stitution in 1874, and the Rhode Island legislature submitted the same instrument twice, in two successive years, 1898 and 1899.240 Judge Jameson has said as to the legislative method of proposing amendments: "It ought to be confined, it is believed, to changes which are few, simple, independent, and of comparatively small importance. For a general revision of a Constitution, or even for single propositions involving radical changes as to the policy of which the popular mind has not been informed by prior discussion, the employment of this mode is impracticable, or of doubtful expediency." 247 Judge Jameson's point is purely one as to expediency, and it is legally proper, it would seem, in the absence of specific constitutional restrictions, to propose to the people by the legislative process any constitutional alteration short of a complete revision, or even a complete revision. With reference to this latter point, it may be argued, however, that if a constitution specifically provides two methods of alteration, the language employed with reference to the proposal of amendments by the legislative method may, when read with that concerning the convention method, often be construed as an implied prohibition of complete constitutional revision by the legislative method.248 Leaving aside the constitutional question, it would seem clearly preferable that when possible complete revisions or even alterations of a very thorough character 246 A revised constitution in the form of an amendment was submitted to and rejected by the people of Connecticut in 1907, but the revision so submitted was primarily a textual one, and is not precisely in point here though it may be cited as an example of the procedure referred to above. The Vermont constitutional commission in its report in 1910 submitted to the legislature a complete textual revision of the constitution, for its approval and submission to the people. 247 Jameson 4th ed., 562. 248 Jameson, 4th ed., 573-574. should be made by conventions expressly chosen for that purpose. Legislatures will usually have their time taken up with other matters and be unable to devote sufficient time to this subject, and the election of a body for the one purpose concentrates public attention upon questions of a constitutional character. The convention will ordinarily be able to do better work than the legislature because its attention will be confined to the one task of framing a constitution. Moreover, it has as a rule been possible to obtain for membership in conventions a higher grade of men 249 than may usually be found in the ordinary legislative bodies, and this constitutes a practical reason of very great importance for not weakening the functions of conventions. State legislatures have, in a number of cases, realized their defects as bodies to give careful consideration to proposed constitutional alterations of an important character, and have created independent commissions, to consider and propose drafts of constitutional changes for the legislative consideration. This plan was followed in New Jersey in 1852, 1854, 1873, 1881, and 1894; in New York in 187273, and 1890; in Michigan in 1873; in Maine in 1875; in Rhode Island in 1897 and in Vermont in 1908-1910. The commissions in Michigan and Rhode Island prepared complete constitutional revisions, which were approved by the respective legislatures, but rejected by the people in each state. Constitutional amendments were actually brought about through the recommendations of the New Jersey commission of 1876, the New York commission of 187273, and the Maine commission of 1875.250 249 Bryce, American Commonwealth, 3d ed., i, 475, 667-670. Oberholtzer, 97-98. Jameson, 4th ed., 561. Dealey, Our State Constitutions, P. 9. 250 In 1894 a joint committee of the two houses of the Louisiana legislature drafted a number of amendments, which were rejected by It may be worth while to discuss a little more fully the New York constitutional commissions of 1872-73 and 1890, as illustrating the use of commissions to aid legislative action in the proposal of amendments. The New York commission of 1872-73 was authorized by legislative act and was composed of thirty-two members, four appointed from each judicial district by the governor with the consent of the senate, "for the purpose of proposing to the legislature, at its next session, amendments to the constitution." The next session of the legislature agreed to the proposals in substance, they were submitted to the people, and the greater part of them were approved. The commission of 1890 was brought about by a deadlock between the governor and legislature as to the calling of a constitutional convention which had been ordered by a vote of the people in 1886. The question of judicial reorganization was a pressing one, and an act was passed referring this question to a commission constituted in a manner very similar to that of 1872. The commission's report was not considered by the legislature, because of the calling of a convention by legislative act in 1892, but was used by the constitutional convention of 1894.251 Commissions of this character are, of course, mere ad the people in 1896 (Senate Journal, 1894, p. 111); and in 1901 a joint committee of the Georgia house and senate was appointed to prepare amendments to the constitution of that state (Georgia laws, 1901, p. 756), but these were merely legislative committees and not commissions acting independently of the legislative bodies even in drafting proposals. 251 Lincoln, Constitutional History of New York, ii, 469-473, 683725. For discussions of the use of commissions see Jameson, pp. 570575. Oberholtzer, 93-94; Dealey, 17-18. See also N. J. Laws, 1852, p. 546; 1854, p. 544; 1873, p. 844; 1881, p. 187; 1894, p. 556; Report of the Commission to Revise the Constitution of Rhode Island (Providence, 1898); Report of Vermont Constitutional Commission (1910). 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." 253 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 252 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. |