[§1. Nature of constitutions.]
{1} CONSTITUTIONAL conventions, as a means of amending written constitutions, are distinctly an American institution. In fact, written constitutions themselves originated in this country.
The idea of a constitution is Anglo-Saxon. The word is used on both sides of the Atlantic to signify something superior to legislative enactments; in other words, a body of fundamental principles of government which are beyond the control of the Legislature.
A constitution is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.1 In other words, it is the Anglo-Saxon theory that government is in some way based upon a contract between the people and the State.
The American colonies, however, were bound not only by the terms of the unwritten British constitution, but more directly by the charters or other written instruments whereby Great Britain directed their government. These charters, of course, became suspended the moment the colonies declared their independence, as did also the operation on the colonies of even the British constitution itself. As it has sometimes been expressed, the colonies reverted to a state of nature.2
It was inevitable that in their attempts to emerge from this state of nature and organize a new social contract, each colony should make its contract embody the fundamental principles of the British constitution, and that they should promulgate these contracts in written form, like their former charters. Several {2} of the colonies, in fact, re-adopted their charters to serve them as constitutions.3
The political experience and theories of the colonists thus supplied four principles: (1) The employment of definite written instruments, prescribing the nature and form of government; (2) the idea of a constitution superior to ordinary legislation; (3) the conception of certain natural rights asserted by such a constitution; and (4) the theory of the social contract. The written constitution, born in America, was the embodiment of these four principles.4
[§2. Constitutional and representative conventions developed in America.]
The constitutional convention, as we know it to-day, also developed in America. It is true that governments had in the past been changed:by conventions (i.e. comings-together), but these had always been unrepresentative and spontaneous. As Braxton says:
The first and crudest conventions were in no sense representative bodies; but were mere voluntary, irregular, illegitimate assemblies of individuals, acting on their own motion and on their own behalf, who felt themselves sufficiently powerful to resort to the ultimate right of Revolution, and wrest, by violence, from their sovereigns, such governmental concessions as they desired. The existence of such bodies was neither provided for, nor recognized by, the laws or existing social system. They relied merely on the right of vis major to justify their actions and support their demands. Such was the Convention of the Barons at Runnymede in 1215, that framed, and, in a sense, enacted, Magna Charta, the first faint suggestion in England of a written constitution.5
But in America the representative convention developed. It was a step as far beyond Runnymede as our constitutions were beyond Magna Charta.
The first American constitutions originated in a variety of ways. In order to understand the foundation upon which each rested, it will be necessary to consider: first, the origin of the Revolutionary legislative body in each of the thirteen States; and secondly, the method in which each constitution was enacted. Only three States went through the form of continuing {3} the charter legislature, to wit: Delaware, Connecticut, and Rhode Island.6
Massachusetts is usually incorrectly classified as being among this number, owing to a failure to appreciate that the Provincial Congress of 1774 was not a continuation of the General Court of the preceding June.7
Similarly with Virginia. We learn from a decision of her own Supreme Court that the Revolutionary government was not a continuation of the House of Burgesses.8 The rest of the States held unauthorized elections with little or no pretense at legality.9
In nearly all of the States, certain more or less voluntary organizations, called committees of safety, shared the governing power.10
The dissolution of the constitutional assemblies, by the governors appointed by the crown, obliged the people to resort to other methods of deliberating for the common good. Hence the first introduction of convention: bodies neither authorized by, or known to the then constitutional government; bodies, on the contrary, which the constitutional officers of the then existing governments considered as illegal, and treated as such. Nevertheless, they met, deliberated, and resolved for the common good. They were the people, assembled by their deputies; not a legal, or constitutional assembly, or part of the government as then organized. ... They were, in effect, the people themselves, assembled by their delegates, to whom the care of the commonwealth was especially, as well as unboundedly confided.11
Regardless of the legality or illegality of the inception of these various governing bodies, they become, by virtue of military force and of popular acquiescence,12 the de facto governments of their respective States.
[§3. How conventions established constitutions.]
Let us now consider the methods in which these de facto governments brought about the establishment of written constitutions.13
{4} In eight instances the legislative body adopted and promulgated the constitution in the same manner in which it would have passed a mere statute, without either advance authority from, or ratification by, the people.14
In five instances the action was taken by a legislative body expressly authorized thereto by popular vote; but the constitution was not submitted in any manner to the people.15
In four instances the constitutions were enacted by the legislature under express authority from the people, and copies were distributed some time before enactment, in order to give the people an opportunity to object and suggest changes.16
In one instance, the legislature submitted a constitution to the people without previous authority, but it was rejected.17
The legislative bodies above referred to were in some cases legislatures attempting to frame constitutions, and in other cases conventions exercising legislative powers. The distinction is immaterial; they were the only regular legislative bodies of their respective States.
In three instances, constitutions were framed by special conventions, separate from the regular legislative bodies, and were submitted to the people.18 These three conventions, together with the conventions which framed and adopted the Federal Constitution, mark the birth of the constitutional convention movement in this country, and accordingly deserve more than passing notice.
In New Hampshire and Massachusetts, during the Revolutionary War period, there was developed the convention as we know it to-day; that is, an independent body for the sole purpose of framing a constitution, and submitting it to a vote of the people. But it should be remembered that before this development took place, both of these States had established fairly stable governments, New Hampshire by its constitution {5} of 1776, and Massachusetts by an amended form of its colony charter. In neither was there urgent need of a new government; in neither was there an aggressive Tory element. Neither of these States was threatened by military operations at the time. In neither State was there any danger to be apprehended from the creation of an independent convention and the submission of its work to a vote of the people.
The history of the development of the convention method in these two States was as follows.
Massachusetts, unlike Rhode Island, which remained under its colony charter until 1842, was one of the earliest States to adopt an independent form of government. In the spring of 1774, Governor Gage forcibly prorogued the Massachusetts legislature. The people promptly prepared to elect a provincial congress of their own to take its place. To offset this move, Gage called for the election of a new legislature. The people elected practically the same delegates to both the provincial congress and the legislature, whereupon Gage cancelled his call. Nevertheless, the legislature met and adjourned over to merge with the congress. This congress and its successor, which sat for five months in 1775, reënacted the charter in a slightly amended form, which served Massachusetts as a constitution until 1780. Under it the Great and General Court (i.e. the legislature) and the Governor's Council were regularly elected as formerly, the latter exercising the executive powers.
Soon after the Declaration of Independence, steps were taken in Massachusetts toward framing a new form of government. In accordance with a recommendation of the previous legislature, the two branches of the legislature of 1777-1778 met together as a convention and submitted a constitution, which, however, was indignantly rejected by the electorate, because they resented the legislature's assumption that it could call a convention without first obtaining an authorization from the people.
In the following year the chastened legislature called upon the voters to state whether they wished a constitution and whether they would authorize the legislature to call a convention. The vote on both questions was affirmative, and the legislature accordingly called the convention which drafted {6} the present Massachusetts constitution. This constitution was adopted in 1780.19
The experience of New Hampshire was very similar. In response to a recommendation by the Continental Congress, the provincial congress of New Hampshire adopted a temporary constitution on January 5, 1776, although in the face of strong protest from many parts of the State. The agitation in the western towns became so serious that it was necessary for the provincial congress to send a committee to assure that section that the form of government adopted was purely temporary.
Delegates from certain of the towns met in Hanover in June, 1777, and passed resolutions that any permanent plan of government should be framed by a convention convened solely for that purpose. Subsequent constitutional procedure in New Hampshire followed those suggested lines.
The legislature of 1777 asked that the various representatives be instructed by their towns as to the expediency of holding a convention. Many of the members of the next legislature were so instructed, and accordingly it was voted in February, 1778, that a convention be held in June of that year. The convention, called by virtue of this vote, drafted a constitution; but it was rejected by the people.
This procedure was repeated in calling a second convention, which met in 1781 and submitted a constitution, which also was rejected. The same convention submitted a revised copy in 1782, and a second revision in 1783, which was finally adopted.20
As already said, it was the idea of a separate convention which defeated the constitution framed by the Massachusetts legislature in 1777-1778. As a recent writer has said:
The material factor which defeated the constitution was the widespread belief that the only convention which could stand for all the people and best define its rights and determine its form of government, was a convention consisting of delegates to whom the powers of the people were delegated for the sole purpose of {7} framing a constitution, and not a body of representatives entrusted at the same time with other duties.21
Dodd gives to the towns of the New Hampshire grants, meeting in Hanover in June, 1777, the credit of originating the convention idea.22 But to the town of Concord, Massachusetts, belongs the honor of antedating the towns of the New Hampshire grants. On October 21, 1776, the town voted on the question of authorizing the legislature to frame a constitution:
That the Supreme Legislative, either in their proper capacity, or in Joint Committee, are by no means a body proper to form and establish a Constitution, or form of Government; for reasons following: first, because we conceive that a Constitution in its proper idea intends a system of principles established to secure the subject, in the possession and enjoyment of their rights and privileges, against any encroachments of the governing part, second, because the same body that forms a constitution have of consequence a power to alter it, third, because a constitution alterable by the Supreme Legislative is no security at all to the subject against any encroachment of the governing part on any, or on all of their rights and privileges.
Accordingly they recommended the calling of a convention.23
This procedure of constitution-framing by a convention chosen for that express purpose, which idea was originated in Concord, Massachusetts, and was copied by the New Hampshire towns, was also followed in Vermont in 1786, and with respect to the Federal Constitution.
Jameson points out that the congress which framed the Articles of Confederation possessed not a single one of the elements necessary to give it legitimacy as a constitutional convention.24 The body which framed the permanent Constitution of the United States was scarcely more legitimate.
The Annapolis convention had met merely to settle the commercial disputes of the American States, but had recommended that the succeeding convention at Philadelphia should {8} consider "other objects than those of commerce." Accordingly, a convention met in May, 1787, at Philadelphia, "to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government adequate to the exigencies of the Union."25 This convention was really a diplomatic treaty-making body, rather than a constitutional convention in the purest sense of the term.
But the conventions of the eleven States which ratified the Constitution were all regularly-called constitutional conventions. The same may be said of the conventions of North Carolina, Rhode Island, and Vermont, which ratified the Constitution after it was declared established.26
[§4. Convention to amend constitution.]
So much for the origin of the idea of a written constitution, and for the employment of conventions to draft these instruments. Let us now consider the growth of the idea of the convention as a method of amending or altering constitutions already established.
The absence of any provision for alteration in the early constitutions should not be taken as an indication that their framers thought the regular legislatures competent to alter them, but rather that they did not consider the matter at all.27
Thus six of the early constitutions, and the rejected Massachusetts constitution of 1778, provided no method for their own amendment.28
Of the eight constitutions which did provide for amendment, three provided for legislative action (in a manner different and more difficult, however, than the passage of a mere statute),29 two provided for submission by a council of censors for ratification by a specially called convention,30 one provided for a convention called by petition,31 and one for a convention called by a popular vote at a certain fixed date.32
{9} The New Hampshire constitution of 1784 contained a similar provision, but with the added qualification that the work of this convention should be submitted to the voters for their approval.
[§5. Legislature as convention.]
But soon it became apparent that it would be convenient for each State to have two methods of changing its constitutions; although only four constitutions had, up to 1835, adopted both the legislative and convention methods.33 Up to 1917, one hundred and thirty-nine constitutions have been framed by that many conventions. Of these, nine have contained no method of amendment, twenty-nine have contained provisions for amendment by convention alone, thirty-six by the legislative method alone, and sixty-five by both modes.34
In all of the States except New Hampshire, specific provision is now made for the amendment of State constitutions, by action by the legislature.35
In twelve States, the constitution may now be amended by popular initiative without the interposition of either the legislature or a convention.36
Only twelve of the State constitutions now in force omit to provide for the holding of constitutional conventions.37 Yet conventions have been held in all of these States except Rhode Island, Indiana, and Vermont. The question of holding a convention has twice been submitted in Rhode Island, in spite of a Supreme Court opinion declaring the convention method unconstitutional, and there have been authoritative expressions of opinion in Vermont and Indiana that a convention could be held there.38
It may therefore be said that New Hampshire is the only state in which amendments may not be proposed by the legislature, and that Rhode Island is perhaps the only exception to the rule that conventions may be held for the revision of State constitutions.39
{10} The Federal Constitution provides for the holding of a Federal convention as an alternative to the usual method of submission of amendments by Congress.40
Thus the convention method and the legislative method of amending constitutions have now become equally established throughout the length and breadth of the United States.
1. Mass. Const., Preamble.
2. See [Ch. II §8] pp. 26-28, infra.
3. Massachusetts until 1780; Connecticut until 1818; Rhode Island until 1842.
4. Dodd, pp. 2-3.
5. A. Caperton Braxton, in VII "Va. Law Beg.," 79, 82.
6. Dodd, p. 14; Jameson, pp. 113 and 128-129.
7. George Tolman, "Preliminaries of the Concord Fight" (1902), p. 6.
8. Kamper v. Hawkins (1793), 3 Va. 20, 68-74.
9. Jameson, pp. 113, 114 n. 1, 119, 122.126, 130, 132-134.
10. Jameson, p. 113.
11. Kamper v. Hawkins (1793), 3 Va. 20, 68.
12. See Chapter XVII, infra.
13. The following classification is based upon Dodd, pp. 24-25, with some regrouping, however, based upon an analysis of the full accounts.
14. North Carolina (April, 1776), South Carolina (1776), Georgia (1776), Virginia (1776), New Jersey (1776), and the continuation of the charters in Massachusetts, Rhode Island, and Connecticut.
15. New Hampshire (1776), Delaware (1776), Georgia (1777), New York (1777), and Vermont (1777). Jameson (pp. 128-130) gives Delaware the credit of holding the first regular convention, but see Dodd, p. 15
16. Maryland (1776), Pennsylvania (1776), North Carolina (Dec. 1776), and South Carolina (1778).
17. Massachusetts (1778).
18. New Hampshire (1778 and 1781-1783) and Massachusetts (1780).
19. George Tolman, "Preliminaries of the Concord Fight" (1902); 1917 Manual of the General Court (Mass.), pp. 86-87; Dodd, pp. 8-10; Frothingham, Const. and Govt. of Mass.; II "Mass. Law Quarterly," 1.
20. Dodd, pp. 3-8.
21. Arthur Lord in II "Mass. Law Quarterly," 1, 5; cf. Journal, Mass. Conv., 1779-1780, p. 225.
22. Dodd, p. 6.
23. "Mass Archives," Vol. 156, No. 182. A facsimile is to be printed in the manual of the Mass. 1917 Convention.
24. Jameson, pp. 147-148.
25. Jameson, pp. 149-150.
26. Jameson, p. 153.
27. Dodd, p. 27.
28. South Carolina (1776), Virginia (1776), New Jersey (1776), New Hampshire (1776), New York (1777), and North Carolina (Dec. 1776).
29. Maryland (1776), Delaware (1776), and South Carolina (1778).
30. Pennsylvania (1776) and Vermont (1777).
31. Georgia (1776).
32. Massachusetts (1780). The vote was unfavorable, no convention was held, and thus this method lapsed by non-use. There was a similar provision in the Kentucky constitution of 1792, and under it was framed the constitution of 1799.
33. United States (1787), South Carolina (1790), and Delaware (1792 and 1831).
34. Jameson, pp. 550-551; Dodd, pp. 119-120. Arizona and New Mexico in 1910; Louisiana in 1913.
35. "Columbia Dig.," pp. 10-21.
36. "Columbia Dig.," p 771. These States are Arizona, Arkansas, California, Colorado, Michigan, Missouri, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, and Oregon.
37. "Columbia Dig.," p. 21. These States are Arkansas, Connecticut, Indiana, Louisiana, Massachusetts, Mississippi, New Jersey, North Dakota, Pennsylvania, Rhode Island, Texas, and Vermont.
38. See Chapter IV, infra.
39. Dodd, p. 120.
40. U. S. Constitution, Art. V.
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