fying or rejecting it. The New Hampshire constitution of 1792 was submitted to a direct vote of the people, and after this date the first states to submit their constitutions for popular approval were Connecticut in 1818 and Maine in 1819. Rhode Island in 1824 submitted a constitution to the people which was, however, rejected. New York submitted its constitution of 1821 to a popular vote, and was the first state outside of New England to submit a constitution to a direct vote of the people. The popular submission of constitutions first developed in New England, largely, it would seem, as Oberholtzer says," because there alone the people had in their town meetings workable instruments for the expression of popular sentiment upon such a question.

The policy of submitting constitutions to the people soon became a general one. Virginia submitted its second constitution for popular approval in 1829, and from this time until 1860 the submission of constitutions to a popular vote was the prevailing practice. 72 Conventions in Georgia in 1833

71 Oberholtzer, Referendum in America, 110, III.

72 It will be of interest to refer briefly to the extent to which congressional enabling acts have required that the constitutions of new states be submitted to the people. The earlier enabling acts did not require submission, and their language not only seems to indicate that popular approval was not considered necessary, but actually precluded submission. The joint resolution of March 1, 1845, for the admission of Texas, is the first congressional action which indicates that it was thought desirable to have constitutions submitted to the people; this resolution, while not requiring such submission, did provide that "the constitution thereof, with the proper evidence of its adoption by the people of said Republic of Texas, shall be transmitted to the President of the United States, to be laid before Congress for its final action." (The Texas constitution of 1836 had been submitted to the people.) The enabling act for Minnesota, passed February 26, 1857, is the first act of this character specifically to require popular submission, and the practice so begun has been consistently adhered to since that date. But, although popular submission was not expressly required by enabling acts, every state admitted since 1836 has come into the union

and 1839, in Tennessee in 1834, in Michigan and North Carolina in 1835, in Pennsylvania in 1837-38, and in Florida in 1839,73 submitted the results of their labors for the approval of the people. However, the conventions of Delaware in 1831, Mississippi in 1832,” and Arkansas in 1836 did not submit their constitutions for popular approval. From 1840 to 1860 the practice of submitting constitutions for the approval of the people was followed without exception,75 but during the civil war period submission became the exception rather than the rule in the Southern States. The Virginia convention of 1861 submitted its constitution and ordinance of secession to the people; the Georgia convention of 1861 submitted its revised constitution, but not its ordinance of secession; the Texas convention of 1861 sub

with a constitution approved by the people; the states admitted between 1837 and 1857 either framed their constitutions without the authority of congressional enabling acts (as in Michigan, Florida, Iowa and California), or submitted their constitutions although not required to do so by congressional act (as in Wisconsin). For a fuller discussion of this subject see Lobingier, The People's Law, 263-267, 275, 280, 294-297.

73 The reports of the popular vote upon the Florida constitution of 1839 may be found in the Tallehassee Floridian, May 18-June 15, 1839. 74 A motion was made in the Mississippi convention, but rejected, that the constitution be submitted to a popular vote. Journal of the Mississippi convention of 1832, pp. 289-290.

75 But the Illinois convention of 1847 declared one article of the constitution in force without submitting it to the people. Constitution of 1848, schedule, sec. 4. So too the Kentucky convention of 1849-50 "after submitting their work to the people, made material amendments to that constitution as ratified by the people," by adding an entirely new section which went into effect without popular approval. Miller v. Johnson, 92 Ky., 589, 590, 604.

76 A motion made in the Georgia convention to submit the ordinance of secession to the people was defeated. A movement in favor of submission also took place in the Alabama convention of 1861. Lobingier, The People's Law, pp. 215, 225.

mitted its ordinance of secession to a popular vote, but not the amendments which it made to the state constitution; in Tennessee the question of holding a convention was submitted to the people and negatived, and later the question of secession was submitted by the legislature and received a majority of the popular vote. The conventions of the other seceding states did not submit their actions for popular approval. Of the reconstruction conventions held in 1864, 1865, and 1866, those of Arkansas (1864), Louisiana (1864), Tennessee (1865), North Carolina (1865), Georgia (1865), and Texas (1866), submitted their proposed constitutions or amendments to a vote of the people, but those in the other five states did not do so. The conventions just referred to were assembled under the authority of President Johnson; except in the case of Tennessee, governments organized under constitutions framed by these conventions were not recognized by Congress. The constitutions under which the other Southern States were readmitted to the union were in each case submitted to a vote of the people of the respective states, this being one of the conditions of the congressional reconstruction acts of 1867; although persons who had participated in the secession movement were excluded from voting. A Missouri constitutional convention held sessions in 1861, 1862, and 1863, adopted a number of constitutional amendments which were not submitted to the people, and acted in many ways as if it were the regular legislative body of the state. With reference both. to Missouri and to the seceding states, it should of course be remembered that conditions were abnormal, so that methods proper for a time of peace may have been inapplicable. Still it would seem that these cases do show that the practice of submitting constitutions for popular approval had not yet become well-established in the Southern States. The submission of the constitutions under which

the seceding states were readmitted into the union was under compulsion of federal law, and consequently indicates nothing as to the strength of this practice in the South.

Yet from 1870 to 1890 this practice was uniformly acted upon, and the constitutions drafted by conventions were then submitted to a vote of the people almost as a matter of course. However, during the past twenty years there has been a wide departure from what may before this time have been regarded almost as a well-established custom. During this period eleven state constitutions have been adopted. Five of these constitutions were submitted to a vote of the people without reservation-those of New York (1894), Utah (1895), Alabama (1901), Oklahoma (1907), and Michigan (1908); five constitutions adopted during this period were not submitted to the people in any mannerthose of Mississippi (1890), South Carolina (1895), Delaware (1897), Louisiana (1898), and Virginia (1902); and one other, that of Kentucky (1891), was altered by the convention after it had been approved by the people.

The constitutional conventions of Mississippi, South Carolina, and Louisiana were convened primarily for the purpose of disfranchising the colored voters, and submission of their constitutions to the people might well have placed in peril the principal object which they had in view." The conventions of South Carolina and Louisiana were authorized by express votes of the people to whom this question was submitted, but in the case of Mississippi there was no submission to the people of the question whether or not a convention was desired. In neither Mississippi nor South Carolina did the legislative acts calling the conventions re

77 Submission was required in Utah and Oklahoma by congressional enabling acts.

78 In Louisiana a constitutional amendment restricting the suffrage had actually been defeated in 1896.

quire that the completed work of the conventions be submitted to the people. The Louisiana act expressly provided that the convention should have full power to frame and adopt a constitution without submission to the people. In Virginia the question of holding a convention was voted upon by the people as required by the constitution of 1870; and the legislative act authorizing the convention provided that the constitution framed by it should be submitted to a vote of the people. However, the convention did not submit its constitution to the people, largely, it would seem, for fear of its being defeated by the elements to be disfranchised, in combination with the corporations and other interests adversely affected by the new constitution."

The failure to submit constitutions to the people in Mississippi, South Carolina, Louisiana, and Virginia may perhaps be explained as a necessary part of the plan to disfranchise the colored population in these states, and may on this account be treated as exceptional. The cases of Kentucky and Delaware cannot, however, be explained so easily. In Kentucky the convention of 1891 submitted to the people the constitution framed by it, as required by the convention act. The people adopted the constitution, but after they had voted on it, the convention reassembled and made a number of changes in the constitution. In Delaware the convention was authorized by a vote of the people, and the legislature in calling the convention recommended that the constitution be submitted to the legal voters of the state, but the convention disregarded this recommendation.

In view of the facts discussed above, I think that it is impossible to assert, as Judge Jameson did, that the submission

79 A. E. McKinley in Political Science Quarterly, xviii, 480, 508. For a rather full discussion of the action of the conventions of Mississippi, South Carolina, Delaware, Louisiana and Virginia see Lobingier, The People's Law, pp. 301-325.