manded were later obtained through action under the charter government.

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. 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 la., 615, 616 contains vigorous dicta opposed to this view.

67

" McSherry, History of Maryland, 346-356.

67 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.69 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

70

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.

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."2 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

74

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, 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.