[§1. The people are sovereign.]
{11} IN order to understand the nature, powers, and limitations of constitutional conventions, it will be necessary first to discuss a few fundamental principles of government; for the convention, designed as it is to tinker with such a basic instrument as the constitution, must of necessity get closer to fundamentals than any other governmental agency.
Government in America is based upon popular sovereignty. The Federal Constitution was ordained and established by "the people of the United States,"1 and guarantees to each of the several States "a republican form of government."2 This means, in other words, a representative form.
It is founded upon the theory that the people are fit to rule, but that it would be cumbersome for them to govern themselves directly. Accordingly, for the facilitation of business, but for no other purpose, the people choose from their own number representatives to represent their point of view and to put into effect the collective will.
As Jameson expresses it:
Of the American system of government, the two leading principles are, first, that laws and Constitutions can be rightfully formed and established only by the people over whom they are to be put in force; and, secondly, that the people being a corporate unit, comprising all the citizens of the state, and, therefore, too unwieldy to do this important work directly, agents or representatives must be employed to do it, and that, in such numbers, so selected, and charged respectively with such functions, as to make it reasonably certain that the will of the people will be not only adequately but speedily executed.3
{12} These principles were recognized by our forefathers in framing the various Bills of Rights, which declare in substance that, as all power resides originally in the people, and is derived from them, the several magistrates and officers of government are their substitutes and agents, and are at all times accountable to them.4
The various agents of the people possess only such power as is expressly or impliedly delegated to them by the constitution or laws under which they hold office; and do not possess even this, if it happen to be beyond the power of such constitution or laws to grant.
As the Supreme Court of South Carolina said in an early decision:
Whatever authority this Court or any other constituted authority in this State possesses, it possesses by delegation from the people, and is exercised in their right. What they have failed to delegate, even if it operates injuriously and in bad faith towards their confederates, the Court cannot possess.5
The Declaration of Independence, which is the first great declaration of American principles, says truly, "We hold these truths to be self-evident: That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness. That, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed."
[§2. People have unalienable right to change government.]
It follows, as a necessary conclusion from this statement in the great Declaration, that the people have an unalienable right to change their government whenever the common good requires. In fact, that very conclusion is drawn by the Declaration itself.
Yet, because of the training of our ancestors, this idea was difficult of establishment. As Braxton points out:
Both Church and State taught and enforced the dogma that governments were of divine origin, and existed by divine right; and to this proposition the corollary was obvious, that the people had no right to alter what God had established. Finally the idea took {13} root and began to develop, that while government, in its general sense, as distinguished from anarchy, may be said to be a divine institution, yet no particular form of government could lay just claim to any divine right of preference over any other form. In this one idea lay the germ of all modern political and civil liberty. Yet, simple and elementary as it seems to us, in this age of enlightenment, it was many years before this idea could be reconciled to the tender consciences of many pious person who had been taught from their childhood, as a part of their religion to hold in superstitious veneration this "Icon Basilike" and all that it stood for.6
Practically every one of the original State constitutions of America contains an assertion of this fundamental right of the people to change their form of government. The following quotations from these constitutions may prove instructive on this point:
Some mode should be established by common consent, and for the good of the people, the origin and end of all governments, for regulating the internal polity of this colony.7
All political power is vested in and derived from the people only.8
All government of right originates from the people, is founded in compact only, and instituted solely for the good of the whole.9
When any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.10
Whenever these great ends of government are not obtained, the people have a right, by common consent, to change it, and take such measures as to them may appear necessary to promote their safety and happiness. ... The community hath an indubitable, unalienable, and indefeasible right to reform, alter, or abolish government in such manner as shall be by that community judged most conducive to the public weal.11
The people, from whom all power originates and for whose benefit all government is intended.12
{14} Whenever these great objects are not obtained, the people have a right to alter the government, and to take measures necessary for their safety, prosperity, and happiness. ... The people alone have an incontestable, unalienable, and indefeasible right to institute government; and to reform, alter, or totally change the same, when their protection, safety, prosperity, and happiness require it.13
All government of right originates from the people, is founded in consent, and instituted for the general good. Whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought, to reform the old, or establish a new government. The doctrine of non-resistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.14
All just authority in the institutions of political society is derived from the people, and established with their consent, to advance their happiness; and they may, for this end, as circumstances require, from time to time, alter their constitution of government.15
It is important to note that these "self-evident truths," these "fundamental rights" are admitted rather than guaranteed by the constitutions. See the following:
Now no truth can be self-evident, which becomes evident only under particular conditions, as when it is deducible only from ... the provisions of some positive code. ... If the truth in question is a self-evident truth, it is one which would obtain equally whether asserted in the constitution ... or not.16
It needed no reservation in the organic law to preserve to the people their inherent power to change their government.17
The Supreme Court of Rhode Island stands alone in denying the principles laid down in the Bills of Rights. In 1883 it said:
It has been contended that there is a great unwritten common law of the states, which existed before the Constitution, and which the Constitution was powerless to modify or abolish, under which the people have the right, whenever invited by the General Assembly, ... to alter and amend their constitutions, ... Our Constitution {15} is ... the Supreme law of the State! We know of no law, except the Constitution and laws of the United States, which is paramount to it.18
And this in the teeth of the fact that the Bill of Rights then in force in Rhode Island proclaimed:
The basis of our political systems is the right of the people to make and alter their constitutions of government.19
And of the fact that the Rhode Island convention which ratified the Federal Constitution included in the ratification these words:
That the powers of government may be re-assumed by the people, whensoever it shall become necessary to their happiness.
Holcombe has an ingenious theory that the Federal Constitution destroyed this right referred to in the various State constitutions, but he is apparently alone in this.20
[§3. How may people change government?]
How may the people exercise this right to change their government? They may do it in any one of three ways: namely, (1) by some authorized procedure; (2) by a lawful act of the whole people in their sovereign capacity; or (3) by the spontaneous act of an unrepresentative part of the people.
By the term "authorized procedure," I mean some method provided by the charter or constitution under which the State in question is governed, or by the express permission of some sovereign government, in case the people in question are a subject people. An example of the latter sort is when Congress passes an act permitting some subject territory of the United States to frame a form of government preparatory to its admission to statehood.
The whole people in their sovereign capacity, acting through the forms of law at a regular election, may do what they will with their own frame of government, even though that frame of government does not expressly permit such action, and even though the frame of government attempts to prohibit such action. This method of change of government will be amplified and justified in Chapter IV.
{16} When a part of the people or even a majority of them act outside the forms of law, they have no power except the power of force to bind those who do not join in the movement. Such a change or attempted change of government is nothing but factional, even though it may be conducted in a most orderly manner. Factional changes of government, or "spontaneous changes," as Jameson calls them, will be discussed more fully toward the end of this chapter.21
The Pennsylvania Supreme Court has attempted to draw a distinction between these three methods of change of government. The court's language is as follows:
The words "in such manner as they may think proper," in the declaration of rights, embrace but three known recognized modes by which the whole people, the state, can give their consent to an alteration of an existing lawful frame of government, viz.:
1. The mode provided in the existing constitution.
2. A law, as the instrumental process of raising the body for revision and conveying to it the powers of the people.
3. Revolution.
The first two are peaceful means through which the consent of the people to alteration is obtained, and by which the existing government consents to be displaced without revolution. The government gives its consent, either by pursuing the mode provided in the constitution, or by passing a law to call a convention. If consent be not so given by the existing government the remedy of the people is in the third mode, — revolution.
If the legislature, possessing these powers of government, be unwilling to pass a law to take the sense of the people, or to delegate to a convention all the powers the people desire to confer upon their delegates, the remedy is still in their own hands; they can elect new representatives that will. If their representatives are still unfaithful, or the government becomes tyrannical, the right of revolution yet remains.22
The author would suggest that the following changes be made in the parts which he has italicized: namely, that the first "revolution" be changed to "spontaneous action, ratified by acquiescence," and that the second and third "revolution" be changed to "spontaneous action."
{17} Let us not however attempt to decide at just this point whether the Pennsylvania Court correctly used the term "revolution." This is really a question of terminology rather than of fundamentals. The definition of the word will be discussed in Chapter III,23 and in Chapter IV there will be considered the question as to whether popular conventions may properly be designated as "revolutionary."24
On the fundamental points expressed, the Pennsylvania Court was entirely correct. It laid down the principles that the electorate is really a representative body, a body representing "the people."
The people here meant are the whole — those who constitute the entire state, male and female citizens, infants and adults. A mere majority of those persons who are qualified as electors are not the people, though when authorized to do so, they may represent the whole people.
The electors who can pronounce the voice of the people are those alone who possess the qualifications sanctioned by the people in order to represent them, otherwise they speak for themselves only, and do not represent the people.
••••••••••••
A majority of the adult males having the qualifications of electors can bind the whole people only when they have authority to do so.
••••••••••••
The great error of the argument of those who claim to be the people, or the delegates of the people, is in the use of the word people. Who are the people? Not so many as choose to assemble in a county, or a city, or a district, of their own mere will, and to say — we the people. Who gave them power to represent all others who stay away? Not even the press, that wide-spread and most powerful of all subordinate agencies, can speak for them by authority. The voice of the people can be heard only through an authorized form, for, as we have seen, without this authority a part cannot speak for the whole, and this brings us back to a law as the only authority by which the will of the whole people, the body politic called the state, can be collected under an existing lawful government.25
{18} And Braxton says, in the same connection:
The "people" to whom our Bills of Rights refer, the only "people" whom civilization recognizes as having any sovereign or political rights, are the people, not in a state of nature, but as organized into social government. When, therefore, we are discussing any problem or doctrine of government, or of political or civil rights, let us lay aside all consideration of the people in a "state of nature"; let us omit all reference to that idle dream of the early theorists, about the people meeting together in a "vast plain" — a thing they, of course, never did and never possibly could have done; and instead, let us ever consider the people, not as a capricious, erratic, lawless monster, but as an all-powerful, but orderly, force moving only in lawful form, in accordance with the great rules and principles, and in pursuance of the methods, which are essential to its organized existence.26
The people do not vote at a popular election any more than they vote at a session of the legislature. They speak only through representatives in either instance. The people include men, women, and children. In some governmental functions, these people speak through the electors, in other instances through the legislature, but always through representatives.
[§5. Electors as the "people".]
Some writers have even gone to the extent of stating that the electors are the people. Witness the following:
Under our system of government it is apparently well settled that the ultimate sovereignty is in the people, in the restricted sense of those who are enfranchised. The power to change the fundamental — the written constitution — is in them alone. It is this principle which causes the courts to recognize generally the right of the legislature, as the organ of the people, to submit a call for a convention of the people, and to regard such a convention as a valid method of constitution making, although the existing constitution contains no provision to that effect.27
The Massachusetts Supreme Court has recently held that "people" as mentioned in the Bill of Rights are all the people, whereas "people" in provisions relative to elections are merely the qualified voters.28 This would seem to be a very sensible distinction.
But be that as it may. A majority of the electors can represent {19} the people only at a duly held election. The action of a majority of the electors in any other manner is just as ineffective as would be the action of a majority of the legislators taken during a legislative recess.
The Pennsylvania Court expresses these thoughts in the following language:
The people, that entire body called the state, can be bound as a whole only by an act of authority proceeding from themselves. In a state of peaceful government they have conferred this authority upon a part to speak for the whole only at an election authorized by law. It is only when an election is authorized by law, that the electors, who represent the state or whole people, are bound to attend, and if they do not, can be bound by the expression of the will of those who do attend.29
Law is the highest form of a people's will in a state of peaceful government, when a people act through a law the act is theirs.30
[§6. Spontaneous convention does not represent the "people".]
Judged by these standards, it will be seen that a spontaneous convention is not really a movement of the whole people, no matter how large a percentage of the voters it actually represents.
This may answer the suggestion which is often made by loose thinkers on this subject; namely, if some rich man or some body of men were to pay the expenses of holding a state-wide election, and were to invite all the voters to attend, would not an amendment adopted at such an election become a valid part of the constitution through thus receiving the popular sanction? But the Pennsylvania Court replies as follows:
Let us suppose a voluntary election unauthorized by law, and delegates elected. It is plain a convention composed of such delegates would possess no power to displace the existing government, and impose a new constitution on the whole people. Those voting at the unauthorized election had no power to represent or to bind those who did not choose to vote.
Suppose a constitution formed by a volunteer convention, assuming to represent the people, and an attempt to set it up and displace the existing lawful government. It is clear that neither the {20} people as a whole nor the government having given their assent in any binding form, the executive. Judiciary and all officers sworn to support the existing constitution would be bound, in maintenance of the lawfully-existing institutions of the people, to resist the usurpation, even to the whole extent of the force of the state. If overpowered, the new government would be established, not by peaceful means, but by actual revolution.31
The leading example of factional convention in the United States is the "People's Convention" in 1841 in Rhode Island, which culminated in what is generally known as "Dorr's Rebellion," to be discussed a little later.
In Maryland, in 1837, there were conditions like those in Rhode Island in 1841, and the supporters of reform elected a convention without any authorization from the regular government, but the convention took no action, for the legislature hastened to adopt the most important proposed reforms.32
Somewhat similar to the Maryland case was that of the convention 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. This 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.33
The territory of Michigan in 1835 adopted a constitution and applied for admission into the Union. Congress passed an act that Michigan should be admitted if she would agree to a restricted boundary. The new State rejected the condition. Thereupon a popular movement was begun, and delegates were elected to a convention, which assembled without either congressional or State authorization, and assented to the condition imposed by Congress. Congress accepted this action as satisfactory and by its acceptance ratified the action of the irregular convention.34
{21} Thus what is originally merely a factional convention may in some cases become an authorized convention by subsequent ratification; in such cases, by Congress. But apart from some curing ratification, we have seen that, although the people are supreme, they have no method of expression except through their representatives, the voters; and they in turn can only speak by means of elections regularly called and held.
It was this little technical point alone which justified the prosecution of Thomas W. Dorr for supporting the "People's Constitution" of 1841 in Rhode Island. Under his leadership the people of that State attempted to overthrow the tyrannous rule of the landholding classes who were still entrenched behind the King's charter. Caucuses of the adult male citizens throughout the State sent delegates to a convention which submitted a fair and democratic constitution to a special election called by it. At this election a clear majority of all the adult males voted for the new frame of government. Not only this, but among those voting in favor was a clear majority of those duly registered as voters under the charter. Dorr was subsequently elected Governor. He attempted to assume office, but John Tyler, Whig President of the United States, interfered at the request of the Whig charter government, and forced Dorr and many of his followers into exile, by threatening to send Federal troops into the State. This partisan action, by the way, is chiefly what drove the Whigs from power in the succeeding national election. Equally partisan was the Democratic congressional report on Tyler's action, which report will be cited elsewhere in this volume.
On Dorr's return, a few years later, he was tried and convicted of high treason. In the meantime, the Charterists themselves had submitted a constitution, which had received the votes of less than one third of the adult males, less than half of the registered vote.
Yet technically this became the constitution of the State, and the People's Constitution did not. Neither method of procedure was authorized by the charter. The valid one received seven thousand votes; the invalid one nearly fourteen thousand. Yet the difference in validity lay in this: the seven thousand voted at a duly called election, and hence had authority {22} to speak for the whole people; whereas the fourteen thousand voted at an irregular election, and hence spoke only for themselves.35
The following quotations from the unreported opinion of the Rhode Island Supreme Court rendered at Dorr's trial may prove instructive.
This court can recognize no other [i. e. constitution] than that under which it holds its existence. ... Any irregular action, without legal authority, is no action at all, that can be taken notice of by a court of law. ... It matters not therefore whether a majority, or what majority, voted for a pretended constitution, as is alleged by the prisoner, and as he now asks to be permitted to prove. The numbers are nothing; we must look to the legality of the proceeding, which, being without form of legal authority, is void and of no effect.36
See also the following quotations from the argument of Daniel Webster in the famous case of Luther v. Borden in which the United States Supreme Court went very fully into the validity of Dorr's Rebellion, although deciding the case on other grounds:
When it is necessary to ascertain the will of the people, the legislature must provide the means of ascertaining it.
••••••••••••
There must be an authentic mode of ascertaining the public will somehow and somewhere. If not, it is a government of the strongest and most numerous.37
One of the five instances in which new States have been formed within the boundaries of other States, presents an example of a factional convention. Vermont is not such an instance, as she had maintained her independence against the State of New York and the United States for fourteen years;38 and hence, however irregular had been her original organization, her government had become regular through lapse of time and acquiescence of her people.39
But in the case of West Virginia, the legality of its admission {23} into the Union depends to a large extent on the legality of the absolutely revolutionary pro-union government, which was set up in the State of Virginia shortly after the outbreak of the Civil War. This government appears to have been ordained by a convention extremely factional, representing but a fraction of the people of a fraction of the State; and yet the assent of this government to the dismemberment of Virginia was rendered effective by force of Federal arms, just as the factional government in Rhode Island was rendered ineffective by the same force.40
The possibility of spontaneous changes being legal has been suggested in the following dictum:
It may well be questioned whether, had the Legislature refused to make provision for calling a convention, the people in their sovereign capacity would not have had the right to have taken such measures for framing and adopting a constitution as to them seemed meet.41
The Committee of Congress, chosen for partisan purposes to prepare a report on Dorr's Rebellion, discreditable to President Tyler, framed an ingenious theory along the lines of the above dictum, to the effect that a majority of the adult males constitute the people. This theory they expressed in the following language:
That the (political) people include all free white male persons, of the age of twenty-one years, who are citizens of the State, are of sound mind, and have not forfeited their right by some crime against the society of which they are members.42
It is true that the original Virginia Bill of Rights says that "a majority of the community hath an indubitable, unalienable and indefeasible right, etc."43 And Walker says that the right of revolution exists "whenever a majority desire it."44
But in the light of the foregoing discussion, it is probable that what Walker and the framers of the Virginia constitution really {24} meant was the right of the people, speaking through a majority of their electors.
At any rate, particularly in these days when women are clamoring that they too are people, it is easier to follow the Pennsylvania view that all male, female, and minor citizens are people, but that the people can speak only through duly qualified voters.45
Of course, it is true that many factional movements have succeeded in overturning the government. But they have been ratified by subsequent events, which made up for the illegality of their beginnings. The spontaneous governments of the American colonies succeeded when force triumphed over England. The "People's" government of Rhode Island failed, and the Union government of West Virginia succeeded, because of force, applied by the Federal authorities.
Revolutionary conventions ... are not peculiar to any country, but have existed wherever, and will continue occasionally to exist as long as, the ultimate and eternal right of revolution remains — a right which, it is said, depends solely upon the power to successfully invoke it.46
If overpowered, the new government would be established, not by peaceful means, but by actual revolution.47
Thus authorized movements depend upon either constitutional or congressional authority; popular movements depend upon the power of the people; spontaneous movements depend upon force, or at least upon acquiescence.
No exact line can be drawn between the three different classes of change of government; each merges into the next, and many instances are on the line.
Daniel Webster has summed up, in the following words, the ground which we have just covered, and this summary has twice received the approval of the United States Supreme Court:
Mr. Webster's argument in that case took a wider sweep, and contained a masterly statement of the American system of government, as recognizing that the people are the source of all political power, but that as the exercise of governmental powers immediately by the people themselves is impracticable, they must be exercised {25} by representatives of the people; that the basis of representation is suffrage; that the right of suffrage must be protected and its exercise prescribed by previous law, and the results ascertained by some certain rule; that through its regulated exercise each man's power tells in the constitution of the government and in the enactment of laws; that the people limit themselves in regard to the qualifications of electors and the qualifications of the elected, and to certain forms for the conduct of elections; that our liberty is the liberty secured by the regular action of popular power, taking place and ascertained in accordance with legal and authentic modes; and that the Constitution and laws do not proceed on the ground of revolution or any right of revolution, but on the idea of results achieved by orderly action under the authority of existing governments, proceedings outside of which are not contemplated by our institutions.48
[§8. Meaning of constitutionality.]
One more fundamental point, not directly related to the foregoing, must however be discussed: namely, the meaning of constitutionality and unconstitutionality, and the relation between the constitution and governmental affairs in general.49
This is a subject under which there exists a good deal of misapprehension, with the result that lawyers, writers, and even judges have been found laying down the principle that anything which is not authorized by the constitution must, therefore, be considered as prohibited by the constitution. And yet the great distinction drawn by Chief Justice Lemuel Shaw between Federal and State constitutions rests upon a denial of this assumption.50
The purport of his decision was that there exists midway between the class of actions prohibited by the constitution and the class of action authorized by the constitution, a twilight zone consisting of those actions which are neither authorized nor prohibited.
As the Federal government has no powers other than those expressly or impliedly given to it by the Constitution, all Federal activities within the twilight zone are just as illegal as those which fall into the expressly prohibited class. As the people reserve to themselves all powers not expressly or {26} impliedly granted to the three branches of the government, it follows that with respect to the State constitutions, any action falling within the twilight zone is lawful through not being prohibited.
Thus it is seen that there are three classes of cases in constitutional law, namely: (1) things authorized; (2) things neither authorized nor prohibited; and (3) things prohibited.
To this may perhaps be added a fourth class, namely, things which the constitution has no power either to authorize or to prohibit.
Thus with respect to the control of State constitutions over the question of amending the constitution, any given method may be either (1) expressly authorized; (2) permitted because not prohibited; (3) prohibited; or (4) beyond the jurisdiction of the constitution.
This fourth class is perhaps a subdivision of the second. Any amendatory method which is beyond the control of the constitution falls into class 4, regardless of whether the constitution attempts to authorize or prohibit it, or merely remains silent on the subject.
A word more relative to this fourth class. Some persons will deny that there can exist a class of actions, which are neither constitutional nor unconstitutional, being beyond the control of the constitution. To such a person, the following question should be put: "Under the State constitution, is it constitutional or unconstitutional for the President of the United States to call out the State militia?" The answer is:
"The State constitution has nothing to do with the matter." This is merely one example to show the possibility of the existence of extra- or even supra-constitutional matters.
Now to another point: the suggestion was made in Chapter I that when the colonies declared their independence, they reverted to a state of nature.51 This suggestion deserves a little analytical attention.
Dodd quotes with approval the following from a resolution passed at a meeting of New Hampshire towns in 1776:
It is our humble opinion, that, when the Declaration of Independency took place, the Colonies were absolutely in a state of {27} nature, and the powers of Government reverted to the people at large.52
And the Supreme Court of Virginia has said:
The instant that the declaration of independence took effect, had the convention proceeded no farther, the government, as formerly exercised by the crown of Great Britain, being thereby totally dissolved, there would never have been an ordinary legislature, nor any other organized body, or authority in Virginia. Every man would have been utterly absolved from every social tie, and remitted to a perfect state of nature.53
But Braxton says:
What, then, is this "right of the people" (or of a majority of them) to "alter their government," which the advocates of conventional omnipotence invoke to support their views? Is it the right to resolve themselves into a "state of nature," to "scatter the elements of government around them," and to " stand upon the foundations of society" — "to conjure up chaos?" Surely not.
To the religious man, government, in its broadest sense, is still regarded as ordained by God, and therefore the people have no right to abolish it; to the non-religious, it is still an absolute essential for the existence of society. What right, then, have the people to abolish government? The "people," as we have seen — the only "people" whom political society can recognize are the people organized into a government of some sort. If, then, they should abolish all government, they would manifestly destroy their own existence.
When we speak of the right of the people to govern themselves we do not mean what the words literally imply, but merely their right to alter or amend their government, or to replace it with a new one, at their pleasure.
The existence of government is absolutely essential to the existence of the "people" in any political sense; and the only way in which the people have a right to abolish the government is by substituting a new one in its stead. There can be no hiatus between them.
The idea of the people resuming — taking back into their own hands — all the powers of government is a delusion. The people can never take the powers of government into their own hands; {28} the utmost they can do is to enlarge or curtail, amend or alter, those powers in the hands of their government, or to transfer them from one government to another; but they can never "resume" them in toto. Not only have they no right, but they have no power to do so. They can abolish government, and thereby destroy their own political existence, but they can never directly exercise the powers of government — only a government of some sort can possibly do this.54
In other words, the people are all-powerful like Samson; but when they pull down the temple of the state, they thereby destroy themselves.
Of course, Braxton is right; but is he not setting up a man of straw so as to knock it down again? He is attacking the oratorical flights of fancy of those who assert convention sovereignty,55 rather than attacking the real foundations of their arguments.
Most other writers assume that which Braxton sets out so elaborately to prove. Thus Jameson says that the people are a corporate unit, comprising all the citizens of the state.56 The Pennsylvania Supreme Court has defined the people as "the body politic called the state."57
And the Supreme Court of Virginia reaches the same conclusion, although basing the result upon the inconvenience rather than the impossibility of a state of nature.58
From all the foregoing discussion, we can deduce the following fundamental principles to guide us in considering the status, powers, and limitations of constitutional conventions.
Ours is a representative government, founded on popular sovereignty.
"The people" are the people as organized into a state of social government; they cannot abolish government without thereby terminating their own existence as the people.
Governments derive their powers from the consent of the governed; therefore the governed have a right to withdraw that consent and to change their government at will. They can exercise this right either by an authorized procedure, by a {29} lawful though unauthorized act of the whole people, or by a spontaneous act, provided that in the case of such spontaneous act, it be later ratified by some higher power, i. e. either Congress in the case of a Territory, or the people themselves in the case of the State. The people can speak only through their representatives, the voters, and the voters can speak only at a regular election.
It is not necessary that a given action be either authorized or prohibited by the constitution; it may be permitted by not being mentioned at all, or it may be valid because outside the power of the constitution.
2. U. S. Const., Art. IV, § IV
3. Jameson, p. 1; "Works of Daniel Webster," VI, pp. 221-224.
4. Mass. Decl. of Rts., Art. V.
5. McCready v. Hunt (1834), 2 Hill Law (S. C.) 1, 270. Cf. Reliance v. Prison Com. (1914), 161 Ky. 135, 142.
6. VII "Va. Law Reg.," 79, 84.
7. S. C. Const. (1776), Preamble.
8. N. C. Const. (1776), Decl. of Rts., Art. I.
9. Md. Const. (1776), Art. I.
10. Va. Const. (1776), Bill of Rts., § 3.
11. Pa. Const. (1776), Preamble and Decl. of Rts. Art. V.
12. Ga. Const. (1777), Preamble.
13. Mass. Const., Preamble and Bill of Rts., Art. VII.
14. N. H. Const. (1784), Preamble and Bill of Rts., Art. X.
15. Del. Const. (1792), Preamble.
16. Jameson, pp. 235-236.
17. Ellingham v. Dye (1912), 178 Ind. 336, 344.
18. Opinion of Justices (1883), 14 R. I. 649, 654.
19. R. I. Const., Art. I, § 1.
20. Holcombe, "State Government," p 33. See [Ch. XIII §3] p. 168, infra.
21. See [§7] pp. 19-23, infra. Cf. Jameson, p. 104.
22. Wells v. Bain (1872), 75 Pa. 39, at 47-48.
23. See [Ch. II §7] pp. 31-33, infra.
24. See [Ch. IV §7] p. 54, infra.
25. Wells v. Bain (1872), 75 Pa. 39, at 46, 47, 49, and 53.
26. VII "Va. Law Keg.," 79, 87.
27. XXIX "Harv. Law Rev.," 529.
28. 1917 Mass. Senate Doc. 512. See pp. 208-209, infra.
29. Wells v. Bain (1872), 75 Pa. 39, 47. See also in this connection the quotation on [§7] page 22, infra.
30. Wood's Appeal (1874). 75 Pa. 59, 71-72.
31. Wells v. Bain (1872), 75 Pa. 39, 48-49.
32. Jameson, p. 216; Dodd, p. 61.
33. Jameson, pp. 202-204; Dodd, p. 61.
34. Jameson, pp. 188-189; Dodd, pp. 61-62.
35. For full accounts of "Dorr's Rebellion" see Committee Rept., 546, 1st Sess., 28th Cong.; Mowry, "The Dorr War" (1901); Luther v. Borden (1849), 7 How. 1.
36. "Trial of Dorr," p. 38.
37. 7 How. 1, 31-32.
38. Jameson, p. 139.
39. See Chapter XVII, infra.
40. Jameson makes a half-hearted claim that all this was perfectly constitutional. Jameson, pp. 168-172.
41. Goodrich v. Moore (1858), 2 Minn. 61, 66.
42. Committee Rept., 546, 1st Sess., 28th Cong., p. 50.
43. Va. Bill of Rights, § 3.
44. Walker, "American Law" (11 ed.), p. 231.
45. See quotation from Wells v. Bain, p. 17, supra.
46. Braxton, VII "Va. Law Beg.," 79, 82.
47. Wells v. Bain (1872), 75 Pa. 39, 49.
48. Re Duncan (1891), 139 U. S. 449, 461; Taylor v. Beckham (1899), 178 U. S. 548, 579.
49. For a definition of "constitutional," see [Ch. III §1] p. 30, infra.
50. Commonwealth v. Kimball (1837), 24 Pick. 359.
51. P. 1, supra.
52. N. H. State Papers, Vol. VIII, p. 425; Dodd, p. 2.
53. Kamper v. Hawkins (1793), 3 Va. 20, 72.
54. VII "Va. Law Reg.," 79, 88-89.
55. Convention sovereignty will be considered on its merits in Chapter XI.
56. Jameson, p. 1.
57. Wells v. Bain (1872), 75 Pa. 39, 53.
58. Kamper v. Hawkins (1793), 3 Va. 20, 72.
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