Cyclopædia of Political Science, Political Economy, and the Political History of the United States
CONVENTION, The Constitutional, an institution of the United States, charged with the formation of the fundamental law. By the American constitutions the enactment of the ordinary statute law is the work of the legislature, acting conjointly with the executive, who has a veto upon its action. On the other hand, the framing of strictly organic laws has been generally committed to a special legislative body, meeting for that purpose only, called a constitutional convention, acting conjointly with the electors or the body of the people, to whom is given a veto upon its action. The constitutional convention is, therefore, strictly a legislature; but, because of the transcendent character of the laws which it initiates, it is, as Austin says, an "ulterior legislature." To this convention there is nothing similar in other countries having governments called constitutional. So much of their fundamental law as is not composed of customs or usages, or of judicial decisions, is but a statute, deriving a somewhat higher solemnity from its subject matter, and the greater deliberation attending its genesis, and not from the extraordinary character of the body by which it is enacted. Of this description is the English constitution. So, in France and other European countries, where written or enacted constitutions exist, they are the work of the ordinary law-making power, done at perhaps a special session, or by an increased majority, but without the intervention of extraordinary agencies. The obstinate conservatism of its character enables the English people to employ safely and successfully such a mode of fundamental legislation. It stands in need of no unusual checks to restrain it from disturbing rashly "the nice equipoise" of its constitution. With Burke it realizes that "every project of material change in a government so complicated * * * is a matter full of difficulties, in which a considerate man will not be too ready to decide, a prudent man too ready to undertake, or an honest man too ready to promise." It is doubtful whether the temperament of any people living under liberal institutions, excepting that of England, is capable of the requisite self-control to pursue with safety such a course.
—Whether from conviction of this truth, or from a lucky accident, the founders of the American governments, under the wise guidance of the elder Adams, adopted the safer mode of distributing the legislative function between separate agencies, the fundamental to one, and the ordinary to another. It is, perhaps, not so fortunate that the misleading name of convention was given to the former, a body charged with a function so delicate and novel in the history of political institutions. For the name convention has been regarded as evidence of its identity with a wholly different institution, the revolutionary convention. Many of the worst evils experienced in the political life of the American people have arisen from confounding these two institutions, and from attributing to them, as though identical in character, because developed the one from the other, or both from a common original, like powers and functions. The revolutionary convention is an earlier development from the ordinary assemblies of the people (concentus populi), common in all ages in England and other free countries. The English convention parliaments of 1399, 1660 and 1689, are familiar examples of this phase of the institution. Omitting the first, as of less interest, that of 1660 was assembled upon the downfall of the protectorate of Richard Cromwell, to take the formal steps deemed necessary to effect the restoration of Charles II. to the throne. There existing no lawful parliament, elections were held throughout England, on the recommendation of a rump of the old parliament, which had been forcibly dispersed by the late protector, to form a new parliament. This body met in London, and called Charles II. to the throne; but, as these elections were illegal, because held without the royal writ, the assembly was styled, as Macaulay says, a convention, and not a parliament. Similarly, the convention of 1689 was called to lay the foundations for the new dynasty of William and Mary, upon the abdication of James II. Because, regularly, there existed at that time in England no parliament, since there was no king, and, without a king's writ, no lawful parliament could be summoned, the prince of Orange, afterward king William III., called elections, at which delegates were chosen throughout England, who, together with the lords, spiritual and temporal, then in London, constituted a convention, by whom the new dynasty was established. The former case differed from the latter only in the fact that, by a legal fiction, Charles II. was held to be, and ever since the execution of his father to have been, king of England; whereas, by a like fiction, James II., forcibly driven from his kingdom, was declared, by reason of his oppressions and usurpations, to have abdicated the throne, which was thereupon pronounced vacant. In the one case, according to this conception, there was a de jure, but not a de facto, king of England; and, in the other, there was a king de facto, but not de jure; and the union of both qualities, real or imputed, was deemed necessary to the regular institution of a parliament, or the re-establishment of a legitimate political order. Both of these conventions were equally revolutionary bodies, assembled without law, as temporary expedients, to bridge over a chasm between a state of things that had ceased, and one that was beginning to be. The characteristic qualities of the revolutionary convention, accordingly, are two: that it is hostile to the state of things by law established; and that, as it is an embodiment of revolutionary forces, there is no limit to the powers it may exercise, save its own will. It is, in short, merely a provisional government, resting on force.
—In the United States there have been examples of this type of convention at three epochs, all epochs of upheaval and transition: the first and second, during and at the close of the colonial condition; and the third, at the time of the so-called secession of the southern states from the Union. The most notable case in the first period was that of a convention assembled in May, 1689, in Massachusetts, simultaneously with that last described in England, having for its purpose the displacement of the government established by the crown, and presided over by governor Andross, and the formation of a government by the people, "according to the ancient forms," in force before the condemnation of their charter by the king's courts. This revolution was consummated two days before news reached the colony of the revolution in England, the same ship bringing with it orders from the authorities to proclaim king William and queen Mary. Similar cases arose in 1775 and 1776—the second period—in those colonies whose assemblies were controlled by the friends of the crown. The governments established by the crown having been suppressed, conventions or provincial congresses were called to supply their place, and to carry on the contest with England. So, in the third period, when eleven southern states resolved to secede from the Union, there were called, in nearly all of them, conventions to initiate and to direct the movements to that end. In two or three, where the sentiment of the people prevented the election of conventions, the promoters of secession effected their object through the legislatures of their states, in which a friendly majority usurped the power to pass the necessary ordinances. These bodies were all alike revolutionary conventions, modeled, so far as the diversity of circumstances permitted, strictly after the English conventions of 1660 and 1689.
—From this revolutionary body the constitutional convention is a widely different institution. Historically, it need not be denied, that the former is the root from which the latter sprang. In no country but America, however, has such a development been witnessed, though in none, in which revolution has led to provisional organizations hostile to the existing order, has the revolutionary convention, under some form and name, been unknown. Within that species of convention must be comprehended every embodiment of revolutionary forces articulated into working committees for the establishment of a new order upon the ruins of an old. By its definition revolution is the essence of unlawfulness. If successful, its triumph is the triumph of force over that which is legitimate as based upon recognized law. It then becomes the source of wholly new law, since so much of the old law as it permits to survive, survives by its will alone, and is, in effect, a law of its own enactment. The constitutional convention, on the other hand, is never the organ of revolution. It is called by an established government, in pursuance of fixed constitutional customs or prescriptions, to do a definite work in furtherance of the ends of that government, for its amelioration and not for its destruction; accordingly, the purpose of those who call it into being, is, that it shall do its appointed work and none other; that it shall melt into the general mass of citizens when its task has been completed, giving to the power that spoke it into being, such an account of its conduct and labors as by law or custom may be required. The constitutional convention is not itself a government; it is the agent or minister of a government, which moves along in full life while the convention is in session, and which is meant to survive it. It is therefore, in substance, but a numerous and dignified committee, so selected as, from its numbers and territorial distribution, to represent the various phases of opinion at the time existing. As intimated, however, it is in point of historical sequence, a development from the revolutionary convention. It is that institution shorn of its revolutionary features, of those absolute powers, adverse to the existing order, which would render its existence incompatible with that of any government but its own; that institution, in short, transformed and employed for a constitutional purpose. That this most important truth has been doubted or denied, depends upon the circumstances attending its introduction into our constitutional system. Of the constitutions first formed for the states of the Union, in the early years of the revolutionary war, many were framed by the provincial conventions or congresses above mentioned as examples of the revolutionary convention. That those bodies had ample power to do this can not be denied, because they were revolutionary governments, and as such were possessed of unlimited powers. They could adopt a constitution because they could do anything within the limits of the actual force at their command. When, therefore, after the peace with England, conventions were called by the various states, for the purpose simply of procuring the revision of their existing constitutions, some confusion of ideas at times developed itself in regard to their nature and powers. Bearing the same name, were not those conventions the same bodies with which the people had been familiar during the revolutionary war, when they constituted the only governments existing in the colonies? And if the same, could they not now cut loose from the governments under which they were convened, and exercise all the powers of an absolute sovereign? To this question, one of the most important that ever arose under the American constitutions, but one answer could or can be given. No. They are not the same as their revolutionary congeners, and they could not exercise the same powers, save by rebelling against their states as now organized. This, of course, they, as any body of men, might do, and under the same penalties. But as constitutional conventions they could do nothing but what they were empowered to do by the state which spoke them into being. The erroneous view here controverted has never in this country been universal, or very widespread, though in some conventions, held before the war of secession, and in the Illinois convention of 1862, it had earnest supporters. France, unfortunately, which borrowed from England, through the American colonies, the revolutionary convention, has never been able to free herself from the idea that all the powers and methods of that dread engine of force have been inherited by its namesake, the constitutional convention, there called the constituent assembly. What the effect of that error has been upon the political fortunes of France will be seen from the words of one of her most eminent publicists, given below.
—Corresponding to the different views of the nature of the constitutional convention are the principal theories as to its powers. These, which have been partly foreshadowed already, are what may be properly denominated the French theory, and the American theory. By the latter the convention is regarded, in general, as a subaltern agency employed by the state to perfect its political organization. Revolution being, as history teaches, a too frequent incident in the life of states, the purpose of this institution has ever been to prevent it by a timely removal of its causes. This has been sought to be done by giving to the forces that, from time to time, have become dominant within the state, the actual political control, instead of suppressing them until they compelled recognition by its disruption. As thus viewed, the function of the convention is analogous to that of the organs of reparation and reproduction as contrasted with that of the organs of locomotion, of defense, and the like, in the animal economy. It ministers to the perfecting and perpetuating and not to the ordinary working of the structure. So, the convention has no part whatever in the function of government, but only in that of perfecting the apparatus of government. By the nearly unanimous voice of the American people it is pronounced the duty of such a body to abstain from administrative measures; from attempts at ordinary legislation; from interfering with the action of the various departments of the existing government; and to render obedience to the laws by which it is convened, so far as is not incompatible with the execution of the commission with which it is charged; and finally, when the work required of it is performed, to surrender its commission and, unless authorized otherwise to dispose of it, to submit to the government of the state the result of its labors for approval or rejection. The cardinal point, as before stated, is that the convention is intended to do a special work, at the bidding and under the supervision of the existing political organization; to ameliorate and not to displace it. Hence its duty is to dissolve when its work is completed, leaving that organization in full life, and to take no step beyond the scope of its charter, the act which calls it into being. All excess of authority is for it revolution. If it may transcend its commission at all, it may do so without limit; and "a convention having unlimited powers, is a revolutionary and not a constitutional convention." (2 Hill S. C. Rep., 222.) The American theory that the convention, as a constitutional expedient, is a body of strictly limited powers, has been well stated by Mr. Grimke, an eminent lawyer of South Carolina, thus: "A convention," said he, "is thus limited by the fundamental laws of moral obligation; by the declaration of independence; by the national and state constitutions; by the occasion and object of the call; by the call itself, as the act of the people and of the legislature. These in fact," he continues, "are the constitution of the convention, and by them that body is as clearly and inflexibly bound, as the legislature by the constitution itself. They may do anything consistent with all these, they can do nothing inconsistent with them." (Id., 33.)
—So, the supreme court of Pennsylvania upon the same subject, in a late case, said. "A convention has no inherent rights; it exercises powers only. Delegated power defines itself. To be delegated it must come in some adopted manner to convey it by some defined means. This adopted manner, therefore, becomes the measure of the power conferred. * * * The people have the same right to limit the powers of their delegates that they have to bound the power of their representatives. Each are representatives, but only in a different sphere. It is simply evasive to affirm that the legislature can not limit the right of the people to alter or reform their government. Certainly it can not. The question is not upon the power of the legislature to restrain the people, but upon the right of the people, by the instrumentality of the law, to limit their delegates. Law is the highest form of a people's will in a state of peaceful government" (Wood's Appeal, 75 Penn. State Rep., pp. 71, 72.)
—The French theory, on the other hand, is that the convention is a virtual assemblage of the whole people, by both theories supposed to be the true sovereign; that by reason of the impracticability of an actual assemblage of the sovereign body itself, the convention must be taken to be its plenipotentiary representative, and, as such, possessed of all the powers that that body would have were it "assembled on some vast plain," in a state of nature, without government, but purposing to ordain and establish one by its original authority; that, accordingly, when the convention meets, the laws and bill of rights and constitution previously existing are abolished, since, if any part of either should survive the convention, it would be because that body had so willed, and had thus, as it were, rewritten them in the book of the laws; that the functions of the various departments of the government before existing are either suspended or discharged at the bidding and under the supervision of the convention; that the revenues of the state are subject to its disposition; that the police, the army and the navy exist at its will and are under its command; in a word, that the lives, the liberties and the property of the whole people lie at its mercy. A body which is virtually the people itself could not properly be required to refer its work to the people for approval. Hence, according to this theory, if a convention frame or amend a constitution, no submission of it to the people need be made. It is possessed of inherent sovereignty, limited only, when the convention meets in this country, by the constitution of the United States. Whether this concession of a limitation is not destructive of the theory of conventional sovereignty among us need not be now considered. In France, from the nature of its constitution, no such concession is required. Accordingly, from the time when the convention met which marshaled the forces of revolution for the destruction of the French monarchy, in 1789, to the present moment, to the so-called constituent assemblies at various times summoned to remodel the French constitution, the powers of a revolutionary convention, disguised under the name of conventional sovereignty, have been uniformly conceded. How conducive such a theory and such a practice must have been to the success of traitors and reactionaries in that kingdom it requires no argument to show. That it has actually proved disastrous, nearly every page of the history of France since 1789 demonstrates. It has completely taken away from the French people and committed to conspirators and assassins, or to charlatans masquerading as kings and emperors, the control of the political destinies of France. That this is no exaggeration may be seen from the deliberate admission, published in 1871, in the Reveu des Deux Mondes, of perhaps the most distinguished living publicist of France, a senator and a member of the institute, M. Edouard Laboulaye. In an article entitled Du Pouvoir Constituant, based on an American work upon the constitutional convention, he said: "In the first rank of these fatal theories must be placed that of the constituent power as conceived in 1789. * * What is the constituent power? It is the power of making or of reforming a constitution. * * In the last 80 years France has had 11 constitutions, which have precipitated her abruptly from servitude into liberty, from liberty into servitude. * * While in the United States the call of a convention is an act as simple and as peaceful as the convocation of an ordinary legislature, have we ever seen in France a constituent assembly which has not brought about a revolution? * * Our whole theory of the constituent power rests upon an error, and a sophism. The error is the delegation of sovereignty. Sovereignty is never delegated. The sophism is the identity of the people and its delegates, the confounding of the principal and the agent. * * From this double error, as from a poisoned spring, have proceeded all our mistakes, and all our calamities. The delegates being considered as the people itself by virtue of the delegation they have received, and the people being the source of all power, our politicians have thence concluded that the assembly possesses all the rights of sovereignty, and, according to them—which is also an error of the revolution—these rights are without limit. The authority of the assembly is therefore absolute. Life, liberty, property, religion, everything, is in the hands of this fraction of the nation. It needs the whole force of habit to blind us to the falseness and the danger of such an invention." (Rev. des Deux Mondes, for Oct. 15, 1871.)
—If the consequences of the adoption of this theory have been for France so deplorable, the fault has been that of the statesmen who have piloted her through her various revolutions, for in adopting it they have despised the warnings and the advice of Lafayette. Referring in his memoirs (t. iv., p. 36) to a claim put forward by Sieyès, that the idea of the separation of the constituent power from the ordinary governmental powers, was an invention of his own, dating from 1788, and that it ranked among the discoveries which had contributed to the advancement of science, Lafayette remarks, that "the Americans had had conventions to amend their constitutions, both state and federal, before 1788; that consequently the idea of the separation of the constituent power was not a French invention, and that the French, so far from contributing by it to science, had rather caused it to retrograde by mixing constituent and legislative functions in the assembly of 1789 and in the national convention, while in America these functions had always been kept distinct." Of this passage, Laboulaye, in the article before cited, says, "This was putting his finger upon one of the fundamental errors of the French system; but in 1789, they were infatuated with Sieyès and his political visions. As for Lafayette, the friend of Washington, they admired, but they would not listen to him. When the assembly, on the eve of its adjournment, adopted the chapter of the constitution relating to its revision, all the propositions made by Lafayette were rejected. 'M. de Lafayette, said the Journal de Paris, of the 1st of September, 1791, 'voted for neither of these decrees: all his views were too adverse, he had too thoroughly studied the constituent power to be willing to confide it to the ordinary government; but when he cited the example of America, they replied, Bah! America!'" (Memoirs de Lafayette, t. iii., p. 113.)
—Having thus defined the general range of conventional power, a few words now as to the powers of conventions in special relations, or in particular cases. Constitutional conventions are of two varieties, governed, in some respects, by different rules: state conventions and national conventions. The powers of each of these varieties will be briefly discussed, considering them in turn as independent of constitutional limitations, and as subject to such limitations. And, first, of state conventions. The convention being a legislative body, how is it related to the ordinary legislature? Is it superior to it and independent of it; co-ordinate with it, or subject to it? Assuming the validity of the French theory of its powers, the answer is easy; it is independent of the legislature and superior to it, so far superior, that there can hardly be said to be any legal relations between them; the one has, relatively to the other, all powers, and that other has none. But if the American view be accepted, the case is less simple: the convention is then both subject and superior to the legislature; subject to it, in that the flat which speaks it into existence, prescribes the details of its organization, and regulates the submission for adoption or rejection, and the final promulgation, of the fruit of its deliberations, must be the work of the legislature; superior to it, in that, when fully launched, the legislature ordinarily can not and ought not to attempt to dictate to the convention what it shall or what it shall not recommend in the way of amendments. Accordingly, the rule has been generally recognized as a valid one, that all legislative prescriptions touching the time and place of assembling, the formalities to be observed in the organization of the convention, or the disposition to be made of the constitution or amendments formulated by it, are mandatory, though couched in affirmative terms only; much more, if involving negative terms or conditions. On the other hand provisions in an act calling a convention, indicative of the preferences of the legislature, or of its views of expediency, relative to matters clearly within the scope of the commission of the convention to revise the constitution and to propose a new or amended one, ought to be regarded as directory, and to be observed by it or not as it may deem best. If, however, the limitations imposed are transcribed from the existing constitution, or if the legislative act containing them has been so submitted to the people, as to draw from them a definite expression in favor of such limitations, they ought to be regarded as doubly mandatory and to be strictly obeyed. Cases have occurred in which restrictions have been laid by legislative acts upon conventions called by them, not embraced in any of these categories, and in respect to their binding force opinions have not been agreed. Upon principle, it would seem, that because a citizen has been chosen a member of a convention, a body which, to use the expression of Mr. J. Wilson in the federal convention of 1787, "proposes but concludes nothing," he is no more excused from obedience to a positive requirement of law than any other citizen, and that even if the supposed requirement be thought to be inconsistent or absurd, it lies not with him to adjudge it to be so. This presents the question as it ought to be viewed by the member himself. On the other hand, with reference to the propriety or expediency of legislative restrictions, in general, doubt may well be entertained. It is believed, that the drift of opinion is toward the position that all restrictions are unwise, if not indefensible, which dictate the nature or extent of the amendments which the convention shall recommend; for, while it is important that conventions shall be held to their proper function with a strict rein, it is believed to be no less so that, through their ministry, an opportunity may be given for discontent to vent itself in peaceful changes of the constitution, rather than that it should be suppressed by legislative prescriptions, at the risk of ruinous explosions.
—Some of the most important of these principles are well illustrated by the case of a convention called in North Carolina, in 1835. The act of the legislature calling it, which had been submitted to the people and accepted by them, required the convention to report amendments to the constitution upon three points specified, and left it discretionary with it to report amendments upon nine other points. It then prescribed the form of an oath to be taken by each member of the convention before he should be permitted to take his seat, that he would not "directly or indirectly evade or disregard the duties enjoined or the limits imposed" upon the convention by such act. After much discussion as to the power of the legislature to impose such an oath, and as to the duty of the members in respect to the limitations contained in the act, it was finally conceded, that until the oath should be taken, there could be no convention, since, it had been made a condition to its organization, and, the oath once taken, the limitations must be observed. In discussing the question of the power of the legislature to pass such an act, weight was given to the fact that it had been favorably voted on by the people. (Debates N. C. Conv. 1835, pp. 4-8.) In the case just cited, the terms of the act were negative, and were clearly mandatory; but that they may be mandatory it is not necessary that they should be negative. Thus a case arose in the Pennsylvania convention, of 1872, involving provisions partly in affirmative terms, which were held by the highest court of the state to be mandatory. The act of the legislature calling the convention had prescribed that it should have power to propose to the people of the state, for their approval or rejection, a new or amended constitution, subject to the following provisions: first, that one-third of all the members of the convention should "have the right to require the separate and distinct submission to a popular vote of any change and amendment proposed by the convention," and that the convention should submit the amendments agreed to by it to a vote of the people, "at such time or times, and in such manner as the convention should prescribe, subject, however, to the limitation as to the separate submission of amendments contained in this act." Secondly, that the election to decide for or against the adoption of the new constitution or amendments should "be conducted as the general elections of this commonwealth are now by law conducted." Thirdly, that nothing in the act contained should authorize the convention "to change the language, or to alter in any manner the several provisions of the ninth article of the present constitution, commonly known as the bill of rights," but that the same should "be excepted from the powers given to said convention," and should "remain inviolate forever." Notwithstanding these restrictions, the convention made the following proposals and dispositions directly at variance with them: It proposed to the people an amended constitution, to be voted on as a whole, although one-third of all the members of the convention, as it was claimed, required that article V., relating to the judiciary, should be separately submitted. It also disregarded the requirements of the act in respect to the mode of conducting the election to be held for the adoption or rejection of the constitution. It created, by ordinance, a special board of commissioners for the city of Philadelphia, who should have direction of the election, instead of the proper election officers of the commonwealth, by whom its general elections were by law conducted. Finally, it proposed alterations in several provisions of the bill of rights. Upon bills in chancery filed in Philadelphia, by two different parties, praying for injunctions to prevent the holding of the elections in that city under the ordinance, upon the ground that the ordinance for submission under the direction of special commissioners was void, as in violation of the express limitations contained in the act of the legislature, which was claimed to be mandatory, the injunctions were allowed by all the judges of the supreme court, sitting at nisi prius, explicitly upon that ground.
—As to the question of separate submission of article V., the decision of the judges was adverse to the plaintiff, not on the ground that the limitation was not mandatory, but that it was not clearly shown that one-third of the members of the convention had required article V. to be submitted separately; and, as "the convention was clothed with express power to act upon the question of submitting the amendments in whole or in part, the question of a separate submission being one committed to the whole body, of which the requiring third was itself a part, it must be presumed that the decision of the body as a whole was rightly made, and either that the request was not made by a full one-third of all the members, or, if made by one-third, it was not (made) in a regular or orderly way." (Wells vs. Bain, and Donnelly vs. Fitler, 75 Penn. State Rep., 39, 55, 56.) Upon the general question of the power of a convention to disregard the limitations imposed by the legislature, the court, by Agnew, Ch. J., said: "Since the declaration of independence, in 1776, it has been an axiom of the American people, that all just government is founded in the consent of the people. This is recognized in the second section of the declaration of rights of the constitution of Pennsylvania, which affirms that the people 'have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may think proper.' A self-evident corollary is, that an existing lawful government of the people can not be altered or abolished unless by the consent of the same people, and this consent must be legally gathered or obtained. 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 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. A 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.
—When a law becomes the instrumental process of amendment, it is not because the legislature possesses any inherent power to change the existing constitution through a convention, but because it is the only means through which an authorized consent of the whole people, the entire state, can be lawfully obtained in a state of peace. Irregular action, whereby a certain number of the people assume to act for the whole, is evidently revolutionary. 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, they can be bound by the expression of the will of those who do attend. 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. The people, having reserved the right to alter or abolish their form of government, have, in the same declaration of their rights, reserved the means of procuring a law as the instrumental process of so doing. The twentieth section is as follows: 'The citizens have a right, in a peaceable manner, to assemble together for their common good, and to apply to those invested with the powers of government for redress of grievances or other proper purposes, by petition, address or remonstrance.'
—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. * * * To make this still more plain: 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 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.
—It follows, therefore, that in a state of peace a law is the only means by which the will of the whole people can be collected in an authorized form, and the powers of the people can be delegated to the agents who compose the convention. The form of the law is immaterial in this question of derivative authority. It may be a law to confer general authority, or one to confer special authority. It may be an invitation, in the first place, as in the act of 1789, under which the convention of 1790 was convened, and an authority to the people to meet in primary assemblies to select delegates and confer on them unrestricted powers; or it may be a law to take the sense of the people on the question of calling a convention; and then a law to make the call and confer the powers the people intend to confer upon their agents.
—The power to pass the law carries with it of necessity that to frame and declare the terms of the law. The terms of delegation, which the people themselves declare, when acting under and by virtue of the law which they have called to their aid, as the instrumental process of conferring their authorities, and reaching their purpose of amendment, become of necessity the terms of their own will. All outside of this channel is revolutionary, for it has neither the consent of the government nor of the people who have called the government to their aid, and acted through it.
—The process of amendment being through the instrumentality of legislation, these laws must be enacted in the forms of the constitution and be interpreted by the rules which govern in the interpretation of laws." (Wells vs. Bain, and Donnelly vs. Fitler, 75 Penn State Rep., 46-49.)
—Afterward a bill was filed in Pittsburgh, in Alleghany county, praying for an injunction against holding any election in that county, upon the same ground set out in the other bills, and upon the further ground that the action of the convention in altering several of the provisions of the bill of rights, contrary to the limitations imposed by the act calling it, was illegal. The lower court refused the injunction prayed, on the grounds, that these limitations were not binding upon the convention, since that body was possessed of sovereign power, thus, in substance, affirming the French theory of conventional supremacy; and, secondly, that, conceding the ordinance for holding the election in Philadelphia to be illegal, it had no bearing upon Alleghany county, and the court would not entertain a bill for an injunction filed by parties as to whom the legality or illegality of the ordinance in reference to Philadelphia was a mere abstract question. On appeal to the supreme court the judgment of the lower court was affirmed. This decision was apparently a reversal of its previous decision, above cited, but it was in fact a confirmation of the principles announced in it. After the former decision, and before the present one was rendered, the constitution reported by the convention had been submitted to and adopted by the people, and thus, however irregular or even revolutionary its inception had been, it had become the supreme law of the state. The supreme court, therefore, say, that "the change made by the people in their political institutions by the adoption of the proposed constitution since this decree" [was entered by the court below] "forbids an inquiry into the merits of this case." But they then proceed, by Agnew, Ch. J., to repudiate expressly and in a most impressive and luminous judgment, "the claim for absolute sovereignty in the convention affirmed substantially in the opinion" of the lower court, as "dangerous to the liberties of the people." While, therefore, holding the constitution to have been in fact adopted, they pronounce the action of the convention, in disregarding the limitations imposed upon it by law, to have been revolutionary. The revolution had been a successful one, but the action of the convention was not for that reason legal. These decisions are unquestionably, on a large view of the interests of the American people, among the most important that have ever been rendered by our courts, and are based upon the soundest principles of law. (Wood's Appeal, 75 Pennsylvania State Reports, 71.)
—In practice, questions of some nicety have arisen, two of which it may be useful to consider, not because of their frequency, but of the light which the discussion of them may throw upon the theory of those bodies. The first presents the obverse side of a question already considered as one of power, namely, as to the propriety of requiring the members of a convention to take an oath to obey the constitution under which it is called, and consequently as to their duty to obey; and the other, as to the power of the body to appropriate money out of the state treasury. With a right view of the relations of the convention to the people, or government, for which it acts, neither of these questions could arise. The reasoning which has given birth to the first is, either that the convention is possessed of sovereign powers, and therefore can not be limited by any conditions whatever—a view based upon the French theory of its nature; or that the work laid out for the body by the act calling it is "to trample the existing constitution under its feet," as it has been sometimes put; that is, to dismember and abolish it as preliminary to its reconstruction; and hence, that to require the convention to take such an oath would be so inconsistent with that duty that it ought to refuse obedience. Such reasoning results from confusion of ideas as to the foundations of free institutions, which one would hardly expect in the representatives of a people that for a hundred years had governed itself. To perceive its fallacy one need but to recall the principle that while a constitutional convention is in session, the laws, the constitution and the bill of rights remain unrepealed, and the entire judicial and administrative machinery of the government continues in active operation; and that such will be the case when that body shall have done its work and ceased to exist. All that has been given it to do is to revise the political structure and recommend to the power it represents such changes in it as may seem desirable. To speak of itself as having the constitution in fragments under its feet, is as absurd as for a council of architects, engaged to inspect a building and to propose to its owner modifications of it, to use the like figure of speech respecting such building. If a convention intends to confine itself to its duty of proposing amendments for another's adoption, there can be no impropriety in its members doing what every public servant is required to do, to take an oath of obedience to the laws of the land. How important it is that they should do so, will be seen when it is considered, that the main reason why an oath is required is that traitors may attempt to reduce to practice the French theory of conventional sovereignty, and that an oath of obedience to the laws established must prove one of the most effectual barriers against such attempts. But, waiving great political crimes, is it not proper that the members of so important a body should swear honestly and faithfully to discharge the duties required of them, and not to attempt, by virtue of their position and in violation of rights secured by the laws, to injure their fellow-citizens for their own advantage, or that of their party?
—As to the powers of a convention to appropriate money out of the state treasury, it need only be said, that, by the American constitutions, no money can be thence appropriated but by law, and that an ordinance of a convention, not submitted to and adopted by the people, is no more a law than a bill for an act passed by both houses of a legislature, but not approved by the executive of the state, is a law. Besides, to impute to a convention the power to wield without check or responsibility, the purse, is to give to it also the sword, of the state; that is, to make it sovereign master of its destinies. Not only has the government concerned in calling such a body no authority to grant to it such a power, a grant which would involve an entire surrender of its own constitutional function, but had it such authority, its exercise would be puerile as being needless; because to make such appropriations, on all necessary occasions, is made by law the duty of the legislature. Accordingly, the better opinion in the conventions thus far has been, that to assume the power, without authority, would be a usurpation, and to exercise it, even were the authority expressly given by law, would be unconstitutional. In a few cases, appropriations by ordinance have been made, which, not being carried into effect, were afterward followed by legislative ratification, showing that they were regarded as recommendations, and not as valid and effectual appropriations. In the Illinois convention of 1862, an ordinance was adopted appropriating $100,000 for the soldiers wounded at fort Donelson. Not a dollar, however, was ever paid, or perhaps intended to be paid, and the ordinance, together with the constitution framed by the convention, was afterward rejected by the people. In New York, the act of March, 1867, calling the convention of that year, had provided that compensation at the rate of six dollars per day, should be paid to the members by the state treasurer, upon warrants of the comptroller, drawn on presentation of certificates of service, signed by the president of the convention; and it had then prescribed, that the constitution framed by that body should be submitted to the people at the general election to be held in the month of November following. It not being possible to conclude the labors of the convention in time to submit the new constitution to the people at that election, the question was raised whether the comptroller would be authorized to issue his warrants upon certificates of service after the day named for the election. It was decided, in accordance with the opinion of the attorney general, that he would not, since payments made by the treasurer upon such warrants would not be made in pursuance of law. In the few cases in which conventions have ventured to pass ordinances of the kind, opposition has been generally made, as in this case, by the responsible custodians of the public moneys, who naturally have been reluctant to assume the risk of violating the conditions of their official bonds, by paying upon the authority of such ordinances.
—Thus far attention has been given only to state conventions considered independently of the federal constitution. In fact, those bodies are controlled in their action by very strict limitations prescribed in that instrument. Beside that contained in article V., prohibiting any amendment abolishing the equality of state suffrage in the United States senate, to which attention will be called below, article IV., section 4, requiring the United States "to guarantee to every state in the Union a republican form of government," operates indirectly as such a limitation. So, no convention in any single state, nor indeed conventions in all the states acting together, but without the federal initiative, could abolish that form of government, since power could not be implied, constitutionally, to do what the United States is bound by the constitution to use its whole power to prevent. On the contrary, such a power is, by the strongest implication, denied. So sections 8 and 10 of article I., sections 2, 3 and 4 of article IV., and the 13th, 14th and 15th amendments to the constitution, contain either grants of power exclusively to congress, or prohibitions upon the states, which respectively operate as limitations upon state action, whether by legislatures or conventions. The former class is illustrated by the exclusive power given to congress to regulate commerce with foreign nations, to establish a uniform rule of naturalization, to enact bankruptcy laws, to coin money, to declare war, to provide and maintain a navy, and the like; and the latter, by the prohibitions against a state's entering into any treaty, etc., emitting bills of credit, passing bills of attainder, keeping troops or ships of war in time of peace, forming new states, without consent of congress, and the like, contained in the body of the constitution, and by those embodied in the amendments referred to, against slavery, against the making or enforcement of any law abridging the privileges or immunities of citizens of the United States, depriving them of life, etc., without due process of law, or denying to them the equal protection of the law; against electing to congress or appointing to office any person, who, having taken an oath to support the constitution, should have engaged in insurrection or rebellion; against the payment or assumption of debts incurred in aid of insurrection or rebellion, or questioning the validity of the public debt of the United States incurred in suppressing the same; and finally, against denying or abridging the right of citizens of the United States to vote, on account of race, color or previous condition of servitude. Evidently, state conventions, no less than state legislatures, are within the operation of these provisions. Further, both the conventions and the legislatures, equally with the judges of the states, are bound by article VI., which provides that the laws of the United States, made in pursuance of the constitution, and all treaties made under the authority of the United States, shall be the supreme law of the land, and that the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding. (Ware vs. Hylton, 3 Dallas' Rep., 199.)
—Where, on the other hand, the powers granted to congress are, by their nature, or because not exercised by congress, concurrent in the states, conventions called in the latter might, doubtless, provide for their exercise, in any case in which it would be competent for a state legislature to do the same. (Brown vs. Maryland, 12 Wheat. Rep., 419; The License Cases, 5 How. (U. S.) Rep., 504; The Passenger Cases, 7 How. (U. S.) Rep., 283, 285; The State Freight Tax Cases, 15 Wall. Rep., 232 )
—In respect to the powers of a national convention, called to propose amendments to the federal constitution, it is conceived that in the main the same principles apply as in the case of state conventions. The relation of such a convention to the people of the United States and to congress being the same as that of a state convention to the people and legislature of the state, it would be bound by the act calling it, to the same extent and under the same conditions. Thus, if a national convention had been called to revise the federal constitution, without restriction in any respect, it would be authorized to propose any modification of that instrument, which it might deem desirable. In fact, however, no case so simple could arise under the present constitution. If placed under no restraint by the act calling it, there would always be one limitation on its action imposed by the constitution itself: it could not propose to the people to deprive any state of its equal suffrage in the United States senate, save by the consent of such state. Article V. directly prohibits any such amendment in negative terms, and thus operates as a limitation equally upon the United States and upon the several states. Notwithstanding this prohibition, a national convention might recommend a complete transformation of the government, provided the states, with equal representation in the senate, constituted a part of its plan; it might even propose the substitution of a monarch for life, with descent of the crown to his heirs, instead of a president for four years, unless the provision, that the United States should guarantee a republican form of government to the several states, should be held to be a prohibition against the guarantor's taking steps to effect such a transformation; and it might do so notwithstanding that provision, if, as many contend, a monarchy as that of England, may be at the same time a republic. So, doubtless, by the unanimous consent of the states, the senate, or even the states might be abolished, upon the recommendation of a convention. All the other constitutional limitations upon the United States are contained in article I., section 9, and in the fifteen amendments, and bear only upon the congress, or upon some department of the general government. These could all, doubtless, be repealed upon the recommendation of a national convention, or by the legislatures of three-fourths of all the states, acting upon the recommendation of congress, as provided in article V. of the constitution. But, it may be asked, suppose the people of all the states in the Union, save one, should desire to sweep away the limitation contained in article V., touching equality of state suffrage in the senate, is there no way in which it could be done? Under the constitution, there seems to be no way. Could congress recommend the repeal of that section in the face of this interdict, contained in article V. of the constitution, which relates only to amendments thereof: "No state, without its consent, shall be deprived of its equal suffrage in the senate"? What congress could not recommend to the states, in pursuance of that article; what, without such recommendation, state legislatures or conventions could not ratify, it is clear that a national convention could not propose for adoption. "No amendment," etc., "shall be made." In the case supposed, there would be but one way in which to accomplish the general desire of the nation, and that would be by revolution, peaceful, if, notwithstanding the interdict, the wished-for change were recommended, no matter by whom, and by general consent adopted; violent, and by force, should any part of the nation contest it unsuccessfully by arms. By the courts, however, no mode of effecting the change could be recognized as valid but that provided by the constitution itself, until after the requisite provision had been grafted upon the constitution as the result of a successful revolution.
—In the opening part of this article, it was said, that, under the American constitutions, fundamental legislation is generally committed to the constitutional convention. It is deemed germane to this subject to describe briefly another mode of effecting specific amendments, authorized by many of our constitutions—a mode which is less cumbrous and expensive, if not more expeditious, than that by the employment of conventions. That mode is by the action of the legislature, followed by that of the people, or body of the electors. The earliest constitutions prescribing it were those of Delaware and Maryland, framed, respectively, in September and November, 1776. The Delaware constitution contained this very stringent provision: "No article of the declaration of rights and fundamental rules of this state agreed to by this convention, nor the first, second, fifth (except that part thereof that relates to the right of suffrage), twenty-sixth, and twenty-ninth articles of this constitution, ought ever to be violated on any pretense whatever; no other part of this constitution shall be altered, changed, or diminished without the consent of five parts in seven of the assembly, and seven members of the legislative council," the assembly containing seven, and the legislative council nine members.
—Section LIV. of the first Maryland constitution provided, "that this form of government, and no part thereof, shall be altered, changed, or abolished, unless a bill so to alter, change or abolish the same, shall pass the general assembly, and be published at least three months before a new election, and shall be confirmed by the general assembly after a new election of delegates, in the first session after such new election." This section seems to have been copied by the congress in the articles of confederation submitted to the states and finally adopted in 1781, and to be the model on which similar provisions in the later constitutions were framed. The provisions quoted from the Delaware and Maryland constitutions were, it will be observed, mandatory and in negative terms. In this respect the later constitutions have not generally followed these early models. As a type of the provision commonly adopted may be taken that contained in the Iowa constitution of 1857, as follows: "Any amendment or amendments to this constitution may be proposed in either house of the general assembly; and, if the same shall be agreed to by a majority of the members elected to each of the two houses, such proposed amendment shall be entered on their journals, with the yeas and nays taken thereon, and referred to the legislature to be chosen at the next general election, and shall be published, as provided for, three months previous to the time of making such choice; and if in the general assembly so next chosen as aforesaid, such proposed amendment or amendments shall be agreed to by a majority of all the members elected to each house, then it shall be the duty of the general assembly to submit such proposed amendment or amendments to the people in such manner and at such time as the general assembly shall provide; and if the people shall approve and ratify such amendment or amendments by a majority of the electors qualified to vote for members of the general assembly, voting thereon, such amendment or amendments shall become a part of the constitution of this state."
—Upon a comparison of these two modes it is apparent that that by conventions is best adapted to the cases in which a general revision of the constitution, and possibly the preparation of an entirely new instrument, are contemplated, and the specific mode, to the elaboration of a limited number of amendments, not necessitating, for harmony or congruity, the revision of the whole system. There are advantages and disadvantages attending both modes. Saying nothing of the dangers that may arise from conventions exceeding their powers, the expense and the social disturbance likely to accompany a radical inquiry into the evils of an existing government and into their remedies, make it undesirable that those bodies should be frequently called. On the other hand, the specific mode, unless very effectual checks are provided, may, by the facility with which it may be employed, be easily perverted to partisan ends.
—In the later constitutions it has been usual, in most cases, to provide for amendments in both modes, that is, by conventions to be called under certain conditions, or by the conjoint action of the legislature and of the people, as may be thought advisable. Of those which remain, some have made no provision for amendments by either mode, some have provided for them by conventions alone, and some by the specific mode alone. The number of the first and last two classes are nearly equal, and that of the second class is small, especially in the later constitutions.
—In a few states a modification of the specific mode has been employed, which is thought to have some advantages over that above described. It consists in the appointment in pursuance of law of a commission to revise the constitution, or to report amendments to it, for the subsequent action of the legislature and of the people, according to the constitutional provisions relating to specific amendments. It was first employed in New York in 1872; afterward, in Michigan, in 1873: and a similar commission is now (1881) sitting in New Jersey. In the first case the commission consisted of 32 members selected by the governor, four from each judicial district. They were characterized in the act requiring their appointment, simply as "persons," and were required to meet for the purpose of proposing to the legislature, at its next session, amendments to the constitution; provided, that no amendments should be proposed to the sixth article thereof, relating to the judiciary. By a subsequent act, passed while the commission was in session, this limitation was repealed. (Jour. Const. Com. N. Y., 3, 178.)
—In Michigan the commission was required by the act of the legislature to be made up of 18 "able and discreet citizens," appointed by the governor, no more than two of whom were to reside in any one congressional district, as then organized. The commission was authorized to examine into and report "such amendments and revision of the constitution" as in their judgment might be necessary for the best interests of the state and the people. The act further authorized the legislature, at its next session, to cause such revision to be submitted to the people for ratification.—(Jour. Const. Com., Mich., 3, 4.) The peculiar advantage of this mode is said to be that it enables the legislature to avail itself of the wisdom of a select committee of men fitted to consider dispassionately any constitutional amendments it may be deemed desirable to adopt; or if a general revision should be thought necessary, and within the scope of their lawful powers, to effect that object with less expense and with greater expedition, if not with greater wisdom, than were recourse had to a convention. This would very clearly be possible, other things being favorable, were the governor to appoint upon the commission the ablest and most experienced men in the state, whether members of the legislature or not. As this course of procedure, however, involves the reporting of the plan matured by the commission to the legislature, and the taking of all the constitutional steps by that body, including the final submission to the people, the adoption of this mode is not certain to avoid delay, nor to secure a well-considered and harmonious plan. Members of the legislature, wise or unwise, interested or disinterested, may raise objections to the scheme of the commission, and perhaps lessen its value by material modifications. Nor is it clear, that, under a constitution authorizing particular amendments by what is termed the specific mode, a commission can be substituted for it with the view of effecting a general revision of the constitution. In the Michigan case such a revision was authorized by the act constituting it and was made, but, when submitted to the people, the new constitution was for that, with other reasons, rejected by the people. There was, it is said, a latent feeling, that, although the processes by which it was evolved might be within the letter of the constitution, the commission, or the legislature, or both, had assumed too much in making a general revision; that a revision should spring from the wish of the people properly expressed through the ballot box, and be made by a convention chosen for the purpose, as contemplated by the constitution itself, and not from the legislature or from a body of its creation. Of this the commission seem to have been conscious, for, while in their report to the governor, they admit that the work done by them was equivalent to a revision of the constitution, they affirm that in the official records of the commission they recognize it only as the "amended constitution."
—In New York no objection seems to have been raised to the constitutionality of the commission, because authorized to make a general revision, and the result was the preparation of numerous amendments to the existing constitution, some of which were afterward approved by the legislature, and finally adopted by the people. On the whole, it is doubtful whether the requirement that the scheme matured by a commission, however enlightened and patriotic, shall run the gauntlet of the legislature, constituted, as it too often is, of ignorant or designing politicians, a requirement which can not be evaded, does not nullify its principal claims to acceptance. It could be made to work favorably only by a concerted effort on the part of the leading men of all parties in the legislature to give effect to the scheme of the commission without substantial modification. Care even then would need to be taken that the scheme should express the prevalent sentiment of the legislature, since to be lawful, doubtless, it must be its act, the exercise of its discretion, and not that of a body unknown to the constitution or to the common law. The difficulty of securing these conditions makes it extremely questionable whether the employment of such legislative commissions, if pronounced constitutional, will, on a balance of advantages and disadvantages, be considered generally desirable.
JOHN A. JAMESON.
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