly called and held. It is only at such an election that the minority can be bound by the action of the majority; and the non-voters be bound by the action of those who vote.9
When a part of the people, or even a majority of them, act outside the forms of law, they have no right to bind the rest.10
The people have the right to change their form of government at will, using whatever method suits them.11
This is a fundamental right, which constitutions are powerless to deny, restrict, or limit as to method.12 The people may exercise this right in any one of three ways:
(1) by some authorized procedure; (2) by a lawful act representing the whole people; or (3) by acquiescing in a spontaneous act of a part of the people.13
An authorized procedure is one which has the sanction of Congress in the case of a territory, or of the constitution in the case of a State.14
An extraconstitutional movement for the alteration of the constitution, derives its validity from the inherent power of the people.15
A spontaneous movement becomes effective only by subsequent popular acquiescence, produced usually by force.16
With respect to the constitutionality of any given method of amendment, it may be either (1) authorized; (2) permitted by {222} not being prohibited; (3) prohibited; or (4) beyond the constitution's control.17
Anything beyond the constitution's control enjoys exactly the same status, regardless of whether the constitution attempts to authorize, or to prohibit it, or merely remains silent on the subject.18
The word "constitutional," in the phrase "constitutional convention," does not refer to the constitutionality of the convention.19
Any dispute as to whether or not a convention is a "revolution" is merely a dispute over definitions, for the word "revolutionary" may equally well mean "unlawful and violent" or merely "unauthorized by the constitution." It is used in the latter sense in this book.20
Each of the three classes of changes in constitutions — i. e. authorized, popular, and spontaneous — may take the form of a convention; thus giving us three sorts of conventions.21
Spontaneous conventions, not being bound by law, can furnish us with no useful precedents.22
Conventions unauthorized by the constitution have so often been held in the United States that it is now too late to question their validity.23
They are lawful in at least ten of the twelve States whose constitutions impliedly prohibit them by expressly authorizing another method of amendment.24
Implied prohibition is as effective as express prohibition.25
Popular conventions have been successfully held on five occasions, in spite of express prohibition.26
Such conventions are not held under the constitution, for under the constitution they would be unconstitutional.27
There is some basis for the theory that even when a constitution {223} purports to authorize a convention, the convention really derives its authority from a higher source; and that the provisions in the constitution, like those in a convention act passed by the legislature, merely serve to provide the means for the exercise of a superior right, inherent in the people.28
Conventions called by the people, speaking through their electorate at a regular election, are of unquestionable validity; and are extra- or supra-constitutional, rather than constitutional.29
The people enact the convention act, where they invoke the initiative.30
Where the constitution requires that a convention act be referred to a popular vote, the voters call the convention.31
Where the constitution permits the legislature to call a convention, it is the act of the legislature alone, unless we hold that the people ratify the action by not invoking the referendum, or by voting under the act.32
It is arguable that a convention called by the people under authority granted by the constitution stands upon no different footing than if the constitution withheld this authority.33
In the absence of applicable constitutional provisions, legislatures have sometimes called conventions without taking a popular vote; but the validity of such conventions nowadays may be doubted.34
The passing of a convention act is not within the legislative powers of the legislature.35
Where the legislature submits the convention act to a popular vote, it is clear that the voters enact the act.36
The same is probably true when the people vote on the mere question of holding a convention, under an act which already purports to have been passed by the legislature.37
By analogy, a similar constitutional provision may become a popular enactment.38
{224} Thus it is possible that all provisions — whether statutory or in constitutions — for the holding of conventions are in reality given their entire validity by popular action thereunder.39
Nevertheless, the people have not the machinery to hold a convention, unless they are assisted either by the legislature or the constitution.40
It is preferable that this machinery be provided in detail by the constitution, as the people then will not be subject to the whim of the legislature, but may have a convention whenever they desire to exercise their unquestionable right to have one.41
The only action which could be characterized as distinctly that of the legislature alone, would be for the legislature both to call the convention and elect the delegates, without any popular participation at any stage of the proceedings.42
A state constitution is a legislative act of the people.43
There is a marked distinction between the legislative powers of the people and the legislative powers of the legislature.44
In exercising the legislative method of amendment, the legislature acts as a convention, being specially empowered thereto; but with this difference, that it is much more strictly bound to the terms of its warrant of authority than is an ordinary convention.45
The legislature owes its powers, in this connection, to an express grant.46
As to whether the legislature can act as an ordinary convention without a similar express grant, the authorities are divided.47
It is clear, however, that the legislature cannot claim this right under its general grant of legislative powers.48
The only possible difference between Indiana (where the legislature cannot turn itself into a convention) and North Dakota (where it can) lies in the theory that Indiana, by striking {225} the convention provision from her constitution, has manifested an intention never again to have a convention of any sort.49
The convention, although called at irregular intervals, is really a fourth branch of the government, and hence should enjoy the same independence from each of the three regular branches as they do from each other.50
The Governor cannot veto an initiative statute, which either calls a convention or prescribes the details.51
The Governor cannot veto a legislative act which takes a popular vote on calling a convention, under provisions in the constitution, but can probably veto one which prescribes the details.52
If the constitution provides for both the popular vote and the details, the Governor cannot prevent the holding of the convention.53
The authorities disagree as to whether the Governor can veto a convention act which is unauthorized by the constitution.54
All the foregoing gubernatorial interference is exercised, however, under the Governor's legislative, rather than under his executive, powers.55
In his executive capacity, the Governor is often the authoritative official to decide whether or not a new constitution is legal.56
Similarly, the Federal executive has the power to settle the question, acting under either of two clauses in the Federal Constitution. One of these clauses guarantees a republican form of government to each State; the other authorizes the president to maintain order in any State which requests it.57
The Governor participates to some extent in this Federal interference, by requesting it.58
The question: "Can the legislature amend the convention act?" involves three questions: namely, (1) The general power {226} of the legislature to interfere with conventions; (2) Who enacted the act? and (3) Can the legislature amend that which the people have enacted?59
Assuming the premises, i. e. that the subject matter of the amendment is within the delegated powers of the legislature, but that the people enacted the original act; then it is certain that the legislature cannot amend it.60
The legislature can amend a convention act passed solely by it, unless we adopt the theory that the people have assumed responsibility for the act by participating in an election held under it.61
The question of the power of the legislature to control the convention depends largely upon who passes the convention act.62
If the legislature passes it, it probably is not binding upon the convention; if the people pass it, it probably is binding.63
The confusion of precedents and authorities upon this point is largely due to a failure to analyze the source of the statute in question.64
It is clear that the legislature cannot bind a convention authorized by the constitution.65
The convention would lose a large part of its usefulness, if it were subject to legislative control.66
Where conventions have acceded to legislative restrictions, this merely proves that the restrictions seemed reasonable, not that they were binding.67
Perhaps, however, the legislature can impose restrictions upon a convention to the same extent that it can upon the judiciary; but this may be doubted on the ground that the convention is a body of the same sort as the legislature, but of a higher order.68
It is clear that the legislature has no power to abolish a pending convention, except perhaps in cases of great emergency.69
But the legislature may possibly be able indirectly to abolish a convention, by withholding funds.70
{227} In case the legality of a convention is in doubt, the legislature may be in a position to determine it, by recognition or non-recognition, or by soliciting Federal intervention.71
The legal standing of a convention may, in some instances, if a Federal question is involved, be determined by Congress.72
The legislature is in a position to direct the course of popular control of conventions, by framing the convention act.73
The electorate can amend a convention act, regardless of whether it was originally passed by the legislature alone, by the legislature and the electorate, or by the electorate alone.74
No one, except the people as a whole, can acquire a vested right in a convention movement.75
The electorate can abolish the convention at any time, or merely nullify its work by refusing to accept it.76
The people have a right to instruct their delegates, but the instructions will have a moral rather than a legal force.77
The conventions of the Revolution exercised sovereign powers, by necessity.78
Similarly with respect to secession (not strictly constitutional conventions), reconstruction, and territorial conventions.79
These furnish no precedent for State conventions in times of peace; but the objection is to the weight, rather than to the admissibility, of the evidence.80
The "doctrine of convention sovereignty" so-called, represents merely oratorical flights of fancy, and goes no further in actual practice than to assert the possession by the convention of incidental and emergency powers, and its independence from legislative control.81
A convention has no right to legislate.82
{228} But it can validate its legislation by inserting it in the constitution.83
Or by a blanket validating-clause in the constitution.84
Or by submitting the legislation to the people.85
If the constitution or the convention act exempts the convention from the necessity of submitting its work to the people, it may legislate to its heart's content.86
A convention may pass such rules and ordinances as are necessarily incident to its business of constitution-framing, or as are necessary to putting its constitution into effect.87
The principle whereby territorial and reconstruction conventions have exercised powers entrusted by the Federal Constitution to the State legislatures, may possibly be extended to State conventions.88
A complete overturn of the existing government is apt to be more successful than partial interference would be.89
The courts require a strict compliance with the constitutional provisions relative to amendment by the legislative method.90
But are not so strict with respect to constitutional provisions relative to the convention method.91
It is an open question whether courts will interfere with the convention method in matters not covered by the constitution, although probably they ought not to.92
It is clear that they cannot and will not interfere in the internal affairs of a convention.93
The weight of authority is that the courts will not interfere after the adoption of a change by the people.94
The question then becomes political rather than legal.95
But this doctrine may not apply to amendments which do not go to the root of the whole structure of the government.96
The value of a judicial determination of the validity of a {229} government is minimized by the fact that a court is bound to decide in favor of the constitution under which it holds office.97
A different question is presented by the case of judicial interference with the convention, in matters outside the convention's proper functions.98
It is clear that a court will stop an ultra vires act by a convention, as readily as it would stop an ultra vires act by any other department.99
The Federal courts have no power to interfere with a convention, except in case of the violation of the United States Constitution, or where some other Federal question is involved, such as the election of Congressmen.100
The courts will assist a convention to secure its rights; much the same as they would assist any other branch of the government.101
In States where the courts do not interpret their advisory duties too strictly, they will probably assist the convention by judicial advice, much the same as they would assist any other branch of the government.102
Constitutional provisions for the holding of a convention are probably merely directory.103
But, like a convention act, they may be made mandatory by popular action thereunder.104
The constitution cannot prevent the holding of a convention.105
By the same token, it should not be able to restrict a convention.106
The constitution has absolutely no application to extraconstitutional conventions.107
Unamendable portions of a constitution may be amended by a convention, although not by the legislative method.108
Conventions, like other branches of the State government, are, however, bound by the Federal Constitution.109
{230} A convention is the sole judge of its own membership.110
This right carries with it the power to provide for the filling of vacancies and to expel members.111
It can hire a hall, choose officers and employees, adopt rules, purchase supplies, perpetuate its records, and arrange for all necessary printing.112
It need not employ the regular State printer.113
It may maintain order and punish both members and outsiders for direct contempt.114
It can pledge the State's faith, and perhaps its credit, for its legitimate expenses.115
In general, it has all powers necessarily incident to the business delegated to it.116
It may probably reconvene after the popular adoption of its proposals, to codify and promulgate the amended constitution; at least for the latter purpose.117
The term "officer" in a constitution means a person holding office under that constitution.118
Thus, although delegates to an unauthorized convention are "officers," they are not "officers" within the meaning of the constitution.119
It would be anomalous for the delegates to take an oath to support that which they have assembled to overturn, i. e. the State constitution.120
But, as the Federal Constitution is binding upon them, they should swear to support it; and should also swear to perform faithfully the duties of delegate.121
Delegates are entitled to the same privileges and immunities as members of the legislature.122
{231} Submission of amendments to the people is necessary when required by the constitution or by a convention act which the people have enacted.123
And there is some authority to the effect that the work of an extraconstitutional convention is not valid until it has been ratified by a popular vote.124
This is probably true, at least in cases in which the convention was called by the legislature acting alone.125
The legislature cannot change the time for submission; for that would amount to amending the convention act, which is impossible if the people originally enacted it; and would amount to legislative interference, which also is illegal.126
The convention can change the time for submission, even if the convention act is popular in its nature.127
There is no inherent difference between a new constitution and an amended constitution.128
The phrase "specific and particular amendment" means merely "amendment"; or, at the most, a single definite proposition, as distinguished from a vague general need for change.129
A convention called to make a general revision may submit a number of separate amendments, or a new constitution, or a new constitution plus a few separable propositions.130
Every distinct proposition, not vital to the scheme as a whole, ought to be submitted separately.131
The convention probably can lawfully enlarge or reduce the electorate to which it submits its work, subject only to the provisions of the Federal Constitution.132
In the absence of popular directions, the convention may lawfully prescribe all the details for submission and promulgation of the constitutional changes recommended by it.133
The validity of all constitutional changes rests, in the last analysis, upon "the assent of the people."134
{232} Lapse of time, and popular and governmental acquiescence, will cure almost any informality.135
But this cure affects merely the results, and does not relate back and validate the means.136
The validity of a convention-born amendment rests not on the submission of the amendment to the people, but rather on the submission to the amendment by the people.137
All governments derive their just powers from the consent of the governed.138
1. See [Ch. I §1] pp. 1-2, supra.
2. See [Ch. I §2-3] pp. 2-8, supra.
3. See [Ch. I §4-5] pp. 8-10, supra.
4. See [Ch. I §5] p. 9, supra.
5. See [Ch. II §1] pp. 11-12, supra.
6. See [Ch. II §4,7-8] pp. 18, 20-28, supra.
7. See [Ch. II §4] p. 17, supra.
8. See [Ch. II §4] p. 17, supra.
9. See [Ch. II §3-7] pp. 16-22, supra.
10. See [Ch. II §3-7] pp. 16-22, supra.
11. See [Ch. II §2] p. 12, supra.
12. See [Ch. II §3] pp. 14, 15, supra.
13. See [Ch. II §3, 7] pp. 15, 24, supra.
14. See [Ch. II §3] p. 15, supra.
15. See [Ch. II §3] p. 15, supra.
16. See [Ch. II §7] pp. 22-24, supra.
17. See [Ch. II §8] pp. 25-26, supra.
18. See [Ch. II §8] p. 26, supra.
19. See [Ch. III §1] p. 30, supra.
20. See [Ch. III §2] pp. 31-33, supra.
21. See [Ch. III §3] p. 34, supra.
22. See [Ch. IV §1] p. 38 [34 in original, but this is error], supra.
23. See [Ch. IV §1-2] pp. 38-41, supra.
24. See [Ch. IV §3] pp. 41-42, supra.
25. See [Ch. IV §4,5] pp. 43, 48, supra.
26. See [Ch. IV §5] p. 49, supra.
27. See [Ch. IV §4] pp. 45-46, supra.
28. See [Ch. IV §5-6] pp. 50-52, supra.
29. See [Ch. IV §7] pp. 48, 54-55, supra.
30. See [Ch. V §1] p. 58, supra.
31. See [Ch. V §2] pp. 59-60, supra.
32. See [Ch. V §2] p. 60, supra.
33. See [Ch. V §2] pp. 60-61, supra.
34. See [Ch. V §2, 6] pp. 61, 66-68, supra.
35. See [Ch. V §3-4] pp. 61-65, supra.
36. See [Ch. V §10] p. 78, supra.
37. See [Ch. V §8-9] pp. 68-72, supra.
38. See [Ch. V §14] p. 77, supra.
39. See [Ch. V §11] p. 74, supra.
40. See [Ch. V §12-13] pp. 75-77, supra.
41. See [Ch. V §13] pp 76-77, supra.
42. See [Ch. V §11] p. 74, supra.
43. See [Ch. VI §2] p. 80, supra.
44. See [Ch. VI §3] pp. 80-82, supra.
45. See [Ch. VI §4] pp. 82-83, supra.
46. See [Ch. VI §5] p. 83, supra.
47. See [Ch. VI §5, 8-9] pp. 83-84. 85-88, supra.
48. See [Ch. VI §7] pp. 84-85, supra.
49. See [Ch. VI §9] p. 87, supra.
50. See [Ch. VII §1] pp. 89-91, supra.
51. See [Ch. VII §2] p. 91, supra.
52. See [Ch. VII §2] pp. 91-92, supra.
53. See [Ch. VII §2] p. 91, supra.
54. See [Ch. VII §3] pp. 92-93, supra.
55. See [Ch. VII §3] p. 93, supra.
56. See [Ch. VII §4] pp. 93-94, supra.
57. See [Ch. VII §4-5] pp. 94-96. supra.
58. See [Ch. VII §4] p. 95, supra.
59. See [Ch. VIII §1] p. 97, supra.
60. See [Ch. VIII §2-4] pp. 98-104, supra.
61. See [Ch. VIII §2] p. 98, supra.
62. See [Ch. X §1] pp. 120-121, supra.
63. See [Ch. IX §3-4, Ch. X §2-3] pp. 108-114, 121-125, supra.
64. See [Ch. X §1] p. 121, supra.
65. See [Ch. IX §2] pp. 106-108, supra.
66. See [Ch. IX §2] p. [107] [in original was 108], supra.
67. See [Ch. IX §3] pp. 108-111, supra.
68. See [Ch. IX §5] pp. 114-115, supra.
69. See [Ch. IX §6] pp. 115-116, supra.
70. See [Ch. IX §7] pp. 117-118, supra.
71. See [Ch. IX §8] p. 118, supra.
72. See [Ch. IX §8] p. 119, supra.
73. See [Ch. X §3] pp. 123-124, supra.
74. See [Ch. X §4] p. 125, supra.
75. See [Ch. X §4] p. 125, supra.
76. See [Ch. X §4] p. 125, supra.
77. See [Ch. X §5] pp. 125-127, supra.
78. See [Ch. XI §1] pp. 128-129, supra.
79. See [Ch. XI §2] pp. 129-130, supra.
80. See [Ch. XI §2] p. 130, supra.
81. See [Ch. XI §3] pp. 131-135, supra.
82. See [Ch. XI §7] pp. 139-142, supra.
83. See [Ch. XI §9] pp. 142-144, supra.
84. See [Ch. XI §9] p. 142, supra.
85. See [Ch. XI §10] pp. 144-146, supra.
86. See [Ch. XI §11] p. 146, supra.
87. See [Ch. XI §11] pp. 146-147, supra.
88. See [Ch. XI §12] p. 147, supra.
89. See [Ch. XI §13] p. 148, supra.
90. See [Ch. XII §1] pp. 149-151, supra.
91. See [Ch. XII §1] pp. 150-151, supra.
92. See [Ch. XII §2] pp. 151-153, supra.
93. See [Ch. XII §2] pp. 152-153, supra.
94. See [Ch. XII §3] pp. 153-157, supra.
95. See [Ch. XII §4, 7] pp. 155-158, 162-163, supra.
96. See [Ch. XII §3] pp. 155-156, supra.
97. See [Ch. XII §4] pp. 157-158, supra.
98. See [Ch. XII §5] pp. 158-160, supra.
99. See [Ch. XII §5] p. 160, supra.
100. See [Ch. XII §6] pp. 160-162, supra.
101. See [Ch. XII §8] p. 163, supra.
102. See [Ch. XII §8] pp. 163-164, supra.
103. See [Ch. XIII §2] p. 166, supra.
104. See [Ch. XIII §2-3] pp. 166, 168, supra.
105. See [Ch. XIII §3] p. 166, supra.
106. See [Ch. XIII §2-3] pp. 166-168, supra.
107. See [Ch. XIII §3] p. 168, supra.
108. See [Ch. XIII §3] pp. 167-168. supra.
109. See [Ch. XIII §4] pp. 168-169. supra.
110. See [Ch. XIV §2] pp. 170-171, supra.
111. See [Ch. XIV §2-3, 9] pp. 171-172, 181, supra.
112. See [Ch. XIV §4-7] pp. 172-180, supra.
113. See [Ch. XIV §8] p. 179, supra.
114. See [Ch. XIV §9] pp. 180-182, supra.
115. See [Ch. XIV §7, 9] pp. 177-178, 180, supra.
116. See [Ch. XIV §10] p. 184, supra.
117. See [Ch. XIV §10] pp. 182-184, supra.
118. See [Ch. XV §1] pp. 185-187, supra.
119. See [Ch. XV §1] p. 186, supra.
120. See [Ch. XV §2] pp. 187-190, supra.
121. See [Ch. XV §2] pp. 190-191, supra.
122. See [Ch. XV §3] pp. 191-192, supra.
123. See [Ch. XVI §1-2] pp. 193-195, supra.
124. See [Ch. XVI §3] pp. 195-196, supra.
125. See [Ch. XVI §3] p. 196, supra.
126. See [Ch. XVI §4] pp. 196-197, supra.
127. See [Ch. XVI §4] pp. 197-198, supra.
128. See [Ch. XVI §5] p. 198, supra.
129. See [Ch. XVI §5] pp. 198-200, supra.
130. See [Ch. XVI §6-8] pp. 200-205, supra.
131. See [Ch. XVI §7-8] pp. 202-203, supra.
132. See [Ch. XVI §9] pp. 205-212, supra.
133. See [Ch. XVI §13] pp. 212-213, supra.
134. See [Ch. XVII §3] pp. 217-218, supra.
135. See [Ch. XVII §1] pp. 214-216, supra.
136. See [Ch. XVII §4] p. 218, supra.
137. See [Ch. XVII §3] p. 217, supra.
138. See [Ch. XVII §4] p. 219, supra.
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