80

of a constitution to a vote of the people is imperatively required by some customary constitutional law of this country, or even to say that a legislature in calling a convention may effectively bind such a body to submit its work for the approval of the people." We are, then, forced to the conclusion, that at present the only rules positively binding a convention to submit its constitution to the people are those contained in the constitution which the convention may have been called to revise. Of the thirty-four state constitutions which contain provisions regarding constitutional conventions, seventeen require that constitutions framed by such conventions be submitted to the people. As has been suggested, however, all of the states, with the exceptions just

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80 Of course, in Oklahoma and Oregon, where the convention is assembled under an act approved by a popular vote, and in the other states where a similar popular action may have been had through the initiative and referendum, a convention would not be apt to disobey the act under which it assembled. Yet in Oregon in 1910 the calling of a convention was opposed on the ground that: "There is danger that the convention will refuse to obey the provisions of the bill by which it is called, and will decree and promulgate the new constitution of Oregon without submitting it to the people for their approval or rejection."

81 California, Colorado, Idaho, Illinois, Maryland, Michigan, Missouri, Montana, Nebraska, New Hampshire, New York, Ohio, Oklahoma, Utah, Washington, West Virginia, Wyoming. In all of these states, except Idaho, Washington, West Virginia, and Wyoming, the constitutions also specify the popular vote required to ratify a proposed constitution. Several (Michigan, Maryland, Nebraska, New York, Ohio, Oklahoma) require a majority of those voting upon the question of adoption or rejection; others (California, Colorado, Illinois, Missouri, Montana) require a majority of all persons voting at an election, but California expressly and the other states just mentioned impliedly, require that such submission be at a special election; New Hampshire requires the approval of two-thirds of those voting upon the question of adoption or rejection, and Utah requires "a majority of the electors of the state voting at the next general election." As to the form in which conventions submit their work to the people see note on p. 258.

referred to, have followed the same rule since 1840. Of only two states-Delaware and Mississippi-may it be said that the practice is opposed to a convention's submitting the results of its labors to a vote of the people. The Delaware constitutions of 1776, 1792, 1831, and 1897 were not submitted to a popular vote; the Mississippi constitutions of 1817, 1832, and 1890 were not submitted for popular approval,82 and the constitution of 1869 was submitted only under compulsion of congressional legislation. Even in these states, however, we find that sentiment was favorable to popular submission during the decade just preceding the civil war. The Delaware convention of 1852-53 submitted to the people a proposed constitution, which was rejected. The Mississippi legislature of 1850 called a convention to consider the slavery question, and provided that "the acts of the convention proposed to be held by this act, before they become binding on this State, shall be submitted to the people at the ballot box for their approval or disapproval, at such time, and in such manner, as the Convention may determine." The convention assembled in 1851, but took no formal action with reference to the subject which it had been called to consider, and on this account resolved that it was unnecessary to refer to the people for their approval or disapproval at the Ballot Box, its action in the premises." Other resolutions of the convention clearly show, however, its view that the popular judgment should have been obtained, had any action been taken by the convention.88

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Summarizing briefly the procedure adopted for the framing of state constitutions, it should be said that they are elaborated by constitutional conventions chosen for this express purpose, and distinct both in organization and election

82 Sproule v. Fredericks, 69 Miss., 903. State v. Williams, 49 Miss., 640. 88 Journal of the Convention (Jackson, 1851), pp. 48, 50.

from the ordinary legislative bodies. According to what is now the more usual procedure in the adoption of constitutions, there are three popular votes connected with the matter: (1) The vote of the people authorizing a convention. (2) The election by the people of delegates to the convention. (3) The submission to the people for approval of the constitution framed by the convention.

Some of the states dispense with the first vote and others with the third. Mississippi in 1890 dispensed both with the first and the third, and in this case the only participation which the people had in framing their new constitution was that of voting for delegates to a constitutional convention. In electing delegates simply the people could hardly express very clearly their views on constitutional questions and under the Mississippi plan they really had no greater share in constitution-making than in legislation, except that delegates to a convention, chosen as they were for only one purpose, would be more amenable to popular sentiment. Yet it might easily be possible under the Mississippi plan for a constitution to be adopted in opposition to the wishes of a majority of the people-this, in fact, was the purpose in Mississippi. The Mississippi plan seems perfectly legal, where the constitution existing at the time requires neither a vote upon the question of holding a convention nor a submission of the constitution to the people; but from the standpoint of effectiveness in expressing the public will such a plan is extremely defective.

CHAPTER III

THE LEGAL POSITION OF THE CONSTITUTIONAL

CONVENTION

A constitutional convention is a body called together for a limited purpose—that of framing and submitting to the people or of framing and adopting a new constitution, or of revising and amending an old constitution. The convention has become in our constitutional system a regular organ for the expression of state will with reference to the state's fundamental law. It is in no sense a revolutionary or extra-constitutional body and does not supersede in any way the organs of the existing state government. The existing state government continues in full operation until superseded by a new government organized under the constitution framed or adopted by the convention.2

Bearing in mind the limited functions of a constitutional convention, we must inquire here as to what are the relations of the convention to the organs of the regular state government, and especially as to the relations between the

1 Judge Jameson's discussion of this subject is perhaps the most important. For other discussions see A. Caperton Braxton, Powers of Conventions, Virginia Law Register, vii, 79 (June, 1901); Revised Record, New York Constitutional Convention of 1894, vol. i, pp. 244266; Debates Michigan Constitutional Convention of 1908, ii, 12741276; Debates Virginia Constitutional Convention of 1901-2,, i, 3-17, 29-88, ii, 3104-3139, 3154-3259; arguments of counsel in the case of Wells v. Bain, Philadelphia Press, Dec. 3, 4, 5, 1873.

2 Judge Jameson expresses a somewhat similar view. Constitutional Conventions, 4th ed., 315-317. Upon the question as to when a new constitution goes into effect see p. 204, note.

convention and the regular legislative body of the state. We have already referred to the fact that in all of the states except New York and Michigan legislative acts are necessary for the calling of constitutional conventions. Can the legislature, in the exercise of this power, place limitations upon a convention, requiring it not to consider certain subjects, or that it insert certain provisions in the new constitution, or that it submit its work for the approval of the people, when such submission is not required by the existing constitution?

Judge J. A. Jameson in his work on Constitutional Conventions took the position that a convention is absolutely bound by restrictions placed upon it in the legislative act by which it is called. Judge Jameson took this view because he thought it necessary that a convention be completely subordinate to the existing government, but even he hesitated to push this doctrine to its extreme limits; for example, he thought that a convention might disregard a legislative requirement that its work be not submitted to the people, and also took the position that the legislative limitations upon a convention "must be in harmony with the principles of the convention system, or, rather, not inconsistent with the exercise by the convention, to some extent, of its essential and characteristic functions." This amounts to a statement that the convention is not absolutely subordinate to the regular state legislature, and is in direct contradiction to Jameson's fundamental thesis.*

Under a number of the present state constitutions it may be definitely said that a legislature may not bind a conven

However, in states which have adopted the initiative and referendum, laws for this purpose may be enacted by the people without action by the legislatures.

Jameson, 362-365, 494-495.