only one which denies the power of the legislature to call a convention for the revision of a constitution although there is no express constitutional authority for such a purpose, and this view has caused difficulties in the effort to obtain constitutional revision in that state. 33

In order to avoid difficulties, however, most of the constitutions since 1784 have made definite provision for the calling of conventions by the state legislatures or in some other manner. It will be well to discuss briefly: (1) The constitutions which give the legislatures power to call conventions, without submitting the question of a convention to a vote of the people. (2) Those which expressly permit the legislatures to submit the question of a convention to the people, whenever the legislatures themselves may think proper. (3) Those which require that a vote be taken by the people at periodical intervals, upon the question of holding a convention, without reference to legislative action.

The calling of conventions by legislative action alone, without requiring the submission of the question to a vote of the people, has been the method adopted by a few states, and is the one still permitted by the constitutions of Maine and Georgia. Then, too, when no provision is contained in a state constitution regarding the calling of a convention,

33 The Rhode Island judges were simply giving an advisory opinion, which has none of the force of a judicial decision, but their opinion has prevented the holding of a convention in that state. For an account of efforts to obtain a constitutional revision in Rhode Island, see Charles S. Bradley's The Methods of Changing the Constitutions of the States, especially that of Rhode Island, Boston, (1885); and Amasa M. Eaton's Constitution-Making in Rhode Island (Providence, 1899). As has been said above, the Rhode Island opinion is contrary to the uniform practice of the states. For dicta that conventions may be held without express constitutional authorization, see Collier v. Frierson, 24 Ala., 108; Wells v. Bain, 75 Pa. St., 39; and Wood's Appeal, 75 Pa. St., 59.

it would seem to be within the discretion of the legislature as to whether the question should be submitted to the people. Yet even in these cases the feeling has existed that the people should be consulted upon a matter of so much importance. New Hampshire in 1778 and 1780 and Massachusetts in 1779 submitted to the people the question as to whether conventions should be called, and conventions were in each case called after the people had voted that they should be held. The Pennsylvania legislature of 1789, although disregarding the regular constitutional provisions for revision by a council of censors, did obtain the approval of the people with reference to the question of so disregarding the constitution, and as to whether a convention was desired by the popular will. So in New York in 1821,35 in Virginia in 1828, and in a number of other cases the question of calling a convention has been submitted to a vote of the people, even where there were no constitutional provisions with reference to the calling of conventions, and where the legislature might have acted without consulting the people."

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34 For a statement that only a small number of people expressed themselves upon this question when submitted, see Proceedings relative to calling the conventions of 1776 and 1790, p. 136.

35 Submission of this question in New York in 1821 was forced by a veto of the council of revision, which presented a strong argument in favor of such action. See Jameson, 669, and Street's Council of Revision, 390-393, 455-479.

36 Among the cases in which legislatures were bound by no constitutional provisions, but yet submitted this question to the people, may be cited: Massachusetts, 1820, 1852; New York, 1821, 1845; Virginia, 1829, 1850; Maryland, 1850; North Carolina, 1835; Pennsylvania, 1835, 1871; Missouri, 1844; Louisiana, 1853, 1898; Tennessee, 1869; Texas, 1875; Connecticut, 1902. The following conventions were called without the question being first submitted to the people: Connecticut, 1818; Rhode Island, 1824, 1834, 1841, 1842; New Jersey, 1844; Missouri, 1861, 1865; Arkansas, 1874; North Carolina, 1876; Louisiana, 1879; Mississippi, 1890. To the latter class should be added the secession and re

In the greater number of constitutions, however, provision is expressly made that the people shall be consulted as to the calling of conventions. The curious provision in the Georgia constitution of 1777 is the first instance of requiring action by the people for the calling of a convention, as it is also the first instance in which the popular initiative was sought to be given for such a purpose. Most of the constitutions which contain provisions for the calling of conventions now provide that they be called after the legislature has submitted the question of a convention to the people and has obtained their approval, such a popular vote to be taken whenever the legislatures themselves may think proper. The first provisions of this character were those contained in the Delaware constitution of 1792, the Tennessee constitution of 1796, the Kentucky constitution of 1799, and the Ohio constitution of 1802. The Kentucky provision of 1799, which was substantially repeated in the constitution of 1850, threw great obstacles in the way of calling a con

construction conventions in the Southern States. Of the seceding states in 1861 only Tennessee, North Carolina, and Arkansas submitted to the people the question as to whether conventions should be held. In Rhode Island the question as to whether conventions should be held was submitted to the people in 1821 and 1822, but the conventions actually called later were assembled without popular authorization. For a strong expression in favor of such submission see the resolve of the convention called in Mississippi in 1851 to consider the slavery question. Resolved "That in the opinion of this Convention, without intending to call in question the motives of the members of the Legislature, by the call of this Convention, the Legislature, at its late extraordinary session, was unauthorized by the people; and that said act, in peremptorily ordering a Convention of the people of the State, without first submitting to them the question whether there should be a Convention or no Convention, was an unwarranted assumption of power by the Legislature; at war with the spirit of republican institutions, an encroachment upon the rights of the people, and can never be rightfully invoked as a precedent." Journal of the Convention, (Jackson, 1851), pp. 48, 50.

but

vention by requiring two successive popular votes, this plan was not followed by other states except in the one case of the Louisiana constitution of 1812. The Kentucky constitution of 1891 discarded the requirement, but does require the vote of two successive general assemblies to propose the question to the people. The plan of permitting the legislature at its discretion to submit to the people the question of calling a constitutional convention has for many years been the most popular one, and is now adopted into the constitutions of twenty-six states.38 The legislative majority required to propose this question varies, but the more usual requirement (that in sixteen states 39) is that such a proposal be passed by two-thirds of each house, although such action may be taken in some states by a majority of the members of each house, and Nebraska requires a vote of three-fifths of the members elected to each branch of the legislature.

40

37 On this account great difficulty was experienced in calling a convention in Kentucky.

38 Alabama, California, Colorado, Delaware, Florida, Idaho, Illinois, Kansas, Kentucky, Minnesota, Missouri, Montana, Nebraska, Nevada, North Carolina, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Utah, Virginia, Washington, West Virginia, Wisconsin, Wyoming.

39 California, Colorado, Delaware, Florida, Idaho, Illinois, Kansas, Minnesota, Montana, Nevada, North Carolina, South Carolina, South Dakota, Utah, Washington, Wyoming. In Ohio also a submission to the people may be had upon the vote of two-thirds of the legislature, at other times than the regular twenty-year periods when the question is submitted without legislative action. Georgia and Maine, while not requiring a popular submission of this question, provide that legislative action calling a convention shall be by a two-thirds vote.

40 Alabama, Kentucky, Missouri, Oklahoma, Oregon, Tennessee, Virginia, West Virginia, Wisconsin; to these should also be added the three states of Iowa, Michigan, and New York, which while providing for the periodical submission of this question without legislative action, also permit the legislature by a law to submit the question at any other

Some states have, however, preferred not to leave it to the discretion of the legislature as to when the people may vote upon the question of calling a convention, but have specifically provided by their constitutions that popular votes shall be taken upon this subject at certain definite intervals. Pennsylvania and Vermont in their first constitutions provided that the councils of censors elected every seven years might call conventions without submitting the question to a vote of the people. The New Hampshire constitution of 1784 provided that the question of calling a convention should be submitted to the people at the expiration of seven years; the Georgia constitution of 1789 provided for a convention in 1794, and an amendment to this constitution adopted in 1795 provided for another convention in 1797; these Georgia constitutions definitely arranged for conventions without a vote of the people upon the subject. The Massachusetts constitution of 1780 provided that the question of calling a constitutional convention be submitted to the people in 1795, and the Kentucky constitution of 1792 provided for a similar vote in that state in 1797 and 1798 (two popular votes in successive years). Such provisions as those above referred to were merely temporary. The first constitution to provide for the submission of the question to the people at regular intervals was that of New Hampshire in 1792, which required that the question of a convention be submitted to the people once every seven years, and that the legislature should call a convention if a majority of the voters should favor it. Indiana was the next state to adopt a similar plan, providing in 1816 for a vote on every twelfth year; and the plan of requiring a vote upon this question at regular intervals became for a time a somewhat popular one. The Virginia constitution of 1870 required a popular vote every twenty years upon the question of calling a convention, but the constitution of 1902 leaves it to