It may be worth while to refer briefly to the calling of conventions for the purpose of framing constitutions for states seeking admission into the union. In the more regular procedure for the admission of territories to statehood, Congress passes an enabling act providing for a convention, such enabling act regulating in detail the election of delegates and the conduct of business by the convention. Territorial legislatures may, of course, call conventions or a convention may be called by a territorial governor,1 but a constitution drafted by such a convention has no effect unless it is approved by Congress, and the territory is admitted as a state under it."2 Properly, constitutions of proposed new states should be drafted by conventions assembled under the authority either of Congress or of the existing territorial governments. In one case, at least, however, a convention has proceeded without the authorization either of Congress or of the territorial government, but its acts subsequently obtained validity by virtue of congressional ratification. The Southern reconstruction conventions held under the authority of the congressional acts of 1867 may for all practical purposes be classed with territorial conventions held under congressional enabling acts.**

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the constitution. Where the existing constitution requires a vote upon the question of holding a convention or upon a proposed constitution, and itself also fixes the suffrage qualifications for state elections, neither legislature nor convention has the legal right to prescribe other qualifications. See Green v. Shumway, 39 N. Y., 418, 426 (1868).

61 As in California in 1849.

622 Opinions of the Attorney-General, 726. The constitution of a proposed state need not necessarily be framed by a convention. The constitution of 1866, under which the state of Nebraska was admitted to the union, was drafted by the territorial legislature and then approved by a vote of the people.

03 See the Michigan case referred to below, p. 61.

64 Neither Congress nor a territorial legislature, in providing for a

In several cases the question has arisen as to whether the people of a state, acting independently and without any authority under the existing government, may call a convention and form a new constitution. This question presented itself particularly in Rhode Island in 1841 and 1842. The state was still governed under the charter of 1663, and the suffrage qualifications as fixed by the legislature were extremely undemocratic. Efforts to obtain relief through the legislature had failed. Those in favor of a more extended suffrage formed associations, and arranged for the meeting of a convention to frame a new constitution. The convention was not authorized in any manner by the existing government. The convention met and framed a constitution which was submitted to the people for adoption, and was adopted by a majority of those voting upon it, such majority appearing also to be a majority of the male citizens of the state. An attempt was made to organize government under the new constitution, armed conflict ensued with the charter government, and the movement collapsed upon the announcement by the president of the United States that he would support the charter government.65 Many of the reforms deconvention, is under the necessity of submitting to the people the question whether a convention is desired. Congress has occasionally submitted to the people of a territory the question as to whether they wished statehood under certain conditions, as in 1906 when the question of joint statehood was submitted to the people of Arizona and New Mexico. In several cases territorial legislatures have submitted the question whether conventions should be assembled and constitutions framed preparatory to seeking admission as states. This was done in Wisconsin several times between 1841 and 1847; in Iowa in 1840, 1842, and 1844; and in Nebraska in 1859. Lobingier, The People's Law, 263-267, 275-277, 282.

65 Luther v. Borden, 7 How., I. A full account of this affair may be found in Mowry's The Dorr War or the Constitutional Struggle in Rhode Island. (Providence, 1901). See also Jameson, 218-226. For a dictum that the people of a state may adopt a constitution, in

manded were later obtained through action under the charter government.

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In Maryland in 1837 there were conditions somewhat similar to those in Rhode Island, and the supporters of reform elected a convention without any authorization from the regular government, but the convention took no action because the more important of the proposed reforms were adopted as constitutional amendments by the legislature of the state. Somewhat similar to the Rhode Island case was that of the convention assembled at Topeka in the territory of Kansas in 1855; this convention was assembled upon the recommendation of meetings and associations of private individuals; the constitution which it framed was submitted to a popular vote and received a majority of the votes cast upon the question of its adoption, although only its friends voted upon this question; the constitution was never recognized by Congress, though it would seem that the irregularity of its formation and adoption might have been cured by congressional ratification, had Congress cared to take such action. 67 The territory of Michigan in 1835 adopted a constitution and applied for admission into the Union. Congress passed an act admitting Michigan, provided that a restricted boundary should receive the assent of a convention of delegates elected by the people of the territory for that purpose; a convention elected for this purpose under an act of the new state legislature rejected the condition; thereupon a popular movement was begun, delegates were elected to a new convention, which assembled without either congressional or state authorization, and assented to dependently of the existing state government, see Goodrich v. Moore, 2 Minn., 61. Koehler v. Hill, 60 Ia., 615, 616 contains vigorous dicta opposed to this view.

66 McSherry, History of Maryland, 346-356. 87 Jameson, 202-204.

the condition imposed by Congress as necessary for admission to statehood; Congress accepted this action as satisfactory and by its acceptance ratified the action of the irregular convention. 68 Territorial conventions irregularly assembled may, therefore, have their action validated by subsequent congressional ratification. Upon the basis of the Rhode Island case it would seem, however, that there is little chance of a constitution being adopted in the states, independently of or in opposition to the existing governments such a procedure is revolutionary, and though in certain cases revolution may be amply justified, yet the relations between federal and state governments doom such a movement to failure; the federal government is obligated to protect a state from domestic violence "on application of the Legislature, or of the Executive (when the Legislature cannot be convened)", and must thus support the existing state governments; the United States thus guarantees such undemocratic state governments as those of Rhode Island and Connecticut against overthrow by any popular movement, although it is at the same time under obligation to guarantee to the states a republican form of government.

Submission of Constitutions to a Vote of the People.

Attention has already been called to the fact that of the state constitutions adopted before 1784 only those of New Hampshire and Massachusetts were formally submitted to a vote of the people, although in several other states a plan

68 Jameson, 185-191. Congress has in another case shown a willingness to overlook irregularities in the form of assenting to conditions for admission to statehood. The Nebraska constitution of 1866 restricted the right to vote to whites. A congressional act of 1867 provided for the admission of Nebraska on condition that there should be no race discrimination. The Nebraska legislature assented to this condition (which altered the constitution), and the state was admitted. Brittle v. People, 2 Neb., 198.

was pursued which may have accomplished the same purpose. The Pennsylvania assembly, when providing in 1789 for the assembling of a constitutional convention, resolved that "it would be expedient, just, and reasonable, that the convention should publish their amendments and alterations for the consideration of the people, and adjourn at least four months previous to confirmation." The convention met, framed a constitution, published it for distribution among the people, and then adjourned from February 26 to August 9, 1790, in order that the people might have an opportunity to consider the proposed form of government; on August 9 the convention reassembled, made some changes in the proposed constitution, and adopted it as the form of government for the state; the proceedings here cannot be considered equivalent to a formal submission to the people, but did recognize the necessity for popular participation, and may be treated as an informal submission. Although

not directly submitted for popular approval the Vermont constitution of 1786 (and its later amendments to 1870) and the Georgia constitution of 1789 were ratified by popular votes. In Vermont the revised constitution of 1786 and subsequent amendments thereto were proposed by councils of censors, and ratified or rejected by conventions chosen by the people for that express purpose." In Georgia the constitution of 1789 was framed and revised by two successive conventions and was then submitted to a third convention chosen by the people for the express purpose of rati

69 Proceedings relative to calling the conventions of 1776 and 1790, pp. 134, 234, 246. Jameson, 501.

70 So too the federal constitution was ratified by conventions chosen in the several states for that express purpose, although in Rhode Island the constitution was first submitted to a popular vote. Bates, Rhode Island and the formation of the union (Columbia University Studies, x), 163-200.