252 visory bodies, constituted for the purpose of giving counsel to the legislature, and have no independent power of action. As a joint committee of the two houses of the legislature of New York said in 1873: "The responsibility of [for] the adoption or rejection of the amendments rests with the legislature, and not with the Commission that proposed them." To this statement should be added that of Mr. Lincoln with reference to the New York commission of 1890: "It should not be forgotten that the commission could do nothing directly to affect the constitution; for its work was subject to review and amendment by the legislature, and could not possibly reach the people until it had been approved by two legislatures." 258 Judge Jameson makes the following objection to the use of constitutional commissions: "In no case, so far, has the report of a commission been adopted by the legislature without material modification. This dilemma, therefore, always arises: The report of the commission must be exactly pursued by the legislature, or the benefit of their supposed superior wisdom and ability is lost; but if the legislature is bound by the commission's report and to submit it to the electors without change, the function of the former would be merely a ministerial one; it would not be itself but the commission, that would recommend,-a transfer of function which the constitution certainly would not warrant. If it be supposed that the legislature has a constitutional right to discuss and to modify the amendment or system of amendments reported by the commission, the whole question of amending or of revising the constitution would be relegated to the body supposed, by the very act of appointing the commission, to be unfitted for that work.” 254 Stated in 262 Lincoln, Constitutional History of New York, ii, 469-473. different language Judge Jameson's criticism amounts to this: By seeking advice the legislature confesses its incompetency to act, and advice is useless in such a case because the legislature has discretion to accept it wholly or in part, or to reject it. Stated in this way Judge Jameson's objection seems hardly to require an answer. The constitutional commission is useful under proper limitations as an adviser of the legislative bodies, but should not be employed, as was attempted in Michigan, to make a complete constitutional revision through legislative proposal, although even this procedure may be considered more proper in a state like Rhode Island, so long as the view is held that a constitutional convention may not be convened.255 255 The Vermont constitutional commission in its report to the legislature in January, 1910, said: "In the first place, although the wording of the resolution [creating the commission] is broad enough to permit us to make any proposals we choose, in fact its spirit did not contemplate that we were to attempt any general revision of the constitution. A general revision should be the work, if not of a constitutional convention, at least of a commission of general and very representative character, and embodying the result of full, deliberate and open public discussion." This commission submitted to the legislature several specific amendments, and a complete textual revision of the constitution. CHAPTER V THE WORKING OF THE CONSTITUTIONAL REFERENDUM 1 Attention has already been called to the fact that the submission of proposed amendments is much more frequent in some states than in others.2 This is due in part to restrictions upon the amending process. During the period 1899-1908, for example, no proposed amendments were submitted in Vermont, and the year 1900 was the only one in which a submission could have been had; so the con 1 The discussion here is based mainly upon the experience of the states during the ten-year period, 1899-1908; it is not a study of the referendum in general, but simply an attempt to discover something as to the working of the compulsory referendum on constitutional questions. In an appendix are printed tables giving, so far as information has been obtainable, the results of popular votes upon constitutional questions from 1899 to 1908. For some states information is available covering longer periods: the New York Red Book for 1910, pp. 317-319, gives the popular votes in New York from 1845 to 1905; the Michigan Manual for 1909, pp. 552-557, gives the votes for that state from 1850 to 1908; Dr. Edward M. Hartwell has collected in the Monthly Bulletin of the Statistics Department of the city of Boston, vol. xi, pp. 158-160, a complete record of constitutional referenda in Massachusetts from 1780 to 1907; in the Political Science Quarterly, vol. xiii, pp. 1-18, Mr. Samuel E. Moffett gives a statement of constitutional referenda in California from 1879 to 1896, and the record in this state for 1898 may be found in the California Blue Book for 1899, pp. 244, 245. The Rhode Island Manual for 1909, pp. 130-140 gives votes upon all constitutional questions submitted to the people of 'Rhode Island; Colby's Manual of the Constitution of New Hampshire (1902), and the Official Vote of South Dakota, 1889-1908 (1908), give the votes in these states upon constitutional questions. 2 It should be repeated here that in Delaware constitutional amendments are not submitted to a vote of the people. stitutional requirements of Pennsylvania, New Jersey, and Tennessee that proposals shall be submitted only at certain intervals, and the New Hampshire plan of permitting proposals only by means of a convention, cause a rather infrequent proposal of amendments in these states. So too, in a number of the states where the adoption of amendments is rendered difficult by the popular majority required, amendments are not frequently proposed to a vote of the people, because of a feeling that such proposal is useless. This is probably the reason for rather infrequent proposals in Illinois, Indiana, and Wyoming. But that amendments are proposed more frequently in some states than in others cannot be explained by the relative ease or difficulty of adopting amendments. In Illinois, Indiana, and Wyoming few amendments were proposed during the period from 1899 to 1908, but during the same period thirteen amendments were proposed in Minnesota, whose constitution is equally as difficult to amend. During the same period only one amendment was proposed in Massachusetts and but four in Iowa, while fourteen were proposed in New York, whose amending procedure is equally as difficult as that of Iowa and Massachusetts. There is, however, some relationship between the frequency of proposed amendments and the age of the constitution under which a state is living. The proposal of amendments is comparatively infrequent in the New England States and in several states of the Middle West, and this, while due in part to the difficulty of amendment, may also be partly attributed to the conservatism of these states and to the fact that their constituions are older and less. elaborate than the instruments adopted by other states in recent years; they contain fewer details of a legislative character, which require frequent alteration. The use of the amending process is more common in the states with newer constitutions, and particularly in those whose constitutions cover a wide range of details not of a fundamental character. The state of California has been busily altering its constitution almost from the time when that instrument was adopted in 1879. Louisiana adopted a new and very elaborate constitution in 1898, and two years later began a process of frequent and almost continuous amendment. Oklahoma adopted in 1907 a constitution which exceeds that of any other state in elaborate detail, and in 1908 began efforts to amend this instrument-efforts which were unsuccessful because of the cumbersome amending procedure adopted by this state. But although the frequency with which amendments are proposed in the several states bears some close relation both to the relative ease or difficulty of adopting amendments, and to the simplicity or elaborateness of the instrument sought to be amended, yet the fact is that of two states seemingly under similar conditions in these respects, proposals of amendment will be more frequent in one than in another. In many states there is frequent resort to the use of the amending process. During the decade, 1899-1908, four hundred and seventy-two constitutional questions were submitted to the people of the several states. Of these fiftyone were submitted in California, fifty in Louisiana, thirty in Missouri, twenty-two each in Oregon and Michigan, twenty-one in Florida, and seventeen each in Colorado and Texas. Ten or more amendments were submitted in each of the states of Georgia, Idaho, Kansas, Minnesota, New York, New Hampshire, Ohio, South Carolina, and South Dakota. That is, there was an average of one or more constitutional questions each year submitted in each of these states. North Dakota and Utah, each with nine proposed 3 Reference has already been made to the fact that most amend |