to be an act of the people. Popular participation to a still greater extent may be obtained by the separate submission of the two questions, (a) whether a convention is desired, and (b) then, if a convention is desired, whether the people approve the act under which the legislature proposes to call the convention; and here there may be said to be a popular approval of the legislative act.

But the more usual practice is for the question of calling a convention to be submitted to the people, and if they approve, for the legislature to enact a law under which the convention is elected and assembled. Now it cannot be said that the people, by their preliminary vote determining whether or not a convention shall be called, delegate to the legislature power to impose restrictions upon such convention; they simply vote for or against a convention, and there would be a strong presumption that in voting for a convention, they meant to vote for one with full power to propose or adopt a revision of the state constitution. This was the case in the Pennsylvania decision cited above: the question of holding a convention was submitted to the people and decided in the affirmative; the subsequent legislative act calling the convention sought to impose certain restric

8

in Virginia Law Register, vii, 100-106. Mr. Braxton takes the view that a convention is bound by a legislative act which has been approved by the people upon a popular vote, but not by other legislative acts. The Alabama legislature by its act of December 11, 1900, submitted to the people the question of holding a convention and provided that if the popular vote should be favorable a convention should be held under the terms of this act; delegates to the proposed convention were voted for at the same election. The people did not vote upon the act itself but may in theory be said to have voted for a convention with knowledge of the terms of the act. But it is clear that in fact the question as to the holding of a convention was the only one passed upon by the people, and that the legislative act itself cannot be said to have received popular approval. Alabama acts, 1900-01, p. 224.

8 This act was not submitted to the people.

tions upon the convention, and the court then said that these restrictions were imposed by the people; the facts found by the court did not conform to the real facts of the case.

The presumption in favor of a convention's having full power to act in the framing of a new constitution would, of course, not apply where no constitutional revision had been in contemplation either by the legislature or by the people, but where a convention had been called by legislative act to determine a particular question of public policy, or to interpret a clause of the existing constitution, as in New York in 1801, in South Carolina in 1832-33, and in Mississippi in 1850-51.9

Under Judge Jameson's theory a constitutional convention called by a vote of the people may be restricted by simple legislative act so that it may not revise or propose the revision of any part of the existing constitution which the legislature may forbid it to touch. The convention is made subordinate to an organ of the existing government. Judge Jameson proceeded on the assumption that a constitutional convention must possess sovereign power 1o—that

10

"It is in view of the specific purpose of the South Carolina convention of 1832-33 that we must interpret the language of the judges in State ex rel. McCready v. Hunt, 2 Hill (S. C.) Law, I. The language of Judge O'Neall (pp. 222-223), for example, was proper with reference to the facts of the case, and need not be construed as laying down the principle that a constitutional convention is subordinate to the regular legislature: "It is true that the Legislature cannot limit the Convention; but if the people elect them for the purpose of doing a specific act or duty pointed out by the act of the legislature, the act would define their powers. For the people elect in reference to that and nothing else." See also ibid., 240-243, 270, 271, 273, 275. But see Bradford v. Shine, 13 Fla., 393, 411-415.

10 Judge Jameson's work may be said to have been written to disprove the theory that a convention has sovereign power, and under these conditions the theory assumed in his mind a much more important position than it ever attained in fact. The theory of conventional sovereignty was advanced by speakers before several conventions, be

is, all of the power of the state or that it must be strictly subordinate to the regular legislature. He could conceive of no middle ground between these extremes. In attempting to demolish the theory that the convention is sovereign, he went to the other extreme and really made the legislature the supreme body with respect to the alteration of state constitutions, for under his view a convention may be restrained by a legislature as to what shall be placed in the constitution, and no alteration can be made without legisginning with that of New York in 1821, but no convention seems ever to have attempted to act upon the theory or even to have endorsed it. The report made to the Illinois convention of 1862 and the resolutions adopted by the Pennsylvania convention of 1873 went little if any further than to assert the convention's independence of the legislative and other organs of the existing state government. Jameson, 303-309, 410. The theory was advanced by several members of the Virginia constitutional convention of 1901-02, but denied by others. Debates of the Virginia Constitutional Convention of 1901-02, i, 63, 77, 83; ii, 3132. Dr. J. L. M. Curry in an address before the Louisiana convention of 1898 also stated the theory of conventional sovereignty. Amasa M. Eaton in Harvard Law Review, xiii, 284. It has attained the dignity of being embodied in dicta by the highest courts of several states. McMullen v. Hodge, 5 Tex. 34, 73 (1849): "So in case of a peaceful change of government by the people assembled in convention for the purpose of forming a constitution. . . It would be in the power of such convention to take away or destroy individual rights, but such an intention would never be presumed. . . Sproule v. Fredericks, 69 Miss., 898, 904 (1892): “We have spoken of the constitutional convention as a sovereign body, and that characterization perfectly defines the correct view, in our opinion, of the real nature of that august assembly. It is the highest legislative body known to freemen in a representative government. It is supreme in its sphere. It wields the powers of sovereignty, specially delegated to it for the purpose and occasion by the whole electoral body, for the good of the whole commonwealth. The sole limitation upon its power is, that no change in the form of government shall be done or attempted. The spirit of republicanism must breathe through every part of the framework, but the particular fashioning of the parts of this frame-work is confined to the wisdom, the faithfulness and the patriotism of the great convocation representing the people in their sovereignty."

lative consent. Judge Jameson pushed his theory to its logical conclusion and held that a convention, even after elected and assembled, might be dissolved by legislative act,11 or that the legislature might prevent the submission of its work to the people.

11

The process of piece-meal amendment of state constitutions 12 is absolutely under the control of the state legislatures, except in the states which have adopted the popular initiative. By the ordinary amending procedure no action may be taken except upon the initiative of the legislature; this method of altering constitutions is absolutely subject to legislative control. The calling of constitutional conventions is also to a large extent subject to legislative control, but the convention method of altering constitutions is the one more independent of the regular legislature, unless Judge Jameson's theory be adopted. The convention loses a large part of its usefulness as an organ of the state if it be treated as strictly subject to control by the regular legislative body. This view was well expressed by the judiciary committee of the New York convention of 1894: "It is of the greatest importance that a body chosen by the people of this state to revise the organic law of the State, should be as free from interference from the several departments of government as the legislative, executive and judiciary are, from interference by each other. Unless this were so, the will of the people might easily be nullified by the existing judiciary or legislature. Should the latter attempt to enact a law prohibiting the constitutional convention from restricting the existing power of the legislature, the act would be at

11 Language introduced into the Alabama constitution of 1901 would seem explicitly to inhibit any such action.

12 As distinct from amendment or revision by conventions.

once recognized as an unwarranted invasion of the rights of the people.'

99 13

The better view would seem to be that the convention is a regular organ of the state (although as a rule called only at long intervals)-neither sovereign nor subordinate to the legislature, but independent within its proper sphere. Under this view the legislature cannot bind the convention as to what shall be placed in the constitution, or as to the exercise of its proper duties. If then we say that the convention is independent of the regular legislature in the exercise of its proper duties, it will be necessary to discuss for a moment what are its proper functions. These are simply to propose a new constitution or to propose constitutional amendments to the people for approval; or, in states where the submission of constitutions is not required, to frame and adopt a constitution if they think proper. In this sphere, and in the exercise of powers incidental to its proper functions, it would seem that constitutional conventions should not be subject to control by legislative acts.

It may be well to call attention to some of the cases in which legislatures have sought to limit the power of con

13 Revised Record New York Constitutional Convention of 1894. i, 250. Similar language was used in a committee report to the Michigan convention of 1908. Debates Michigan Constitutional Convention of 1908, ii, 1274-1276. Both the legislature and the convention are chosen by the people, and when it is remembered that abler men are usually chosen to conventions than to legislatures, it is perhaps clear that conventions are apt to be equally as competent to exercise the limited powers committed to them as are legislatures to instruct the conventions as to what they shall or shall not do. The convention is less apt to abuse its power in the drafting of a constitution, than is the legislature in placing limitations upon the convention, if the legislature were assumed to have such power. This practical consideration is particularly strong with reference to those states whose constitutions require that the work of a convention be submitted to the people.